The legal justification for long-standing statutory language prohibiting the Congressional Research Service from making its reports available outside the halls of Congress has been effectively superseded by the Internet Age, former House senior counsel Mike Stern said Monday.
For years, some members of Congress have argued that making CRS reports automatically available to the public, say through a searchable website, would remove the reports and their authors from constitutional protections that allow members of Congress and their staffs to keep most of their papers private.
As a result, they argued, CRS analysts would be hit with endless subpoenas seeking the interview notes and policy documents underlying their reports, wasting staff time and damaging their ability to get candid feedback from executive branch employees and others.
In reality, tens of thousands of CRS reports are already in the public domain and the office has not been burdened with endless lawsuits, Stern said.
Stern said he recalled only one time during his eight years as House senior counsel, from 1996 through 2004, when CRS analysts' notes were sought in a lawsuit -- during sweeping litigation between the federal government and tobacco companies. The government did not release the notes, he said.
Stern was speaking at a panel discussion on the CRS' future sponsored by the Sunlight Foundation, an open government group.
Some retired CRS staffers in the audience saw the loss of constitutional protections as a greater possibility than Stern did.
While retired CRS subject matter specialist Mort Rosenberg didn't outright object to legislation allowing CRS reports to be posted online, he said it would be important that the posting be done by Congress itself, not the research service.
Rep. Mike Quigley, D-Ill., has introduced several times a bill to put CRS reports online.
A staffer for Quigley who also spoke at Monday's panel discussion said Quigley plans to reintroduce a broad government transparency bill that includes the CRS provision by the end of the month and will introduce the provision as a standalone bill later this year.
Nonconfidential CRS reports can currently be made public with the authorization of a single member of Congress and congressional staffers routinely pass them along in paper or PDF form to journalists, executive branch staff and members of the public interested in a specific topic.
Project on Government Secrecy Director Steve Aftergood told Nextgov Monday that putting nonconfidential CRS reports online wouldn't just increase government transparency, but also might press CRS analysts to take advantage of hyperlinks, Web graphics, embedded video and other innovative Web-based features.
"I think they haven't quite figured out how to cope with the Internet Age," Aftergood said of the organization referred to as Congress' think tank. "In many respects they're really stuck in the 1990s." Aftergood was a panelist at the Sunlight Foundation discussion.
The CRS' 2009 annual report described a pilot program that would allow some congressional committees to automatically post CRS reports containing certain search terms on their websites, according to the panels' moderator, Daniel Schuman, director of the Sunlight Foundation's Advisory Committee on Transparency.
That plan did not come to fruition and it's not clear if it ever got off the ground, Schuman said.
That report has since been removed from CRS' website he said.
While CRS produces some reports on an annual or other standard schedule, the agency is tasked with responding to research requests from any member of Congress.
Some critics of putting CRS reports online have argued that the more publicly known CRS becomes the more likely interest groups and individuals will be to pressure members of Congress to request CRS reports for their own interests, flooding the agency with work that's not aimed at helping the legislative process.
Stern said that issue could be dealt with administratively.