Five bad arguments against public access to CRS reports
Originally established over a century ago as the Legislative Reference Service, CRS’ primary mission is to provide Congress with research and analysis on policy questions. Today, American taxpayers spend over $100 million each year supporting CRS’ activities. Part of these activities include informing the public — not just Congress — about legislative matters. For instance, the bill summaries you see on Congress.gov were all written by CRS. So too the Constitution Annotated, which explains how the Supreme Court interprets and applies the American Constitution. Additionally, Congressional offices disseminate thousands of copies of CRS reports to their constituents each year and often post them on their own websites. Yet, CRS and Congress have historically resisted efforts to allow public access to CRS reports.
While this may have made sense in the pre-digital era, there’s no good reason for CRS’ continued reticence around the 1,200+ “general-distribution” reports it produces each year.
Indeed, these reports are already widely available if you know where to look for them. They just aren’t in a complete and searchable public database. There are thousands of unredacted CRS reports in large repositories at the U.S. Department of State, U.S. Department of Justice, Federation of American Scientists, University of Maryland Law School, et al.. In Washington, it’s easy for the politically-connected to access the reports either through an expensive subscription service or legislative contacts (even interns have complete access). The general taxpaying public, however, is out of luck.
For the record, we don’t want to be in the business of hosting reports the government should publish on its own. Bipartisan legislation to direct CRS to publish its reports through the Government Publishing Office (GPO) has already been introduced in both houses of Congress. Yet, for these efforts to gain traction, they must overcome tough opposition from entrenched Members who prefer the status quo for altogether murky reasons.
A broad coalition of public interest groups, think tanks, Members of Congress, and former CRS staff already support ending the needless secrecy around these reports. It is our hope that this website will help raise awareness for this initiative and make it easier for Congress to embrace increased transparency.
Nonetheless, we anticipate the same tired arguments and misinformation against public access. Issues of genuine concern tend to be blown out of proportion or overlook obvious technical solutions. To save you some headache, here are the most common arguments raised against public access to CRS reports and how to respond to them:
1. Public access to CRS reports discloses confidential or classified information
CRS reports aren’t classified, although some Members are confused on that point.
CRS itself has a fairly strict internal confidentiality policy against disseminating its reports and other materials directly. However, reports are designed for general distribution and thus never contain classified information or material confidentially provided to a single member of Congress. It is the sole discretion of the individual “Members and committees” of Congress to release CRS products to the public.
It’s also important to make a distinction between CRS reports and confidential memoranda or private correspondence between CRS and Congress. While the latter should be kept confidential (unless a member chooses to release it, as they sometimes do), the former are made for general distribution to all Members and legislative staff, and frequently released to the public.
Critics also raise concerns about publishing the contact information of CRS analysts. While the EveryCRSReport.com website redacts this information, tens of thousands of unredacted CRS reports have been floating in the ether for years without incident. Additionally, other government agencies (such as the Government Accountability Office) freely list author contacts when publishing research.
Nonetheless, CRS is concerned that analysts may receive questions from the public, distracting them from their primary mission of serving the needs of Congress. This is a bit of concern trolling–reports have long been publicly available, and often published by Congress. Nevertheless, this is surmountable through a simple technical solution: redact the information on the public version or link to a directory only accessible through Congress’ intranet.
2. Public access to CRS reports politicizes the agency and changes its relationship with Congress
In a 2011 letter, CRS argued that widespread dissemination of its reports would be “a fundamental alteration of the CRS mission” that could open it up to interference from “lobbyists or other outside pressure.” Of course, any lobbyist worth his salt already has the ability to obtain CRS reports (either through subscription services or legislative staff). In other words, special interest groups have long had access to this information, and already adjust their advocacy strategy based on the findings of CRS. And for a while, the House of Representatives had a web tool that made it easy for Members to directly publish CRS reports to their websites.
CRS has also argued that publication of its reports might be misconstrued by the public as taking policy positions on behalf of Congress. They argue, “the perception could arise that CRS speaks for the Congress and sets legislative policy” rather than advising it. Of course, in the hundred plus years that CRS has been around and its reports have been circulated, this has not been a problem. The type of people who know what CRS is and read its policy reports have a basic enough knowledge of the government not to make this mistake. Nonetheless, this concern could be easily addressed by publishing a short disclaimer explaining the role of CRS at the end of each report or on any public-facing website that publishes them (which is what EveryCRSReport.com does).
3. Public access to CRS reports burdens the agency with public engagement, undermining its core mission
CRS also raises the concern that public access to its reports will increase its volume of inquiries, and thus require spending additional manpower and resources on public relations. This, they argue, detracts from their core mission to support Congress. However, it is already Congressional policy that Members may distribute CRS reports or even publish them online. Supporting widespread public access would likely decrease the load on already overworked Congressional staff who are tasked with disseminating reports to constituents, civil society groups, and lobbyists.
In practice, public access to CRS reports ideally should be facilitated by the GPO or Congress itself — entities which have a responsibility to inform the public about legislative matters, and have existing capacity to deal with constituent inquiries.
4. Public access to CRS reports would incur liability for copyright infringement
Per 17 U.S.C. § 105, “a work prepared by an officer or employee of the United States Government as part of that person’s official duties” is not eligible for copyright protection.
However, in some circumstances CRS reports can contain material copyrighted by a third party. CRS argued in a 1999 memo that “[t]here is some risk of assertion of copyright infringement if CRS materials are made available online to Members of the general public.” This may be because CRS has restrictive licensing agreements with rights-holders, or, perhaps more likely, because they are relying upon fair use as “reproduction of a work in legislative or judicial proceedings or reports.”
This may be a legal gray area depending on the nature of CRS’ own internal practices for licensing and using copyrighted content. CRS argues:
Although CRS obtains permission to reproduce certain copyrighted works, the permissions are generally based on legislative use and the expectation that dissemination is limited to Members of Congress.
Yet, it is also longstanding policy that reports may be disseminated to constituents or to the public at the sole discretion of individual Members of Congress. Thus, it’s unlikely they would have restrictive licensing agreements. Instead, it is more likely that CRS is making a needlessly cautious argument with respect to fair use.
As previously discussed, thousands of CRS reports have already been released to the public and re-published by various groups including law schools, advocacy groups, executive agencies, and Congress itself without incurring notable infringement lawsuits or takedown requests. It’s likely that CRS is either overly risk-averse or has other motives for making this argument.
One possible solution is to publish a disclaimer on each report, similar to those used by the Government Accountability Office:
This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.
They could also redact copyrighted material where it became an issue. Additionally, as previously discussed, the publication of CRS reports for public consumption ought to be done by the GPO or Congress itself, rather than CRS—thus alleviating their burden.
5. Public access to CRS reports weakens CRS’ Speech or Debate Clause immunity
In its 1999 memo, CRS argued public access to its reports would weaken its immunity protection under the Speech or Debate Clause and could open CRS to libel, slander, and defamation actions. Gary Ruskin, then director of the Congressional Accountability Project, argued at the time that this was yet another overblown argument that didn’t hold up:
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.
Yet, CRS continues to repeat this argument. In the 2011 letter, they argue:
Presently, courts and agencies view CRS staff as an extension of Member and committee staff, working in a confidential capacity, and consider CRS to be performing a constitutionally protected legislative function under the Speech or Debate Clause….The current judicial and administrative perception of CRS might thereby be altered by a significant increase in public dissemination of CRS reports….This result might also intensify efforts by litigants to obtain, for the purposes of discovery, the files of CRS analysts who prepare the products, further jeopardizing confidentiality.
Stanley Brand, former general counsel to the U.S. House of Representatives, debunked this argument back in 1998. In a letter to Sen. John McCain, he stated:
I am writing to amplify the comments that I recently made…conceming applicability of the Speech or Debate Clause….I believe that the concerns expressed in the CRS memorandum are either overstated, or the extent they are not, provide no basis for arguing that protection of CRS works will be weakened by [public access].
I fail to see a realistic threat that CRS employees will be subjected to any increased risk of liability, or discovery of their files. Of course, nothing can prevent litigants from filing frivolous or ill-founded suits, but their successful prosecution or ability to obtain evidence from legislative files seems remote
R Street made the same point in a coalition letter supporting CRS transparency in 2015:
Congress has been distributing CRS’s reports to the public (often in the form of committee prints) since the 1970s. CRS even used to compile a list of CRS reports in the public domain. Nevertheless, no analyst has been hauled into court and forced to testify about his or her work for Congress.
Brand also points out that legislation for public access to CRS reports could include language to address these concerns:
In an abundance of caution, and to address CRS’ concerns, you might consider adding the following language to the bill: “Nothing herein shall be deemed or considered to diminish, qualify, condition, waive or otherwise affect applicability of the constitution’s Speech or Debate Clause, or any other privilege available to Congress, its agencies or their employees, to any CRS product made available on the Internet under this bill.”
Today, both House and Senate versions of the “Equal Access to Congressional Research Service Reports Act” contain this provision:
(a) No Effect On Speech Or Debate Clause.—Nothing in this Act may be construed to diminish, qualify, condition, waive, or otherwise affect the applicability of clause 1 of section 6 of article I of the Constitution of the United States (commonly known as the “Speech or Debate Clause”) or any other privilege available to Congress or Members, offices, or employees of Congress with respect to any CRS Report made available online under this Act.
While this may be an interesting question for legal theorists, it does not seem to be a real world problem. Once again, Congress has long published CRS reports at its discretion with no ill-consequences. Since CRS would not be the entity publishing the reports under the proposed legislation, it’s hard to see how their status as a legislative support agency would change. This is just another example of the fear, uncertainty and doubt being spread about public access.