How can Congress get out of the mess it finds itself in? The approach I suggest is to provide Members and staff greater tools and resources do to their jobs. This will enable them to think long term and remove their undue reliance on special interests dedicated to the status quo. In an era where Congress will not spend more money on itself, resources can be freed up by moving Congress into the information age.
For that to be possible, we must answer difficult questions. What are the incentives and choices affecting legislators as legislators? What internal constraints push members of Congress and their staff act as they do? How do you help members of Congress think of themselves collectively as the first branch of government? How do you create enough space so Congress becomes capable of healing itself?
Part 1: A Thought Experiment on Our Broken Legislature
Imagine astronomers discover a giant asteroid on a collision course for Earth, scheduled to collide in 100 years. It is possible to build the technology to deflect the asteroid if we spend $2 trillion dollars now. What would Congress do?
We can guess at the answer. Some members would say we need to study the issue more and defer action until a blue ribbon panel reports back. Others would deny we’re on a collision course. Members from districts that would build the technology to deflect the asteroid would argue the government should spend $4 trillion… just to be safe. Others would suggest we build deep trenches to escape the impact, because doing so would be a lot cheaper. Questions would be raised whether the asteroid is a Chinese or Russian plot. And each party would blame the other for not addressing the asteroid menace and using it to score political points.
While they’re arguing, the asteroid would come closer and closer. The costs of dealing with the problem would mount. And finally, long after the point where anything meaningful could be done, Congress would fund a private sector initiative to build deflection technology that would not work properly.
Today Senators John McCain (R-AZ) and Patrick Leahy (D-VT) and Representatives Leonard Lance (R-NJ) and Mike Quigley (D-IL) introduced in the House and Senate legislation directing the online publication of Congressional Research Service reports that are available for general congressional access. A coalition of 40 civil society and grassroots organizations, libraries, trade associations, think tanks, and businesses from across the political spectrum released this statement in support of the legislation:
Over the last week the issue of public access to non-confidential CRS reports has come into focus. A grassroots effort has sent hundreds of emails from constituents to select Members of Congress over the last two weeks. Transparency organizations and former CRS employees called for public access. A panel of experts met to discuss the issue on Capitol Hill. And there have been a handful of news stories. I thought it might be helpful to round-up all that information.
We expect this issue will continue to be in the news, especially with all the changes contemplated at the Library of Congress. To be clear, we are advocating comprehensive public access to non-confidential CRS reports, addressing the serious issue of inequitable access by lobbyists and special interests when compared to the general public. We are not calling for public access to confidential memoranda or advice.
Last Thursday, the Congressional Transparency Caucus convened a discussion on public access. A panel addressed why non-confidential CRS reports should be publicly available; the legal and constitutional issues; the policy issues; and the CRS perspective. Video is available here. Participants included former Rep. Chris Shays (R-CT), Stan Brand, Kevin Kosar, Prue Adler, and me as moderator. Reps. Leonard Lance(R-NJ) and Mike Quigley (D-IL) both spoke; they have introduced House Resolution 34 in support of public access.
Also on Thursday, 22 former CRS employees with more than a collective 500-year tenure at the agency released this letter calling for public access. On average, each employee was with CRS for more than 25 years.
In late August, a coalition of more than 41 organizationscalled for public access to the non-confidential reports and rebutted any concerns with their release (see appendix).
In addition to this favorable New York Timeseditorial, and op-ed by Reps. Lance and Quigley, several news stories have come out recently.
And Hannah Hess dug in and reported on Member opinions and the underlying policy questions back in July in Roll Call.
Public access is a bipartisan issue everyone can support. We believe in a strong CRS that serves Congress, and Congress’ interests are helped by ensuring the non-confidential reports — not the memos or advice — are available to the general public.
More Resources
Backgrounder: H. Res. 34, amendment on the list of reports, and more
40+ organizations call for public access to non-confidential CRS reports, rebut commonly raised arguments (blog)
Member Statements
Candice Miller, Chair, Committee on House Administration Across the Capitol, House Administration Committee Chairwoman Candice Miller (R-Mich.), who has primary jurisdiction over the CRS, said in an interview that she’s been sidetracked this year by other issues but promised she’d give the legislation her attention soon. “I’ll take a look at it. I know there’s been a lot of talk about that over the years. There might be some of those reports that could be [released]. Others maybe not,” she said. — 10/29/2015, quoted in Politico.
Roy Blunt, Chair, Senate Rules Committee “I’ve never understood why those couldn’t be available to the public and I’m interested in looking at that,” said Sen. Roy Blunt, R-Mo., who was handed the gavel on the Senate Rules panel in January, and also serves as chairman of the Joint Committee on the Library. — 7/14/2015, quoted in Roll Call.
Gregg Harper, Vice Chair, Joint Committee on the Library “You could argue that both ways, and so I want to make sure that we give that a proper study, so we haven’t made a 100 percent decision on what works best,” Harper said. “You want to make sure they can speak openly and we can get the information we need. Now, do you want to release that to the public? That’s something that we’re still trying to work through.” — 7/14/2015, quoted in Roll Call.
Yesterday, the Congressional Transparency Caucus announced it will host a panel discussion on public access to Congressional Research Service reports. The non-confidential reports explain current policy matters before Congress in a thoughtful, comprehensive way, but the reports are not systematically publicly available. The panel is set for Thursday, October 22, at 11 a.m. in room 2103 of the Rayburn House Office Building. It will be live-streamed here.
Reps. Lance (R-NJ) and Quigley (D-IL), who are hosting the conversation, have introduced legislation to publish all non-confidential reports online. As part of a coalition of 40 organizations, we have endorsed online access to the reports, as have many others, including the New York Times in a recent editorial.
In addition to opening remarks by Reps. Lance and Quigley, former Rep. Chris Shays (R-CT), who started pushing for public access in the late 1990s, will participate on the panel, as will former counsel for the House of Representatives Stan Brand.
The Honorable Chris Shays (R-CT) — Rep. Shays represented the fourth congressional district in Connecticut from 1987–2008. A member of the Government Reform, Financial Services, and Budget and Homeland Security Committees, Rep. Shays is well-known for his government reform efforts. In 2009, he co-chaired the Commission on War-Time Contracting.
Prue Adler — Ms. Adler is the associate executive director of the Association of Research Libraries, with a focus on information politics, intellectual property rights, telecommunications, and issues relating to access to government information. Prior to joining ARL in 1989, she was assistant project director for the Communications and Information Technologies Program in the Congressional Office of Technology Assessment.
Stan Brand — Mr. Brand is senior counsel with the law firm Akin Gump. His practice emphasizes defending the rights of witnesses involved in government investigations. From 1976–1983, Mr. Brand was general counsel to the U.S. House of Representatives and was the House’s chief legal officer responsible for representing the House, its members, officers, and employees in connection with legal procedures and litigation arising from the conduct of their official activities. He is a Distinguished Fellow in Law and Government at Penn State Dickinson School of Law
Kevin Kosar — Dr. Kosar is a senior fellow and governance project director with the R Street Institute, a free-market think tank with a pragmatic approach to public policy challenges. For 11 years, he was an analyst and manager at the Congressional Research Service. In January, he wrote an article in the Washington Monthly entitled “Why I Quit the Congressional Research Service.”
Daniel Schuman, moderator — Mr. Schuman is the policy director at Demand Progress and co-founder of the Congressional Data Coalition. He has written extensively on congressional capacity to perform its duties. In addition to serving as director of the Advisory Committee on Transparency while at the Sunlight Foundation, he was a legislative attorney with the Congressional Research Service.
At a meeting in April, the Government Publishing Office announced its collaboration with the Library of Congress to digitize all bound volumes of the Congressional Record from 1873–1998. The Congressional Record is the official record of the proceedings and debates of the United States Congress.
The digitization project is pursuant to a 2010 Joint Committee on Printing letter. GPO explained at the April meeting that it had digitized all of the volumes and the “[Library Services and Content Management business unit] was in the acquisitions process for the next step of reviewing the digital content and creating descriptive metadata.”
GPO and the Library should release the digitized volumes now. Even without metadata, the Congressional Record could be searched and put to other uses. Other digitization projects concerning documents held by the Library have taken years while descriptive metadata was created. By contrast, a volunteer-led effort to create descriptive metadata for the Statutes of Large took a matter of months and cost the government nothing.
The National Archives has undertaken similar kinds of projects to what I am proposing. The Archive’s Innovation Hub provides a space for the public to transcribe documents, tag documents, and scan documents and holdings. More information is available at the Citizen Archivist Dashboard.
It is possible the Library/GPO could view this as violating a rule against the public giving gifts to the agency. However, so long as the information is shared publicly with everyone — which is the point of metadata — it would not be a gift to anyone. Similar logic likely underpins the House’s recent decision on the use of Open Source, the White House’s Open Data policy, and the Archive’s collaborative efforts with the public.
I am sure there are benefits to an internal, government-only process … but why hold up public access? We can do both. A collaborative effort around metadata would provide an opportunity for GPO and the Library to engage with the public and to work to make important public documents publicly available. At a minimum, releasing the documents to the public would allow the everyone to collaborate on this effort outside of any limitations on the Library or GPO, perhaps to the immense public benefit of everyone.
We live in the information age, but all information is not equal when it comes to policymaking. Our public debates are dominated by talking heads and special interests and heralded by news reports that are brief, superficial, and unrevealing.
We need better access to thoughtful
discussions of important issues.
The Congressional Research Service provides nonpartisan policy research and analysis to congress. As part of its duties, CRS produces many research products, including 3,500 non-confidential reports annually. While many reports eventually become available to the general public, the process privileges some people over others. Often times only those with insider expertise know how or where to find the reports. Companies that collect the reports often charge high fees for access. And many people rely on superseded reports, unaware that CRS has issued an updated version.
Companies that collect the reports often charge high fees for access. And many people rely on superseded reports, unaware that CRS has issued an updated version. Access should not depend on insider knowledge or substantial financial resources.
Widespread access to CRS reports is a public good.
CRS reports inform the public about important issues congress may be considering. In part, that is why congress frequently publishes reports on congressional websites, in committee documents, and provides them in response to constituent requests. CRS reports play a role in public debate. For example, over the last decade CRS reports were cited in 190 federal court opinions and in 45 New York Times articles.
Wider, fairer dissemination would provide
even greater value for the $100 million
the American people spend annually to fund CRS.
In fact, comparable reports to congress prepared by other legislative agencies routinely are published online.
To be clear, not all CRS products should be available to the public. Members of congress must feel comfortable asking for advice. Consequently, research and analysis provided directly to an office at the request of a member or committee must be kept confidential unless the office decides to release it. By contrast, CRS reports are written with the near certain knowledge they eventually will become available to the general public.
It is time for Congress to make sure all non-confidential CRS reports are published online.
In recent years there has been a lot of talk about opengov at the state, local and international levels, but when it comes to the federal government people just shake their heads and mutter. That is unfortunate, because a lot is happening at the federal level.
Here are five areas where the federal government is making major strides.
5. Innovative uses of technology
When you think of how the government uses technology, innovation often is not the word that comes to mind. More often it’s thought of as clunky, slow, out-of-date, insecure and expensive. But the executive branch has taken a step towards addressing these issues by creating 18F.
18F bills itself as “building the 21st century digital government.” It is an inside-government consultancy that builds technology for government on a cost-recovery basis. Housed at the General Services Administration, 18F addresses the twin problems of outside contractors who build cruddy tools that cost a ton of money as well as underfunded government developers who must use inadequate tools in unfriendly environments. Private sector developers are brought into government in the equivalent of a technology startup to help agencies build new tools and change the way they engage with technology. Most importantly, they work to change the culture around government information technology.
18F connects to opengov because many of its projects are opengov-related and the tools it builds are developed in the open. Projects include cleaning up Federal Election Commission data, a consolidated FOIA request hub, making federal spending transparent and rethinking the portal MyUSA. 18F is changing the way government uses technology, which often results in better, faster disclosure of government information.
4. Open courts
Unfortunately, federal courts are awful about opengov. But I did not want to let the opportunity to praise some great work being done on the federal civil society side, notably Courtlistener, Oyez, ScotusBlogand Cornell’s Legal Information Institute. Respectively, they provide alerts for and deep content regarding federal court decisions; publish audio and transcripts of Supreme Court decisions from 1955 forward; provide real-time reporting and context for current Supreme Court activities; and provide access to many Supreme Court opinions.
3. Improved efforts to provide access to executive branch information
Over the last six years, both Congress and the executive branch have made serious efforts in proactively and responsively releasing information to the public, at least in some (non-national security) arenas.
The most notable effort has been in legislation to fix the Freedom of Information Act. Significant FOIA legislation passed the House and Senatelast Congress, but in slightly different forms so it has yet to be signed into law. The Obama administration, most notably the Department of Justice and financial regulatory agencies, fought against much-needed efforts to improve FOIA because it dared codify a presumption of openness and would require the public’s interest be weighed when evaluating whether to release information the executive branch deemed privileged. The legislation slowly is moving towards passage this Congress.
Other notable efforts ongoing on the FOIA front include the establishment of a FOIA advisory committee, an effort to unify FOIA regulations across all agencies and the construction of a central online FOIA request portal.
On the proactive disclosure side, the Obama administration conducted a survey of all the datasets it held, and — after a FOIA lawsuit — has agreed to release the inventory to the public. It also continues to publish a log of many of the visitors to the White House. And the administration is engaging in a biannual open government planning process, where many agencies publish a plan for releasing information to the public and follow through on some of their commitments; there’s also an international process around domestic transparency commitments. The Data.gov website, which publishes some federal datasets, also is of some value.
Congress has considered (and in a few instances passed) other notable legislation, including the DATA Act discussed below. Also on the docket is a bill — the Access to Congressionally Mandated Reports Act — that would require all agency reports to Congress be published online. The Presidential Library Donations Reform Act, which requires disclosure of donations to presidential libraries, is poised for consideration by the full House and Senate. There are other smart bills being drafted and considered as well.
2. Publishing federal spending information
Last Congress, the DATA Act was signed into law. This bipartisan measure would make much federal spending information available to the public, and would have gone further if not for strong oppositionfrom the Office of Management and Budget. The regulation governing the law currently is jointly being written by OMB and Treasury. By incorporating unique identifiers, following federal spending at a great level of detail and pushing information into a central repository, the DATA Act holds out the promise of transforming our understanding of federal spending. New legislation to extend the DATA Act also has been introduced.
Federal responding requirements like the DATA Act can be transformative. Whatever the merits of the2009 economic stimulus bill, the transparency requirements around the $787 billion legislation have had surprising results: “spending transparency became institutionalized in some states.” In some cases, the availability of Recovery Act data marked the first time officials were able to monitor performance trends for federal contracts, grants and loans across all state agencies. If properly implemented, the DATA Act can have similar follow-on benefits.
1. Open legislative information
By far the most remarkable transformation has been in public access to legislative information. The work to make congressional information available to the public in a structured data format and in bulk has been transformative, and the House literally has changed the way it operates to make this happen. We are here only because of a bipartisan commitment by House leadership who have labored without great acclaim against high bureaucratic barriers to modernize congressional operations.
There’s too much to point out all of the changes, but here are the highlights.
The House put in its rules a requirement that legislative information be maximally available to the public online.
It created a bulk data task force that continues to meet to discuss how to better release data to the public, bringing all internal stakeholders together for the first time and engaging with the public as well.
There are quarterly public meetings at which inside stakeholders meet with the public to discuss projects and ideas, follow up on commitments, and address public feedback.
This is no less than a revolution in how Congress makes information available to the public. In turn, it has empowered a huge federal civic technology community that transforms the new data and tools into new ways to communicate with Congress, analyze information and make government more efficient and effective. Literally millions of people each month are directly or indirectly accessing federal legislative information because of this process. The Senate is not as far down the path as the House, and the Library of Congress is notable for its foot-dragging, but we have seen real, tangible, important progress.
Concluding thoughts
What makes all this progress even remarkable is that advocates for opengov at the federal level, especially when it comes to legislative information, have received much less attention recently than advocates at other levels of government. A lot is happening at the federal level, and if we keep working at it the possibilities are endless.
“Given the extreme partisanship and gridlock in Congress, it’s more crucial than ever to have an informed electorate. Putting these reports in the public domain is an important step toward that goal.”
Over the years our coalition has submitted testimony in favor of public access to these reports, most recently in March. In summary, the reports explain current legislative issues in language that everyone can understand, are written by a federal agencies that receives more than $100 million annually, and there is strong public demand for access. A detailed description of the issues at play is available here.
This congress, two legislative efforts are underway to make CRS reports public. First, the bipartisan H. Res. 34, introduced by Reps. Leonard Lance (R-NY) and Mike Quigley (D-IL), would make all reports widely distributed in Congress available to the public, except confidential memoranda and advice provided by CRS at the request of a member. Second, Rep. Quigley offered an amendment to an appropriations bill that would have required CRS to make available an index of all of its reports. Similar legislation has been introduced in the Senate in prior years.
The issue of public access can be resolved by either chamber of Congress passing a simple resolution. Indeed, a single member of Congress has the right to publish as many reports as desired on his or her website. Legislative branch appropriators in either chamber or the Committee on House Administration or Senate Rules Committee all have jurisdiction and could move swiftly to release the reports to the public. At a minimum, a hearing would shed light on the underlying issues. (In 2011, I hosted a panel discussion on the future of CRS that discusses public access.)
For two decades, members of Congress have tried to make these reports available to the public on a systematic basis. It’s time to finally make it happen.
Jefferson Building, Library of Congress. Photo credit: Architect of the Capitol.
Librarian of Congress James Billington recently announced he will retire after 27 years of service. The Library of Congress has an outsized role in our democracy: it is a wellspring of policy expertise for lawmakers, a cultural curator, and a hub in our information society. Its activities span from the Copyright Office to the Congressional Research Service, the Law Library to the Poet Laureate, and traditional library services to books for the blind. The role of the Library is shaped by the personality of the Librarian, who oversees a $600 million annual budget and 3,200 permanent staff, and by tradition is a lifetime appointee.
In recent years, public criticism of Dr. Billington has grown and been reported on in the New York Times, the Washington Post, and elsewhere. It is not my intention to revisit those critiques. Instead, I will focus on the qualities that the next Librarian of Congress should possess, touching on those criticisms only to inform the discussion. There are no formal requirements to be Librarian but appointment by the president and confirmation by the Senate; people who have filled that role have included poets, playwrights, journalists, bureaucrats, politicians, historians, and librarians.
I have been a close observer of the Library of Congress, at one time an employee there, and believe that the institution needs a strong leader with a diverse range of skills. More than anything else, the next Librarian must be a capable manager with a vision for the Library and a strong orientation towards using and adapting to new technologies.
In particular, the next Librarian of Congress should possess the following attributes:
A strong commitment to and evolving understanding of library and information science.
A background in research and analysis.
An understanding of how to use the library and technology as a vehicle for civic engagement.
The ability to embrace technological innovation over the next 30 years.
An understanding of how to hire and oversee technology managers and projects.
The ability to inspire people and create a positive work culture.
A commitment to equal employment for all.
Strong fundraising abilities.
Library and Information Science
The next Librarian of Congress must be an expert on library and information science in the modern sense. He or she must understand that the job includes not only overseeing the collection and cataloging of books and records, but also gathering the useful sum of human knowledge no matter the form, archiving it, and sharing it to make the information as widely accessible as possible.
Serving Congress
Although the Library of Congress fills a public role to help advance and preserve human knowledge, the Library of Congress exists first and foremost to meet the needs of Congress. As the federal government continues to grow in complexity, the Library of Congress should possess the requisite skills to advise Congress.The next Librarian must shore up the Library’s analytical capacity and ensure Congress has the world’s information at its fingertips.
Civic Engagement
The Library is woefully behind in sharing its vast informational riches with the public and encouraging new uses of that information. The next Librarian must have an understanding of how modern technology has transformed the way the world communicates. The Librarian must be committed to using current technology and adopting new technology to further its mission. While willing to engage in public-private partnerships, the Librarian must keep free public access to information at heart. He or she must be open to working with civic technology developers and others to expand access and reuse of public information, and consider bringing such expertise in-house. And the Librarian must be dedicated to releasing information that maximizes public reuse.
Futurist
It is axiomatic that no one knows what the future will bring. When Dr. Billington was appointed in 1987, microfiche was still a popular preservation medium, card catalogues were made of paper, and newspapers and TV were the dominant news sources. Now, the cloud, structured datasets, and blogs are the tools of the trade. There is no way to know how things will look in 30 years. The Librarian must embrace technology and innovation to keep the Library of Congress relevant in the 21st century and beyond.
Technology Infrastructure
The Library of Congress is technologically backward. A series of GAO reports (2015, 2012, and so on over 20 years) has detailed its inability to manage its information technology — or even to set forth a strategic vision. The next Librarian of Congress must have a vision for integrating technology into the work of the Library and understand how to hire and oversee technology managers and projects. In this era of constrained budgets, smart deployment and use of technology is essential.
Positive Work Culture
In recent decades there has been significant instability in the Library’s leadership. During Dr. Billington’s tenure, the average Deputy Librarian of Congress served fewer than 3 years. Reports of staff unhappiness are not uncommon. The current Librarian is known for a challenging, complex interpersonal style. The next Librarian of Congress must understand that leadership includes inspiring people and creating a work culture that encourages creativity, truth-telling, and respect.
Commitment to Equal Employment
The Library of Congress has not always engaged in fair employment practices. In the mid-1990s, a federal court found the Library engaged in racially discriminatory hiring practices between 1977–1988. In 2003, a federal court found a Library employee was improperly passed over for a job promotion on the basis of sex and race. In 2008, a federal court found the Library improperly rescinded a job offer to an Army special forces commander after it learned of her intention to have a sex-change operation. And an ongoinglawsuit alleges that a Library employee was harassed and ultimately fired on account of being gay. Racism, sexism, and other forms of discrimination have no place in a modern workforce. The next Librarian must redouble efforts to make the Library a welcoming place to work.
Fundraising
Fundraising by the Librarian is increasingly important as congressional appropriations have dropped. Appropriations for the Library of Congress have fallen by more than 7 percent between 2010 and 2014 (down $34 million), and staff have decreased by more than 11 percent between 2008 and 2013 (313 positions cut). Personnel, projects, and technology investment have all been cut to the point where the Library’s mission is imperiled. During his tenure, Dr. Billington oversaw the Library’s efforts to raise a half-billion dollars in donations from the private sector. While fundraising by the Librarian cannot offset these cuts, it can help preserve some vital programs.
Concluding Thoughts
There may be other traits the next Librarian of Congress should possess, but the foregoing should cover the bases. It is my hope that the President and Congress will work diligently over the upcoming months to identify the best candidates for an appointment that will shape American life for decades to come.
