ADMINISTRATIVE NOTES Newsletter of the Federal Depository Library Program Vol. 18, no. 07 GP 3.16/3-2:18/07 May 1, 1997 Michael F. DiMario Public Printer Opening Remarks Before the Committee on Rules and Administration U.S. Senate on Proposed Revisions to Title 44, U.S. Code Thursday, April 24, 1997 Mr. Chairman, Senator Ford, and Members of the Committee on Rules and Administration, thank you for inviting me here this morning to provide comments on proposed revisions to Title 44, U.S. Code. In the interest of time, I will briefly summarize my prepared statement which has been submitted for the record. I want to commend you, Mr. Chairman, for the high level of interest you are giving to protecting public access to Government information. In previous hearings on public access and on the GPO, you conveyed your deep interest in this important issue as well as your determination to effect needed changes. I know that Senator Ford as Ranking Member also shares a deep concern for protecting public access from my experience in working with him as the previous Chairman of this Committee. In addition, I appreciate the process of consultation that has been conducted by the staff director of the JCP, Mr. Eric Peterson, in preparing the proposed revisions to Title 44. I support the Title 44 revision objectives that you are pursuing: (1) resolving the constitutional separation of powers issue; (2) establishing an effective compliance mechanism; (3) ensuring public access and protecting the Federal Depository Library Program; and (4) dealing with new information technologies. 1 AN-v18-#07-5/1/97 I think the process that so far has resulted in the unnumbered draft bill known as the “Government Printing Office Act of 1997" is a positive beginning. However, I strongly believe that this draft will need several changes and a great deal of further development before it is a sound and effective approach to the resolution of our jointly held concerns. My prepared statement details my concerns. The most important concern I have is with the proposal to transfer GPO to the executive branch. I believe the transfer of JCP authorities to the Public Printer, who would exercise them as a Presidential appointee, would resolve the problem of constitutionality regarding congressional control over executive branch printing. The transfer of GPO to the executive branch in any form is neither necessary nor desirable if Congress wishes to continue ensuring cost-effectiveness and efficiency in Government printing, as well as comprehensive and equitable public access to taxpayer-supported information. As I stated before this Committee last July, I think the 1996 memorandum opinion of the Justice Department on this issue was wrongly decided. GPO does not have “extensive control” over executive branch printing, but handles this work in a purely ministerial capacity. We have no veto power or other control over executive work. All of our functions are performed under the authority of the Public Printer who, like other officers of the executive branch, is appointed by the President and confirmed by the Senate, and serves only at the pleasure of the President. It is regrettable that the Justice Department reached a conclusion opposite to the facts, and that this conclusion is now being used by Federal agencies as a pretext for not sending their work to GPO. It is also regrettable when the Justice Department signals that it will not uphold the law requiring economy in Government printing and comprehensive and equitable public access to Government information. The 1996 Justice Department opinion reaches far beyond the Department’s previous opinions on Title 44. Why did they come to this conclusion only in 1996, 136 years after GPO was established by law and 14 years after the Chadha decision? I don’t know, but the 1996 opinion clearly underscores the goal of the OMB’s Office of Information and Regulatory Affairs (OIRA) to allow the executive branch to establish its own printing policy. At this point, I would like to state for the record, Mr. Chairman, that my references to OMB both in my prepared statement and this morning are intended to refer to OIRA and not to OMB as a whole. I would also say that my references to the National Performance Review are also to OIRA’s continued pursuit of NPR goals, not to the NPR itself. GPO has an excellent working relationship with OMB Director Franklin Raines, as we did with Alice Rivlin and Leon Panetta when each was Director, and we look forward to working every year with the OMB staff on preparing the U.S. Budget and related matters. However, we have a different view of the activities of OIRA. 2 AN-v18-#07-5/1/97 Mr. Chairman, the source of the constitutional issue is not where GPO is located in the Government’s organization chart. It is instead the entanglement of the JCP’s control with GPO operations under several provisions of Title 44. Many observers, including the Justice Department itself, have pointed to this feature of the law as constitutionally questionable. Removing the problem of entanglement by transferring JCP authorities to the Public Printer would be a relatively simple matter. It would leave the operational requirements for GPO intact, including the requirement in 44 U.S.C. 501 that all Government printing be performed through GPO as well as the enforcing mechanism in section 207 of the 1995 Legislative Branch Appropriations Act. The disadvantages of the proposal to transfer GPO to the executive branch, on the other hand, are potentially significant. First, if the proposition is accepted that in order to be constitutional GPO must be transferred to the executive branch, the legislative and judicial branches will immediately be provided with a constitutional pretext for withdrawing their work from GPO. The costs of establishing separate production or procurement entities for each of these branches would be significant, and it would erect new barriers to public access to congressional and judicial information through GPO’s programs. Second, I seriously doubt whether GPO can be reconstituted in the executive branch with sufficient protections to prevent its control by OMB through OIRA, which has not always had a strong record of commitment to comprehensive and equitable public access to taxpayer- supported information and to the cost-effective production and procurement of Government information products. Establishing GPO as an independent agency in the executive branch would require a significant range of guarantees that OIRA, and other agencies, could not interfere with the operation of statutory objectives assigned by Congress to GPO. I am far from certain that these guarantees could be provided. OIRA’s reach is sweeping and pervasive throughout the executive branch. If GPO remains in its current location, it would not be subject to those controls. Placing GPO in the executive branch would put our policies for information production, procurement, and dissemination in direct competition with those of larger, more influential departments and agencies, and I am not confident that we would be able to effectively carry out our mission in such an environment. Placing GPO in the executive branch would also strengthen the potential for OIRA to create policies that would decentralize GPO’s operations back to the agencies, an idea that OIRA has continually supported. As we have testified in detail before this Committee, such decentralization could impose enormous costs on the taxpayers and severely jeopardize public access to Government information. OIRA currently is performing a study of executive branch printing which I suspect is targeted toward this purpose. GPO has not been consulted or invited to participate in this study, which I find stunning given GPO’s statutory responsibility for all Government printing. 3 AN-v18-#07-5/1/97 Finally, placing GPO in the executive branch would subject us to several laws, regulations, and policies that could require significant and potentially costly changes to GPO’s programs and operations. For all of these reasons, therefore, the option to transfer JCP authorities to GPO seems to me to be a far more simple, direct, and effective method of dealing with the separation of powers issue than transferring GPO to the executive branch, and we can provide this Committee with the appropriate language to accomplish this purpose. Mr. Chairman, again I commend you and the Members of this Committee for undertaking this important project. We will provide legislative language to achieve the objectives I have outlined in this presentation, and I look forward to continuing to work with you to achieve a revision of Title 44 that will provide cost-effective and openly accessible information services for Congress, Federal agencies, and the public. This concludes my opening remarks, and I would be pleased to answer any questions you may have. 4 AN-v18-#07-5/1/97 Michael F. DiMario Public Printer Prepared Statement Before the Committee on Rules and Administration U.S. Senate on Proposed Revisions to Title 44, U.S. Code Thursday, April 24, 1997 Mr. Chairman, Senator Ford, and Members of the Committee on Rules and Administration, thank you for inviting me here this morning to provide comments on proposed revisions to Title 44, U.S. Code. From the outset, Mr. Chairman, I want to commend you for the high level of interest you are giving to protecting public access to Government information. In previous hearings on public access and on the Government Printing Office (GPO), held before this Committee last July and before the Joint Committee on Printing (JCP) in March, you conveyed your deep interest in this important issue as well as your determination to effect needed changes. I know that Senator Ford as Ranking Member also shares a deep concern for protecting public access from my experience in working with him as the previous Chairman of this Committee.