Congress isn’t prepared for a post-Chevron world

June 6, 2023   J.D. Rackey

  • Congressional Reform
  • Blog

Last month, the Supreme Court announced that it is planning to reexamine the Chevron deference doctrine which allows regulators in the executive branch to interpret ambiguous aspects of law. Should the Court decide to substantially curtail regulatory rulemaking power, Congress would necessarily need to fill the void. At present, Congress lacks the capacity to accomplish such a task. 

During a recent Subcommittee on Modernization hearing focused on the Congressional Research Service (CRS), Richard Coffin, chief of research and advocacy at USAFacts, observed that “as our nation faces increasingly complex challenges, our elected leaders need access to undisputed and trusted data to craft legislation and make informed policy decisions.”  The hearing went on to explore ways to make the products and services offered by CRS timelier and more accessible for congressional users. However, progress on this alone will not be enough to create an environment of informed, evidence-based, policymaking. Congress not only needs access to data but also personnel with the skills and expertise necessary to use that data to produce clear and accurate analyses that can inform sound policy decisions.

Congressional staffers, while tireless workers dedicated to public service, are predominantly recent college graduates and lawyers – two groups that are not likely to have the quantitative data experience nor the subject matter expertise necessary to navigate the nuances of highly complex policy problems.

As SoRelle Gaynor, Marian Currinder and I explain in a new article for Political Science Today,

“Congressional offices are often awash in a sea of information — statistical or otherwise. Identifying which information is reliable is an increasingly time-consuming and complex issue for staff who may not possess the skills necessary to adequately meet the task.”

As we point out, Congress does receive support from experts in the Congressional Research Service, Government Accountability Office and Congressional Budget Office, but these agencies can only provide support in response to an official request and are limited in the type of guidance they provide. Experts embedded in committee and personal offices would be able to take a more proactive approach, resulting in better-designed policies. 

While think tanks and lobbyists often fill this void, inexperienced and overworked staff are too often unaware of the partisan or philosophical biases that underpin the information and analysis that external organizations provide. Moreover, research suggests that many member offices are only inclined to use information from think tanks they perceive to be aligned with their ideological perspective, resulting in policies rooted in confirmation bias.

During a Select Committee on the Modernization of Congress hearing in 2021, Tara McGuinness, senior director of New America’s New Practice Lab, suggested that Congress embed technologists and data scientists with committees if it wanted to craft more implementable and nuanced legislation akin to what a post-Chevron world would require. Others have suggested the creation of a new office for congressional regulation.

The Select Committee ultimately recommended the creation of a Congressional Evidence-Based Policymaking Commission styled after a previous effort undertaken by the executive branch to dig into this issue in-depth, and Rep. Derek Kilmer recently reintroduced a resolution to create such a commission but it has not, yet, made progress.  

Regardless of whether the Chevron doctrine survives this current challenge, Congress needs to increase its capacity for evidence-based policymaking. To do so it needs more than mere access to high-quality data. It needs a robust staff capable of analyzing and explaining that data. If Congress is to meet the policymaking needs of a rapidly changing society, it needs to invest in hiring expert staff.