On making sausage: the NIH policy becomes permanent

Update. I want to reiterate a few points for clarity.

  • This post, and everything on this blog, represents my opinion alone, not that of my clients. I did not write this post at their behest nor am I adding this update for that reason.
  • The NIH policy is wonderful (the only way it could be better is to make it even stronger) and it is a triumph of policy. It is working. The advocates who worked for it should be proud.
  • There is nothing inappropriate about the way the policy was adopted. It was not an “in the dead of night” kind of thing. The policy has been argued extensively (by both sides) in the public arena and the press, at NIH (and in the Federal Register), and at private meetings in Congress and the agencies. It has also been discussed to some extent in public meetings in Congress, both before and after the policy was signed into law. If Congress had more time to explain publicly the details of the decisions it makes, that would be preferable. We don’t yet live in that world. Few people would argue, in the current circumstances, that a one-word change in a multi-billion dollar appropriations bill should warrant much public explanation from Congress. Is that perfect? I’d say it isn’t (what is?); that’s my whole point.
  • Does that mean that advocates shouldn’t have asked Congress to make this change? That’s not at all what it means. Advocates have a right to employ every ethical means at their disposal to advance their objectives — in fact, they have a duty to. That’s the ethic of democracy. The advocates of public access have a well-deserved reputation as people who work hard and fight fair, who relentlessly stick to the merits of their policy arguments. Indeed, the momentum for public access (in the face of such well-funded opposition) is a testament to the tenacity of its advocates and the worthiness of their cause.

A few days ago I wrote about the messy process through which the NIH Public Access Policy became law. A new development since then: a new appropriations bill amended the policy, adding the words “and thereafter” to make the law permanent. (Previously, the Congressional mandate only applied “in the current fiscal year”; the language had to be repeated in each appropriations bill.)

This is a great development. But again, it’s messy. Since the policy became law, the Appropriations Committee hasn’t held hearings to review the performance of the policy. Other than the hearing held in a Judiciary subcommittee on Rep. Conyers’ anti-open access bill, I doubt you’ll find a word in the Congressional Record on the policy, pro or con. In other words, the debate about whether or not this policy should be made permanent isn’t taking place in public: not that the advocates on each side aren’t making their cases public, but that Congress isn’t being very transparent in its reasoning.

That’s less than ideal for democracy. The citizen (or, as I intimately know, political scientist) who endeavors to understand why Congress made this change will find few clues in the official records of Congress itself.

There’s nothing invalid about the decision, though. The Appropriations Committee thought it important to maximize the value of taxpayer dollars by adopting this policy, and the rest of Congress (and President Obama) agreed. At least, they didn’t disagree enough to derail the whole bill.

This is how the sausage gets made. In this case, the result is good sausage (at least this link of it). And bravo, at least, for that.

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