Placing Congressional Research Service Products on the Internet
FROM: Gary Ruskin, Director
DATE: January 5, 1998
A coalition of organizations representing taxpayers, consumers, conservatives, journalists, senior citizens, and many others is prodding Congress to place Congressional Research Service (CRS) products and reports on the Internet.(1) Several newspaper editorials and articles are urging the same.(2) Senator John McCain (R-AZ) announced that he will introduce legislation to place CRS products on the Internet, including CRS Issue and Legislative Briefs, and Authorization and Appropriation products.(3)
This makes good sense. CRS products are among the most useful research prepared by the federal government. Citizens should have ready access to them, so that we might inform ourselves and engage in a richer public debate. James Madison aptly explained why we need such information: "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."(4)
CRS, however, has released a memorandum describing what it believes are a slew of "significant" legal "issues" involved in placing CRS products on the Internet.(5) But the memorandum falls unusually short of CRS's high standards. The legal "issues" CRS identifies are easily solved and small compared to the huge public benefits of placing CRS products on the Internet. They are not a hurdle to placing CRS reports and products on the Internet.
Much of the CRS analysis is based on a series of judicial decisions which have reduced the scope of legislative immunity provided by the Speech or Debate Clause.(6) Article 1, § 6 of the Constitution states that "for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place."
CRS worries that broader dissemination of its products could "imperil" its claim of constitutional immunity, which could expose CRS to libel, slander, and copyright infringement actions, and might bring on litigation that could endanger the confidentiality of CRS files. CRS has successfully defended its constitutional immunity in previous litigation and agency proceedings by arguing that it performs a legislative function(7) that is protected by the Speech or Debate Clause, or common law legislative privilege. For example, a Federal Trade Commission administrative law judge remarked on CRS's "essentially legislative function" in quashing a subpoena for CRS documents.
There can be little argument that documents produced to aid Congress in making decisions regarding proposed or anticipated legislation are an integral part of Congress' lawmaking function, or that they would reveal motives behind individual legislators' votes. Therefore, we agree with the CRS and decide that these documents are privileged under the doctrine of separation of powers and the speech or debate clause..."(8)
If Congress were to require CRS to place its products on the Internet, CRS believes that this might "cause the judiciary and administrative agencies to reassess their perception of CRS as playing a substantial role in the legislative process, and thereby might endanger a claim of immunity even in an instance in which CRS was fulfilling its legislative mission (e.g., by preparing a confidential memorandum for a Member on a pending bill.)"(9)
This is a legitimate concern -- and an easy problem to solve. As long as Congress erects a firewall between CRS and the governmental entity that would distribute CRS products, then CRS's constitutional immunity should remain invulnerable. Hence, CRS products should be made available over the Internet either by the Government Printing Office (GPO), or through Congress itself, as research products of the U.S. Congress. Irrespective of which governmental entity places CRS products on the Internet, they should be made available under the aegis of Congress, in its role of informing the public about important governmental matters. Such a setup would place adequate institutional separation between the constitutionally protected advisory function of CRS, and the constitutionally unprotected "informing" function of Congress and GPO.(10) In any statute or resolution placing CRS products on the Internet, Congress should clearly demarcate and distinguish between the research and advisory role of the CRS, and the "informing" role of the governmental entity that disseminates the CRS products to the public. By building separation between CRS and the institution that would put CRS products on the Internet, CRS would likely remain safely swaddled in its claims of constitutional immunity. And citizens could reap the rich benefits of Internet access to CRS's work product.
Libel, slander, and defamation. CRS believes that slander or libel actions might occur more frequently if CRS products were put on the Internet, because more people would read CRS products and know of their existence. This argument is ironic and unpersuasive, because it is precisely those wealthy organizations and individuals who are currently able to purchase or obtain CRS products that also possess the resources to litigate such matters. Meanwhile, other, poorer Americans may know of CRS, but cannot afford to purchase CRS products, and so must go through the burdensome and time-consuming process of requesting them from a Member of Congress, if they know how to obtain CRS products at all. Those Americans cannot typically afford such slander or libel actions (but would benefit from ready access to CRS products). So the increase in exposure to CRS would likely be minimal, if it existed at all.
Furthermore, CRS products are rarely, if ever, defamatory or libelous. If anything, they are the opposite -- measured, tempered, well-reasoned, and balanced. It is conceivable that, in an extremely rare occasion, someone might perhaps feel defamed or libeled by a CRS product. But notably, CRS, in its analysis, does not cite a single defamation, slander, or libel action brought against it by a member of the public. Given this record, or lack thereof, CRS's concerns are overstated; they are not a hurdle to placing CRS products on the Internet.
Confidentiality of CRS files. CRS believes that broader dissemination of CRS products would likely inspire more litigants who wish to obtain, for purposes of discovery, the files of CRS analysts. This might, CRS argues, cause the public release of correspondence between Members of Congress and CRS. This argument is ironic and unpersuasive because, once again, those wealthy organizations and individuals who are currently able to purchase or obtain CRS products also possess the resources to litigate such matters. The great majority of organizations or persons who possess sufficient resources to litigate such matters must know of the existence of CRS reports and products, and how to obtain them. So, any increase in such litigation is improbable, and would most likely be small, if it existed at all. Although CRS does have to defend against such actions, this is not an onerous burden on CRS resources, because such actions are extremely rare.(11)
Copyright infringement. CRS argues that it might be subject to claims of copyright infringement if CRS products were available on the Internet. CRS sometimes incorporates copyrighted work into its reports and products. But this potential problem of copyright infringement, too, is easily solved. First, CRS could ask for permission to reproduce significant portions of copyrighted works, and explain that such materials will be put on the Internet. Second, the use of copyrighted materials within a legislative document probably constitutes a "fair use" within the meaning of the Copyright Act of 1976. The CRS analysis notes that both House and Senate committee reports of the Copyright Act mention as examples of fair use "reproduction of a work in legislative or judicial proceedings or reports."(12) The legislative history of the Copyright Act indicates that copyrighted material in congressional documents would be fair use "[w]here the length of the work or excerpt published and the number of copies authorized are reasonable under the circumstances, and the work itself is directly relevant to a matter of legitimate legislative concern..."(13) Congress may occasionally have to abridge or eliminate long passages which, in the extreme, may fall outside a "fair use" claim, before such materials are placed on the Internet.
None of CRS's arguments present a barrier to placing CRS products and
reports on the Internet. All of the legal issues CRS raises are easily
resolved and small -- compared to the rich benefits of placing CRS products
on the Internet.
1. Correspondence from over 600 organizations and citizens to the Honorable Bill Thomas, Chairman of the House Committee on Oversight, and the Honorable John Warner, Chairman of the Senate Committee on Rules, 6 August 1997.
2. "Online Leadership." Roll Call, 18 December 1997. Darren Goode, "High-Tech Malaise? Congress Still Lags in Putting Key Information on the Internet." Roll Call, 1 December 1997. Gary Ruskin, "America Off-Line: Gingrich's Unfulfilled Internet Promise." The Washington Post, 16 November 1997. "Watching Congress: Time to Renew Gingrich's Vow." Minneapolis Star Tribune, 13 November 1997. "Net Now, Newt." Austin American-Statesman, 11 November 1997. "Congress is Slow to Let Public Log On." San Jose Mercury News, 7 November 1997. Reid Kanaley, "Groups Seek Net Niche for Congressional Research Data." The Philadelphia Inquirer, 14 August 1997. Brock Meeks, "Wisdom for the Masses? We Only Wish." MSNBC, 8 April 1997.
3. Senator John McCain, "McCain to Introduce Bill to Make CRS Products Available on Internet." News release, 17 December 1997.
4. Correspondence from James Madison to W. T. Barry, 4 August 1822. The Writings of James Madison, Volume IX, 1819-1836, ed. Gaillard Hunt (New York: G.P Putnam's Sons, 1910) at 103.
5. "Legal Issues Presented by Proposals for the General Release of CRS Products to the Public." Congressional Research Service, 4 December 1997. ("CRS Memorandum").
6. See especially Matthew R. Walker, "Constitutional Law: Narrowing the Scope of Speech or Debate Clause Immunity." 68 Temple L. Rev. 377 (1995). Robert J. Reinstein and Harvey A. Silverglate, "Legislative Privilege and the Separation of Powers." 86 Harvard L. Rev. 1113 (1973). United States v. Brewster, 408 U.S. 501 (1972). Gravel v. United States, 408 U.S. 606 (1972). Hutchinson v. Proxmire, 443 U.S. 111 (1979), Doe v. McMillan, 412 U.S. 306 (1973).
7. CRS was established to provide Congress and its committees with "analysis, appraisal, and evaluation of legislative proposals." 2 U.S.C. § 166(d).
8. In the Matter of Exxon Corp., et al., FTC Docket No. 8934, 95 F.T.C. 919 (1980), at 924.
9. CRS Memorandum at 6.
10. See Doe v. McMillan, 412 U.S. 306 (1973), and Justice Brennan's dissent, joined by Justices Douglas and Marshall, in Gravel v. United States, 408 U.S. 606, 649-64, which argues that the "informing" function of congressional speech should be constitutionally protected.
11. The CRS Memorandum cites only two cases involving subpoenas seeking discovery of CRS documents. In the Matter of Exxon Corp., et al., FTC Docket No. 8934, 95 F.T.C. 919. Smith v. IRS, No. 3778-89 (Tax Ct. 1990). CRS Memorandum at 4-5. CRS also cites one case regarding a libel claim against a lobbyist who transmitted a memorandum to CRS. Webster v. Sun Co., Inc., 731 F.2d 1 (D.C. Cir. 1984), and 790 F.2d 157 (D.C. Cir. 1986). CRS Memorandum at 6.
12. H.R. Rep. No. 1476, 94th Cong., 2nd Sess 65 (1976); S. Rep. No. 473, 94th Cong., 1st Sess 61-62 (1975), quoting Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 87th Cong, 1st Sess. 24 (Comm Print 1961). Quoted in CRS Memorandum at 8.
13. H.R. Rep. No. 1476, 94th Cong., 2nd Sess 65 (1976) at 73. Quoted in CRS Memorandum at 8.