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The Obama administration is quietly trying to make it harder to study public officials

A public servant works on February 4, 2015.
A public servant works on February 4, 2015.
David Ramos/Getty Images

A lot of what we know about how the government works — what motivates politicians, how exactly the three branches of government respond to one another — is thanks to the work of political scientists, who have been studying public officials for decades.

Much of their research, which involves interviews, surveys, and field experiments with politicians, is made possible by a special exemption in federal law that allows academics to study public figures without burdensome ethics restraints that govern all other research conducted on humans.

But the federal government is looking to quietly remove that exemption.

Right now the Department of Health and Human Services (HHS), which writes the rules on what can and can’t be permitted in human subjects research, is in the process of rewriting its whole ethics code. It issued a set of proposed regulations in September, and January 6 marked the deadline to submit comments on those proposed changes.

Overall, social scientists are pleased with the direction these new rules are pushing: If finalized, surveys and low-risk experiments would no longer be held to the same standard as medical trials, which researchers find unduly burdensome.

But snuck into the 300-plus pages of proposed rules is one line suggesting the government intends to close the major loophole that makes studying public officials practically possible.

What exactly is this change, and how would it block the study of public officials?

When academics want to conduct any sort of research on humans, their research plans must first be scrutinized by an ethics body to ensure that the research won’t harm the participants involved – or, if risks are inevitable, that they’re at least minimized.

These bodies are often called institutional review boards, or IRBs, and every university or research facility that conducts studies on humans has one.

Though each board operates independently, they are all bound by a set of government rules that direct them to mandate particular safety and privacy requirements.

For example, the federal government directs IRBs on when to require researchers to ask for consent before performing studies on humans. It has also designated several vulnerable populations, including children and pregnant women, that require additional safeguards.

The regulations around research on human subjects were developed in direct response to several egregious research abuses in the 20th century, the most famous among them being the experiments conducted on concentration camp prisoners by Nazi doctors without anesthetics.

Research abuses reached well into the US government itself, particularly in the case of the Tuskegee syphilis study, which ended in 1972. In Tuskegee, Alabama researchers from the US Public Health Service recruited impoverished black men living in rural Alabama, many of whom had contracted the disease. In a desire to study the natural course of the illness, the researchers never informed participants that they were infected and did not offer the men penicillin, even though the antibiotic was a proven cure.

So it’s understandable why the federal government has now put such stringent rules in place. Even so, regulators — spurred on by social scientists — realized that the restrictions would tie the hands of researchers hoping to study government figures in their official capacity as officeholders. The same measures intended to protect private citizens from harm would doubtless provide public officials ways to dodge scrutiny.

That’s why, in 1981, they put the public officials exemption in place.

How does the exemption work, and why is it important?

The exemption, first written into the rules in 1981, is intended to lower the barrier to study government officials. At the time, political scientists relied at least partially on interviews with members of Congress and other public figures to gain a clearer picture of how government institutions functioned. Interviews with members of Congress, for example, illuminated how the lawmakers interacted with lobbyists and the role that rank-and-file members played in the lawmaking process.

Since then, interviewing has fallen out of vogue. But the newest wave of research, which involves using randomized field experiments to gauge politicians’ behavior, relies heavily on the exemption.

Take, for example, one recent study that tried to determine whether state legislators discriminate against their black constituents. The researchers sent state legislators emails from fake constituents, requesting help with registering to vote. The emails were identical but for the constituent’s name, which the researchers varied to sound white (Jake Mueller) or black (DeShawn Jackson). They found that, on average, white legislators responded less often to the emails sent by constituents with black-sounding names. And black legislators did the exact opposite.

Were that study conducted on private citizens, the researchers would probably have been required to ask for their prior consent, and politicians are unlikely to agree to participate in a study that measures how racist they are.

That’s largely the purpose of the exemption: It permits academics to do research that may end up harming a politician’s reputation, and politicians can’t sue researchers for portrayals they don’t like.

Underlying this academic protection is the belief that public figures, the individuals who animate the major institutions of government, merit greater scrutiny. Their behavior and decision-making impacts their constituents, and as such they should not be afforded the same protections as private citizens.

"When researchers study political officials' behavior, they are studying them in their official capacity as democratic representatives (or other official), not as private citizens," wrote Jessica Robinson Preece, a political scientist at Brigham Young University, in a public comment on the proposed changes. "That public officials forfeit some of their privacy and individual protections is a well-established principle to ensure democratic accountability."

No one can agree on what precisely constitutes a "public official" — HHS, which is primarily responsible for rulemaking, has released conflicting guidance. But the most recent HHS rule defines a public official as someone who is elected to office or appointed to a senior government position, such as a school superintendent or police chief, rather than a teacher or police officer.

Why does the government want to eliminate this exemption?

The proposed rules offer little rationale for eliminating the exemption, stating only, "It does not seem appropriate to single out this category of subjects for different treatment in this way."

HHS elaborated in a statement that the rules, as a whole, ease the process of conducting social science research by allowing low-risk studies, including ones involving surveys and observation of public behavior, to take place without prior IRB approval.

"So, instead of allowing a specific, narrow exemption for this kind of research involving only public officials," the statement reads, "the proposed rule would broaden the exemption and allow it for all research of this ilk on all potential subjects, as long as federal privacy protections are observed."

But political scientists believe that’s not enough. In naming the specific public officials or institutions they are investigating, these academics wouldn’t be abiding by the strict standard of privacy that IRBs typically require.

Zachary Schrag, a history professor at George Mason University and the author of Ethical Imperialism: Institutional Review Boards and the Social Sciences, 1965-2009, said if the rules go into effect as they’re currently written, political scientists will theoretically be able to conduct research with greater ease, so long as they don’t publish findings implicating any public figures.

In practice, political scientists protesting the change say it’s a thinly veiled attempt to make tougher the already difficult task of studying government officials in a systematic way.

"No additional reasoning is provided," wrote Andrew Rudalevige, a government professor at Bowdoin College, in another public comment. "Thus the rationale is a longer version, in bureaucratic jargon, of the phrase 'because we said so.'"

To be sure, political scientists are somewhat justified in their paranoia: This would not be the first time the government has targeted their ability to do research. The National Science Foundation’s political science budget, about $10 million, has become a favorite target of Congress. "It’s a rounding error on a rounding error," said Brendan Nyhan, a political scientist at Dartmouth College.

What will happen if the exemption is actually removed?

No one is totally sure how much removing this exemption will harm political scientists, if at all.

The main thing the political scientists I spoke with emphasized is that even with the exemption in place, doing research on public officials is getting harder.

That’s partially because politicians have just become more cautious. Just as they’re less likely to be candid in interviews with journalists, they’ve become increasingly wary of agreeing to speak with political scientists, for fear that the research findings will portray them in a harsh light.

But it’s also the case that with the implementation of federal guidelines, IRBs have grown increasingly cautious. IRBs at many universities require political scientists to submit their research plans, even though they are technically exempt under federal guidelines.

Still, once plans are submitted, researchers believe they are still benefiting from the exemption – because IRBs have accepted ambitious research designs involving public officials that they may have otherwise rejected.

"My concern would be that IRBs would be overcautious and as a result at least initially shut down anything that doesn’t have prior consent, anything that’s deceptive, anything of that nature," said Daniel Butler, a political scientist at Washington University in St. Louis. "I think there will be a chilling effect."

Ultimately, what that will most likely mean for the field is a shift away from scrutinizing public figures. Researchers tend to investigate the populations that are easiest for them to access, and if access to public officials closes off even slightly, they will focus their efforts elsewhere.