Technical Expertise Is Just the Tip of the Iceberg

22nd June 2019 Off By binary
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Berin Szóka

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.

Chevron Deference

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:

  1. 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.

  2. 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.

  3. 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.

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