Cross-posted on LawLib and tap-juris
The following article is reprinted with the permission of THE HILL.
There is a related article in Legal Times, February 20, 1995 "West Loses
Round in Cite Fight."
Alan Sugarman
HyperLaw
sugarman@panix.com
********************************************
(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.
Page 1
WEST: A STUDY IN SPECIAL INTEREST LOBBYING (Full 3 Column
Headline)
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
Page 12 --Continues from Page 1
"How the West was lost: a Lobbying Saga" (4 Column
Headline)"
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.
[[Picture of Former Rep. Gerry Sikorski]]
"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."
SIDEBAR -- COLUMN 4
WHY WEST IS FIGHTING HARD
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,...rip 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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