Victory in the Senate: Update on the bill to mandate open access at the NIH

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From the SPARC Open Access Newsletter, issue #115

Excerpted from the SPARC Open Access Newsletter, issue #115
November 2, 2007
by Peter Suber

Read this issue online

We had a big victory in the Senate last month. For the first time ever, the Senate voted to demand an OA mandate at the NIH. Because the House of Representatives adopted the same language in July, this is also the first time ever that both houses of Congress have demanded an OA mandate at the NIH.

The OA mandate still has to clear two hurdles before it is law: the House and Senate versions of the bill have to be reconciled before going to the President, and then President has to sign it. President Bush has threatened to veto the bill on grounds unrelated to its OA provision. But the victory is important even if the bill faces a Presidential veto, and the importance is not merely symbolic: the Senate vote actually helps the mandate survive a veto.

For background, let me first run quickly run through the saga to date. I've reduced the long story to a long paragraph, but the length is part of the story. We've made slow and steady progress over the past three years --slow enough to cause frustration, but steady enough to justify the optimistic thought that progress is inevitable:

In September 2004, the House of Representatives appropriations report demanded an OA mandate at the NIH. The report language was not binding, and the NIH drafted a weaker policy requesting OA but not requiring it. The Senate appropriations bill remained silent on the issue, and the conference committee reconciling the House and Senate appropriations bills adopted the NIH's watered down version of the policy. In May 2005, the NIH policy took effect as a request. In November 2005, the NIH's own Public Access Working Group recommended that the policy be strengthened to a requirement. In February 2006, the National Library of Medicine Board of Regents affirmed the recommendation that the policy be strengthened to a requirement. The same month, the NIH released data showing that grantee compliance with its request was below 4%. In April 2006, NIH Director Elias Zerhouni told a House subcommittee that "the voluntary policy is just not enough" to achieve the agency's goals. In June 2006, the House Appropriations Committee again demanded an OA mandate at the NIH, this time as part of the binding appropriations bill . Again, the Senate was silent on the issue. But this time, before the conference committee could reconcile the bills, the Democrats took control of both the House and the Senate. Party bickering and budgetary delays forced Congress to turn to a continuing resolution to fund the government, dropping the House appropriations bill, canceling the vote on the Senate counterpart, and forcing us to start all over again the following year. In March 2007, Dr. Zerhouni testified again that the agency needed an OA mandate. In July 2007, once again, the House of Representatives adopted an appropriations bill demanding an OA mandate at the NIH. This time, in October 2007, finally, the Senate adopted the same language.

For more detail up to this year's vote in the House, setting the stage for the historic Senate vote, see my coverage in the August 2007 issue of SOAN. This includes the language of the House bill, my assessment of the language, the procedural journey to date, and President Bush's threat of a veto.

Now I'll slow down and tell more of the story in the Senate.

The key bill is the so-called Labor, Health and Human Services (or LHHS) appropriations bill. Why the clumsy name that has nothing to do with the NIH or OA? The US federal government is so large that it needs 13 separate appropriations bills every year to cover the whole territory. The House and Senate Appropriations Committees each have 13 subcommittees, and each subcommittee writes the budget for its assigned portion of the government. The portion containing the NIH is assigned to the House and Senate subcommittees on Labor, Health and Human Services, Education and Related Agencies. So the long clumsy name is already an abbreviation. The legislation could have been called the Labor, Health and Human Services, Education and Related Agencies appropriations bill, or LHHSERA for short.

There are many ways for Congress to change policy at a federal agency. In this case, the change was attached to a new appropriation. The LHHS appropriation bill tells the NIH, in effect, here's your money for fiscal 2008 and, by the way, we direct you to adopt an OA mandate for NIH-funded research.

In this year's budgeting process alone, the language mandating OA at the NIH survived six public airings --four markups and two votes. All six were opportunities for anti-OA amendments and all six were active battlegrounds between friends of OA and the publishing lobby.

(1) June 8, 2007. The House LHHS subcommittee held a "markup" session (to draft language and consider amendments) on the House version of the fiscal 2008 LHHS appropriations bill. The subcommittee agreed to include the provision mandating OA at the NIH. This was only the second time that OA language was included in the actual House LHHS Appropriations Bill, as opposed to the accompanying, non-binding report.

(2) June 18, 2007. The Senate LHHS subcommittee held a markup session for the Senate version of the LHHS appropriations bill. This subcommittee also agreed to include the provision mandating OA at the NIH, and this too was only the second time that OA language was included in the actual Senate LHHS Appropriations Bill.

(3) June 21, 2007. The full Senate Appropriations Committee held markup for the Senate LHHS appropriations bill. The NIH provision survived intact.

(4) July 12, 2007. The full House Appropriations Committee held markup of the House LHHS appropriations bill. The NIH provision survived intact.

(5) July 19, 2007. The full House of Representatives adopted the LHHS appropriations bill with the NIH provision intact.

(6) October 17, 2007. The day the Senate LHHS bill came to the floor of the Senate for debate and a vote, the White House issued a Statement of Administration Policy (SAP).

The SAP strongly opposed several aspects of the bill, including one to fund stem-cell research. But it expressed only mild concerns about the NIH provision. The weak SAP suggests that, if the President does veto the bill, it will not be on account of the NIH provision. Likewise, the SAP probably didn't influence any Senator to vote against the bill, at least on account of the NIH provision.

Later the same day, Senate leaders removed the stem-cell provision from the bill, but it's too early to tell whether that will be enough to avert a Bush veto.

The part of the SAP on the NIH contained familiar FUD about peer review and copyright, but it also mentions "the benefit of public access to taxpayer supported research". The bottom line is not "strong opposition", which the SAP levels against several other provisions, but a belief that "any policy should balance" the benefits against the "possible impact" on peer review and copyright.

This was the first time that any OA policy had ever appeared in a presidential SAP. Until this point, going back to the birth of the NIH policy in 2004, OA has generated debate in Congress but only indifference in the White House. The change is entirely due to the publishing lobby, which took its case to the executive branch. When friends of OA did the same, the result in the SAP was a fairly innocuous statement of concern.

On October 19, 2007, just before the filing deadline, Senator James Inhofe (R-OK) filed two amendments to the Senate LHHS appropriations bill, one to delete the NIH provision and one to weaken it significantly. The strategy was apparently to use the first to set up the second as a reasonable compromise.

Andrew Leonard has pointed out that Inhofe is the Senator who called global warming "the greatest hoax ever perpetrated on the American people." Charles Bailey has pointed out that one of Inhofe's top financial contributors is Reed Elsevier.

Finally, on October 23, 2007, the full Senate adopted the LHHS appropriations bill with the NIH provision intact. The vote was a veto-proof 75-19. This was the first time that the full Senate had ever voted on, let alone approved, an OA policy.

Earlier in the day, Sen. Inhofe withdrew his amendments, perceiving a lack of support. However, he did file a "colloquy" --a speech to be included as part of the legislative history-- objecting to the NIH provision and asking the House-Senate conference committee to reconsider it.

The House and Senate LHHS bills use identical language to describe the NIH policy. But the bills differ in other respects and therefore must be reconciled by a conference committee before going to the president for a signature or veto. The conference committee is already at work.

In the conference committee there are two strong reasons to keep the NIH provision intact: the full House vote and the full Senate vote. And there are two weak reasons to strike or amend it: the White House SAP and Sen. Inhofe's colloquy. Conference committees usually approve language approved by both houses. But they are not bound by those votes, and we've always done better in open votes than in closed door negotiations. The conference committee should finish its work soon after I send out this issue of the newsletter.

Today, three years after the House first called for an OA mandate, a good many members of Congress in both houses and both parties simply get it and want public access to publicly-funded research. We owe the victory to them. But many members are still unfamiliar with the issue, or mistake it for a copyright issue, and are vulnerable to the relentless and misleading lobbying by publishers. We also owe the victory, then, to the Washington-based champions of OA led by SPARC and the Alliance for Taxpayer Access, for shoring up support among friends, educating members and staffers about the issue, and neutralizing opposition. I followed their exhausting and effective work step by step and can praise it unreservedly because I'm not praising myself. I was in Maine, not Washington.

* What's next?

When the final LHHS bill emerges from the conference committee, President Bush will probably veto it. At least he promised to veto if it does not remove certain objectionable provisions and reduce its overall spending by about $9 billion.

If he does veto the bill, it's still far from dead. First, Congress might override the veto. For that it needs two-thirds of each house. The NIH provision already has more than enough support in the Senate, where the vote was 75-19. But it falls short of that level of support in the House, where the vote was 276 to 140. The House might or might not muster the 14 new votes it needs to override a veto.

But even if Congress doesn't override the veto, some version of the bill still has to pass, with a Presidential signature, or one-thirteenth of the federal government will not be funded for fiscal 2008 (which started on October 1, 2007). In that case, Congress will make some changes in the bill in order to satisfy the President's objections, and the President might make some concessions of his own in order to fund the government. During the negotiations, everything is open to scrutiny. But the provisions passed by both houses will be the least likely to be dropped or modified. That's why victory in the Senate was so important for us, even if a Bush veto is inevitable.

There are two reasons not to despair if President Bush vetoes the LHHS appropriations bill later this month. If Congress overrides the veto, then the OA mandate language will become law. Just like that. If Congress fails to override the veto, and modifies the LHHS appropriation instead, then the OA mandate is likely to survive intact.

Remember this: Congress was in Republican hands when the House called for an OA mandate at the NIH in 2004. It was in Republican hands when the House called for an OA mandate again in 2006. The fact that we won the Senate vote this year when Congress is now in Democratic hands does not mean that OA is a Democratic issue. OA has always had strong bipartisan support, and we depended on Republicans as well as Democrats this year for the strong votes in each house. We particularly depended on Republican support to help prevent the publishing lobby from inserting a stronger objection to the NIH policy into the White House SAP.

As we move into the post-veto political season, pundits and politicians will try to polarize the debate along party lines. That's not entirely misleading. The President will criticize Democrats for appropriating more money than he wants to spend, and will appeal to Republican members of Congress, as Republicans, to resist attempts to override his veto. Any veto override battle is a battle between Congress and White House, and this year the two branches are under the control of different parties. But this partisan polarization overlooks the many separate provisions in the vetoed bills, some of which have strong Republican support. This is especially true of the OA mandate at the NIH. Don't let the publishing lobby frame *this* issue as partisan. That will overlook the entire history of the NIH policy --not to mention the indispensable role of conservative Republican, John Cornyn (R-TX), in sponsoring the Federal Research Public Access Act (FRPAA).

Finally, *thanks* to all of you for your calls and letters to the Senate. They really did make a difference.

Here are some links to official documents not already provided above:

House version of LHHS appropriations bill (H.R. 3043), passed July 19, 2007
(The final colon is part of the URL.)

Senate version of LHHS appropriations bill (S.1710), passed October 23, 2007
(The final colon is part of the URL.)

Senate Report 110-1076 on the Senate LLHS appropriations bill
(The final parentetical is part of the URL.)

The section of the Senate Report on the NIH provision

Here are some news stories and comment pieces from October:

The Genetic Alliance released its October 17, 2007, letter to the Senate in support of an OA mandate at the NIH.

As NIH Policy Hits the Senate, the White House Enters the Picture, Library Journal Academic Newswire, October 18, 2007.

NetCoalition released its September 19, 2007, letter to the Senate in support of an OA mandate at the NIH.

The Alliance for Taxpayer Access issued an urgent call for Americans to ask their Senators to oppose the two Inhofe amendments to the LHHS appropriations bill, October 20, 2007.

The American Library Association create an action alert to help US citizens ask their Senators to support OA at the NIH and oppose the Inhofe amendments, October 20, 2007.

Support Public Access to Research Funded by the National Institutes of Health, Disruptive Library Technology Jester, October 22, 2007.

Knowledge Ecology International released its October 22, 2007, letter to the Senate in support of an OA mandate at the NIH.

Amid Dramatic Last Minute Politicking, NIH Public Policy Access Is Imperiled, Library Journal Academic Newswire, October 23, 2007.

Andrew Taylor, Senate Reverses Bush's Budget Cuts, Associated Press, October 23, 2007.

Mandate for Public Access to NIH-Funded Research Poised to Become Law, a press release from the Alliance for Taxpayer Access, October 24, 2007.

After Years of Effort, Mandatory NIH Public Access Policy Passes Congress, Library Journal Academic Newswire, October 25, 2007.

Robin Peek, Oh the OA Drama of it All, Wikis@GSLIS, October 27, 2007. A preprint of a forthcoming column for Information Today.

Merrill Goozner, Open Access Bill Advances despite Publisher Protests, GoozNews, October 29, 2007.

Brock Read, Senators Support Open-Access Measure, Chronicle of Higher Education Wired Campus, October 30, 2007.

Bill Containing NIH Policy Ready for Conference; Implementation Looms, Library Journal Academic Newswire, October 30, 2007.

Susan Morrisey, Strengthening Public Access, Chemical & Engineering News, October 31, 2007.

Rick Weiss, Open Access to Research Funded by U.S. at Issue, Washington Post, November 1, 2007.