The Open Courts Act — a bill that would modernize the federal court records system and eliminate the unjust PACER paywall — was not included in the year-end omnibus spending bill, and it wasn’t brought to the House or Senate floor this month as a standalone bill.

But that’s not the entirety, nor the end, of the story.

Thanks to the doggedness of lead Senate sponsors Rob Portman and Ron Wyden, who worked long hours on the text and had the backing of Senate and House Judiciary Committees, and thanks to support from lead House sponsors Hank Johnson and Darrell Issa, House and Senate Leadership were considering including the OCA in the omnibus bill, and there were nearly successful behind-the-scenes attempts to pass it via unanimous consent in the Senate before the body recessed for the holidays.

In the end, the adversaries here were time, as is often the case, and the Administrative Office of the U.S. Courts and their supporters in Congress, who insisted the judiciary maintain a post-PACER slush fund.

Sausage-making
The judiciary uses the PACER fees they collect ($140 million/year) to run PACER and CM/ECF ($50-$60 million/year) as well as the judiciary’s IT infrastructure ($60-$80 million/year). Once the OCA is implemented and PACER fees go away, the annual cost of maintaining the new court records system (~$15/million) would be offset by payments from federal agencies based on the PACER fees they currently pay and, if needed, modest increases to filing fees in complex litigation. So, the judiciary would only need to make up its IT infrastructure costs, either with new fees or appropriations.

But there’s a third bucket: the judiciary has for years wanted access to the filing fees they collect that currently go directly into the Treasury, $60 million of which are not already earmarked to offset other judiciary costs. In late fall, Sens. Portman and Wyden included in their bill language to redirect the $60 million into the Judiciary Information Technology Fund, which the AO could then access to pay for IT infrastructure.

Critically, that permission included several accountability measures so the slushy, illegal things that happened with PACER receipts would not happen again.

Yet even after the sponsors signed off on access the $60 million, the AO balked at the accountability measures and insisted the bill provide them with unmediated, direct access to the funds, as well as additional funds to cover the last $20 million for IT.

What’s more, they did not concede that they, like every other government agency, should simply be required to ask appropriators for IT funding. To the very end of the negotiations, they remained opposed to the bill.

Getting to, or past, zero
Sens. Portman and Wyden were, in fact, working on two fronts, as they realized that for their bill to have the best chance to pass, it needed a deficit-neutral CBO score. (The Sept. score claimed an increase of $77 million over 10 years.) The sponsors were able to achieve that neutrality (really, a $14 million reduction to the deficit over 10 years) last month by spreading out the costs of implementation over five to six years, instead of the initial two to three years.

And yet, even after doubling the amount of time the AO was given to finalize the new court records system and achieve free PACER, their opposition remained.

“Though the chips didn’t fall where I had hoped, I’m confident that, thanks to the dogged work of Sens. Portman and Wyden, lawmakers can move swiftly to pass the Open Courts Act in the new Congress and finally remove the regressive paywall that for too long has impaired public access to the federal courts,” FTC’s Gabe Roth said.

“PACER fans, if you’re out there: enjoy the final throes of the antiquated, expensive, regressive, hard-to-use, security nightmare of a system that the rest of us have come to detest,” Roth added. “PACER’s comeuppance is coming.”

Hope for the future
The Open Courts Act is the rare judiciary reform bill that has equal amounts of enthusiasm on the left and right. Supporters run the political gamut from the Alliance for Justice to R Street Institute to Americans for Prosperity and include good-government and press groups like Free Law Project, Project on Government Oversight, Radio Television Digital News Association and Reporters Committee for Freedom of the Press.

Though Sen. Portman is days from retirement, advocates are confident that several GOP senators will be champing at the bit to join Sen. Wyden and Reps. Issa and Johnson in the 2023 reintroduction.

Four GOP senators — Grassley, Cruz, Kennedy and Hawley — are current or past cosponsors of “free PACER” bills, and the other six GOP members of Senate Judiciary who will be serving in the 118th Congress backed Committee advancement of the OCA a year ago.