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98-687: Public Printing Reform: Issues and Actions
Harold C. Relyea
Updated April 5, 2001
Statutory provisions governing public printing by the federal government, including production, dissemination, management, and oversight, are largely concentrated in the initial chapters of Title 44 of the United States Code. The Government Printing Office (GPO) is designated the principal agent for almost all federal government printing. Oversight of the GPO printing system is vested principally in the Joint Committee on Printing (JCP), which also has statutory responsibilities for public printing operations and the distribution of government publications. Much of the content of the public printing chapters of Title 44 derives from the Printing Act of 1895, the first comprehensive government printing law. This body of law has been amended and modified by Congress from time to time to accommodate changing technology and policy developments. During the past two decades, however, monumental challenges have arisen which have prompted a reconsideration of government printing policy and practice and the provisions of Title 44 prescribing them.
During the 105th Congress, staff of the JCP and the Senate Committee on Rules and Administration developed, on a bipartisan basis, a package of public printing reform proposals. Input was received from representatives of the Clinton Administration, as well as from exploratory hearings held by the Senate Committee on Rules and Administration. A reform bill, the Wendell H. Ford Government Publications Reform Act of 1998 (S. 2288), emerged, was refined, and was reported to the Senate during the closing days of the 105th Congress. Due to leadership changes, this omnibus reform effort was not renewed in the 106th Congress, but other reforms were realized. This report discusses recent legal, management, policy, and technological challenges to the GPO printing system, reviews the public printing reform efforts of the 105th and 106th Congresses, and tracks current efforts to address existing problems in this area. The statutory responsibilities of the JCP are identified in an appendix to this report. Updating of the report will occur as merited by legislative developments.
Statutory provisions governing public printing by the federal government, including production, dissemination, management, and oversight, are largely concentrated in the initial chapters of Title 44 of the United States Code. (1) The Government Printing Office (GPO), established in 1860, (2) is the principal agent for all printing for "Congress, the Executive Office, the Judiciary, other than the Supreme Court of the United States, and every executive department, independent office and establishment of the Government." Furthermore, such printing "may be done at the Government Printing Office only when authorized by law." (3)
Oversight of the GPO printing system is vested principally in the Joint Committee on Printing (JCP), which was statutorily established in 1846. (4) Composed of the senior members of the House Committee on House Administration and the Senate Committee on Rules and Administration, the JCP also has statutory responsibilities for public printing operations and the distribution of government publications. (5)
Much of the content of the public printing chapters of Title 44, United States Code, derives from the Printing Act of 1895, the first comprehensive government printing statute. (6) This body of law has been amended and modified by Congress from time to time to accommodate changing technology and policy developments. During the past two decades, however, monumental challenges have arisen which have prompted a reconsideration of government printing policy and practice and the provisions of Title 44 prescribing them.
Since the earliest days of the federal government, most aspects of government information policy and practice have been established by Congress. Statutory provision was made in the early years, for example, for the printing and distribution of both laws and treaties, (7) the preservation of state papers, (8) and the maintenance of official files in the new departments. (9) Just before the nation erupted in civil war, a permanent printing organization--the Government Printing Office (GPO)--was statutorily mandated to produce all public printing. (10) The Joint Committee on Printing, which had been established earlier, in 1846, (11) exercised oversight over both GPO and public printing activities, as well as remedial powers over printing operations. (12) Later, with the rise of the administrative state early in the 20th century, Congress established arrangements for the publication of related rules, regulations, and legal instruments, (13) and for their orderly creation. (14) More recent developments include legislated procedures facilitating public access to unpublished department and agency records, (15) as well as the inspection by individuals of files maintained on them by these executive branch entities. (16)
Several developments during the past two decades have prompted congressional reconsideration of some of the longest enduring institutions and arrangements for producing and disseminating government information. These new developments include the rise of the electronic information phenomenon, the erosion of the Public Printer's authority to supervise the public printing system, constitutional challenges, and, against a background of budget reduction and government downsizing, desires for greater efficiency and economy in the production and dissemination of government information products and the provision of government information services.
The phenomenon of government information being collected, maintained, used, and disseminated in electronic formats has been a recent development presenting various new opportunities, challenges, and problems. A pioneering, comprehensive assessment of the electronic collection and dissemination of information by the federal agencies, produced by the House Committee on Government Operations in the spring of 1986, offered a number of relevant and prescient findings.
"Increasing amounts of information--both private and public--are being maintained in electronic data bases," and this "trend will both continue and accelerate."
"Electronic collection, maintenance, and dissemination of information by Federal agencies can undermine the practical limitations and legal structures" governing public access to, as well as government collection, creation, and dissemination of, such information.
"Electronic information systems offer the opportunity to make more government information readily available" to the public, and this same information "technology also permits government information to be used in ways that are not possible when the information is stored on paper records."
"The development and installation of an electronic information system requires advanced planning and may require sizable capital expenditures."
"The Federal Government must understand the consequences of electronic information systems and must recognize the need for new policies that will prevent these systems from being used in unintended ways."
"There is little communication among Federal agencies about electronic information activities, and there is little central administrative guidance." (17)
These findings revealed a relatively new technology of growing use and application, one conveying considerable discretionary capability to federal agencies concerning government information management, while simultaneously outstripping the existing practical limitations and legal structures governing many aspects of the government information life cycle.
An Office of Technology Assessment (OTA) report in October 1988 gave further testimony to the impact of the electronic information phenomenon upon existing government information policy and practice. Among the "problems and challenges" identified in the OTA study were the following:
a blurring or elimination of "many distinctions between reports, publications, databases, records, and the like, in ways not anticipated by existing statutes and policies";
electronic technology permitting "information dissemination on a decentralized basis that is cost-effective at low levels of demand, but in ways that may challenge traditional roles, responsibilities, and policies";
electronic technology "eroding the institutional roles of government-wide information dissemination agencies"; and
electronic technology that "has outpaced the major government-wide statutes that apply to Federal information dissemination." (18)
Calling explicitly for a defining of "GPO's role in the dissemination of electronic formats" and "GPO's role relative to the growth in agency desktop and high-end electronic publishing systems," the report concluded:
A subsequent response to these recommendations was the passage of the Government Printing Office Electronic Information Access Enhancement Act of 1993. (20) This statute directed the Superintendent of Documents to provide a system of online access to the Congressional Record and the Federal Register by June 1994. The Superintendent was given discretion to make available other appropriate publications, and responsibility for maintaining an electronic directory of federal electronic information, as well as for operating an electronic storage facility for federal electronic information. In addition to the online Congressional Record and Federal Register, GPO also created a legislation database containing all published versions of House and Senate bills introduced since the 103rd Congress. The GPO Electronic Information Access Enhancement Act provided free online access for all depository libraries and cost recovery based upon the marginal cost of dissemination for all other users. Subsequently, in December 1995, GPO announced that it was making the GPO Access service directly available over the Internet and that it was dropping the subscription fee.
Increased federal government use of the Internet to disseminate information creates enormous opportunities, but also poses potential problems. Of particular concern is the possibility that citizens without access to computer and network technologies would become information "have nots" in American society. A potential safety net exists in the federal depository libraries. The adequacy of this safety net became another consideration for congressional exploration and assessment with a view to larger reforms.
The government also is faced with the new and significant challenge of preserving electronic material for long-term public access absent proven approaches for ensuring the durability of different formats and migrating data to new technologies as they emerge. As agencies replace traditional paper-based documents with new electronic publications, they may gain certain features, such as currency or the ability to search data, but also may lose others, such as readability or access by certain communities of users. The dynamics of electronic publishing also may shift some costs from the agency publishers to the end users. Ensuring public access to the growing amount of government information in electronic formats, both currently and in the long term, necessitates clear policy direction from Congress and a system that can adapt to the changing technological environment of government publications.
Another development prompting congressional reconsideration of arrangements for producing and disseminating government information is the erosion of the Public Printer's authority to supervise the public printing system. As the General Accounting Office (GAO) reported in April 1994, "for all practical purposes, the framework of laws and regulations used to manage many aspects of government publishing has become outdated" as a consequence of the emergence and use of various new electronic information technologies. (21) GPO was deemed ill-equipped to continue to assert monopoly control over agency printing-like operations. Moreover, "some agencies want to publish their work independent of GPO involvement" and can do so as a "result of significant advances in publishing technologies." (22) Remedying the situation, however, is complicated by constitutional challenges to the roles heretofore played by GPO and the JCP.
A third development prompting congressional reconsideration of government publication arrangements is rooted in the Supreme Court's 1983 invalidation of the legislative veto authority of Congress. In the aftermath of the ruling, the executive branch sought more independence to set publication policy and to procure its own printing and information products. In the Chadha decision of June 23, 1983, the Supreme Court found adoption of a simple resolution by one congressional chamber to veto executive action or policy unconstitutional because it was an exercise of legislative power which did not follow the constitutionally prescribed lawmaking process: bicameral consideration and presentation of a bill or joint resolution to the President for signature or veto. (23) The potential breadth of the Court's ruling was signaled by its definition of a legislative act. Whether an action is an exercise of legislative power will depend on its purpose and effect. This ruling concluded that, where such action has "the purpose and effect of altering legal rights, duties and relations of persons ... outside the legislative branch," it must be effected through the constitutionally-mandated lawmaking process. (24) The broad reach of the Court's rationale was shortly confirmed by its summary affirmance of two appeals court rulings invalidating one- and two-house vetoes of agency rulemaking, and was shortly recognized by the Department of Justice as an effective vehicle to challenge the very foundation of Congress's control of federal printing. (25)
Until Chadha, the historic prerogative of Congress to control public printing through the JCP was virtually unquestioned. The basic authority of the panel--to "use any measures it considers necessary to remedy neglect, delay, duplication, or waste in the public printing and binding and the distribution of Government publications"--is sweeping and unqualified. (26) Its exercise extends beyond oversight and veto to affirmative direction and control. The JCP's role has been likened to that of the board of directors of a corporation, and it assumed powers of commensurate scope without any serious challenge. (27) This status was confirmed by a decision of the Court of Appeals for the District of Columbia Circuit announced shortly before Chadha. (28)
In sum, by 1983, the statutory scheme of Title 44, United States Code, as interpreted by the courts, GAO, and the Attorney General, appeared to prescribe a predominant role for the JCP with respect to the central tasks of satisfying the printing needs of Congress and the other branches of government, and making it possible for the broadest segment of the public to have direct access to government publications. To assure accomplishment of those tasks, Congress long ago had established the JCP to oversee the process and invested it with ample power to enforce compliance either directly pursuant to its remedial authority or indirectly through its general managing agent, the Public Printer. The JCP had three kinds of authority it could exercise over government printing: (1) statutory requirements that the Public Printer and government agencies obtain JCP approval prior to taking action, (2) regulations promulgation, and (3) managerial and remedial power. In view of this, the authority of the JCP over the Public Printer and the federal printing establishment was virtually plenary.
In the aftermath of the Supreme Court's Chadha decision, the Department of Justice (DOJ) and the Office of Management and Budget (OMB) began to question the longstanding assumption that Congress, through the JCP, had plenary authority to control public printing throughout the federal government. For instance, the DOJ Office of Legal Counsel (OLC) advised the Department of Defense (DOD) in a March 2, 1984, legal opinion that Pentagon compliance with 44 U.S.C. 501(2), requiring the prior approval of the JCP before printing could be undertaken, was no longer required because of the Chadha ruling. OLC also maintained that the veto condition was severable from the statute and, thus, the department retained the power to conduct printing activities outside of GPO to the extent it was so "permitted by its authorization and appropriations legislation and considerations of efficiency." OLC suggested that the agency continue to notify the JCP of its proposed actions. (29)
Next, OLC issued an April 11, 1984, opinion to OMB regarding the JCP's proposed revision of its printing regulations, which had been published on November 11, 1983. (30) It concluded that the proposed regulations were not authorized by any statute, and that the execution of the authority purportedly vested in the JCP by the regulations not only would violate the constitutionally mandated placement of executive authority in the President, (31) but also would be inconsistent with the provisions of Article I of the Constitution. As interpreted by the Chadha court, Article I forbids the legislative imposition of binding directives on the executive branch unless they comply with the article's prescribed lawmaking procedures. (32)
Several months later, the JCP published another version of its revised printing regulations, designating them "proposed policies and guidelines." (33) OLC responded with the same conclusions it had offered previously: if the new proposals were truly guidelines, "then executive departments are under no obligation to comply with them in formulating their decisions" with respect to agency printing policy. If, however, they were intended to in any way bind executive branch officials, OLC found that there was no statutory authority to support "the promulgation of mandatory guidelines or the compulsory subordination of executive management discretion to a committee of Congress." Moreover, said the opinion, even if such statutory authority were deemed to exist, the regulations "would represent a constitutionally impermissible legislative trespass upon the rights, duties, and responsibilities of the Executive Branch [under the Buckley and Chadha decisions]." (34)
Three years later, the DOD, the General Services Administration (GSA), and the National Aeronautics and Space Administration published notice of their intention to implement, on July 1, 1987, a final rule supplanting the current Federal Acquisition Regulation (FAR) dealing with the acquisition of printing and related supplies. (35) The agencies explained that revision of the rule was made necessary by Chadha's implicit invalidation of the JCP's approval requirement under 44 U.S.C. 501(2), referencing the DOJ March 2, 1984, opinion. The new rule, it was said, "reflects the deletion of the [old rules'] approval procedure, substitution of a notification requirement, and revision of definitions to reflect the statute rather than JCP regulations." (36)
The proposed revision of the FAR, however, would have gone beyond simply conforming the regulatory scheme to the constitutional strictures announced by the Chadha court. The new FAR not only would have eliminated the JCP's supervisory role and veto power, but also would have divested GPO of any role in printing decisionmaking, allowing the individual agency with printing capability, or the funds to contract out for printing, to decide where and how printing would be accomplished.
Congress responded by placing an appropriations limitation in the FY1988 legislative branch appropriation measure, proscribing any executive agency procurement of commercial printing, with certain limited exceptions, unless authorized by the GPO. (37) The conference report on the legislation made clear the congressional intent to override the FAR:
The proposed FAR was subsequently withdrawn.
Congress imposed the same limiting language in legislative branch appropriations acts for FY1989, FY1990, and FY1991, the last making the provision permanent. (39) The legislation for FY1993 repealed the FY1991 provision and substituted one that swept more broadly. (40) GSA attempted to challenge the constitutionality of this version by seeking an opinion to that effect from OLC. Acting Assistant Attorney Walter Dellinger found the limitation to be constitutionally valid, saying: "It does not give the GPO the authority to refuse to print any materials, but merely requires that printing be procured 'by or through' the GPO." (41)
In 1994, Congress again altered the limitation by requiring the executive branch agencies to obtain a certification from the Public Printer before procuring the production of certain documents outside of GPO, and by expanding the types of materials that were to be produced by GPO. (42) This modification prompted President Clinton to comment in his July 22, 1994, signing statement that the provision "raises serious constitutional concerns" and to declare that he would "interpret the amendments to the public printing provisions in a manner that minimizes the potential constitutional deficiencies in the Act." (43)
Later, as revealed in a September 19, 1994, memorandum from OMB Acting Director Alice Rivlin to department and agency heads, an accommodation between the two branches was reached concerning public printing. She announced: "The leadership of the Congressional committees of jurisdiction has agreed to work with the Administration to produce a legislative approach to solving this problem" of comprehensive reform of federal government printing. As a consequence, she directed the executive departments and agencies "to maintain the status quo regarding present printing and duplicating arrangements during Fiscal Year 1995 to allow this initiative to go forward." (44) However, the accommodation proved to be temporary when, several weeks later, President Clinton's political party lost majority control of both houses of Congress and congressional reconsideration of public printing arrangements came under new leadership.
Subsequently, some post-Chadha judicial rulings, which substantially narrowed the ways in which Congress may directly control executive agency decisionmaking, (45) coupled with Congress's effort to expand the definition of "printing" subject to GPO control to include "duplicating," in the FY1995 Legislative Branch Appropriations Act, and the collapse of the Rivlin accommodation after the fall 1994 congressional elections, prompted DOJ to issue its most direct legal challenge to congressional control of executive branch printing. In a May 31, 1996, opinion, OLC found that the current extent of congressional control over the printing operations of GPO, and, in particular, the printing needs of the executive branch, was an unconstitutional violation of the separation of powers doctrine. OLC also assured all executive branch officers and employees who acted in conformity with its opinion that they would not be subject to liability or sanction even if their actions were contrary to the views and rulings of the Comptroller General. (46) The OLC opinion was a clear indication that challenges to congressional attempts to maintain direct control of executive branch printing were not likely to abate. Indeed, OLC's invitation to ignore the contrary views of the Comptroller General, which would ordinarily deter certifying and disbursing officers from acting contrary to his advice, reflect a serious deterioration of interbranch comity. (47)
Shortly after his inauguration, President Clinton announced on March 3, 1993, that he was initiating a National Performance Review (NPR) to be conducted over the next six months by a task force headed by Vice President Albert Gore, Jr. The NPR report, which was delivered to the President on September 7, 1993, criticized federal government hiring, purchasing, decisionmaking structure, program duplication, and administrative procedures. To rectify the situation, over 380 major recommendations were offered, including a proposal to eliminate the GPO monopoly over the procurement of government printing. GAO had criticized the GPO's monopoly status in 1990. (48) The NPR report also urged Congress to end the oversight role of the JCP concerning executive branch printing. (49)
Congressional elections in November 1994 resulted in the loss of majority control of both houses of Congress by the President's political party. The new House leadership began legislatively implementing their "Contract with America." Formulated before the elections, this reform program sought dramatic changes in a government that was perceived to have become "too big and spends too much." Thus, public printing reform was initially addressed in the 104th Congress with proposals to downsize GPO, reduce its resources, and privatize public printing. For example, a simple resolution (H.Res. 24) used the strategy of requiring the appropriate committees of the House to develop and report original bills transferring responsibility for executive branch printing from GPO to GSA. It also would have abolished the JCP; reduced the in-house printing capacity of GPO "to the minimum level necessary"; required the procurement of other congressional printing, not produced in-house by GPO, whenever possible from the private sector through a competitive bid process; and mandated the gradual reduction of the GPO workforce to 800 positions. (50) Another measure (H.R. 1024) would have abolished the JCP; required the Public Printer to procure all government printing from the private sector through a competitive bid process; and mandated separate printing procurement accounts for each branch of the federal government. (51) Neither proposal, however, advanced beyond the hearing stage during the 104th Congress.
A provision common to both reform proposals--abolition of the JCP--came under consideration at a February 22, 1995, hearing by the House Subcommittee on Legislative Appropriations. The chairman of the JCP recommended that the panel be eliminated and made a zero budget request for it for FY1996. Because the JCP is statutorily mandated, the chairman also proposed that the appropriate language for the panel's abolition be included in the legislative branch appropriations bill and suggested that some JCP responsibilities, staff, and funds be transferred to the Committee on House Oversight (now House Administration) and the Senate Committee on Rules and Administration. However, for various reasons, there was opposition to this course of action. When the legislative branch appropriations bill was marked up and reported in the House in mid-June, no funds were allocated to the JCP, and its proposed $1,414,000 FY1996 allocation was reduced to $750,000 and divided equally between the Committee on House Oversight and the Senate Committee on Rules and Administration. (52) The Senate Committee on Appropriations disagreed with this action and allotted $1,164,000 for the JCP, which was given floor approval on July 20. (53) Conferees agreed to appropriate $750,000 for the use of the JCP, which both chambers accepted. (54)
A similar pattern of action had occurred earlier with the FY1995 rescission bill. The House version trimmed $418,000 from the JCP budget and transferred the remaining balances equally to the Committee on House Oversight and the Senate Committee on Rules and Administration. (55) The Senate disagreed with the House proposal, cut $238,137 from the JCP budget, and left $1,131,863 for the use of the panel. (56) The Senate position prevailed in conference. (57)
Also, when reporting the non-binding budget resolution, the House Committee on the Budget, in recommending that public printing currently produced in-house by GPO be performed through competitive bid by private contractors, proposed eliminating the JCP and assigning its oversight responsibilities to the Committee on House Oversight and the Senate Committee on Rules and Administration. (58) However, because the committee had no actual jurisdiction over these matters, these views were offered only as illustrations of savings suggestions for bringing the budget into balance by FY2002. (59)
In the closing days of the 104th Congress, a comprehensive public printing reform bill (H.R. 4280) was offered for discussion. Among the reforms it proposed were replacing the Joint Committee on Printing and the Joint Committee on the Library with a new Joint Committee on Information; setting new organizational and managerial arrangements for GPO; giving Congress greater flexibility in managing the production and dissemination of its publications; accommodating the production of publications in electronic forms and formats; and various innovations promoting greater efficiency and economy in the public printing system. (60)
Earlier, an April 11, 1996, memorandum from White House Chief of Staff Leon E. Panetta reflected the willingness of the Clinton Administration to continue to pursue new printing policy that would address various pending problems to the satisfaction of both Congress and the administration. The memorandum, addressed to all heads of executive departments and agencies, reminded these officials "to make maximum use of the capabilities and expertise of the Government Printing Office in handling your agency's printing and duplicating procurements during the next 12 months, in accordance with the following":
Approximately one month later, as noted above, a May 31, 1996, DOJ memorandum provided a sharp reminder that the constitutional problems plaguing public printing policy and practice not only had not disappeared, but also were becoming somewhat more acute. The OLC memorandum revisited the provisions in the Legislative Branch Appropriations Act of 1995 expanding the definition of printing and requiring the agencies to receive a certification from the Public Printer before procuring the production of certain official documents from sources other than GPO. These were the same provisions to which President Clinton had taken exception when signing the legislation into law. The memorandum found "that the GPO is subject to congressional control, and concludes that the GPO's extensive control over executive branch printing is unconstitutional under the doctrine of separation of powers." The memorandum proffered "that executive branch departments and agencies are not obligated to procure printing by or through the PO," and "we perceive little or no risk of liability or sanction to contracting officers who act consistently with this opinion," as DOJ would decline to prosecute them. (62)
Shortly after the convening of the 105th Congress, Senator John Warner, as chairman of the Senate Committee on Rules and Administration, initiated an effort to develop a public printing reform bill. While addressing the various technological, managerial, and constitutional challenges, opportunities, and problems confronting the public printing system, the resulting reform proposal was to be designed to garner broad support within Congress as well as the approval of the Clinton Administration. Consequently, in April 1997, a legislative working group was formed, consisting of staff from the Senate Committee on Rules and Administration, the Joint Committee on Printing, and the Office of Management and Budget. This group met regularly during the spring, summer, and fall months.
Some members of the working group also held discussions with representatives of various organizations having a direct interest in public printing policy and practice. These deliberations provided an opportunity for exchanging ideas, recommendations, and rationales for reform. As a draft bill began to take shape, various agency representatives were consulted to obtain their reactions to the reform measure, as were House and Senate officials who would be affected by the new arrangements.
The Committee on Rules and Administration also held a series of hearings during the 105th Congress to review legislative recommendations on certain revisions to Title 44 of the United States Code. Participants in these deliberations included Public Printer Michael F. DiMario; Judge Royce C. Lamberth offering judicial branch views; OIRA Administrator Sally Katzen; OLC Deputy Assistant Attorney General Richard L. Shiffrin; organized labor, library organizations, and trade group representatives; and John W. Carlin, Archivist of the United States. (63)
Subsequently, the resulting reform bill was introduced on July 10, 1998, by Senator John Warner as S. 2288, the Wendell H. Ford Government Publications Reform Act of 1998. The bill was referred to the Senate Committee on Rules and Administration, chaired by Senator Warner. A hearing on the measure was held on July 29 when testimony was received from Public Printer DiMario and various library organization, trade group, organized labor, and public interest group representatives. While some witnesses offered recommendations for refining the legislation, all of them expressed support for the bill. Additional testimony by trade group representatives was taken on September 16. (64)
The committee initially met on September 10 to consider S. 2288, but could not conduct a markup due to the absence of a quorum. Meeting next on September 28, the panel approved a modified version of the bill's text, which was substituted in the legislation, and the amended measure was favorably ordered to be reported. (65) Many of the modifications given committee approval were technical changes suggested by witnesses who had appeared before the panel and others interested in the measure. Others were corrective, addressing omissions and errors in the text.
The reported bill would have abolished the JCP and transferred many of its responsibilities to the House Committee on House Oversight and the Senate Committee on Rules and Administration or to the Public Printer, who was designated the administrator of the Government Publications Office, the latter being the new denomination of GPO. All federal government publications production, regardless of form or format, would have been centralized in the new Government Publications Office, except such production required by the Supreme Court and certain national security entities. A presidentially-appointed Superintendent of Government Publications Access Programs would have assumed the duties of the current Superintendent of Documents, administering the GPO sales, depository libraries, and GPO electronic documents access programs. The House and the Senate, at the outset of each Congress, each would have determined the style, form, manner, and quantity of publications to be produced for them. Throughout the bill, the term "publication" was used in lieu of "printing" to indicate that both traditional paper and new electronic forms and formats were included under the former term. Also, a general thrust of the legislation was to restrain the quantity of government documents being printed without harm to the conduct of official business and the public's right to know about the activities and operations of government--online depository library access to government documents constituting major safety nets in this regard.
The reform bill reached the Senate floor on October 16, resulting in no opportunity for its consideration prior to the October 21 final adjournment of the 105th Congress. Due to leadership changes--Senator Warner left the chairmanship of the Committee on Rules and Administration to head the Committee on Armed Services--this omnibus reform effort was not renewed in the 106th Congress. However, anticipating that the reform bill would be enacted prior to the conclusion of the 105th Congress, the Senate, on September 25, cleared the conference committee version a FY1999 legislative branch appropriations bill for the President's signature which provided sufficient amounts to meet the JCP payroll only through the remaining three months of the year and an additional, small transition allowance. (66) Consequently, with the convening of the next Congress, the JCP continued to have responsibility for many administrative tasks assigned by provisions of Title 44, but had no staff or offices of its own. To relieve the JCP of some of this responsibility, Senator Warner, the panel's departing chairman, requested, in a December 17, 1998, letter to the Public Printer, that official to carry out certain of the committee's Title 44 authorities; review agency reports and plans required under the government printing and binding regulations; grant agency waivers to enable direct procurement of printing, binding, and blank-book work; continue GPO procurement of printing, binding, and blank-book work from the private sector; and report to the JCP regularly on these matters. (67)
As the 106th Congress moved toward final adjournment, the National Commission on Libraries and Information Science (NCLIS) issued a November 27 discussion draft of A Comprehensive Assessment of Public Information Dissemination. (68) The assessment had initially been requested by Senator John McCain (R-AZ), the chairman of the Senate Committee on Commerce, Science, and Transportation, in mid-June as a followup on assistance the commission had provided to his committee regarding the future of the National Technical Information Service of the Department of Commerce. (69) In his letter to NCLIS, Senator McCain recalled testimony received by his committee "on the need for a formal study on the proposed organizational changes to the National Technical Information service (NTIS) and overall government information dissemination policy." In making his request for "a review of the reforms necessary for the federal government's information dissemination practices," Senator McCain asked that the study "include assessments of the need for:"
A month later, in a mid-July letter, Senator Joseph I. Lieberman (D-CT), the ranking minority member of the Senate Committee on Governmental Affairs, joined Senator McCain's request, and suggested two additions to the NCLIS study: "include ... any relevant sections of the Paperwork Reduction Act that may need revision, because [the Governmental Affairs] Committee will be considering the law's reauthorization next Congress," and "consider the viability of maintaining NTIS as a centralized fully electronic repository of federal scientific and technical information, accessible via the Internet and equipped with search and retrieval capabilities."
The November 27 discussion draft of A Comprehensive Assessment of Public Information Dissemination begins with a working definition of "public information as information created, compiled and/or maintained by the federal government. We assert," the report continues, "that public information is information owned by the people, held in trust by their government, and should be available to the people except where restricted by law." These restrictions, it was stated, are "stipulated in various statutes such as the Freedom of Information Act, the Privacy Act, national security legislation, and a few other laws." (70)
The definition included the information holdings of all three branches of the federal government, and, while recognizing that restrictions on the public availability of some types of information existed, tended to regard these restrictions as being only statutorily prescribed and few in number. Such a view neglects the non-statutory authority of congressional bodies, the President, and federal judges to limit information availability. It also appears to be uninformed regarding the numerous instances when Congress has legislated provisions protecting information from disclosure. The Commission on Federal Paperwork reported in July 1977 that it had identified "approximately 200 statutes concerning confidentiality [of information], about 90 of which relate to the disclosure of business or commercial data." (71) A 1984 survey conducted by the American Society of Access Professionals identified 135 statutory provisions cited by a total of 40 federal executive agencies during 1975-1982 in conjunction with the Freedom of Information Act (FOIA) exemption recognizing statutory protection of various kinds of information. (72) Also, in addition to the Privacy Act, there are at least two dozen additional statutory provisions restricting the disclosure of personally identifiable information by executive agencies.
The report offers numerous findings, conclusions, and recommendations, and some statements of findings appear to be expressed in terms of a recommendation. Major recommendations proffered by the report include the following:
In general, the report seeks formal recognition and affirmation of the concept that public information is a strategic national resource, although many would contend that this objective has already been met with the Paperwork Reduction Act of 1995. Many of its findings and recommendations promote proactive agency information dissemination activities and practices. These efforts, as the commission was warned, "could result in a misuse of agency resources to promote the agency and generate propaganda," a caution the report dismisses as "unreasonable fears." (73) Nonetheless, longstanding congressional displeasure with zealous information activities was benchmarked almost a century ago with the Gillett Act prohibition on using appropriated funds to pay a publicity expert, unless specifically provided for that purpose. (74)
Finally, three new information resources offices and funding NTIS, in part, with appropriated monies are recommended. These proposals, however, are offered in a climate of opinion supportive of government downsizing, cost reduction, and decentralized administration, the Internet, for some, making the latter particularly attractive regarding information dissemination. New public printing reforms may be realized through the implementation of the recommendation provided in the NCLIS comprehensive assessment.
During the 106th Congress, conferees on the legislative branch appropriations bill (H.R. 1516) agreed to an amended House provision which, as modified, authorizes the appropriation to the Clerk of the House such sums as may be necessary for congressional printing and binding services for the House of Representatives during FY2001; the preparation of estimated expenditures and proposed appropriations for congressional printing and binding services by the Clerk of the House in accordance with Title 31, United States Code, beginning with FY2003; and, during FY2001, the conduct by the Clerk of a comprehensive study of the needs of the House for congressional printing and binding services during FY2003 and succeeding years, including an analysis of the most cost-effective program or programs for providing printed or other media-based publications for House uses. The required study, upon completion, is to be submitted to the Committee on House Administration for review and the preparation of such regulations or other materials as considered appropriate to enable the Clerk to carry out congressional printing and binding services for the House. (75) The original House provision would have applied to both the Clerk of the House and the Secretary of the Senate. (76)
Conferees on the legislative branch appropriations bill also modified language in the House report directing the Congressional Research Service to conduct a study concerning the transfer of the functions of the Superintendent of Documents from GPO to the Library of Congress. (77) In their report, the conferees direct GAO to "conduct a comprehensive study of the impact of providing documents to the public solely in electronic format." Continuing, the report said:
President Clinton vetoed the legislative branch appropriations bill on October 30, 2000, for reasons not pertinent to the matters discussed above. The text of the measure was subsequently included in the Consolidated Appropriations Act, 2001, which cleared Congress on December 15 and was signed into law by President Clinton on December 21. (79)
As statutorily required, GAO submitted the completed study to the Committee on House Administration and the Senate Committee on Rules and Administration on March 30, 2001. (80) The report cautioned that, while the electronic dissemination of government documents offered the opportunity to reduce the costs of dissemination and make government information more usable and accessible, some formidable challenges would need to be overcome in the event documents were to be disseminated solely in electronic format. These challenges, said the report, include
ensuring that documents are authentic, permanently maintained, and equally accessible to all individuals. It was also recognized that certain cost issues, including the effect of shifting printing costs to depository libraries and end users, would have to be addressed.
Regarding the feasibility of transferring the depository library program to the Library of Congress, the report foresaw both advantages and disadvantages. The program was seen as appropriate for the Library to administer, and its relocation to the Library, said the report, "could facilitate the development of governmentwide solutions to issues surrounding the acquisition, management, and dissemination of electronic documents." Indeed, it was thought that three other GPO programs closely linked with the depository library program--cataloging and indexing; GPO Access, including the depository library program's electronic collection; and the international exchange service--might also be considered for transfer. Among the disadvantages cited by the report were "potential negative effects on public access to information and concern about the availability of funds to maintain the current program." The report acknowledged the numerous concerns offered by the Public Printer and the Librarian of Congress concerning its content (letters from both officials commenting on the draft report were included in appendices), as well as the concerns raised by library organizations and GPO employee unions. It was proffered that these issues might be addressed by a joint GPO/Library transition team "to develop appropriate strategies" and "a detailed transition plan including a schedule and detailed cost estimates."
As the recent history of public printing reform suggests, a variety of issues surround this policy area. Some of these issues are identified and discussed in the paragraphs below.
The Joint Committee on Printing (JCP) operated during the 106th Congress without a budget, a staff, or offices. Staff and office resources were largely borrowed, on a limited basis, from the Committee on House Administration. Also, during the 106th Congress, many of the functions of the JCP were performed, by delegation, by the Public Printer. The situation raises questions concerning the efficiency, economy, and effectiveness of the JCP and whether or not its responsibilities might be better performed by other entities. Options include returning the JCP to its former status, with a budget, staff, offices, and performance of the responsibilities assigned to it. Another option, reflected in a recommendation of the Senate members of the Joint Committee on the Organization of Congress in 1993 and proffered in the omnibus printing reform bill of the 105th Congress, would be to dissolve the JCP and reassign its responsibilities, as appropriate, to the Committee on House Administration and the Senate Committee on Rules and Administration, as well as to the Public Printer. (81) A third option would be to reconstitute the JCP with an expanded jurisdiction. This possibility was recommended by the House members of the Joint Committee on the Organization of Congress in 1993 and proposed in a comprehensive public printing reform bill (H.R. 4280) introduced in the closing days of the 104th Congress. (82) The JCP and the Joint Committee on the Library of Congress would have been abolished and their responsibilities would have been transferred to a new Joint Committee on Information (Management). In view of the Chadha decision, it is not likely that the JCP's remedial powers responsibility would be transferred to another congressional committee for exercise.
As recent history reflects, the GPO monopoly on public printing, the adequacy of the Public Printer's authority to supervise the public printing system, and the efficient and economical production of information products and services by GPO have come into question during the past few years. Options include eliminating the GPO printing monopoly so that federal entities of all three branches would no longer be required to use GPO production services (but would be required to identify for the Superintendent of Documents (SUDOCS) the information products and services they procured so that these might be available for public sale (44 U.S.C. 1702, 1705-1707), indexing (44 U.S.C. 1710), distribution to the Library of Congress and depository libraries (44 U.S.C. 1718, 1901-1916) and electronic access (44 U.S.C. 4101-4104)). In this arrangement, GPO might be permitted to compete with the private sector for the printing production work of federal entities, and might also be made mandatorily responsible for some minimal production (e.g., the Congressional Record and/or the Federal Register). Another option would be to eliminate or reduce to a minimum GPO in-house printing production (e.g., only the Congressional Record and/or the Federal Register) and make GPO the central agency for the procurement, from the private sector, of information products for all federal entities. A third option would be to abolish GPO and allow federal entities to contract directly with the private sector for printing services (but also identify the information products they procured so that these might be available for public sale, indexing, distribution to the Library of Congress and depository libraries, and electronic access through the relocated SUDOCS or a successor).
During both the 103rd and 106th Congress, efforts were made in the House to remove SUDOCS responsibilities from GPO and transfer them to the Library of Congress. As noted above, those responsibilities would largely involve public document sales, indexing, distribution to the Library of Congress and depository libraries, and electronic access. The feasibility of such a transfer, in whole or in part, is the subject of a comprehensive study conducted by GAO, as noted above.
Statutes at Large, United States Code, and District of Columbia Code
Precedents of the House
Joint Committee on Printing
Government Printing Office
Production and Procurement of Printing and Binding Generally
Congressional Printing and Binding Generally
Executive and Judiciary Printing and Binding Generally
Particular Reports and Documents
Indexes for Congressional and Public Documents
9. (back) See 1 Stat. 28, 49, 65. These and other similar provisions were consolidated in the Revised States of the United States (1878) at section 161, which is presently located in the United States Code at 5 U.S.C. 301.
17. (back) U.S. Congress, House Committee on Government Operations, Electronic Collection and Dissemination of Information by Federal Agencies: A Policy Overview, 99th Cong., 2nd sess., H.Rept. 99-560 (Washington: GPO, 1986), pp. 10-11.
21. (back) U.S. General Accounting Office, Government Printing: Legal and Regulatory Framework Is Outdated for New Technological Environment, GAO Report GAO/NSIAD-94-157 (Washington: Apr. 1994), p. 3.
27. (back) See Congressional Record, vol. 65, June 4, 1924, p. 10556; U.S. Congress, Senate Committee on Rules and Administration, Report with Recommendations of the Committee on Rules and Administration on the Joint Committee on Printing, 95th Cong., 1st sess. S.Rept. 327 (Washington: GPO, 1977), p. 2; 41 Op. Atty. Gen. 282, 286-287 (1957).
29. (back) U.S. Dept of Justice, Office of Legal Counsel, memorandum from Theodore B. Olsen, Assistant Attorney General, for William H. Taft IV, Deputy Secretary of Defense, Dept of Defense, "Effect of INS v. Chadha on 44 U.S.C. §501, 'Public Printing and Documents'" (Washington: Mar. 2, 1984).
34. (back) U.S. Dept. of Justice, Office of Legal Counsel, memorandum from Theodore B. Olsen, Assistant Attorney General, for Michael J. Horowitz, Counsel to the Director, Office of Management and Budget, "Government Printing, Binding, and Distribution Policies and Guidelines of the Joint Committee on Printing," (Washington: Aug. 21, 1984).
38. (back) U.S. Congress, Conference Committees, Making Further Continuing Appropriations for the Fiscal Year Ending September 30, 1988,100th Cong., 1st sess., H.Rept. 100-498 (Washington: GPO, 1987), p. 1001.
40. (back) See P.L. 102-392, sec. 207; 106 Stat 1719-1720; previous versions were narrower in that they applied only to printing "from commercial sources" while the new version applied to virtually all spending by all executive agencies for any printing.
41. (back) U.S. Dept. of Justice, Office of Legal Counsel, memorandum from Walter Dellinger, Assistant Attorney General, for Emily C. Hewitt, General Counsel, General Services Administration, "General Services Administration Printing Operations" (Washington: Sept. 13, 1993).
45. (back) Bowsher v. Synar, 478 U.S. 714 (1986); Metropolitan Washington Airport Authority v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991); Federal Election Commission v. NRA Political Victory Fund, 6 F.3d 821 (D.C.Cir. 1993), cert. dismissed for want of jurisdiction, 115 S.Ct. 537 (1994); Hechinger v. Metropolitan Washington Airport Authority Board of Review, 36 F.3d 97 (D.C. Cir. 1994), cert. denied, 115 S.Ct. 934 (Jan. 23, 1995).
46. (back) U.S. Dept. of Justice, Office of Legal Counsel, memorandum from Walter Dellinger, Assistant Attorney General, for Emily C. Hewitt, General Counsel, General Services Administration, "Government Printing Office Involvement in Executive Branch Printing" (Washington: May 31, 1996).
54. (back) See U.S. Congress, Conference Committees, Appropriations for the Legislative Branch for the Fiscal Year Ending September 30, 1996, and for Other Purposes,104th Cong., 1st sess., H.Rept. 104-212 (Washington: GPO, 1995), p. 9. Due to a larger budgetary dispute, the President vetoed this appropriations bill (H.R. 1854) on Oct. 3, 1995. See Weekly Compilation of Presidential Documents, vol. 31, Oct. 9, 1995, p. 1762. Subsequently, Congress approved a legislative branch appropriations bill (H.R. 2492) identical to the earlier conference version.
55. (back) See U.S. Congress, House Committee on Appropriations, Making Emergency Supplemental Appropriations for Additional Disaster Assistance and Making Rescissions for the Fiscal Year Ending September 30, 1995, and for Other Purposes, 104th Cong., 1st sess., H.Rept. 104-70 (Washington: GPO, 1995), p. 59.
56. (back) See U.S. Congress, Senate Committee on Appropriations, Making Additional Supplemental Appropriations and Rescissions for the Fiscal Year Ending September 30, 1995, and for Other Purposes, 104th Cong., 1st sess., S.Rept. 104-17 (Washington: GPO, 1995), pp. 79-80.
57. (back) See U.S. Congress, Conference Committees, Making Emergency Supplemental Appropriations for Additional Disaster Assistance and Making Rescissions for the Fiscal Year Ending September 30, 1995, and for Other Purposes, 104th Cong., 1st sess., H.Rept. 104-124 (Washington: GPO, 1995), p. 106. This bill (H.R. 1158) was vetoed by the President on June 7, 1995; no congressional override was attempted. See Weekly Compilation of Presidential Documents, vol. 31, June 12, 1995, pp. 994-995.
60. (back) H.R. 4280, introduced September 28, 1996, by Representative William Thomas, and referred to the Committee on House Oversight, as well as the Committee on Government Reform and Oversight and the Committee on Rules.
61. (back) The White House, memorandum from Leon E. Panetta, Chief of Staff, for heads of executive departments and agencies, "Procurement of Printing and Duplicating through the Government Printing Office" (Washington: Apr. 11, 1996).
62. (back) U.S. Dept. of Justice, Office of Legal Counsel, memorandum from Walter Dellinger, Assistant Attorney General, for Emily C. Hewitt, General Counsel, General Services Administration, "Government Printing Office Involvement in Executive Branch Printing" (Washington: May 31, 1996), pp. 1, 18.
63. (back) See U.S. Congress, Senate Committee on Rules and Administration, Title 44, U.S. Code--Proposals for Revision, hearings, 105th Cong., 1st sess., Apr. 24, May 8 and 23, 1997 (Washington: GPO, 1997).
64. (back) U.S. Congress, Senate Committee on Rules and Administration, The Wendell H. Ford Government Publications Act of 1998, hearings, 105th Cong., 2nd sess., July 29 and Sept. 16, 1998 (Washington: GPO, 1998).
65. (back) See U.S. Congress, Senate Committee on Rules and Administration, Wendell H. Ford Government Publications Reform Act of 1998, 105th Cong., 2nd sess., S.Rept. 105-413 (Washington: GPO, 1998).
69. (back)In mid-August 1999, the Secretary of Commerce announced his intention to close the NTIS and transfer its holdings to the Library of Congress. Self-supporting through the public sale of scientific and technical reports sponsored by federal agencies, the NTIS, according to the Secretary, was experiencing rapidly declining revenues due to the free availability of its salable information via the Internet.
72. (back)American Society of Access professionals, "The (b)(3) Project: Citations by Federal Agencies (1975-1982)" (Washington: American Society of Access Professionals, 1984); the FOIA exemption may be found at 5 U.S.C. 552(b)(3).
75. (back) U.S. Congress, Conference Committees, Making Appropriations for the Legislative Branch for the Fiscal Year Ending September 30, 2001, and for Other Purposes, 106th Cong., 2nd sess., H.Rept. 106-796 (Washington: GPO, 2000), pp. 19-20, 43.
81. (back) See U.S. Congress, Joint Committee on the Organization of Congress, Organization of the Congress: Final Report of the Senate Members of the Joint Committee on the Organization of Congress, 103rd Cong., 1st sess., S.Rept. 103-215 Vol. I (Washington: GPO, 1993), pp. 10-11.
82. (back) U.S. Congress, Joint Committee on the Organization of Congress, Organization of the Congress: Final Report of the House Members of the Joint Committee on the Organization of Congress, 103rd Cong., 1st sess., H.Rept. 103-413 Vol. I (Washington: GPO, 1993), p. 24.
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