By Kevin R. Kosar
Recently, leadership of the Congressional Research Service and the Library of Congress were presented with a memorandum. It expressed concern that the agencies' analysts, attorneys, and reference experts were being muzzled a bit.
"We are concerned that CRS risks falling short of its mission if it holds back the independent analysis that Congress has directed us to provide. Sparking our concern, CRS has appeared to avoid reaching conclusions in some topic areas with high potential for political controversy. In some such topic areas, CRS operates as a neutral compiler of facts and opinions, with little of the expert analysis, appraisal, and evaluation of their credibility that Congress requires. CRS also seems to have avoided a few topics or facets of topics almost entirely. Yet these risk-avoidant strategies, while certainly understandable, could in fact increase other risks such as under-utilizing CRS’s valuable personnel; contributing to polarization; and, ironically, inviting a perception of partisan bias. Perhaps worse, given the mission of CRS, is the risk of a slow slide into irrelevance."
(Disclosure: I was shown the memorandum and signed it.)
This debate is not a new one at the agency. I first saw it erupt back in 2004, when nationally renown senior specialist Louis Fisher was taken to task for expressing his concerns about executive branch encroachments on legislative branch authorities. CRS leadership produced a memorandum directing analysts to produce work that gave the appearance of neutrality, as opposed to objectivity. The former standard amounts to saying "On the one hand X, on the other hand Y." The latter standard says, "Here are what the facts and analysis indicate."
Plainly, this dispute within CRS continues. Analysts want to be respected experts who can convey objective analysis to Congress while agency managers fear cuts to the agency's budget and people losing their jobs. Yet as the January 12, 2018 memorandum makes plain, the stakes are no mere tempest in a Beltway teapot:
"As you know, the current climate of 'alternative facts,' 'fake news,' conspiracy theories, and declining trust in a common reality poses problems for the United States’ political system. While technological and social trends increase the need for information literacy, people across the political spectrum do not know where to turn for reliable information. Many end up in polarized 'bubbles.' These trends threaten democracy, in part by eliminating shared factual grounds on which people and their legislators can debate, compromise, and seek consensus. In this climate, CRS’s mission has never been more vital."
Legislative support agencies occupy a particularly difficult position these days. The agencies, which include the Government Accountability Office, Congressional Budget Office, Library of Congress Law Library, and CRS, were established to add knowledge to the political process. Make Congress smarter -- who could object to that?
As it turns out, plenty of folks can. Knowledge can be threatening. Facts can undermine arguments being made for or against a policy. It is a problem as old as politics. Remember what happened to Socrates when he employed reason to question Athenian conceptions of justice?
The problem of knowledge in politics becomes more acute in the era of hyper-partisanism. Anything one writes might be used by one faction or another as a club to pound the other. Politicians tend to feel besieged and want to control the narrative. So they sometimes lash out at anyone who writes or says anything to contradict that narrative. Last year some members of Congress advocated outsourcing the Congressional Budget Office's budget scoring duties to private sector think-tanks. Why? Because they were upset about how the CBO tallied an Obamacare repeal bill. Whether this particular score was right or wrong can be debated, but gutting a legislative support agency over a single score is inarguably a gross overreaction.
Exacerbating the challenge further are the perceived stakes: namely, partisan control of Congress. Party control of our national legislature has switched back and forth rapidly since the early 1990s. We have not seen swings like this since the post-Civil War period, notes political scientist Frances Lee. Democrats are out, Republicans are in, then the GOP is out, and later back again. Now the focus is on whether Democrats will reclaim control of Congress after November 2018. One effect of this peculiar state of politics is that each party tends to view nearly everything through the prism of the next election. Which means legislative support agencies' work too often gets viewed less for its intrinsic value and more as a bother or even a threat.
All legislative support agencies feel the threat of legislative retribution. In the 1990s, GAO had its budget cut 25 percent. The Office of Technology Assessment was zeroed out by Speaker Newt Gingrich in 1995, and its staff let go. By virtue of running Congress' think-tank, CRS leaders feel especially vulnerable. CRS analysts and reference specialists interact with congressional staff every day. In FY2016, there were:
“more than 62,000 requests for custom analysis and research. The Service hosted more than 9,200 congressional participants at seminars, briefings, and training; published more than 3,500 new or updated reports; summarized more than 6,300 bills; and maintained nearly 10,000 products on its website for Congress, CRS.gov, which received over 1.7 million views. Overall, CRS provided confidential, custom services to 100% of Member and standing committee offices.”
When the Internet began becoming ubiquitous two decades ago, CRS reports went from being hard copies that were read only by a small number of folks on the Hill to the subject of stories in the New York Times. The arrival of the World Wide Web, smartphones, and the bitterly contentious environment on the Hill, as I described elsewhere, slammed CRS. The once insular agency found its staff being trashed by legislators, media, and bloggers. All for doing their jobs. It was never enough for external critics to write, "CRS's analysis is fair but falls short for the following reasons." Instead they couched their critiques in terms of CRS being biased or in the bag of one party or the other.
Agency management struggled to respond to this development, which meant anything the agency wrote or said risked setting off a political firestorm. Over the past two decades, CRS leadership has confronted the hyper-partisan, Internet-connected world mostly by trying to hide staff from it. Once upon a time CRS's experts regularly appeared on panels at academic conferences, wrote for journals and other public media, and spent long stretches working as detailees in the House or Senate. These days, such activities occur much less frequently. As management sees it, the less visible staff are, the less vulnerable the agency is.
While neutrality and invisibility might appear to be rational strategies from the perspective of the agencies' higher-ups, it is soul-crushing to staff. Nowadays, CRS's analysts feel pressured to frame everything as "some say this, and some say that" and to shrug in the face of legislators and staff when asked, "What do you think?" (Congressional staff hate such unresponsiveness, by the way.) Being an expert means reaching conclusions. It also means being able to write freely (but responsibly) and follow the facts and data where they lead. For these reasons, CRS has hemorrhaged talent, which is bad for the agency and bad for Congress.
There are no easy answer to this lamentable state of affairs. The Internet is not going away, and hyper-partisanism shows no signs of flagging. Hostility to facts and expert opinion is an ineradicable fact of life. Things could improve if both legislators and CRS management stepped back and took deep breath.
The next Congress would do well to adopt an internal rule that legislators and staff will not publicly berate legislative support agencies or accuse them of being biased. Certainly, civil servants can get things less than 100 percent correct. But so can legislators. That they do explains why CRS and other agencies exist to begin with. Hence, if a legislator thinks a CRS report is objectionable, then he or she should put out a press release politely taking issue with the analysis' framing or methodology, and leave it at that. If the critique is sound, sympathetic media will report it and the agency itself will take note and do better next time. This is not rocket science, it is civility. Besides, if a legislator's case is so weak that they fear a CRS analysis might sink it, well, they probably should rethink what they're advocating.
CRS leadership, for its part, needs to learn to better read the signals coming from Capitol Hill. If a staffer calls to grouse about a report, there's no reason to pull a fire alarm. Even during the budget slashing years of Speaker Gingrich, CRS' budget was never axed. Indeed, so long as agency leadership maintains friendly relationships and an open line of communication with its authorizing committees and appropriators, there is no way one cranky legislator (or even a bunch of them) is going to hurt the agency. CRS leadership needs to be confident on this count, and to mill that confidence into a clear message to CRS staff: "We have your back." Analysts and reference experts at CRS need to believe that, lest they continue to self-censor themselves. Finally, CRS management also should recognize that its reputation on Capitol Hill very much depends on the agency being seen as useful and objective. That means CRS experts need to be permitted to write clearly and to share their objective assessments--even if they are not neutral.
Kevin R. Kosar is the vice president of policy at the R Street Institute. He worked for the Congressional Research Service from 2003 to 2014, and co-directs the Legislative Branch Capacity Working Group.