For those interested in the power corporations have in Washington these days, last week’s Facebook hearing offered a particularly revealing moment.
After a little light grilling of Facebook CEO Mark Zuckerberg, Sen. Lindsey Graham (R-SC) asked about regulation: “What do we tell our constituents, given what’s happened here, why we should let you self-regulate?”
Zuckerberg said he actually embraced regulation. (“If it’s the right regulation”. Of course.)
A little more back and forth.
GRAHAM: So would you work with us in terms of what regulations you think are necessary in your industry?
GRAHAM: Okay. Would you submit to us some proposed regulations?
ZUCKERBERG: Yes. And I’ll have my team follow up with you, so that way, we can have this discussion across the different categories where I think that this discussion needs to happen.
Let’s play back the tape. When it comes to developing regulation, the senator’s first instinct is to ask the CEO to send him ideas. He doesn’t think, “I’ll work with the relevant committee staff to hold hearings and develop ideas.” He doesn’t think, “I’ll have my staff work with technology experts to develop appropriate legislation.” He thinks: Here’s the CEO who heads the company that’s been causing all these problems. Let’s ask him and his lobbyists to come up with ideas.
This is how corporate power works in Washington these days. Time and again, it’s the industry lobbyists who write the bills. That’s just what Graham is used to seeing. Why should this time be different?
The asymmetry of expertise
Much of the commentary after last week’s hearings focused on just how technologically illiterate members of Congress, particularly the senators, showed themselves to be. Understandably, they are not experts. They are generalists, and many are so old and laden with assistants that they don’t use a lot of the technology themselves.
But given the wide range of subjects on which they are expected to make decisions as senators and representatives, I can forgive them some doddering confusion about the technology at hand. It is complicated.
What I can’t forgive them is the knee-jerk attitude that Facebook — or any large, powerful company — should come up with its own ideas for self-regulation and submit them for approval.
Certainly, it’s fair that Facebook and its $12 million team of 41 well-connected lobbyists should play some role. But that role should be part of a series of investigatory and information-gathering hearings that take in a broad range of perspectives.
I’ll admit, I don’t know the ins and outs of Graham’s office. Maybe he has great technology staffers, even if their efforts weren’t reflected in his questioning. But it’s safe to say that if you visited most Senate and House offices these days, you’d find a remarkable dearth of relevant policy expertise on the topic. Like most issues Congress has to deal with these days, data privacy and cybersecurity are tricky issues, ones that require considerable expertise to meaningfully understand.
The problem is that Congress just doesn’t invest in policy expertise like it did once upon a time. For decades, both the House and the Senate have been cutting their own investments in policy staff, leaving a Congress that gets dumber and dumber each year, and more dependent on whatever expertise they can get from elsewhere. And mostly, as I showed in my 2015 book The Business of America Is Lobbying, that expertise comes from business lobbyists. Congress now spends less money on its staffing resources than businesses spend on registered lobbyists in Washington.
The challenge of regulation
The Zuckerberg hearings followed a typical pattern of recent corporate-CEO-in-the-hot-seat hearings. A scandal puts a company in the news. Congress calls the CEO to testify, and Congress members can get on the record asking tough questions. But behind the scenes, the CEO is meeting with members to show that he or she is responding to the concerns. And because all the expertise lies in industry, nobody in Congress really knows what to do beyond asking those few tough questions.
Given the current state of Congress, the chance of effective data privacy or online advertising regulation emerging soon is pretty much nil.
For one, Republicans and Democrats would have to agree and then decide that coming together on it was more important than scoring partisan points. That’s unlikely.
But even more challenging is that congressional committees and offices drawing up the legislation would need the independent expertise to understand the complex technological issues well enough to fend off the lobbying onslaught of not just Facebook but also the dozens of other tech companies that have a big stake in whatever comes out — and that have hundreds of lobbyists ready to convince any would-be entrepreneurial staffers that whatever they come up with will be full of “unintended consequences” that will “just make the problem worse.”
Congress should make a serious investment in its capacity to understand and regulate technology (as it should for many other areas of the economy). But until it does, its collective response to the tricky problems of industry regulation will continue to be the Graham treatment: You tell us what to do. You’re the expert.