Making Sure Congress Isn’t Outgunned

27th June 2019 Off By binary
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Kevin Kosar

I enjoyed reading the response essays of Will Rinehart, Betsy Hawkings and Berin Szóka. They all make good points and bring valuable facts and ideas to the discussion.

On the most macroscopic level, all of us seem to agree that Congress is ill-equipped to oversee, let alone make, good policy on highly scientific or technological issues. But as Betsy Hawkings rightly observes, the problem is bigger than a lack of access to technological expertise.

“Over the last decade,” she writes, “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.” As Hawkings herself experienced, legislators and staff have inadequate and antiquated tools to process the crush of demands from voters, interest groups, and media. “The current situation is not sustainable,” she concludes. True words, those.

If that were not enough, Berin Szóka points out that Congress is grossly outgunned by the executive branch:

[W]e’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).

The debate over the OTA, it seems we all agree, is a small part of a gross imbalance in our Constitution’s separation of powers. And none of us imagine that reviving the OTA, or alternatively, increasing the tech staff of committees or some other legislative branch support agency, would create a revolution in government.

Such general consensus on a broad issue is rare in Washington. But, the devil inevitably is in the details, so I aim to direct our conversation into specifics, where I imagine we’ll find a bit of discord.

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Rinehart correctly notes that “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.” Those pushing for the OTA’s revival mostly have been Democrats. This is why righties like Zach Graves and I are making the argument to the right. Republicans and conservatives tend to talk a lot about their love of the Constitution, so we’re asking them to align their words and deeds and do things to strengthen Article I. (Reviving the OTA is but one piece of the puzzle. Many more ways to strengthen Congress can be found on LegBranch.org.) Hence, I take Rinehart’s words to be wise counsel but not an argument against the OTA per se.

Rinehart also emphasizes the politically precarious place the OTA formerly occupied and would occupy were it brought back to life. I think his observation is accurate, but does not amount to much of a strong objection to reviving the OTA.

All legislative branch support agencies face peril—continuously. The Government Accountability Office (GAO) suffered a 25 percent cut in funding in the early 1990s, and my former agency, the Congressional Research Service (CRS), has taken all sorts of steps to try to reduce the salience of its work in hopes of avoiding controversy. Furthermore, legislators inevitably get ticked off by their support agencies. It’s the nature of the beast—legislative support agencies often bring inconvenient facts to light in a highly politicized environment. They disrupt narratives and start new ones whenever they issue a report, legal opinion, or bill score. They cannot be neutral or politically inert as some imagine.

The trick is not to tick off too many members of Congress. Which is exactly what the OTA did. The agency got cut because, from its conception, it was perceived by some in the GOP as being a Democratic thing. Its first head was a former Democratic House member, and Sen. Ted Kennedy, D-Mass., was viewed as being too deeply involved with the OTA’s leadership. This political stigma ultimately doomed the OTA.

This stigma, it is important to note, was peculiar to an era. The Democratic party of the day was arrogant—it had lorded over Capitol Hill since the Truman years and ran Congress as it desired. Those days are gone. These days, neither party can control the two chambers for more than a few elections. So were the OTA to come back, we would not see a former partisan legislator put in charge of it, nor would we have a senator able to treat it as his pet. A revived OTA would know that it sprang from the ashes and could return to them if it gave the indication of being too cozy with one party or another, or of pushing an agenda. Were it led by a smart administrator, a revived OTA also would heed Rinehart’s and Hawkings’s counsel to develop more allies on the Hill and embed itself more deeply in the day-to-day work of Congress. The former is achieved by developing relationships with the committees of jurisdiction. The latter could be done by providing services like the rapid response advice that I suggested in my lead essay.

I can understand Rinehart’s conclusion—the safe route is to skip reviving the OTA and instead bulk up the GAO’s staff and tuck more nerds into committees. My concern with those approaches is that I worry the cultures of each office will compromise the work. The GAO is not known for rapid response to congressional inquiries. Its institutional culture also is more akin to an accounting firm than a think tank. Could it consistently produce good, timely work on science and tech topics? I’m not fully persuaded. Putting more brains in congressional committees is not something I am against. I would, nonetheless, note that those who go to work for committees tend to have short tenures and usually are expected to behave as team players and support the Democratic or Republican agenda, which may not make committees much smarter about science and technology issues.

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Certainly, I appreciate Betsy Hawkings admonition note to “romanticize” the OTA. It is a government agency, and we crotchety righties betray our horse sense when we overly ballyhoo any agency.

Now whether the OTA was, as a reader might infer from her essay, “a bloated, think-tank bureaucracy,” is debatable. I myself would need to see more evidence to judge, but I would be remiss if I did not mention that the OTA had 120 employees at the time of its demise. That was about one-fifth of what the CRS had, and perhaps one-thirtieth of what the GAO had. And if the OTA was saving taxpayers more dollars than the agency’s puny budget, well, that strikes me as a net positive, even if some OTA employees were not super productive.

Moving along, I really appreciate Hawkings’s point that a revived OTA should do some work to help Congress improve its operating systems and equipment. Legislators and their staffs are hamstrung by bad internal technology. I see no reason why the smarties of the OTA could not weigh in on what upgrades our national legislature should make.

For all my reformist zeal, I am not so daring as Hawkings. I believe the OTA’s role should be limited to advising Congress on such matters. Fixing Congress’s platform for managing constituent caseloads, implementing software to draft bills with track changes and the like—that is not the work of a legislative branch support agency. The Congressional Budget Office, the CRS and the GAO—none of them do those sorts of things for Congress. Such work historically, and quite understandably, has been handled by administrative offices within the Capitol. I think a revived OTA would risk immense political backlash were it to “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.” If legislators get huffy when a legislative branch support agency issues a dry paper on tax cuts, one can only imagine politicians’ responses if a support agency tried to goad the institution to change its computers, adopt shared lawmaking platforms, and so forth.

And let’s not forget the broader point: Congress wants and needs more good information and expertise on complex, fast-breaking policy issues. An OTA only working on operational issues would leave that need unfulfilled.

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It is not easy for me to find points of disagreement with Berin Szóka. His essay rings a clarion call about congressional decline. Legislators have spent lavishly on the executive branch and delegated immense responsibilities to agencies, while cutting their staffs and their support agencies. Szóka also reminds us that a weaker Congress is more dependent on corporate interests.

In line with his big picture view of the problem, Szóka proposes a multifold response: more money for legislative branch support agencies, more staff who are incentivized to stay longer on the Hill and become experts, and less delegation of the First Branch’s authorities.

My questions for Szóka, which might elicit disagreement, are: (1) Are there really means to keep staff on the Hill, considering how much private industry will pay individuals with technology and science knowledge? (2) Delegating authority is easy for Congress to do. The incentives to kick tough questions over to agencies are strong. Can you think of anything, beyond finger-wagging, that we can do to discourage congressional delegation—beyond hoping for the Supreme Court to change its mind and disallow it? And do you see merit in augmenting Congress’s research on regulatory authority by creating a new legislative branch support agency, perhaps a Congressional Regulation Office, as Philip Wallach and I proposed?

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