How the West was Lost

(c) 1995 THE HILL - The Capitol Newspaper
Washington, D.C. Vol. 2, No. 8
Wednesday, February 22, 1995
Reprinted with Permission
Reposting Permitted if Reposted in its entirety.



BY Doug Obey and Albert Eisele

It was an obscure 96-word provision buried deep inside a bill to reauthorize the Paperwork Reduction Act of 1980. But its seemingly innocuous language, inserted by a congressional aide, would have changed the rules of the game in the decade-long struggle over who controls access to hundreds of millions of dollars worth of information spawned by a vast array of government agencies.

Most surprising of all, in a city where taking credit for authoring important legislation is an art form, no one was willing to claim responsibility for fathering what has become a legislative bastard. But it's clear that two former House members who are lobbyists, one of whom is one of Newt Gingrich's closest friends, played a leading role in persuading the aide to insert the provision in the bill.

By the time the din if the first information industry battle of the 104th Congress subsided last week, subsection 3518(f) of H.R. 830 had become a textbook example of how Congress sometimes operates to serve private interests.

The legislative contretemps in the House Government Reform and Oversight Committee was triggered when a special interest provision favoring America's largest legal publisher was quietly inserted into a popular part of the Contract with America at the behest of its corporate lobbyists.

Discovered at the last minute, it provoked a firestorm that had widespread and varied effects. They Include

--New committee chairman William Clinger (R-Pa.) lost one of the first tests of his leadership, after dramatic and at times angry debate that included Republican charges that Democrats were practicing "McCarthyism";

--West Publishing Co. of Eagan, Minn., headed by a major Democratic contributor and friend of President Clinton, saw its virtual monopoly over adding value to the huge storehouse of law generated by America's legal system threatened by public scrutiny it had brought on itself;

--A battalion of lawyers, lobbyists, and corporate retainers, including a former Minnesota congressman who is one of Newt Gingrich's closest friends, were given black eyes in the media and forced to forgo hundreds of thousands of dollars in consulting fees.

--A group of giant companies in the information industry nearly succeeded in cementing their effective control of information created at public expense by rewriting copyright law in a few sentences--something they have been trying to do in the courts for years.

--An ad hoc coalition of smaller competitors, consumer groups, and information industry trade organizations favoring greater access to government data were galvanized into action by an electronic Paul Revere, who used the Internent to create an E-Mail lobbying juggernaut.

That it was not merely a special interest provision for one company was clear--many other comparable large companies stood to gain along with West. They include the Washington Post's LEGI-SLATE, which provides some information now available on the Library of Congress' THOMAS system, DIALOG, Dun and Bradstreet, and LEXIS, who manages the Security and Exchange Commission's EDGAR database.

Understandably there are many conflicting accounts of what actually happened, but the one point on which everyone agrees is that the saga of subsection 3518(f) of the Paperwork Reduction Act is the biggest political and public policy fiasco of the 104th Congress.

"I've been a legislator here for 10 years and I've never been embarrassed to own up to a provision I sponsored," declared Rep. Ron Kanjorski (D-Pa.), who with Rep. John Spratt (D-S.C.) angered committee Republicans by calling attention to the issue. They also scoffed at GOP claims that majority counsel Kevin Sabo was able to act alone in writing the offending language and inserting it into the bill.

Sabo tried to put the best face on his involvement. "I lost the public relations battle," he said last week, after he was singled out at the Feb. 10 markup as the staffer who had inserted the provision into the Paperwork Reduction Act.

However, Sabo told the Bureau of National Affairs that he was approached on behalf of West Publishing by two former Minnesota congressmen, Republican Vin Weber and Democrat Gerry Sikorski, with the suggested language. The provision was designed to prevent government from expropriating the "value added" products of information companies.

And although Sabo said he consulted with Clinton administration officials at the Office of Management and Budget about the West provision, sources said the inclusion of the language in the bill was a surprise.

"The person you need to talk to is Gerry Sikorski," said a lobbyist who said he was present at the committee markup of H.R. 830. "I don't want to be thrown into this ," added the lobbyist, who like most people interviewed for this story refused to go on the record.

Weber, who retired in 1988 after four terms in Congress, denied that he was involved in lobbying on behalf of West.

"It sure was a good lobbying job, but I didn't have anything to do with it," said Weber who is a close personal friend of Speaker Gingrich. "[Former Rep.] Gerry Sikorski and his Republican partner did it."

Sikorski, a partner in the Washington office of Schatz Paquin Lockridge Grindal & Holstein, the Minneapolis law firm that represents West Publishing, could not be reached for comment, nor could West president Vance Opperman.

However, Sikorski's assistant Steve Johnson did not deny Sabo's comment that West spearheaded the lobbying effort.

"I would not take issue with the chairman's counsel in terms of his characterization, " Johnson said, "[but] a number of other information companies [besides West] have supported the intent of the legislation. . .that's part of the democratic process."

The culmination of that process began in late January, shortly after the Senate Committee on Governmental Affairs reported out a similar bill. (S.244). Then on Feb. 3, a Senate staffer faxed a copy of the bill to a public interest group, which in turn faxed it the same day to Jamie Love, executive director of the Ralph Nader-backed Taxpayer Assets Project, who discovered that a new subsection (f) had been added. That's when things began to get interesting.

"It had the effect of completely eliminating the public's rights under the Freedom of Information Act to any information produced by a private contractor," says Love, who immediately embarked on an Internet crusade to notify West[`s competitors and public information advocates.

Committee staffers and lobbyists alike agree that the resulting barrage of e-mail and fax messages was ultimately crucial in defeating the amendment.

"They had 19,000 people on their internet," said one lobbyist who was tracking the motion of the bill through committee.

By Wednesday, Feb. 8, the bill was reported out of Rep. David McIntosh's (R-Ind.) subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs with the soon-to-be controversial provision intact.

But in the markup on Feb. 10, Chairman Clinger referred to the bill as the "West Provision." Democrats Kanjorski and Spratt demanded to know who was responsible and Spratt demanded that the matter should be referred to the Judiciary committee, which has jurisdiction over copyright matters.

Rep. Tom Davis, a former general counsel with the data company PRC, Inc., offered a substitute amendment, which would have made clear that the bill was not intended to affect any pending lawsuits.

Although Democrats tried to portray the proposal as a Republican special interest boondoggle, Republicans pointed out that West's president, Vance Opperman, is a major Democratic fundraiser and personal friend of President Bill Clinton, and had even been an overnight guest at the White House.

According to Federal Election Commission records, Opperman gave $20,000 to the Democratic National Committee and $1000 to the Clinton campaign in 1992. At the same time, his father Dwight gave $100,000 to the DNC and $500 to Clinton.

Nevertheless, it was the Republicans who were feeling the heat. Tom Field of Tax Analysts claims that Rep. Collin Petersen (D-Minn.) told him that Rep. Gil Gutknecht (R-

Minn.) deserved credit for getting the provision inserted into the bill. "It looks as though the West publishing provision is a homeless waif without a parent." Field said.

Gutknecht, who was singled out as the member who asked Sabo to put the provision in the bill by Love's group (TAP), denied any involvement through his spokesman last Friday.

"If I had a stack of Bibles under my arm, I'd say Gil knew absolutely nothing," a Gutknecht aide said. "He's about ready to go after TAP for slander."

And a spokesman for McIntosch, whose subcommittee had handled the bill just a few days earlier, was similarly unhelpful in clearing the confusion about the provision's authorship. "I couldn't help you with any information on that," he said. "it was in his committee, that is the extent of it. So go home and enjoy the weekend, pal."

On Feb. 10, Clinger made a final attempt to save the provision by scheduling a hearing the following week, but the hearing was never held.

"it's been dropped like a dead weight," said Davis' spokesman. "It doesn't have the support of the governmental committee to put it mildly, said Davis' office.

Love, gleeful at what he saw as a major victory for his side, offered a final word. "There's a lot of lying about who did what, who lobbied whom."



Even the critics of Minnesota-based West Publishing have high praise for its information products--annotated court opinions organized according to a citation system that has become the standard, and available on West's on-line database, Westlaw.

"People will pay good money for what West sells," says Jamie Love, the executive director of the Taxpayers Assets Project. "But they are still monopolizing an industry."

For a century, West has held a de facto monopoly on the legal information field, and was so authoritative that the Department of Justice paid them to help maintain JURIS, its electronic database. But in recent years, West has been fighting a series of legal battles in the face of increasing competition from a series of smaller, cut-rate electronic competitors intent on breaking West's monopoly by establishing a public domain citation system for legal documents.

"They are the people who want to do a quick hit..., who want to add nothing but frankly leech off others," Vance Opperman, President of West publishing, told The American Lawyer's Susan Hansen in September 1994. "[They are] the people who want to go into a room, take our books, the covers off,...copy everything,...and pocket the dough."

HyperLaw, a New York CD-ROM company, is suing West over its claim to copyrights on its page numbers which courts require in legal citations.

When an electronic version is available and if the competition sets up a better notation system, then West is in trouble," said one House staffer. "They are trying to forestall that time."

"We are so small and West is so big," says Tom Field of Tax Analysts, a group seeking access to JURIS under the Freedom of Information Act. Field is the secretary of the American Legal Publishers--a consortium pushing to open the legal information field up to smaller private vendors.

West has been fighting hard to stop the competition from gaining an advantage. Last fall, a proposal for a public database run by the Department of Justice was dropped after a letter from nine members of the Minnesota delegation to President Clinton voicing objections to the plan.

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