The US elections and open access
SPARC Open Access Newsletter, issue #152
December 2, 2010
by Peter Suber
Republicans took control of the US House of Representatives in the mid-term elections last month.  Democrats retained control of the Senate but Republicans ate into their majority.  Barack Obama is still President, but must work with the new Congress.  What are the consequences for OA?

First some numbers.  Before the election, the Democrats held 255 seats in the House, giving them a 58% majority.  When the new session of Congress begins on January 3, 2011, the Republicans will hold 242 seats and a 55% majority.  In the Senate, the Democrats held 56 seats plus two independents (Joe Lieberman and Bernie Sanders) who caucused with the Democrats, for a 58% majority.  After January 3, the Democrats' majority will shrink to 53%.
http://en.wikipedia.org/wiki/112th_United_States_Congress
http://en.wikipedia.org/wiki/United_States_House_of_Representatives_elections,_2010
http://en.wikipedia.org/wiki/United_States_Senate_elections,_2010

One question is what the Democrats might do in the next month, while they still control both chambers of Congress.  Another is what the two parties might do together, or fail to do together, after January 3.

The most urgent business in the lame-duck session is to fund the government itself.  The new fiscal year began on October 1, but Congress still hasn't approved a budget and has been funding the government on temporary measures that will expire on December 31.  The debate is fierce in part because budget priorities top the list of contentious issues dividing the parties.  A host of social issues attached to spending bills raise the temperature even higher.  For example, a provision in the Defense appropriations bill would abolish "Don't Ask, Don't Tell" (DADT) and allow gays to serve openly in the military.  Republicans are fighting among themselves about whether it's better to fund the troops and repeal DADT, or to preserve DADT and defund the troops.  Democrats are fighting among themselves about how much to take advantage of the last month of their House majority, for example, by refusing to extend the Bush tax cuts for the richest 2% of Americans.

The urgency of passing a budget, the heat of the associated disputes, and the shortness of the lame-duck session, with or without a holiday break, will almost certainly keep OA bills from coming to the floor in the next month.  This will affect good bills like FRPAA (Federal Research Public Access Act), bad ones like FCRWA (Fair Copyright in Research Works Act, a.k.a. the Conyers bill), and middling ones like the America COMPETES (America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education, and Science Act) Reauthorization Act.

FRPAA in the Senate (S. 1373)
http://hdl.loc.gov/loc.uscongress/legislation.111s1373
FRPAA in the House (H.R. 5037)
http://hdl.loc.gov/loc.uscongress/legislation.111hr5037

FCRWA in the House (H.R. 801)
http://hdl.loc.gov/loc.uscongress/legislation.111hr801

COMPETES in the Senate (S. 3605)
http://hdl.loc.gov/loc.uscongress/legislation.111s3605
COMPETES in the House (H.R. 5116)
http://hdl.loc.gov/loc.uscongress/legislation.111hr5116

FRPAA would essentially extend the NIH mandate across the federal government, at the same time shortening the maximum permissible embargo from 12 months to six. 
http://dash.harvard.edu/bitstream/handle/1/4314481/suber_news145.htm#frpaa
http://dash.harvard.edu/bitstream/handle/1/3716774/suber_news136.html#frpaa

It has authentic bipartisan support in both chambers and good momentum in Congress and the wider public.  FRPAA has been endorsed by 120 US university presidents or provosts, 41 Nobel laureates, an editorial in Nature, and the business-oriented Committee for Economic Development.  FRPAA in the House has 16 co-sponsors from both parties, the most recent from this fall (September 2010).
http://www.arl.org/sparc/advocacy/frpaa/institutions.shtml
http://www.taxpayeraccess.org/supporters/scientists/nobelists_2009.shtml
http://www.nature.com/nature/journal/v464/n7290/full/464813a.html
http://www.ced.org/images/newsroom/2009/cedopennesseducationreportpr09.pdf
http://hdl.loc.gov/loc.uscongress/legislation.111hr5037

But because Congress is preoccupied with more urgent business, FRPAA has little chance as a stand-alone bill in the lame-duck session.  If it expires without a vote at the end of this month, it or some variation of it will almost certainly be re-introduced in the new session.  The new bill may be the same as the current FRPAA, which itself is the same as the version of FRPAA introduced in 2006, or may be revised to account for any executive action taken by President Obama in the meantime.  (More on this below.) 

The Conyers bill would essentially repeal the NIH mandate and prevent other federal agencies from adopting similar policies.
http://dash.harvard.edu/bitstream/handle/1/3716782/suber_news131.html#conyers
http://dash.harvard.edu/bitstream/handle/1/3716771/suber_news126.html#nih

It has been dead for more than year and hasn't had a new co-sponsor since Chaka Fattah (D-PA) signed on in July 2009.  No version of it has ever been introduced in the Senate.  If it expires without a vote at the end of this session, it's very unlikely to come back next session.  Not only was the bill subject to wide criticism and even ridicule, but John Conyers (D-MI) will lose his chairmanship of the House Judiciary Committee.  He was the chief force behind the bill, and always seemed less concerned about OA debates in the world of research than turf battles in the House of Representatives.  He adopted the publishing lobby's rhetoric about OA, but cared more about asserting the jurisdiction of his committee in OA policy-making. 

COMPETES is a major funding bill for research, development, and education.  For that reason alone, it's unlikely to make progress against the new imperative to cut spending.
http://www.genomeweb.com/rd-funding-issues-idle-congress

The version of COMPETES now on the books calls for agency-level open-data policies (stronger than FRPAA) and calls for OA for abstracts rather than full-texts (weaker than FRPAA).  But the re-authorization bills in the House and Senate drop both provisions.  At the same time, both bills create an Interagency Public Access Committee, though they differ on its precise responsibilities.  Friends and foes of OA worry that the committee might settle the unsettled details of federal OA policy in unpredictable ways.  Each side wonders whether it might take the wind out of the sails of a stronger policy like FRPAA.  But in any case, it would need significant revisions to pass muster with deficit hawks, this month or in the new session.

Let's look closely at two key committees in the House of Representatives, where the chairmanships will shift from Democrats to Republicans.

(1) The House Committee on Science and Technology
http://science.house.gov/

This is the committee to which the COMPETES bill was referred.  Under the Democrats, the chair was Bart Gordon (D-TN).  But Gordon didn't run for re-election and will not return to the new Congress.  Jerry Costello (D-IL) is next in line to be ranking minority member, and his elevation would have been good news:  he's a co-sponsor of the House version of FRPAA.  But he has decided to take a leadership position on the Transportation Committee rather than a leadership position on the Science Committee.  However, he'll remain a member of the committee and a voice for FRPAA and OA mandates.
http://www.stlbeacon.org/voices/blogs/political-blogs/dc-backroom/106155-costello-on-committee-assignment

It's not yet clear which Democrat might become the ranking minority member.  Nor is it clear where the new chair, Ralph Hall (R-TX), stands on OA.  The day after the election, Hall released a statement on how he plans to run the Science Committee.  The statement is designed to please everyone and disclose little, and it succeeds.  If they squint, OA friends and foes can both see some support in it:
http://gop.science.house.gov/Pressroom/Item.aspx?ID=274

The Science and Technology Committee will be a place where every member's ideas will be respected and considered, and all Republicans can play a role in crafting good science policy.  We must also conduct strong oversight over this Administration in key areas including climate change, scientific integrity, energy research and development (R&D), cybersecurity, and science education.  Over the past few years the unprecedented growth of the Federal government and the creation of multiple new and duplicative programs occurred without having first assessed the effectiveness and success of existing programs.  My goal is to ensure science policy drives innovation and thereby the American economy.  Federal investment in R&D must empower the free market, not interfere in it.

(2) The Committee on Government Oversight and Reform
http://oversight.house.gov/

This is the committee to which House version of FRPAA was referred.  Under the Democrats, the chair was Ed Towns (D-NY).  When the Republicans take over in January, Towns has the inside track to become the ranking minority member.  But Dennis Kucinich (D-OH) is challenging him for the position.  Towns and Kucinich are both friends of OA, but Kucinich is a co-sponsor of FRPAA and Towns is not.
http://www.politico.com/news/stories/1110/45272.html
http://thecaucus.blogs.nytimes.com/2010/11/17/kucinich-makes-bid-for-oversight-committee/
http://hdl.loc.gov/loc.uscongress/legislation.111hr5037

The new Republican chair of the committee will be Darrell Issa (R-CA).  The news here is decidedly mixed.  Issa was a co-sponsor of the original version of the Conyers bill (September 2008, 110th Congress, HR 6845), and a co-sponsor of its re-introduction in February 2009 (111th Congress, HR 801). 
http://hdl.loc.gov/loc.uscongress/legislation.110hr6845
http://hdl.loc.gov/loc.uscongress/legislation.111hr801
http://www.earlham.edu/~peters/fos/2009/02/conyers-bill-is-back.html

In fact, Issa and liberal Robert Wexler (D-FL) were the only two members of the House other than Conyers himself to co-sponsor both versions of the bill.  But Wexler has since retired, leaving Issa alone with that distinction. 

In 2007-08, only three members of Congress received more money from Elsevier than Issa. 
http://www.escholarlypub.com/digitalkoans/2009/02/20/in-2007-2008-reed-elsevier-inc-made-contributions-to-eight-house-judiciary-committee-members/

Morever, Issa is trying to position himself as the most obstructive member of the obstructive wing of the Republican party.  According to Politico.com,
http://www.politico.com/news/stories/1110/44850.html

Issa told POLITICO in an interview that he wants each of his seven subcommittees to hold "one or two hearings each week....I want seven hearings a week, times 40 weeks," Issa said....To give an idea of how expansive Issa's oversight plans are, look at the record of Rep. Henry Waxman (D-Calif.) when he chaired the oversight committee during in the 110th Congress during George W. Bush's presidency. Waxman held 203 oversight hearings in two years; Issa has signaled he's prepared to hold about 280 in just one year.

Here's more coverage of Issa's planned hurricane of hearings.
http://goo.gl/2lVaK

However, Issa is a strong supporter of open government.  As OMBWatch pointed out, "Issa is co-chair of the Transparency Caucus and recipient of the Project On Government Oversight's 2010 Good Government Award."
http://www.ombwatch.org/node/11383
http://www.pogo.org/honorees/good-government-award/

He also supports open government data.  In an op-ed in the Washington Examiner just over a month ago, Issa wrote:
http://sunlightfoundation.com/presscenter/articles/2010/10/26/rep-darrell-issa-technology-key-achieving-21st-cen/print/

Better transparency will enable voters, media, and watchdog groups to hold the bureaucracy accountable.  Currently, however, federal agencies do not use consistent, compatible electronic data formats for financial, regulatory, and legislative information. If they did and made it all public, searchable, sortable, and downloadable anyone with Web access could scrutinize the federal budget, second-guess federal regulators, or navigate proposed laws and the U.S. Code with ease....Consistent data formats and reliable public access would give the public a better understanding of their government's actions. Such knowledge is essential for the federal government to earn the informed consent of the governed, which is a basic principle of democracy.

If Issa's chief rationale for government transparency is to control government spending, then his argument may not extend to OA for publicly-funded research.  But if he means what he says about holding the government accountable, understanding its actions, and earning the informed consent of the governed, then it could.

About six weeks before the election, Issa vowed to use the Oversight Committee to re-investigate the Climategate controversy.  As he told the New York Times, "For me, settled science starts out with settled raw data, then people negotiate and discuss and hypothecate from that data.  If the raw data's in doubt, then the idea that we have settled science doesn't exist. I want settled science."  It's too early to say whether he'll support general open-data policies, especially if they would solidify support for the current consensus about human-made climate change, or whether he'll join a long list of other Republicans in making politically selective calls for OA designed to harass political opponents more than widen access, enhance scrutiny, and correct errors.
http://www.nytimes.com/cwire/2010/09/23/23climatewire-rep-issa-would-lead-climategate-probe-if-hou-44766.html
http://dash.harvard.edu/bitstream/handle/1/4552001/suber_news151.htm#incrementalism

Finally, Issa has conspicuously refrained from seizing natural opportunities to oppose OA.  Back in July 2010, a subcommittee of the House Oversight Committee held a hearing on OA for federally funded research.  The witnesses testifying in support of OA were compelling, and when committee members asked publishers for any evidence that the NIH policy had harmed them, the publishers had nothing to offer.  After the hearing, Issa could have said that he opposed FRPAA, but he didn't.  As the ranking minority member of the Oversight Committee, he could have called on Republican members to oppose FRPAA, but he didn't.  The signs to date suggest that Issa and his staff appreciate the evidence that the economic benefits of an OA mandate vastly exceed the costs. 

See the hearing testimony  and the Alliance for Taxpayer Access' summary of the hearing.
http://oversight.house.gov/index.php?option=com_content&view=article&id=5061:qpublic-access-to-federally-funded-researchq&catid=48:hearings&Itemid=29
http://www.taxpayeraccess.org/issues/access/access_resources/10-0814.shtml

The subcommittee actually holding the hearing was the Information Policy, Census and National Archives Subcommittee of the House Committee on Government Oversight and Reform
http://oversight.house.gov/index.php?option=com_content&view=article&id=4449&Itemid=19

Under the Democrats, the chair of this subcommittee was William Lacy Clay (D-MO), who was pleased by hearing's outcome.  He'll be the subcommittee's ranking minority member.  The new chair will be Patrick McHenry (R-NC), who has neither supported nor opposed FRPAA but who has many constituents in North Carolina pressing him to support it.

* Two co-sponsors of the House version of FRPAA were defeated in the recent elections:  Rick Boucher (D-VA) and Bill Foster (D-IL).  One co-sponsor retired:  Todd Tiahrt (R-KN).  One other friend of OA in the House retired:  Dave Obey (D-WI).  Bart Gordon (D-TN), the chief sponsor of the House version of the COMPETES act, retired as well.

No co-sponsors of the Senate version of FRPAA retired or were defeated.  As far as I can tell the same is true of other friends of OA in the Senate.

* President Obama is still serious about mandating OA for publicly-funded research, perhaps through an executive order.  A year ago, from December 2009 to January 2010, the White House Office for Science and Technology Policy (OSTP) collected public comments on the idea of extending the NIH policy across the federal government.  It released the comments in March 2010.
http://edocket.access.gpo.gov/2009/E9-29322.htm
http://www.earlham.edu/~peters/fos/2009/12/obama-administration-wants-oa-for.html
http://www.whitehouse.gov/blog/2010/03/08/public-access-policy-update

Since then it has been digesting the comments and crafting a policy response.  But when will it act?  It would have been smart for Obama to act before the election, since he could honestly have framed the action as good for jobs, good for the economy, good for fiscal responsibility with public funds, and good for open government, all issues on which Republicans campaigned hard.  An executive order providing OA to publicly-funded research would have been good policy and good politics at the same time.  For the same reason, it would be smart to act soon, before the newly elected Republicans can jack up their rhetoric on Obama's failings on the same set of issues. 

If Obama doesn't act during the lame-duck session, I predict that he'll definitely act in the next session.  The Republican gains are an obstacle to some kinds of legislation, but not to any kind of executive order, which does not require Congressional approval.  The Republican gains are a reason to back down or compromise on issues opposed by conservatives, but not on this issue.  Support for OA has always been bipartisan.  Common ground between liberals and conservatives may be shrinking, but it still includes any action that is good for jobs, good for the economy, good for fiscal responsibility with public funds, and good for open government.

OMBWatch has a good summary of Republican support for open-government initiatives, both before and after the election.  The common ground is on these issues is no illusion.  But as OMBWatch adds, "Planned Republican budget cuts could further tighten the squeeze on funding for open government measures."
http://www.ombwatch.org/node/11383

Note Glyn Moody's report that open government is also a principle of the new conservative government in the UK.
http://blogs.computerworlduk.com/open-enterprise/2010/11/open-data-good-open-source-bad/index.htm

Last May, I argued that "support [for FRPAA] from conservative Republicans hasn't scared away liberals, and support from liberal Democrats, including President Obama, hasn't scared away conservatives."
http://dash.harvard.edu/bitstream/handle/1/4314481/suber_news145.htm#frpaa

I could have added, "so far".  We could lose this vestige of bipartisanship in the wake of upcoming legislative battles or the run-up to the 2012 presidential election.  We know that genuine common ground isn't enough for Republicans and Democrats to shake hands and work together.  We've seen too many examples in which legislators avert their eyes from common ground and pretend it doesn't exist, even if this means voting against positions they previously supported.  This kind of spiteful opposition dominated the last two years of Republican Congressional strategy and there's no doubt that it still hangs in the air.  One example important in the current lame-duck session is the New START Treaty, a cause that Republicans formerly championed but from which some defected when Obama began pushing it.

We simply don't know how far the newly elected Congressional Republicans will want to work constructively with the Democrats on issues where there is genuine common ground.  Republicans are not just divided on specific issues, such as funding the troops at the cost of allowing openly gay soldiers to serve, or reducing the risk of nuclear war at the cost of giving Obama a foreign-policy victory.  They're divided on the general question whether two more years of engineered gridlock will serve their political fortunes in 2012 better than two years of constructive work to solve the nation's problems.  They see the case for good-faith work, since they can now be held accountable for policy failures.  But they also see the case for flat obstruction, since it paid off for them in the 2010 elections.

Nor do we know whether Tea Party Republicans oppose establishment Republicans as much as they oppose Democrats.  During the election, some Tea Party candidates liked to pretend they did.  This matters for OA because many will come to Washington committed to open government but without having given a thought to OA.  If they were open to persuasion from party elders like John Cornyn, the chief proponent of FRPAA in the Senate, they'd connect open government to OA and support FRPAA.  But if they're not inclined to follow party elders, then they may not connect open government and OA at all, or they may be ready to oppose OA as part of wider opposition to Obama and the Democrats.

If we put to one side those Republicans motivated to oppose everything Obama likes because Obama likes it, then an Obama executive order mandating OA for non-classified, publicly-funded research could resonate with both parties.  For the same reason, a re-introduced FRPAA could earn the same kind of bipartisan co-sponsorship that FRPAA earned the last two times it was introduced. 

But we can't put those Republicans to one side, even if we don't know whether they'll be a majority or minority within their party.  Some Congressional Republicans (new and old) are determined to work constructively on the nation's problems, but others are ready to retreat from common ground and vote against their own values rather than lend their weight to any victory in which Obama would earn partial credit.  In the next two years, some from the constructive camp could drift to the obstructive camp, both a cause and effect of increasing polarization.

In his first two years in office, President Obama often made unilateral offers of compromise, even when they bought him no Republican votes.  He's likely to continue in this pattern, partly from temperament and partly to show his willingness to work with the rejiggered Congress and electorate.  Ironically, one result could be a greater reluctance to appeal to values and principles inside the common ground with Republicans.  For example, he might ask federal funding agencies to mandate OA, but he might not defend his action with research showing the enormous benefit/cost ratio of OA mandates and their tendency to create jobs and stimulate economic activity.  That would simply stir opposition from Republicans who don't want Obama to get credit for creating jobs, including some Republicans who would otherwise have supported an OA mandate as an open government measure.

If polarization reached that pitch, it would be a compound tragedy:  Republicans retreating from the public good because it might benefit Democrats, and Democrats watering down their proposals precisely to avoid that sort of opposition.  You could call it a new tragedy of the commons:  tiptoeing toward goals in the common ground precisely because they are in the common ground.  Moreover, of course, if Democrats fail to make the job-creation argument, they open to door the publishing lobby to repeat its tired job-destruction argument.

My prediction:  insofar as Republicans are inclined to work constructively for achievable progress, there will be some common ground with Democrats.  That common ground will include creating jobs, stimulating the economy, opening government, showing fiscal responsibility with public funds, and mandating public access to publicly-funded research.  That bodes well both for FRPAA and for an Obama executive order mandating OA from federal funding agencies.  But insofar as Republicans are inclined to obstruct Democrats, reject their own party elders, or both, common ground will be a vanishing quantity.  That plus Obama's tendency to seek compromise without reciprocation will mean defeat or dilution for OA policies.


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