Government Pztblicntions Rwiew,. Vol. 20, pp. 141-144, 1993 0277-9390193 $6.00 + .OO

Printed in the USA. All rights reserved. Copyright 0 1993 Pergamon Press L.td.

THE U.S. DEPOSITORY LIBRARY PROGRAM AND THE SEPARATION OF POWERS

A Response to the Librarians’ Manifesto

J. TIMOTHY SPREHE Sprehe Information Management Associates, Inc., 1301 Pennsylvania Ave., N.W.. Suite 507,

Washington. DC 20004-1701. USA

Abstract - The Depository Library Program (DLP) is caught in a struggle over separation of powers between the legislative and executive branches of govern- ment. The federal printing laws present executive branch agencies with a funda- mental conflict in that they prevent agencies from exercising management control over essential executive functions, namely, production and distribution of informa- tion products. This longstanding conflict will not be resolved until Congress re- forms itself. Because of the conflict, executive branch agencies will resist giving DLP a blank check for electronic information products as well as making the Government Printing Office (GPO) the primary information packager for the federal government. The author argues that depository librarians would be better served by urging that DLP be legislatively removed from GPO and placed in the Nationaf Archives and Records Administ~tion.

INTRODUCTION

“The Librarians’ Munifesto ” is an excellent presentation of the problems surrounding the federal Depository Library Program (DLP). The paper provides a clear elucidation of the issues from a constructive viewpoint that is largely unencumbered with ideological baggage.

With this endorsement, an endorsement truly meant, I must protest that a dimension is missing from the Mcttzifesto, and indeed is missing from virtually all librarians’ discussions of DLP, the Government Printing Office (GPO), and the Joint Committee on Printing (JCP). This dimension goes by the name: “separation of powers.”

SEPARATION OF POWERS

Fundamental to the American way of government is the principle of “separation of powers, ” which in this case means: the legislative branch makes the laws and the executive branch carries them out: and the two do not trespass upon one another’s powers. The legislature exercises its powers by making laws and does not attempt to administer them. The executive exercises its powers by administering the laws and does not attempt to make them. When the two branches disagree, the courts adjudicate the difference. Separation of powers is a principle just as sacred to the American political system as the principle of free flow of information so cherished by information professionals.

In practice, separation of powers means that the Congress does not operate programs except those directly related to its business. When a legislative branch agency operates a program that purports to make administrative and budgetary demands on executive branch

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agencies. the executive branch will always resist the demands, no matter how lofty the cause, and cite separation of powers.

The Depository Library Program is a program that runs afoul of separation of powers. DLP is operated by GPO and makes administrative and budgetary demands on executive branch agencies. Constitutionally, the GPO is a hybrid creature of dubious nature. The Public Printer is appointed by, and presumably serves at the pleasure of, the president, which would seem to make GPO an executive agency. Yet the Public Printer reports to a legislative entity, JCP. When GPO prints and sells the executive branch’s information products, it is discharging executive, not legislative, functions [I].

Librarians seem mystified by the fact that the Office of Management and Budget takes a strict interpretation of Title 44, Utaitrd Stares Code, Section 1901, claiming that the law does not require agencies to provide electronic information products to the DLP and that therefore provision of such products is essentially optional. In my opinion. the prime reason that OMB takes this position, apart from the purely legal argument. is because of the separation of powers. As I see it, the executive branch is saying to GPO and JCP: we do not recognize your claim to draw resources (information products) from the executive branch in an extra-statutory fashion. A legal reinterpretation of 44 U.S.C. 1901 by GPO or JCP, an administrative directive from GPO, or a memorandum from the Chairman of JCP are all communications outside the boundaries of constitutional relations between the branches. If the Congress wants to include electronic information products in 44 U.S.C. 1901, let the Congress do so in the constitutionally approved manner. that is, through bicameral passage of legislation and presentment to the President. That is the way the American system operates.

THE LEGISLATIVE IMPASSE

Unfortunately, the DLP is mired in this basic struggle between two branches of govern- ment. With respect to executive branch information products, the DLP is an executive function situated in a legislative agency. The Manfesto notes that the library community has called for DLP restructuring for more than 30 years. Why has no solution been achieved’? My answer is that DLP has not been restructured because no one has the political will and skill to resolve the separation of powers problem.

After all the debates over OMB Circular No. A-130, there is now no question that the production and distribution of information is essential to executive agency missions. That is, the functions performed by GPO in general and DLP in particular are executive func- tions, insofar as they pertain to executive agency information products. Hence, the federal printing laws in Title 44 present executive branch agencies with a fundamental conflict: the laws prevent agencies from exercising management control over certain essential executive functions.

What is worse, the fundamental conflict shows no signs of getting resolved. Over many decades the executive branch has shown that it will not introduce legislation to initiate changes in federal printing laws. A principal reason is that the executive branch will not attempt to tamper with statutes involving the powers and jurisdiction of a congressional committee, JCP. That is, the executive branch defers to the legislative branch to set its own house in order.

Nor will industry press for fundamental change. The Printing Industries of American (PIA), the principal printers’ trade association, remains satisfied with the fact that existing laws create one-stop purchasing, a single procurement agency for all federal printing.

The DLP program and the separation of powers 143

Unhappy as PIA may be with GPO’s relatively liberal labor policies, it still prefers the

status quo. The Information Industry Association also does not care enough about GPO to mount a drive for basic statutory change, although it will always want to be a player in

anyone else’s drive. In all probability, therefore, reform of federal printing laws and concomitant restructur-

ing of the DLP will not occur until Congress decides to reform itself and reevaluate its own committee structure. Congress has had numerous opportunities in the past decade or so to reform the federal printing laws and has not done so. Indeed, when Congress passed the Paperwork Reduction Act (PRA) of 1980, it compounded the problem by giving OMB authority that overlaps that of JCP and GPO.

To say that the executive branch will not act to resolve the conflict presented by GPO and JCP is not to say that the executive branch will do nothing. What the executive branch has demonstrated vis-a-vis the federal printing laws is a willingness, perhaps a determination, to live with the status quo so long NS tnatters get no worse. So long as GPO remains an agency focused on printing and sales, the executive branch is content to leave matters as they are. When and if GPO begins to break out of its box and to expand its programs, particularly if anyone were to try increasing GPO’s monopoly-like mandatory usage functions, one can expect major conflict with the executive branch to spring up.

THE CHAFING POINTS

The library community seems unable to understand the sources of executive branch opposition to providing electronic products to DLP. Certainly, executive agencies want their information products widely distributed and want libraries to have them. Believe it or not, federal information professionals are just as dedicated to the principles of information freedom and wide government information distribution as their private sector counterparts. What frightens executive agencies is the possibility of a “blank check” for DLP, the possibility that DLP, ultimately answerable only to JCP, can make unlimited demands on unbudgeted information resources in executive agencies. As a legislative agency, GPO is not accountable to its executive clients because of separation of powers. If DLP’s demands are unreasonable, executive agencies would have little recourse.

Parenthetically, it bears noting that, in none of the discussions surrounding the WIND0 bill. has anyone from the library community suggested limits on what executive agencies might have to spend to supply electronic products free to DLP. If someone were to propose reasonable and negotiable limits, recognizing that executive agencies do not have budgeted funds for supplying electronic products to DLP, they would doubtless find a cooperative attitude in many executive agencies.

For the same reason, executive agencies can be expected to oppose the Mmnif2sto’s

recommendation that GPO “exert its potential to be the primary information packager for the federal government.” The notion that a legislative agency should play this role vis-a-vis executive information products is simply anathema. Similarly, contemplating GPO as Intermediary, Coordinator, and Gateway for their information products gives executive agencies the shudders; they will not willingly cooperate to help GPO take on these roles. Part of their argument will be GPO’s historic inefficiencies and its complete lack of experience at many of these functions. In other words, they count on GPO’s being unable to step up to the challenge. Yet the core of their argument will be that a legislative agency has no business taking on management functions that properly belong to executive agencies, i.e., separation of powers.

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DLP RESTRUCTURING OR RELOCATION?

For my part, it passes understanding why the library community remains so loyal to GPO and JCP through thick and thin. With more than 30 years of needed DLP restructuring, with a long history of poor and deteriorating service from GPO, with demonstrations again and again that GPO is a printing and sales agency that cares little about DLP, what does it take to convince depository librarians to go elsewhere? Why do not the nation’s librari- ans, whose well-organized ranks are more than adequate to make any legislator sit up and take notice, demand that DLP be legislatively reorganized orrt ($GPO?

I find it hard to believe that DLP could be any worse off by being lodged in, say, the National Archives and Records Administration (NARA) than it is in its present habitation. Putting DLP in NARA would overcome the separation of powers morass by putting this executive function in an executive agency. I commend to everyone a rereading of Sarah Kadec’s viewpoint on the subject in this journal in 1985 [2]. Kadec, a former director of the GPO Library Programs Service, argued that LPS is a poor stepchild within GPO and would find a much more suitable and hospitable environment in NARA. In her words. “LPS deserves a home in which it can prosper and grow if it is to satisfy the needs of the citizens of the United States for government information.”

NOTES

I. Some years ago. when 1 was at the Office of Management and Budget, we asked the Justice Department whether GPO was a legislative or executive agency. Justice replied. rather evasively. that GPO has historically been treated as a legislative agency. The courts seem never to have addressed the question as to whether GPO is a legislative or executive agency. Indeed, GPO has taken some pains to avoid having the courts address the question. When the Congressional Information Service. Inc. sued GPO for access to mailing lists, claiming that GPO was subject to the Freedom of Information Act because GPO was an executive agency, GPO settled the suit and conceded access to the mailing lists rather than let the question come before the courts. The status quo is that GPO prefers to be considered a legislative agency.

2. Sarah Kadec. “A New Home for the U.S. GPO Library Programs Service’? A Viewpoint,” Gour,-,rrtre/~/ P//h/ic,ntior~.\ Reuieu, I? (15X35):95-96.