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Leading Advocacy Groups Press Congress to Pass "Free PACER" Bill During Lame Duck

A cross-partisan collection of 20 transparency, media and policy organizations wrote to the leaders of the congressional judiciary and appropriations committees today to call for the lame-duck passage of the Open Courts Act, a bipartisan, bicameral bill that would tear down a paywall that’s charged Americans more than $1 billion for court records in the last decade and would make such access free once and for all.

Read our letter here.

The bill passed the Senate Judiciary Committee unanimously last December and was put on the Majority Leader’s calendar in March. Since then, lawmakers have been making a handful of tweaks at the request of judiciary officials, who, despite these changes, have yet to endorse the legislation.

The groups write in their letter that a new court records system envisioned by the OCA “would achieve major savings for taxpayers over the status quo,” an assertion backed by a recent CBO estimate that found a modernized scheme would save $343 million in the next decade.

Any additional appropriations needed for the new system, the groups maintain, would pale in comparison to those needed in the coming years to patch up the antiquated, poorly managed CM/ECF and PACER apparatuses that exist today.

The groups note that even after the judiciary agreed to a nine-figure class action settlement last month for illegally using PACER fees to fund unrelated projects, the judiciary, absent legislation, has no plans to end the PACER slush fund or significantly reduce costs to users.

Advocates believe that now is the best opportunity in years to pass the bill — one that may not come around again for several years, with the lead sponsor (Sen. Portman) retiring and a host of tenuous economic and geopolitical circumstances that could place this issue on the back-burner in a new Congress.

The letter-writers also stress that legislation for a new system is needed given the security failures of the current one and the recent GAO audit, which found the Administrative Office’s poor management led to “cost increases and schedule overruns” for various IT projects.

Sadly, neither these facts nor their recent “productive” conversations with lawmakers is expected to stop the judiciary from lobbying against the bill.

“Though I am pleased with the progress on the bill that lawmakers have achieved in this Congress,” FTC’s Gabe Roth said, “I am bracing for a last-minute lobbying fusillade from the judiciary aimed at stopping this effort. In 2020, the Judicial Conference circulated talking points to House offices the week of Thanksgiving that claimed a new records system would cost $2 billion, a number extrapolated from a long-ago, poorly managed records revamp in California that ultimately failed. I imagine a similar effort will soon be afoot.”

Roth added: “I hope that such a cynical endeavor meets with the same fate as it did two years ago: it failed, and the House overwhelmingly passed its version of the Open Court Act.”

Unfortunately, by the time the House passed the OCA in 2020, there was no time for a Senate vote.

This time around, advocates expect action on the bill will begin in the Senate, with the House poised to pass whatever can make it through the upper chamber.

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