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Analysis

Congressional Science and Technology Capacity Must Be Revitalized

The legislative branch’s lack of expertise could become an even bigger problem if the Supreme Court limits Congress’ ability to delegate substantive policymaking to federal agencies.

February 11, 2020

This piece origin­ally appeared in Just Secur­ity.

For more than a century, experts in the federal govern­ment have helped protect the nation’s health, consumers’ and work­ers’ well-being, national secur­ity, the envir­on­ment, and the economy. These special­ists in exec­ut­ive branch agen­cies inform crucial govern­ment policies guid­ing Amer­ican life. The Supreme Court has long sanc­tioned expert exec­ut­ive branch agen­cies’ author­ity to inter­pret broad policy goals determ­ined by Congress and ensure that those goals are carried out in light of the best avail­able science and current soci­etal condi­tions.

While Congress has often given exec­ut­ive agen­cies some discre­tion in how they imple­ment its direct­ives, it still has the power and respons­ib­il­ity to exer­cise over­sight to ensure that its intent is carried out. Increas­ingly, however, its legis­lat­ive and over­sight respons­ib­il­it­ies require tech­nical expert­ise that Congress does­n’t have at its disposal, due to the decline of sources of expert advice through­out the legis­lat­ive branch. This is already a seri­ous prob­lem, but it could become a crisis if the Supreme Court takes the radical step of elim­in­at­ing Congress’ abil­ity to deleg­ate virtu­ally any substant­ive poli­cy­mak­ing role to federal agen­cies, as some justices have sugges­ted they want to do. The time is now for Congress to build out its own expert capa­city so that it can over­see — and, if neces­sary, try to compensate for the loss of — the highly tech­nical expert decision­mak­ing that exec­ut­ive agen­cies have long performed.

The Supreme Court

Eighty-five years ago, the Supreme Court invoked a novel theory, the nondelega­tion doctrine, to strike down parts of Pres­id­ent Frank­lin Roosevelt’s signa­ture New Deal. The Court essen­tially said that small parts of the National Indus­trial Recov­ery Act viol­ated the separ­a­tion of powers mandated in the Consti­tu­tion by deleg­at­ing legis­lat­ive power to the exec­ut­ive branch.

That was in 1935, and since then, the Supreme Court has not invoked the nondelega­tion doctrine to strike down other stat­utes. During this time, exec­ut­ive branch agen­cies have been pivotal to the devel­op­ment of regu­la­tions regard­ing pillars of day-to-day life, and the Court has developed doctrines requir­ing defer­ence to their expert­ise.

In recent years, however, some justices have expressed doubt about not only whether agen­cies are entitled to defer­ence but also whether Congress can deleg­ate any mean­ing­ful poli­cy­mak­ing role to them. Justice Brett Kavanaugh recently wrote that the Consti­tu­tion may bar Congress from direct­ing federal agen­cies to decide “major” policy ques­tions, an undefined and poten­tially nearly limit­less stand­ard. Dissent­ing on behalf of two other conser­vat­ive justices in a 2019 case in which Justice Kavanaugh did not parti­cip­ate, Justice Neil Gorsuch expressed hope that, “[i]n a future case with a full panel,” the Supreme Court would reas­sess the scope of author­ity deleg­ated to exec­ut­ive branch agen­cies to craft regu­la­tions.

Were the Supreme Court to take the radical step of signi­fic­antly limit­ing — or even elim­in­at­ing — agen­cies’ abil­ity to inter­pret stat­utes in light of chan­ging public health needs, tech­no­lo­gical advances, and economic condi­tions, it would result in a funda­mental shift in how our govern­ment func­tions. One poten­tial consequence could be the whole­sale inval­id­a­tion of govern­ment regu­la­tions that have guar­an­teed a basic stand­ard of living to the Amer­ican people since the Progress­ive Era.

In this new era, Congress might be required to write laws with extremely tech­nical, prescript­ive direct­ives, and to update such legis­la­tion almost constantly to keep pace with the best avail­able science — all in order to with­stand judi­cial scru­tiny. Other­wise, the protec­tions we have long enjoyed would crumble from obsol­es­cence. Even if the Court does not signi­fic­antly limit exec­ut­ive agen­cies’ author­ity, Congress does not have the capa­city to lead on tech­nical and scientific matters, whether it is perform­ing legis­lat­ive or over­sight duties.

The Decline of Scientific and Tech­nical Expert­ise in Congress

In the mid-20th century, Congress passed laws that helped build a deep bench of congres­sional staff with subject matter expert­ise about a vari­ety of issues. But in recent years, the number of staff — and staff salar­ies — have declined through­out the legis­lat­ive branch, includ­ing in lawmakers’ offices and on congres­sional commit­tees.

The biggest blow was the clos­ure of the Office of Tech­no­logy Assess­ment (OTA), a congres­sional agency created in 1972 with bipar­tisan support that provided in-depth science advice to Congress. OTA was completely defun­ded in 1995 (although the stat­ute creat­ing it was not repealed) after the elec­tion of the Repub­lican House major­ity in 1994 on a plat­form that included limit­ing federal spend­ing, partic­u­larly congres­sional spend­ing.

During its 23-year exist­ence, OTA had a staff of about 200 people and produced around 750 tech­no­lo­gical assess­ment stud­ies, span­ning topics related to the envir­on­ment, national secur­ity, health, and more. Although these reports did not contain policy recom­mend­a­tions, they presen­ted in-depth scientific analyses of complex issues that assisted lawmakers in their legis­lat­ive and over­sight func­tions.

The aver­age OTA report cost $500,000 (about $850,000 in today’s dollars), but guid­ance from the reports helped inform decisions that saved the govern­ment money in the long run. For instance, OTA’s final annual budget was $23 million, yet it saved tens of billions of dollars in taxpayer money with its stud­ies of the Synthetic Fuels Corpor­a­tion.

The office was at times accused of politi­ciz­a­tion (for instance when it issued assess­ments crit­ical of the Reagan admin­is­tra­tion’s Stra­tegic Defense Initi­at­ive — although outside experts confirmed the sound­ness of OTA’s analysis), but it was gener­ally trus­ted as a nonpar­tisan adviser in the legis­lat­ive process. Support­ers included Sens. Orin Hatch (R-Utah), Chuck Grass­ley (R-Iowa), and Ted Stevens (R-Alaska), in addi­tion to numer­ous Demo­cratic senat­ors and repres­ent­at­ives.

Since OTA’s clos­ure, other congres­sional agen­cies — the Congres­sional Research Service and the Govern­ment Account­ab­il­ity Office (GAO) — have taken on some respons­ib­il­ity for provid­ing science advice to Congress. But the agen­cies have not had the resources neces­sary for a robust science and tech­no­logy assess­ment program.

The lack of unbiased science advice in Congress not only has limited legis­lat­ors’ abil­ity to make informed decisions about complex issues but also has allowed lobby­ists to be domin­ant sources of science advice. Lobby­ists have an incent­ive to convince lawmakers that the science on a partic­u­lar issue supports policy decisions that favor their clients’ finan­cial interests, which may come at the expense of the health and safety of vulner­able popu­la­tions.

What Next?

Fortu­nately, bipar­tisan momentum is grow­ing for Congress to rebuild its science and tech­no­logy capa­city. There are a vari­ety of propos­als on the table: refund and modern­ize OTA, build capa­city in GAO, or create a new congres­sional entity that serves this func­tion.

The Lincoln Network, a right-lean­ing polit­ical group for tech work­ers, has built a coali­tion of 40 organ­iz­a­tions and many more indi­vidu­als urging fund­ing for OTA. The Bren­nan Center’s bipar­tisan National Task Force on Rule of Law & Demo­cracy recently called for Congress to create a modern­ized tech­no­logy assess­ment entity.

And Harvard’s Belfer Center for Science and Inter­na­tional Affairs, R Street, and the National Academy of Public Admin­is­tra­tion each recently issued recom­mend­a­tions for how to struc­ture congres­sional agen­cies to provide unbiased science advice in the legis­lat­ive branch.

This momentum is trans­lat­ing into action on Capitol Hill. In the spring of 2019, the House Appro­pri­ations Commit­tee released a draft of 2020 legis­lat­ive branch fund­ing that included $6 million to rees­tab­lish OTA. It was an import­ant symbol of commit­ment to rebuild­ing congres­sional capa­city for science advice.

Last summer, the House’s bipar­tisan Select Commit­tee on the Modern­iz­a­tion of Congress voted unan­im­ously to restore OTA, with plans to recon­fig­ure it. In Septem­ber, a bipar­tisan group of lawmakers in both the House and the Senate intro­duced legis­la­tion to improve OTA. In Decem­ber, the House Science Commit­tee held a hear­ing about improv­ing science and tech­no­logy advice in Congress. And the 2020 appro­pri­ations law included $40 million for GAO to expand its science and tech­no­logy capa­city.

Regard­less of how the Supreme Court proceeds, revital­iz­ing congres­sional science and tech­no­logy capa­city is import­ant. An unbiased source of scientific and tech­no­lo­gical advice in Congress, inde­pend­ent of that provided by the exec­ut­ive branch, would assist lawmakers when conduct­ing over­sight and making fund­ing decisions about exec­ut­ive branch science and tech­no­logy programs. It would be a tremend­ous resource for Congress to make informed policy decisions in response to — and in anti­cip­a­tion of — 21st century tech­no­lo­gical needs. And it would have a crit­ical demo­crat­iz­ing func­tion, redu­cing the power and influ­ence of special interests in the legis­lat­ive process and better ensur­ing that the govern­ment serves the public good.