“What happens when technological innovation outpaces the ability of laws and regulations to keep up?” asked Adam Thierer, Senior Research Fellow at the Mercatus Institute.
“Why is Congress so dumb?” asked New Jersey Rep. Bill Pascrell [D] in a January 2019 Washington Post op-ed.
The idea that Congress doesn’t “get” emerging technologies is now a reliable punchline — and an extremely concerning state for our first branch of government.
The Pacing Problem
This exponential pace of technological development, paired with the lagging pace of policy change, leads to what ASU Professor Gary Marchant and his co-editors in “The Growing Gap Between Emerging Technologies and Legal-Ethical Oversight,” described as “the pacing problem” — “the growing gap between the pace of science and technology and the lagging responsiveness of legal and ethical oversight society relies on to govern emerging technologies.”
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And it’s only getting worse. Scholars now “worry that the pace of change has been kicked into overdrive, making it more difficult than ever for traditional legal schemes and regulatory mechanisms to stay relevant.” According to Thierer, this ever-growing gap is exacerbated by (1) the accelerating rate of technological evolution, (2) increasing public appetite for and adoption of new technologies, and (3) political inertia, i.e. “demosclerosis”.
For Congress, however, there is not just one pacing problem, there are three.
Congress has THREE Pacing Problems
Over the past few months, I have had the honour to work with two political scientists — Claire Abernathy and Kevin Esterling — through a task force convened by the American Political Science Association (APSA) to make recommendations on technology and innovation to the Select Committee on the Modernisation of Congress. From the beginning, the pacing problem concept has helped frame our analysis. We quickly realised, however, that the issues in Congress were not just a matter of an inability to keep up with tech in society; it runs deeper.
It became clear that for Congress, there is not just one pacing problem, but three distinct and interconnected pacing problems: (1) the external — as Congress fails to keep pace with emerging innovations that are changing industries and society; (2) the inter-branch — as Congress lags the executive branch, compromising its ability to act as a co-equal branch of government; and (3) the internal — which results from Congress not employing modern practiced and technology for its own operations.
The External Pacing Problem
This is the one you know about.
Congress struggles to keep up with the scope and speed of technological change in industry and society. Whether data encryption, cryptocurrency, 5G, autonomous vehicles, nanotechnology, biotechnology, regenerative medicine, robotics, and artificial intelligence, Congress lacks the staff or sufficient advisory resources to adequately anticipate, understand, and act on emerging issues. As a result, legislation on emerging technologies is often “out-of-date or redundant by the time [it is] implemented.
The Inter-branch Pacing Problem
The inter-brach pacing problem is one that gets less discussion but is no less important: Congress is not keeping up with the executive branch and the agencies of government it is tasked with overseeing.
Many are familiar with the executive branch initiatives since 2014 to “bring in the nerds” through “tours of duty” as Presidential Innovation Fellows or within 18F or as tech experts embedded in agencies through the U.S. Digital Service.
The President’s Management Agenda (PMA) emphasises modern information technology and “fully leveraging the value of federal data” and articulates a “long-term vision for modernising the Federal Government in key areas that will improve the ability of agencies to deliver mission outcomes, provide excellent service, and effectively steward taxpayer dollars on behalf of the American people.” Progress is measured through cross-agency priority goals and key performance indicators.
The irony of the inter-branch pacing problem is that, in many cases, technology advances in the executive branch are undertaken at the direction of Congress. Several bipartisan laws in the past decade have mandated and funded data standardisation and sharing, IT upgrades, and improvements to public-facing services by federal agencies, including:
- The Digital Accountability and Transparency Act (DATA Act), was “modeled on spending transparency measures implemented with president Obama’s 2009 stimulus bill” and “g[a]ve federal contractors and grantees a single portal to report how they’re spending taxpayer money” — sponsored by Rep. Darrell Issa [R- CA] and signed by President Obama in 2014
- The Modernising Government Technology Act — “creates working capital funds for IT projects at CFO Act agencies that don’t already have them, as well as a central modernisation fund housed by the General Services Administration.” — sponsored by Rep. Will Hurd [R-TX] and signed by President Obama in 2017 as part of the 2018 National Defense Authorisation Act.
- Foundations for Evidence-Based Policy Act “stem[med] from more than 20 recommendations the bipartisan Commission on Evidence-Based Policymaking made in its September 2017 report” and aims to improve the ability of researchers, evaluators, and statisticians both inside and outside government to securely use the data that government already collects to better inform important policy decisions. It included the OPEN Government Data Act, “which requires all non-sensitive government data to be made available in open and machine-readable formats by default.” It was sponsored by then-Speaker Paul D. Ryan [R, WI] and signed into law by President Trump in 2019
- Geospatial Data Act of 2018, “ supports the goal of creating a National Spatial Data Infrastructure (NSDI), defined in the new law as “the technology, policies, criteria, standards, and employees necessary to promote geospatial data sharing throughout the Federal Government, State, tribal, and local governments, and the private sector (including nonprofit organisations and institutions of higher education).” — It was sponsored by Sen. Orrin Hatch [R, UT] and signed into law by President Trump in 2018 as a part of the FAA Reauthorisation Act
- The 21st Century Integrated Digital Experience (IDEA) Act calls for agencies to digitise forms, implement digital signatures, and upgrade websites and other digital services, including making them accessible to people with disabilities. It was sponsored by Rep. Ro Khanna [D, CA] and signed into law by President Trump in 2018.
While the executive branch has moved ahead, Congress neglected its own technological capacity. This contributes to a growing technical and expertise imbalance that undercuts Congress’ ability to act as a coequal branch of government.
The Internal Pacing Problem
The final pacing problem is rarely documented except through the war stories of former interns and Hill staff. It’s embodied in the now-famous Rep. McMorris-Rogers [R, WA] quote that Congress is “is a 19th Century institution often using 20th Century technology to respond to 21st Century problems.” Congress fails to make effective use of technology in its own operations and workflow.
Though the three pacing problems paint a bleak picture of the legislative branch’s ability to operate effectively in the 21st Century, there is some good news
From manual entry of constituent calls, to paper-based Dear Colleagues and co-sponsorship processes, to security systems that depend primarily on the ability for US Capitol Police officers to recognise lawmakers’ faces, internal Congressional technology is way behind. That means that limited staff resources are expended on inefficient processes, information is more error-prone, and the physical and cyber security of Congress is vulnerable to hacking and intruders.
The three Pacing Problems are interconnected
These three pacing problems are interrelated. Congress cannot aspire to address the external pacing problem without having sufficient staff resources to stay abreast of new technologies — and that means not spending hours battling archaic processes or obsolete technology. Congress cannot effectively oversee executive branch agencies that increasingly will have real-time data processed through increasingly sophisticated algorithms, if relies on annual reports and audits for its own information.
Some good news: Congress knows
Though the three pacing problems paint a bleak picture of the legislative branch’s ability to operate effectively in the 21st Century, there is some good news. In January 2019, the House set up a temporary, bipartisan “Select Committee on the Modernisation of Congress” to hear from stakeholders and experts and make recommendations. The Select Committee has held multiple hearings, produced two tranches of recommendations, and worked in a completely bipartisan fashion (every vote has been unanimous).
While the Select Committee has no legislative authority, its existence shows a new willingness for the House to examine its own capacity and processes, and to receive suggestions about how to begin to address its inadequacies. It has also served as a focal point for those researchers, think tanks, and concerned citizens who have good ideas to offer and, previously, no one place to share them.
Some more good news: the conversation is ongoing
Well before the formation of the Select Committee, an assorted group of nerds inside and outside Congress have been sounding the alarm about the legislative branch’s diminished capacity. With the formation of the Select Committee, these organisations have shifted into overdrive and their work continues to build on and augment the work of others. If you’re interested in this topic, here are some links to keep you from total despair:
And some fresh reading on the topic:
- Modernising Congress: Bringing Congress into the 21st Century, Lorelei Kelly, Beeck Centre for Social Impact and Innovation, Georgetown University
- Congress Needs the Office of Technology Assessment to Keep up with Science and Technology, Bipartisan Policy Centre
- And, of course, the fantastic First Branch Forecast, from Daniel Schuman every Monday morning
Addressing the Pacing Problem
In our recommendations for the Select Committee, my APSA colleagues and I take on each of these pacing problems one-by-one. Please follow the G21C (Governing in the 21st Century) channel for updates as we share more of this work in the coming weeks and months.
Note: An earlier version of this piece incorrectly credited the term “pacing problem” to Yale bioethicist, Wendell Wallach. Professor Wallach was kind enough to point out that ASU Professor Gary Marchant (author of “The Growing Gap Between Emerging Technologies and Legal-Ethical Oversight”) brought the concept to his attention. Professor Marchant wrote, “we coined that term for the title of an NSF grant in the mid 2000’s. Not aware if anyone had used that term before then, but I am not aware of any such prior use.”
Sincere thanks to Professors Wallach and Marchant for helping to correct the attribution, and to Professor Marchant and his co-editors, Braden R. Allenby and Joseph R. Herkert, for their important work. — Marci Harris
Marci Harris is co-founder and CEO of POPVOX, an online platform for legislative information and civic engagement. She holds a J.D. from the University of Memphis Cecil C. Humphreys School of Law, an LL.M. from American University Washington College of Law, and is a former Congressional staffer.
Claire Abernathy, PhD, is Assistant Professor of Political Science at Stockton University. She is the author of “Understanding and Responding to Constituent Opinion on Capitol Hill,” Congress & the Presidency (2018) and her research focuses on how members of Congress understand and respond to constituent opinion.
Kevin Esterling, PhD, is a professor of political science at U.C. Riverside. He is the author of The Political Economy of Expertise: Information and Efficiency in American National Politics (University of Michigan Press, 2004). He has published in a number of journals, including The American Political Science Review, Political Analysis, The Journal of Politics, Rationality and Society, Political Communication, and the Journal of Theoretical Politics.
(Picture credit: Unsplash)