About this Issue
Congressional hearings about tech policy can be hard to watch. It’s often painfully obvious that members of Congress know little or even nothing about the internet, cryptography, streaming services—or even just a typical user’s basic experience on social media. How confident can we be that such people will craft appropriate policies for these increasingly important aspects of our lives?
This month we ask what Congress needs to know about tech policy. We also ask what institutional support, if any, Congress may need as it seeks to regulate a wider and wider array of products and services that its members often seem not to understand. Joining us this month are Kevin Kosar, Vice President of Policy at the R Street Institute; Betsy Wright Hawkings, director of the Governance Program at Democracy Fund; William Rinehart, Director of Technology and Innovation Policy at the American Action Forum; and Berin Szóka, the founder and president of TechFreedom.
We will discuss throughout the month, and we welcome readers’ participation in the comments, as well as letters to the editor.
Congress’s Tech Policy Knowledge Gap
“Suppose you were an idiot,” Mark Twain once quipped, “and suppose you were a member of Congress; but I repeat myself.” Like Twain, libertarians tend not to think highly of elected officials. We view them as corrupt, in cahoots with interest groups, and obsessed with politicking instead of governing.
And, as Twain quipped, dumb. Oh, so, dumb. Who can forget Rep. Hank Johnson (D-Ga.) fretting aloud that an island might tip over if too many soldiers are stationed on one side of it? And how about Rep. Louie Gohmert (R-Texas), who freaked people out by claiming al Qaeda had camps near the U.S.-Mexico border? Does a week go by without one of the 535 members of our national legislature popping off inanely? Probably not.
Indeed, as Twain’s quote indicated, Congress never has been filled with Solons, to say nothing of Erasmuses. Even our much revered Founders made some seriously wrongheaded decisions. (See the Alien and Sedition Acts of 1798, to cite only one example among many.)
But stupidity in our national legislature is a feature of representative democracy. Americans want to choose their leaders; they do not wish to have unaccountable mandarins imposing rulership. (Hence our current battle against the administrative state.) Congress lacks wisdom, in short, because Congress is us. After all, we are not a nation comprised wholly or even mostly of expert policymakers. We are store clerks, construction workers, and telemarketers, and the national legislature is simply the place where our partial views and diverse interests get bargained out into policy that hopefully we all can live with. (James Madison’s Federalist 10 is about as clear-eyed and unsentimental an account of this truth as can be found.)
But this “feature” of representative democracy is also a bug because, as it turns out, when non-expert policymakers craft policy, they often do it poorly. For example, no one wants Congress enacting policies that make us worse off, or that delay or stifle technologies that improve our lives. And yet this kind of bad policy happens with lamentable frequency. Pluralistic politics inevitably features some self-serving interests that are more powerful and politically persuasive than others. This is why government often undertakes bailouts and other actions that are odious to the public writ large.
And this brings us to science and technology policy. In recent years, Congress’s ineptitude in these areas has been richly displayed. Late last year, for example, Rep. Mark Green (R-Tenn.) drew brickbats when he suggested autism is associated with vaccines. Congressional elders on the dais trying to understand 21st-century technology are often so absurd that they have become a meme. Senate Minority Leader Chuck Schumer (D-N.Y.) uses a flip phone, while his colleague Lindsey Graham (R-S.C.) eschews email. As Washington Monthly’s Grace Gedye recently put it,
These old-fashioned habits may be charming coming from your grandparents, but your grandparents aren’t charged with legislating on cryptocurrency, regulating autonomous vehicles, or protecting consumers from data breaches. Members’ technical naïveté goes beyond their choice in phones and onto the floor of Congress. When experts testified before Congress last May about the promise of quantum computing—which could radically accelerate research into everything from pharmaceuticals to machine learning to carbon sequestration—Illinois Representative Adam Kinzinger (R-IL) admitted, half-jokingly, to the panel, ‘I can understand about 50 percent of the things you say.’
Such inadequate expertise in science and technology is bipartisan, and longstanding. Not quite 50 years ago, Congress took a significant step to bolster its brains when it created the Office of Technology Assessment (OTA) in 1972, after spending a decade considering and debating its struggles to govern in the space age. As the agency’s name implies, OTA’s basic function was “to provide early indications of the probable beneficial and adverse impacts of the applications of technology and to develop other coordinate information which may assist the Congress.” (2 U.S.C. § 472)
The OTA’s bread and butter were its lengthy assessment reports, which included shorter-form executive summaries and that reviewed the existing research and data on a topic (e.g., “Costs and Effectiveness of Cholesterol Screening in the Elderly”), and then explained what the evidence demonstrated or did not. And since its statutory mandate was narrow (merely to study emergent technologies and advise Congress about their potential impact), the OTA’s’s nerds advised on the pros and cons of different policy approaches, but did not tell the legislature which policies to support in the way that think tanks do.
Moreover, because Congress did not want the OTA to be an agenda-setter that drove the legislature’s work, the agency was not authorized to research any topic it pleased. The law specified that it could initiate studies only at the request of a committee (originating either from its chairman, ranking minority member, or a simple majority), or from OTA’s board or its director. For the sake of partisan balance, the director was appointed by the 12-person board, whose members were six senators (half Democrats and half Republicans) and six representatives (also equally divided by party). The OTA was also overseen by an advisory panel, which was appointed by Congress. Members included the heads of the Government Accountability Office and the Congressional Research Service and ten members of the public. Its job was to assess the agency’s work and recommend improvements. (2 U.S.C. § 476)
Structurally, the OTA was ahead of its time. It was a Wiki-like bureaucracy that relied heavily on the private sector. It had a modest cohort of experts in-house, but heavily leveraged outside expertise to produce its assessments. For example, the agency’s 1990 report on “Affordable Spacecraft: Design and Launch Alternatives” was based upon discussions and research supplied by a bevy of researchers, including those at George Mason University, Rockwell International, and NASA.
It also bears noting that the OTA was not an idiosyncrasy. At the time, the agency was merely the latest addition to Congress’s corps of in-house experts. It had already established the Library of Congress in 1800, the Congressional Research Service (CRS) in 1914, and the Government Accountability Office (GAO) in 1921. Two years after launching the OTA, Congress established the Congressional Budget Office (CBO). All of these efforts aimed to augment the limited expertise of legislators and Capitol Hill staff with the input of nonpartisan experts with long tenures and no stakes in the outcomes of any particular policy vote.
Unfortunately—as readers may likely recall—the OTA was abolished in 1995—right on the cusp of the Internet Age. Congress simply cut off the agency’s funds, and its 120 employees packed up their desks and exited the building. It was a bizarre decision that reflected convoluted legislative logic. A few years earlier, wracked with various scandals, Congress had decided to clean house. To show the public it was serious, it proposed cutting its own budget. As a result, it reduced committee staff, slashed 25 percent of the GAO’s workforce, and zeroed out the OTA.
Perversely, all of this made Congress weaker vis-à-vis the president and the administrative state. The executive branch has an army of science and technology wonks who are more than happy to issue regulations and regulatory dark matter—all of whom are free from electoral consequences. Fewer nonpartisan experts on Capitol Hill also has strengthened the hand of lobbyists and interest groups, who use their own expertise to shape policy. Over the years, various lone voices have called for a revival of the OTA. Former Rep. Rush Holt (D-N.J.), himself a scientist, regularly introduced legislation to fund the agency. In recent years, Rep. Bill Foster (D-Ill.), a physicist, has carried the torch, along with Rep. Mark Takano (D-Calif.).
Their efforts inevitably ran into anxieties about the political optics of Congress spending money on itself, and the persistent question raised by the story of Cincinnatus: “Who needs expertise?” After all, any citizen should be able to come into the assembly and use good horse sense to decide policy.
The story of Cincinnatus is a myth, however. In fact, he was no simple farmer. As Thomas Ranieri points out: “Cincinnatus, as a senator and patrician, was a member of the political ruling class. He spent his youth working his way through the cursus honorum, which is the series of offices (both civil and military) designed to prepare senators for the rank of consul and give them the experience needed to wield imperium, the Roman Republic’s official grant of power.”
More recently, the 21st century’s incredible, and often unsettling, technological developments along with Congress’s high profile gaffes in responding to them have helped reinvigorate interest in strengthening Congress’s capacity. Accordingly, in spring 2018, it took steps to restore its brain power and directed the GAO to increase the number of its staff working on science and technology studies. The statute also directed the National Academy of Public Administration to study Congress’s technological and scientific capacity and propose remedies, which might include reviving the OTA. (The study will be completed this autumn.)
This spring, Congress proposed appropriating $6 million to restart the OTA. Whether this will be enacted remains to be seen. However, even if it does happen, at most, that amount of funding will enable the agency to turn the lights on and to hire a few dozen staff. This leaves unanswered the larger question: what should be done about Congress’s ineptitude in technology and science issues?
Those of us who favor small government and fiscal responsibility often are inclined to seize upon an elegant solution: get government out of science and technology issues. Voilà! The problem of stupid governance is solved!
If only it were so simple. But, in fact, our national government has been involved in scientific and technological issues since it began. Government itself often funds the research that sparks new technological developments (like rocketry and nuclear energy) and it is also a major consumer of new technologies, some of which raise concerns among the liberty-minded (like facial recognition software).
Moreover, new technology almost inevitably sparks some sort of government response—frequently at the behest of voters. The earliest Congresses invested in lighthouses, (which benefited coastal states), and later directed the postal service to carry mail via paddlewheel and steam-engine boats (which boat operators loved). Today, government feels obligated to respond to citizens who are anxious about social media vacuuming up personal data, drones hovering over backyards, and encryption being deployed to traffic child pornography.
So if government is going to be involved, our choice is to leave it to the unaccountable executive branch and hope for the best, or to have Congress—whose ears we can bend and whom we can boot from office—get smarter. Of course, making all—or even most—legislators wise about science and technology is impossible. Elected officials have neither inclination nor time to crack studies on gene editing or 4G. (One study suggests legislators spend only a third of their work hours fundraising for re-election. The rest goes to other tasks, such as campaigning and responding to constituent demands.)
For this reason, think tanks, like my own, try to help Congress tackle complex issues by sharing our expertise. But far too few of us exist to fill that role, and think tanks are not designed to be help desks for Congress. Rather, they do work that donors want to fund, which often is not what Congress may want to know at any particular point in time.
Certainly, hiring more nonpartisan nerds to help Congress does not feel like a very small-government thing to do. Thankfully, the sums of money involved are minute—in the tens of millions of dollars, which literally is a rounding error in the $4+ trillion budget. (Nearly all of which, notably, runs through the executive branch.)
A libertarian might also worry about these geeks becoming unelected rulers, which is exactly what they would be if they worked for the executive branch. Housing them within the legislative branch reduces that peril because it disables the nerds from actually enacting policy. People who work for a revived OTA, or the current GAO, cannot cast votes in Congress. Their role is an age-old one that well comports with our governance system. As Professor Tom Nichols has written: “The United States is a republic, in which the people designate others to make [governance] decisions on their behalf. Those elected representatives cannot master every issue […] Experts advise. Elected leaders decide.”
It is not clear whether the Congress of today needs the OTA of the past or a modification thereof. The old OTA spent most of its energy producing long studies that tried to grasp what changes new technologies might bring. The rest of its time was spent offering consultations to legislators with questions on particular scientific and technological issues.
The current Congress might benefit from an OTA that spends more time on the latter than the former. One can imagine a new OTA that is even more of a Wiki. The agency would keep a modest corps of scientists and technologists, but would network these staff to experts around the nation and world. Thus, when Congress was confronted with a breaking issue (like an intelligence agency claiming a rogue nation is weaponizing a new biotoxin), the OTA could activate its network of experts and provide legislators with research materials and briefings.
Scientific and technological innovations will continue apace. Assuredly, Congress cannot be expected to get any smarter on its own. So the choice seems obvious. By hook or crook, we should “bring in the nerds.”
The Political Economy of Expertise
Kevin Kosar’s lead essay in this series makes a strong case for reviving the Office of Technology Assessment (OTA). Fundamentally, both this piece and his other work on the OTA are persuasive. Yet they all rely upon a certain line of argumentation: First, Congress doesn’t have the expertise to assess increasingly technical policy problems. Second, if there were such a technical knowledge base, political offices would use it in their lawmaking. And finally, the OTA is the best means of achieving more technical expertise.
Elsewhere, I have argued that the OTA should be seen as a last resort; there are other ways of embedding expertise in Congress, like boosting staff and reforming hiring practices. The following essay makes a slightly different argument, namely, that the history of the OTA shows the razor wire on which a revived version of agency will have to balance. In its early years, the OTA was dogged by accusations of partiality. Having established itself as a neutral party throughout the 1980s, the OTA was abolished because it failed to distinguish itself among competing agencies. There is an underlying political economy to expertise that makes the revival of the OTA difficult, undercutting it as an option for expanding tech expertise. In a modern political environment where scientific knowledge is politicized and budgets are tight, the OTA would likely face the hatchet once again.
To understand how the OTA would work in a modern congressional setting, it is helpful to understand why the OTA was first created. While it is the case that “Congress took a significant step to bolster its brains when it created the Office of Technology Assessment,” as Kosar notes, the OTA was also established to mirror the President’s Science Advisory Committee (PSAC) and thus counter the growing sense that Congress didn’t have the resources it needed to check the administration. Indeed, the OTA was just one in a number of reforms in Congress, kicked off by the Legislative Reorganization Act of 1970.
While members wanted the OTA to help understand an increasingly complex world, congressional architects also thought it would redress an imbalance of federal power that favored the White House. Speaking in favor of the creation of the OTA in May 1970, Missouri Democrat James Symington emphasized that, “We have tended simply to accede to administration initiatives, which themselves from time to time may have been hastily or inaccurately promoted.” When the bill came to the floor in 1972, Republican Representative Charles Mosher noted, “Let us face it, Mr. Chairman, we in the Congress are constantly outmanned and outgunned by the expertise of the executive agencies.” Writing on the eve of its demise, a historian of the agency explained that, “the most important factor in establishing the OTA was a desire on the part of Congress for technical advice independent of the executive branch.” And John Gibbons, one of the longest serving directors of the OTA later confirmed the balancing impetus,
Congress saw a threat to the balance of power in the federal government. Faced with a deluge of complex technological proposals sent to it by an Executive branch resplendent in scientific resources, Congress felt increasingly ill-equipped to evaluate those proposals.
Here it is worth pausing to emphasize the difference in political environments. The demand for the OTA at its genesis was twofold, for knowledge as Kosar explains, but also for power. In contrast, it is doubtful that either the Democrats or the Republicans today would “simply to accede to administration initiatives,” as both had a tendency to do in the 1960s when faced with complex problems. Moreover, while there are some notable exceptions including Senator Mike Lee’s Article I Project, congressional demands for rebalancing power away from the Executive aren’t very strong.
Kosar is right that the defunding of the OTA and the slashing of the budgets in 1995 “made Congress weaker vis-à-vis the president and the administrative state,” but we shouldn’t assume reverse causality. The agency was created at a time when both sides of Congress wanted to check the president. It was a solution to an intertwined set of problems. While the tenor in Congress could swiftly change, a groundswell of bipartisan support for an OTA would be needed before any efforts to revive it could be effective. Indeed, Kosar’s often coauthor, Zach Graves, expressed worry “about the Democrat-heavy support base pushing OTA, which could politicize the institution and its work if revived.” The revival of the OTA needs to be a compromise that both parties and both chambers of Congress can agree to. We have simply not arrived at that time.
Nevertheless, throughout the 1980s and into the early 1990s, the Office of Technology Assessment was able to court favor with both Democrats and Republicans. The agency accomplished this impossible feat by refusing to endorse legislative proposals. This direction was initiated by John Gibbons when he took over the agency in 1979. Gibbons’ predecessor, Russell Petersen, tried to make the OTA a true tech assessment agency by creating a priorities list of assessment topics hoping to inform policy. Congress didn’t like the direction. Petersen lasted less than a year.
Gibbons instead made the OTA a servant of Congress by working to ensure it didn’t get embroiled in controversy. The original goal of the technology assessment agency morphed into an information gathering role as the agency matured. By 1991 a joint research project of the American Enterprise Institute and the Brookings Institution was able to say that the office was “considered highly credible by members of both parties and is well regarded for its technical competence” largely driven by “its efforts to avoid taking firm stands on policy issues.”
When the budget cuts of 1995 came, the OTA was an easy choice. As Bruce Bimber noted in his excellent work on the agency, the “OTA’s contribution to the policy process was not as well formalized or institutionalized as that of its sibling agencies.” The course of neutrality that was pursued throughout the 1980s meant that the OTA had few enemies. But, then again, it hadn’t built a constituency that would support it during the massive trim.
While it is partly true, as Kosar notes, that the OTA was cut in a “bizarre decision that reflected convoluted legislative logic,” that logic isn’t all that convoluted. If the OTA took a less neutral tack, it might have survived, riding the support of one party or another. But because it was dedicated to information gathering in a niche space, the OTA stood out. As historian Gregory Kunkle noted in Technology in Society in 1995,
This is the crux of OTA’s ongoing problem: In order to earn a reputation for being unbiased, it has had to dodge controversies, into which, 25 years ago it seemed the OTA would be thrown, but in not being so involved, the OTA ‘risks becoming invisible.’
The problem that Kunkle laid out almost 25 years ago remains today. But there are solutions to sidestep the reinvigoration of a standalone agency. In line with my suggestions from last year, the General Accounting Office is expanding their tech assessment program. Congress also needs to reform their staffing processes to encourage stability and reduce turnover. None of these proposals, however, will make headway in changing congressional offices back toward their orientation in the early 1990s. In a follow up to this initial post, I will explore the challenges that any reform will face when trying to solve the problem of tech expertise.
Congressional Tech Knowledge Must Start at Home
The all-too-frequent allegation that “Congress is Broken” is clear. But among the most broken parts of Congress may be one that is not immediately visible to the public: the out-of-date technologies that undergird the operations of the place. If it weren’t for a hearing that unintentionally exposed a particular Senator still using a flip-phone, refusing to use email, or claiming to be a fan of “the Facebook,” there might be no public awareness of this tech deficit at all.
I confess to some trepidation the day the member for whom I served as chief of staff traded in his pager for a Blackberry in 2001. Sure, I could call him anywhere, and count on quicker responses to emails I sent him. On the other hand, he could now expect the same from me.
Longtime House colleagues (not to mention the few House Administration staff Sherpas whose lonely job it was to drag member offices up the technology mountainside) will chuckle if not outright guffaw at the thought of me making an impassioned argument for upgraded tech systems to better serve congressional offices. I think I can rightfully claim being chief for the very last office using the House’s original, non-Windows-based correspondence management software—in 2008.
Clearly this approach to tech engagement is not sustainable. More importantly, there are products that can serve constituents’ needs better than anything available to House offices. I did not have the capacity to figure out what they were, however; and the House did not have the capacity to do the work for me. Very importantly for the purposes of this piece: Contrary to popular narrative, it never did.
There are a range of causes cited for the dysfunction. Democracy Fund’s Governance Program—which I led from January 2016 until early this year—diagnosed as closely resembling a “death spiral” Congress’s inability to adequately resource itself, maintain policymaking expertise inside the institution, and respond effectively to the demands of its constituents.
In January, the weight of this problem became too great. The House did a remarkable thing: It established a Select Committee on the Modernization of Congress, whose express purpose is to update congressional operations, processes, and procedures to better reflect the needs of the institution and its members. And it did so with an overwhelmingly bipartisan vote. Advocates inside and outside the institution leveraged a multi-year, bipartisan effort by Congressmen Dan Lipinski and Darin LaHood to establish such a panel to “investigate, study, make findings, hold public hearings, and develop recommendations on modernizing Congress, including recommendations on (among other areas) … technology and innovation.”
“Technology” and “Innovation” are not words usually associated with Congress, and the problem has become progressively worse. Over the last decade, Congress has reduced funding for its own day-to-day operations, leading to hemorrhage of the legislative expertise, institutional knowledge, and entrepreneurial collaborative spirit that characterized the post–World War II institution.
Some blame former Speaker Newt Gingrich for catalyzing this cultural contraction when House Republicans took the majority in 1995 for the first time in 40 years. At that time many duplicative, redundant, or just plain outdated functions and practices of House operations were eliminated. Every congressional office did not need to receive—as we had for many years—a bucket of ice and perfectbound copies of the Congressional Record and the Federal Register every morning on our doorstep.
Some of us who served in the institution at the time know it’s more complicated. We know from personal experience that most of what was eliminated was never missed. We also saw the damaging domino effect of newly elected Democratic Speaker Nancy Pelosi appointing in 2007—when Democrats retook the House—a Chief Administrative Officer who appeared to prioritize politics over process in his implementation of procedures. This undermined, to a debilitating degree, the trust required to make decisions that cost money, but that are essential in the day-to-day support of member offices.
Most of all, the ever-increasing speed at which information is shared, and at which our 24-hour, niche-rich news cycle now operates, keeps members of Congress and their offices in a defensive crouch and retards long-term planning. Congress is a representative body, reactive by nature and design. Today it has even less time, inclination, or capacity than ever to take a long view—especially on items that cost money.
There is more than enough blame to go around; there are as many proposed solutions as members of Congress; and until recently, there has been precious little leadership. “Everyone is complaining about Congress,” Congressman Mike Gallagher was quoted as saying recently at a meeting of the Federalist Society. “Not just the American people but the members of Congress themselves, and yet we just keep doing things the same way.”
Many want to bring back the “Office of Technology Assessment,” but I caution: Be careful what you wish for.
Having served as a chief of staff for most of my 25 years on the Hill—including seven years prior to the elimination of the Office of Technology Assessment (OTA)—my experience is that the OTA’s impact has been overly romanticized and credited far beyond its due. While it may have been a resource to some committees, and certainly was a resource to academics outside the institution, most rank and file members did not know it was there, much less what it did. This is because, as noted earlier, when it came to member offices, OTA did not do much.
Prime evidence of the OTA’s lack of impact was the (rightfully) long-forgotten, monopolistic, DOS-based MIN (Member Information Network) system, an intranet of sorts that was the sole, siloed electronic communication system for the House. MIN offered no access to the Internet or external email. Most members of Congress did not know what a web page was, which was just as well because Congress did not have the capacity to host member sites. There was no internal demand for websites as tools of constituent interaction or information dissemination, let alone a demand for the capability to use email as a communications device.
Some say this criticism is unfair, noting that MIN was not the responsibility of OTA. In response I say, “Exactly.”
Such was the nature of congressional computing under OTA—which is to say, it was not very advanced at all. OTA did not make Congress more tech savvy. Its brief may have been to make Congress tech literate and help members understand a wired world that developed after they became adults. A strong argument exists—in the form of MIN—that Congress with OTA was no more tech-literate relatively speaking than it is today. Basic tech literacy was not ever the responsibility of the institution, and it has never really existed.
When considering the best ways for the Select Committee to update congressional technology, then, we may not want to go back to the OTA model, unless we really do want to go backwards.
To make the best policy going forward, our hindsight must be accurate. We must remember what OTA did and did not do—and those of us who knew the old OTA must take the time to educate others. We must be careful to avoid restoring a bloated, think-tank bureaucracy that published white papers but did not effectively push the institution to modernize, establish itself as an innovation lab for constituent engagement, or assess or modernize congressional technology in any way at all. Most of all, if Congress is bound to spend additional money on itself—which I believe it must—that spending must help Congress do its job better. This is something the previous OTA simply did not do for most rank and file congressional offices.
It is true that Congress has struggled for decades 25 to keep pace with the private sector. Plainly, it has not succeeded. As I wrote for Democracy Fund in 2016: https://www.democracyfund.org/blog/entry/deconstructing-congressional-dysfunction-a-systems-based-approach
Congress is full of good people driven to make our world a better place. Yet for far too many Americans, Congress is not fulfilling its responsibilities as a representative body. the institution’s failure to respond to increasing communication is driving public dissatisfaction and disengagement. We cannot simply invite greater public engagement without making sure Congress has strengthened its ability to respond. Without these investments first, we risk further alienating those we are trying to re-engage. … We have to ask, therefore, how we can help Congress develop more efficient tools to listen to the public, process the overwhelming amount of information, and invite more interaction from constituent groups, all while better managing the volume of communications from advocacy groups.
The current situation is not sustainable. But Congress was no more advanced with an OTA. The problem is the institution and its lack of resources. So if we bring back OTA, let’s do so in a way that serves members’ current needs.
Sometimes the legislative branch can surprise itself, and those moments should be seized and built upon. Last month, the Select Committee unanimously approved, on a bipartisan basis, a series of recommendations to increase transparency in the legislative process. It recommended adopting a standard format for making the process of drafting, viewing, and publishing legislation more transparent; strengthening the lobbying disclosure system to make it more efficient and easier to use; developing a centralized, electronic list of federal agency and program reauthorization expiration dates, by committee; and developing a more accessible and informative House website that includes committee votes.
These all seem like good first steps, but let’s be clear: They would be outside the purview of the vaunted OTA.
To help Congress be more tech savvy, the last thing we want to do is bring back something that didn’t help in the first place. Let’s envision something new that is member-focused, staff-focused and constituent-focused—not academic research-focused. Taking nothing away from academia, Congress has too much of a dumpster fire just dealing with its own, decades-derelicted duties. https://thehill.com/blogs/congress-blog/politics/407104-congress-stops-its-starvation-diet
Congress can build on the bipartisan success of establishing the Select Committee, and help restore trust in the institution, by developing a new Office of Technology to implement constituent service and communications tools. The early, bipartisan, and unanimous recommendations of the Committee show that Congress is able to act to increase the American people’s trust, and that Congress can respond to their concerns and solve national problems. That will take a new model for the OTA, however—one focused on serving members and their constituents, not a bureaucracy or the academic community.
If Congress can do that, the public might even be okay with providing the institution with a pay raise. It would be a great place to start.
Technical Expertise Is Just the Tip of the Iceberg
Thus far, we’re fighting over scraps: $6 million to restart the Office of Technology Assessment (OTA)? Pshaw! The two tech-focused agencies I work with—the Federal Communications Commission (FCC) ($450 million) and the Federal Trade Commission (FTC) ($312 million) have a combined budget 127 times larger than that. These are just two of an estimated 137 independent regulatory agencies. And they’re relatively small fry compared to, say, the Environmental Protection Agency ($8.8 billion) or the Food & Drug Administration ($5.7 billion).
A lack of technical expertise is just the tip of the iceberg. The real problem is a general lack of expertise—and staff. In theory, the Constitution vests the legislative power solely in the hands of Congress, the Executive branch implements or enforces the laws, and the Judicial branch resolves disputes about what the laws mean. In practice, Congress “delegates” the vast bulk of essentially legislative decisionmaking to a sprawling system of administrative agencies, some “independent” and some within the executive branch, and it’s these agencies that do the vast bulk of policymaking. Congress’s total budget ($6 billion) is just 2.5% of what we spend on administrative agencies overall ($246 billion).
Fulfilling Congress’s constitutional responsibility to write our laws requires rebuilding the capacity to do so. That means shifting funding from agencies to Congress. How that money gets spent within Congress—as among special-purpose advisory offices like OTA, Congressional offices, and committee expert staff—is entirely secondary.
Just How Withered Is Congress?
Consider the staffing levels of the two tech-focused agencies I mentioned above: FCC (1,454) and FTC (1,161). Just how many people in Congress “oversee” these agencies?
It’s a hard question to answer because each agency falls under the jurisdiction of a committee/subcommittee (within both the House and Senate) along with several other agencies, and within each of those you have the committee staff, the subcommittee staff, and usually one person from the personal staff of each member on the committee.
But the short, rough, answer is that there are fewer than ten people on the staff of the two subcommittees (in each chamber) with oversight of each agency. And these people, again, handle more than just these agencies. Yes, technically, you’d also have to consider the fraction of the time that each personal staffer spends on that issue, but these staffers rarely have anywhere near the level of expertise of those who work for the subcommittee.
How Congress Has Abandoned Its Legislative Function
Congress has abandoned its responsibilities over the administrative state in at least three distinct ways.
First, in how it writes laws, Congress has effectively sunk to the very low bar set by the Supreme Court in Mistretta v. United States (1989):
in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.
In writing vague, open-ended laws that kick hard policy questions to the agencies, Congress has since succumbed to what psychologists call “learned helplessness”—a new normal that few have questioned, taking for granted that Congress should remain the democratically accountable flea on top of the unelected elephant.
Second, Congress has also ceased correcting the course of administrative agencies with any regularity. Congress used to “reauthorize” each agency every two years, often amending the agency’s statute in significant ways. This hasn’t happened for the FCC and FTC (and for agencies in general) since the late 1990s.
Finally, “oversight” has been reduced to occasional, generally pointless spectacles: commissioners profess their commitment to do what Congress tells them, members voice their pet agendas or grievances, commissioners almost always manage to avoid saying anything specific before each member’s five minutes are up, commissioners make some vague promises to “have their staff get back to you, Congressman/Senator,” and, two to four hours later, the ordeal is over. The illusion that Congress is the body making the policy decisions is preserved—at least, if you don’t think about it too hard. Better staffing wouldn’t transform this charade, but it would rebalance the power between commissioners who spend all day on their issues and lawmakers who drop in only occasionally.
The Supreme Court to the Rescue—Maybe?
This general abdication of Congress’s responsibilities rests on two legal pillars—the two most important American legal doctrines you may never have heard of. One may well have started falling this week, and the other is clearly wobbling.
The Non-Delegation Doctrine
The “non-delegation doctrine” yet again pronounced dead in Mistretta is nonetheless implicit in the Constitution’s separation of powers. Its demise started with a 1928 Supreme Court decision that permitted Congress to delegate its power to administrative agencies so long as lawmakers provide an “intelligible principle” to constrain that power. Still, in Schwater Poultry Corp. v. United States (1935), the Court struck down a law that permitted the President to certify trade codes developed by businesses themselves as ensuring “fair competition” because, absent explicit guidelines, businesses “may roam at will and the President may approve or disapprove their proposal as he may see fit.” But after President Roosevelt attempted to pack the Court in 1937, the Court gave up opposing his New Deal initiatives—the so-called “switch in time that saved nine”—and the Non-Delegation Doctrine died.
But on Thursday, June 20, 2019, in Gundy v. United States, Justice Neil Gorsuch issued a stirring call to revive the non-delegation doctrine. He would demand significantly more of administrative agencies:
To determine whether a statute provides an intelligible principle, we must ask: Does the statute assign to the executive only the responsibility to make factual findings? Does it set forth the facts that the executive must consider and the criteria against which to measure them? And most importantly, did Congress, and not the Executive Branch, make the policy judgments? Only then can we fairly say that a statute contains the kind of intelligible principle the Constitution demands.
It would be hard to imagine a clearer call for Congress to start writing much more specific laws. Yet, technically, this view didn’t carry the day. The four Democratic-appointed Justices actually upheld the statute’s broad grant of discretion to the Attorney General to “specify the applicability of the requirements of [a new national sex offender registry] to sex offenders convicted before the enactment of this act.” Gorsuch got only the votes of Chief Justice John Roberts and Justice Clarence Thomas. But Justice Brett Kavanaugh didn’t vote, and Justice Samuel Alito, while voting to uphold the law, also made clear in a separate opinion, that, “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”
So while the administrative state won the battle, it lost the war. Given that Justice Kavanaugh’s views on the separation of powers are very similar to Gorsuch’s, one can say with confidence that, if he had joined the Court just a week earlier—in time for oral arguments in this case—the Court would have split four to four. And it’s safe to bet that Justice Alito would have sided with the other four Republican appointees. If Alito embraces Gorsuch’s significantly higher standard for what constitutes an “intelligible principle,” the bar will be raised quite considerably for how Congress legislates across the board.
In Chevron U.S.A., Inc. v. Natural Resources Defense Council (1984), the Court upheld the EPA’s interpretation of an ambiguous provision of the Clean Air Act under a test that has since become the bedrock of American administrative law: (1) Is the law ambiguous on the question at issue? (2) If so, is the agency’s interpretation reasonable?
Whatever the Court intended, in practice, Chevron has become a nearly blank check for administrative agencies to run wild with ambiguous statutory language—often manufactured by agencies to suit their own agendas. A majority of sitting Justices have, in dissents or opinions written before joining the bench, called on the Court to rethink, or at least rein in, the deference accorded to agencies under Chevron. In a 2016 opinion siding with an immigrant over the interpretation of an ambiguous provision of law governing her eligibility to seek permanent status in the United States, then-judge Gorsuch wrote: “in a world without Chevron very little would change—except perhaps the most important things.” Most notably, Congress would have to resolve questions of statutory ambiguity.
Justice Thomas clearly shares this opinion, and Justice Kavanaugh seems to. Justices Roberts and Alito seem likely to prefer an intermediate step soon: the Court has already, in a series of decisions involving Justices across the political spectrum, given effect to a distinction Justice Stephen Breyer drew in academic work before President Bill Clinton appointed him to the Court—a distinction between “major” and “minor” questions. Major questions, those of vast “economic and political significance,” require Congress to “speak clearly” if it wishes to delegate the matter to an agency’s interpretive discretion, as the Court ruled in Utility Air Regulatory Group v. E.P.A (2014). That landmark case marked a true sea change in doctrine, with the Court insisting that, if it was necessary to “tailor” the Clean Air Act to make the law work for limiting carbon emissions, that should be up to Congress, not the EPA or the Court.
Justice Gorsuch emphasized that decision in his opinion Thursday in Gundy, explaining that, “Although it is nominally a canon of statutory construction, we apply the major questions doctrine in service of the constitutional rule that Congress may not divest itself of its legislative power by transferring that power to an executive agency.” Notably, when the Court upheld Obamacare in King v. Burwell (2015), it did so applying this framework, not under Chevron.
What These Legal Debates Mean for Congress
It’s hard to say how these debates will play out, or how fast. To paraphrase Shakespeare: the course of true law never did run smooth. But for now, we can say two things.
First, the Court is certainly going to expect more clarity and precision from Congress in the drafting of legislation—and it will be less willing to “fix” drafting problems for Congress to avoid awkward policy results. The time to start preparing for that change is now. Congress won’t be able to staff up overnight, nor would it be wise to rush the process. Building internal expertise will take years, and the process of reassessing existing statutes and, as necessary, rewriting them, will take even longer. We can’t wait for the day the Court knocks down the entire administrative house of cards to begin investing in Congress’s policymaking functions.
Second, exactly how high the Court sets the bar for Congress is, in the end, irrelevant to what Congress should do. Those who want to rein in broad delegations of power to administrative agencies and want the courts to more carefully scrutinize how agencies interpret statutes are, ironically, those most “penny wise, pound foolish” about spending money on congressional staff. Republicans have been talking for years about reviving Congress and reining in the administrative state, but years of Republican control of Congress have failed to make Congress any stronger or more capable. Republicans need to rethink their priorities from the ground up.
How to Start Rebuilding Congressional Capacity
I’m not a political scientist. But I’ve worked closely with congressional staffers for over eleven years at two think tanks. I’ve come to respect deeply many of the staffers I’ve worked with, but also to realize how desperately overworked and under-resourced they are. They just don’t have the time or expertise to work through the hard questions facing their Members and committees they way they need to. They draw on expertise wherever they can find it—especially on issues as complex as those raised by technological change.
This vacuum seems to me to be a much more obvious—and easily remedied—cause of undue corporate influence on policymaking than is corporate money. The only way to solve that problem is to invest more in congressional capability. There’s no easy way to say how much staff is enough, or how it should be configured. But based on my own experience, I’d propose the following:
Special-purpose offices like OTA have a role in addressing a broad area of competency—for technology just as much as, say, economics. I don’t know what OTA’s budget should be, but spending $6 million, or even $60 million, seems like a drop in the bucket compared to the overall administrative state.
But I’m more concerned with bolstering the staff who, in my experience, do the hard work of legislating: the subject matter experts on committee staffs and those in personal offices who handle that committee’s issues for the Member. More important than increasing headcount is increasing the level of experience of staffers. That means paying significantly higher salaries to retain older professionals whose market value as lawyers or technologists may be several multiples of what lawmakers themselves currently earn. The best-run governments in the world pay market-based salaries to key staffers; there’s no reason ours shouldn’t, either.
Bringing agency staffers onto a committee’s staff “on detail” to fill the vacuum is a mistake. Such staffers can, of course, add valuable insights into how their agencies work, but they’re no substitute for staff who are loyal to elected lawmakers, not agencies.
I don’t know what the optimal staffing level for Congress is, but I doubt we’d be anywhere near it even if we spent ten times as much on Congress and built a warren of new offices around the Capitol to house a larger but, even more so, better paid and more expert staff.
As the celebrated political scientist Warren Zevon put it: “Send lawyers, guns and money.” He probably should have added: “—and nerds, too.” Relatively small investments in congressional capacity could more than pay for themselves in cutting wasteful spending and, even more importantly, reducing government interventions that do larger harms to the economy. More importantly, building a smarter, more tech-savvy, better-staffed and, yes, more expensive Congress is the only way to ensure that democratically elected lawmakers are the ones actually making laws.