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Capital CommentaryBruce Craig, Director of the National Coordinating Committee for the Promotion of History107th Congress Convenes The November presidential election is now history. In one of the most memorable elections of all time, the Republicans managed to maintain their control over Congress, albeit by slim margins--Vice President Richard Cheney, however, as President of the Senate, is situated to cast the decisive tiebreaking vote should the need arise, thus giving the Republicans technical control over the upper chamber as well. With George W. Bush as the forty-third President of the United States, Republicans also control the White House. The freshmen class of the 107th Congress is an interesting mix of individuals. There are over forty new House members. Statistically, the typical new House member is a middle-aged white man with a decade or more of experience in state government who possess a Master's degree. Among those in the House freshman class is a Japanese American imprisoned as a child in an internment camp, a former spy, a quadriplegic, and the former head football coach of the University of Nebraska Cornhuskers, Tom Osborne (R-MO), the only new member to possess a doctorate degree. On the Senate side, the winners are a more diverse group of conservatives, liberals, and moderates. A fair number of the incoming class (both Republican and Democrat) won their seats by spending large sums of their own money. As a consequence, one political strategist commented that the Senate is "becoming a House of Lords" making any hope for enactment of certain issues (i.e., campaign financing reform) more unlikely. However, the new Congress undoubtedly will take up a number of measures introduced late in the 106th Congress but because of the press of time were not addressed. They will tackle what is characterized as "human subjects research protection" (of particular interest to the oral history community and any researchers whose research proposals are reviewed by Institutional Review Boards). At least two National Landmark theme-study bills have already been reintroduced including: Senator Daniel K. Akaka's (D-HI) "Peopling of America" Theme Study Act (no bill number at this writing) which focuses on the migration, immigration, and settlement of the population of the United States), and Representative Joel Hefley's (R-CO) legislation (H.R. 107) which seeks to commemorate and interpret the Cold War. In terms of appropriations, now that the National Historical Publications and Records Commission (NHPRC) has been reauthorized (see below), the historical/archival community is in a good position to influence NHPRC's appropriations this year. With appropriate political pressure at the right time, there is the very real possibility of raising the Commission's annual appropriation to its authorized full funding level of $10 million. The National Archives' funding for its electronic record programs also should experience an increase. Legislative Recap of the 106th Congress In retrospect, the 106th Congress will be remembered for its solid legacy of legislative successes with respect to history, archives, and historic preservation. Noteworthy accomplishments include:
Oftentimes victories are also measured in what legislative proposals do not become public law. Two examples: Preservationists were able to fend off bills that challenged the president's authority to designate national monuments under the Antiquities Act of 1906. And historians, journalists, and civil rights activists convinced President Clinton to veto the Intelligence Authorization Act (H.R. 4392) that included a controversial "Leak Statute" provision that would have made it a felony for any government official to willfully disclose "classified information" (see discussion in "Moynihan Declassification Board" below). Then there was the enactment of legislation that seems to incrementally take a step in the right direction but still fails to live up to its full potential. An excellent example of this is the Conservation and Reinvestment Act of 2000 (CARA; H.R. 701/S. 2567). Because of the CARA proposal, a major land legacy funding increase was realized for historic preservation within the Department of the Interior and Related Agency appropriations bill through the creation of the "Land Conservation, Preservation and Infrastructure Improvement Program" (Title VIII within the Interior bill). But this fell short of a true trust fund for preserving America's heritage. $50 Million for History Education In its last order of business, the 106th Congress passed the massive Omnibus Consolidated Appropriations Act (P.L.106 - 554 ) then adjourned "sine die" on 15 December. Included in the $634 billion, ten-inch-thick funding package is a one-line item $50 million history education earmark (see Congressional Record-House, 15 December 2000, p. H-12111) which was tacked on as an amendment to the $108.9 billion Labor, Health and Human Services and Education bill (H.R. 4577). The history of how this funding came about is worth noting. On 27 June 2000, Senators Joseph Lieberman (D-CT), Slade Gorton (R-WA) together with Representatives Thomas E. Petri (R-WI) and George Miller (D-CA) unveiled a Congressional Concurrent Resolution (S. Con. Res. 129; H. Con. Res. 366) designed to draw attention to what Congressman Petri characterized as "the troubling historical illiteracy of our next generation of leaders." Their resolution was based on the findings contained in "Losing America's Memory: Historical Illiteracy in the Twenty-First Century," a report released by the American Council of Trustees and Alumni (ACTA). According to the ACTA report, at seventy-eight percent of the institutions surveyed, students are not required to take any history courses at all. Indeed, it is possible for students to graduate from one hundred percent of the top colleges without taking a single course in American history. The resolution offered by the Congressmen, therefore, expressed "the sense of Congress regarding the importance and value of United States history." It called upon boards of trustees, college administrators and state officials to strengthen American history requirements in the nation's schools, colleges and universities. As a follow-up to the resolution, Senator Robert Byrd (D-WV) then offered an amendment (no. 3731) to the Senate version of the FY 2001 Labor, Health and Human Services, and Education appropriation bill (H.R. 4577) on 30 June. His one-line amendment (actually hand-written by Senator Byrd while sitting at his desk on the Senate floor) sought to provide $50 million to the Secretary of Education to award grants to states "to develop, implement, and strengthen programs that teach American history (not social studies) as a separate subject within school curricula." The grant money was earmarked for states to support the development of history programs in secondary schools. According to Senate sources, however, the amendment is written broadly enough to give the Secretary of Education discretion to use funds for the support of post-secondary history education programs as well. The amendment was approved by a 98-0 margin in the Senate and was supported by the Clinton Administration. However, because there was no similar language in the House passed version of the Labor/H&HS/Education bill, funding was not assured. The amendment was addressed by conferees when they met to resolve differences between the House and Senate versions of the appropriations bill. On 20 July, conferees were appointed; a letter under the signature of the executive directors of the Organization of American Historians, the American Historical Association and the National Coordinating Committee for the Promotion of History was sent to all the conferees expressing support for the amendment by the historical community. Ultimately, the conferees adopted the Byrd amendment, but for months the conference report was held victim to legislative maneuvering--the timing of its release was (according to one staffer) to be "a political decision." Only when the final budget agreement was reached was the historical community assured that the funding would be forthcoming. After the Omnibus Consolidated Appropriations Act was enacted, the conference report was issued. The report states the intent of Congress for the expenditure of the funds though it is not necessarily binding on the Secretary of Education. The reference (in its entirety) reads: "The conferees recognize the need to promote the study of American history in our nation's schools, and therefore, have also included $50,000,000 for a new demonstration program focusing on the instruction of American history in elementary and secondary education. Under this program, the Secretary of Education will award grants to local educational agencies (LEAs), and in turn, the LEAs will make awards to schools that are teaching American history as a separate subject within school curricula (not as a part of a social studies course). Grant awards are designed to augment the quality of American history instruction and to provide professional development activities and teacher education in the area of American history." Representatives of the historical community have already met with Department of Education officials about the expenditure of the funds and discussions are currently continuing with Congressional and Education department officials. Moynihan Declassification Board The Public Interest Declassification Act (PIDA; S. 1801), the last vestige of Senator Moynihan's once ambitious effort to reform the national security classification and declassification system, was incorporated into the Senate version of the Intelligence Authorization Act. It creates a nine member "Public Interest Declassification Board" whose charge is to promote openness, to support Congress in its oversight of declassification, and to make recommendations to the president on classification and declassification policy, practices and procedures. On 4 November 2000, President Clinton vetoed the Intelligence Authorization Act of 2001 (H.R. 4932) because of the inclusion of Section 304, "Prohibition on Unauthorized Disclosure of Classified Information." Without benefit of any congressional hearings, the so-called "Leak Statute" was passed by Congress by voice vote on 12 October. According to numerous historians and journalists who studied this legislation, the proposed law would have been equivalent to an "Official Secrets Act." It would have severely restricted free speech, undercut the already tenuous rights of federal government whistle-blowers who put their jobs on the line when they disclose wrongdoing, and would have shielded "corruption and government abuse of power behind a wall of secrecy." In an effort to get another version of the appropriation bill passed, on 13 November, the House of Representatives removed the controversial statute that the President stated that if enacted, would "chill legitimate activities that are at the heart of a democracy," and passed a revised bill. On 6 December, by unanimous consent, the Senate passed a revised second version of the Intelligence Authorization Act (H.R. 5630) that included the Moynihan declassification board provision but not the leak statute. On 11 December, the House agreed to the Senate passed version; the bill was advanced to the President's desk and was signed on 28 December 2000. NHPRC Reauthorization On 1 November, President Clinton signed legislation (P.L.106-410) to reauthorize the National Historical Publications and Records Commission (NHPRC) for the fiscal years 2002 through 2005 with an annual federal appropriations ceiling of $10 million. While the bill (H.R. 4110) passed the House of Representatives on 24 July, because the NHPRC still had a year to run in its current authorization cycle, the Senate committee of jurisdiction was reluctant to push for enactment this year. Thanks in large part to your letters, email communications, and phone calls to Senator Fred Thompson (R-TN) and other members of Congress (see "Action Item" in NCC Washington Update, 6: 25, 27 July 2000), the Senate Committee on Governmental Affairs passed H.R. 4110 on 3 October; the full Senate passed the measure on 19 October. Rosie the Riveter--World War II Home Front National Historical Park On 24 October, President Clinton signed legislation (P.L.106-352) that establishes the Rosie the Riveter--World War II Home Front National Historical Park in Richmond, California. Introduced by Representative George Miller (D-CA) and Senator Dianne Feinstein (D-CA), the new historical park that will be made part of the National Park System seeks to preserve sites, structures, and areas located in the vicinity of Richmond, California, that are associated with the industrial, governmental, and citizen efforts that led to victory in World War II. The legislation directs the NPS to operate an education center for the purpose of educating the American public about the significance of the site and on the broader story of the WW II home front. The legislation also recognizes that survivors who worked on the home front are in their seventies and eighties and hence an oral history program is authorized: Section 5 of the legislation authorizes "such funds as may be necessary to conduct oral histories" and to carry out other provisions of the act. Sand Creek Massacre National Historic Site Public Law 106-465, legislation (S. 2950) that was originally introduced by Senator Ben Nighthorse Campbell (R-CO) to create the Sand Creek Massacre Historic Site in Colorado recognizes and memorializes "the hallowed ground on which hundreds of peaceful Cheyenne and Arapaho Indians were massacred by members of the Colorado militia" in 1864. The law authorizes the National Park Service to enter into agreements with willing sellers in an effort to secure lands within a 12,480-acre boundary. Without condemnation authority acquisition of land could take years, but several willing sellers who own property within the core of the site's proposed legislative boundary have offered to sell in recent months. Once the NPS has purchased a sufficient land base to memorialize and commemorate the massacre, the site will be formally established. Special provisions are found in this legislation that provide tribal access for traditional cultural and historical observances. First Ladies National Historic Site Legislation creating the First Ladies National Historic Site was enacted without benefit of any congressional hearings by authorizing committees. This National Park unit established at the home of First Lady Ida Saxton McKinley in Canton, Ohio, was achieved through its inclusion as Section 145(a) in the Interior Appropriations bill (P.L. 106-291). The mover of the legislation was Representative Ralph Regula, outgoing chair of the House Interior Department Appropriations Subcommittee. The purpose of the new unit is to preserve and interpret the role and history of the First Ladies in American history. While the legislation empowers the NPS to own and operate the site, it also authorizes the NPS to enter into a cooperative agreement with the National First Ladies Library that can also help operate and maintain the site; entrance fees collected can be retained by the library for the historic site's upkeep. Several years ago, the National Park Service did study the McKinley home for possible inclusion in the NPS system but did not find it nationally significant. A second NPS report found that the Park Service did not administer any historic site specifically focusing on the First Ladies and because of outstanding interpretive and educational program possibilities that inclusion of such a site focusing on the First Ladies in the NPS system could be justified. Abraham Lincoln Interpretive Center/Underground Railroad "Freedom Center" Several other legislative measures were also included in the Interior bill, but all of them had been considered by Congress through one or more hearings and had passed one or both houses of Congress. Section 146 of the Interior bill authorizes the Secretary of the Interior to make grants and contribute funds for the establishment of an Abraham Lincoln Interpretive Center in Springfield, Illinois, to "preserve and make available to the public materials related to the life of President Abraham Lincoln." Section 150 of the Interior bill authorizes federal funds (up to 20 percent of the total project cost) for the National Underground Railroad Freedom Center in Cincinnati, Ohio. Once constructed, the Freedom Center will serve as a centralized facility for exhibits, collections, and research relating to the history of the Underground Railroad. Freedmen's Bureau Records Preservation Act On 6 November 2000, President Clinton signed legislation (P.L. 106-444) that authorizes the expenditure of $3 million in fiscal years 2001 through 2005 to safeguard the records of the Freedmen's Bureau--a federal agency that from 1865 to 1872 attempted to help better the lives of former slaves after the American Civil War. The records of the bureau document one of the greatest social undertakings in this country's history. The new law requires that the National Archives act to preserve the Bureau records through microfilming and establish partnerships with educational institutions including Howard University in Washington, D.C., and the University of Florida. The partners are to assist NARA in making the records "more easily accessible to the public including historians, genealogists, and students." Veterans Oral History Project Office On 27 October 2000, President Clinton signed into law the Veterans Oral History Project Act (P.L. 106-380). The legislation directs the American Folklife Center at the Library of Congress to establish a program to collect video and audio recordings of personal histories and testimonials of American war veterans. With the support of 235-plus cosponsors, the House of Representatives easily passed legislation on 4 October; the Senate acted favorably on the measure on 17 October. Introduced by Representative Ron Kind (D-WI), the Veterans Oral History Project Act (H.R. 5212) creates a new federally sponsored and funded program to coordinate at a national level the collection of personal histories of war veterans and to encourage local efforts to preserve their memories. The legislation authorizes the director of the Folklife Center to enter into agreements and partnerships with other "government and private entities and may otherwise consult with interested persons" in carrying out the provisions of the act. A total of $250,000 for fiscal 2001 is authorized to be appropriated for this project. While there are no specific funds for this project in the Library of Congress fiscal 2001 appropriations, library officials state that, nevertheless, funds have been shifted from other library programs and work on this project is already underway. National Recording Preservation Act On 9 November 2000, President Clinton signed P.L.106-474--the National Recording Preservation Act of 2000--legislation introduced on 13 July 2000, by Representative William M. Thomas (R-CA.), the chair of the House Administration Committee. The new law has several major provisions: i t directs the Librarian of Congress to establish the National Recording Registry for the purpose of maintaining and preserving sound recordings that are "culturally, historically, or aesthetically significant"; it also establishes a National Sound Recording Preservation Program within the Library of Congress and creates a National Recording Preservation Board, an appointed body charged to review and recommend the nominations for the National Recording Registry. Finally, the bill authorizes the establishment of a National Recording Preservation Foundation, a federally chartered, nonprofit charitable corporation charged to raise funds for preservation and public access to the nation's sound recording heritage. Jamestown Commission On 23 December 2000, President Clinton signed into law legislation (P.L.106-565) creating a federal commission to raise national awareness about the first permanent English settlement in North America. The Jamestown Commission is an integral part of plans being laid by the National Park Service (NPS), the Association for the Preservation of Virginia Antiquities, and the Jamestown Yorktown Foundation to create a unique partnership that combines research, planning, fund raising, and construction. While the Jamestown celebration is still seven years off, with the enactment of this legislation, planning will move forward. NEH Long-Term Projects On Friday, 17 November 2000, during the 133d meeting of the National Council on the Humanities a panel began to address the long-term project funding of scholarly projects issue. Impacted by this discussion are over forty ongoing editing projects relating to presidential papers, correspondence and papers of important historical figures, as well as dictionaries, encyclopedias, and bibliographies. The discussion focused on concerns raised by some Council members in past meetings pertaining to: a) the amount of money the NEH was investing in certain editing projects and, b) dismay over the length of time sometimes needed to complete such projects. At the last meeting of the Council, it was decided that NEH staff would prepare a concept paper discussing these issues prior to the November meeting. An NEH Task Force indeed did prepare a draft concept paper, circulated it within the NEH as well as to the scholarly community, and received some 170 comments and reactions. Following nearly an hour of discussion, by a vote of fifteen to four, the Council adopted a complexly worded motion offered by Columbia University Professor of History, Martha C. Howell. The motion, worded in such a way to give greater scrutiny to scholarly editing projects, contained three essential elements: First, it embraces the Task Force recommendation of having the Division of Research consider all such funding requests collectively in a "scholarly editions" program category. Second, the motion directs the NEH to develop a new set of guidelines (or rather "management principles") that gives priority to projects with "finite terms (five to seven years was mentioned but not made a part of the resolution)" and projects that possess "free-standing increments." Third, the motion states that the NEH shall analyze all long-term editing projects currently underway to gauge how close they are to completion and to assess what can be done to make end products available to scholars and the public more quickly (i.e., installment publishing, electronic editions). Most Council members voiced support for the suggestions relating to a separate funding category, to devising new guidelines, and to studying ongoing projects. Several members, in particular Council member Margaret P. Duckett and University of Maryland Professor of History Ira Berlin, questioned the wisdom of giving preference to projects that can be completed more quickly than others. Berlin warned that the Council should avoid a "straight-jacket . . . one size fits all" approach. Furthermore, Berlin stated that unless the Council is careful, "We're raising an issue in a clumsy way that is not going to do us any good." After the vote, the task of preparing the draft guidelines was referred to the Chairman's staff, the NEH Research Division, and to the Research Committee of the National Council to address. This is an issue the historical/archival community will want to monitor in the coming year. Public Citizen Challenge to GRS-20 Public Citizen has filed a petition with the National Archives and Records Administration challenging the Archivist's implementation of General Records Schedule 20 (GRS 20) and requesting that NARA's rules on electronic records be amended to prevent further creation of a gap in historical records being preserved by federal agencies. The petition claims that agencies have not taken steps to preserve the complete contents of records created in electronic form. Filing of the petition coincides with the 31 October 2000 deadline for agencies to submit their plans for implementing the Government Paperwork Elimination Act which requires that agencies be prepared to conduct their transactions with the public entirely through electronic means by 2003. Public Citizen hopes that researchers, historians, research organizations, and technology vendors will submit letters or comments supporting the petition. An HTML version of the petition may be found at: http://www.citizen.org/litigation/briefs/narapetframe.htm. Supreme Court Review of the Tasini Copyright Case On 6 November 2000, the U.S. Supreme Court agreed to review an appellate court decision relating to a 1993 copyright case, the New York Times v. Jonathan Tasini. At issue is the extent to which certain original publications can be reissued (preserved or even archived) in electronic format. The central issue is whether media companies or free-lance writers control rights to post-published articles and writings that are converted into electronic and computer based formats. The high court will be reviewing a September 1999 U.S. Court of Appeals for the 2nd Circuit decision that overturned a lower court ruling dating back to 1993. The three-judge appellate court found that the New York Times did not have the right to include the work of freelance writers in full text databases without having secured a separate contract with the writers. In reversing the lower court ruling that had found for the publishers, the appeals court decided that reuse of a freelance writers work on CD-ROMs and electronic databases without the author's permission constituted a copyright infringement. Should the Supreme Court uphold the appellate court decision, hundreds of thousands of articles currently on-line may have to be permanently deleted, thus creating havoc for archivists and librarians. Also impacted would be researchers who may find it more difficult to access back articles. Harvard professor Laurence Tribe (who also serves as attorney for several publishers who are principals in the case) believes that if the Supreme Court upholds the appellate court decision the result would be "disastrous for the nation's libraries, academic institutions and publishers." Arguments on the case will be heard in the Supreme Court chamber next year, probably in April. |
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