Evidence-based legislating: The missing link in efforts to resurrect Congress as the co-equal branch

The members of the House Select Committee on the Modernization of Congress have been called “superheroes” for their strong bipartisan recommendations by Bruce Patton of the Rebuild Congress Initiative and Bradford Fitch of the Congressional Management Foundation.

But if the current efforts to modernize and strengthen Congress to fulfill its constitutional role as a co-equal branch are to succeed, Congress’ gap as the missing link in results-based government also needs to be addressed.

Congress has enacted over a dozen laws strengthening executive branch capacity since 1993. Yet the Foundations of Evidence-based Policymaking Act of 2018 (and its predecessor Commission) which requires federal agencies to revamp their approach to evaluation and evidence building from an “ad hoc” activity to a process fully integrated into ongoing operations had not one recommendation for Congress.

Unlike earlier reform eras, the past 25 years have not seen major congressional reforms to bolster Congress’ role in results-based government. Instead in 1995, at the start of this era, Congress paradoxically defunded the one congressional unit explicitly designed to analyze and assess scientific evidence – the Office of Technology Assessment (OTA).

Our national legislature needs skills in interpretation and analysis using a range of information —from program evaluations, systematic reviews, and assessments rating the strength of evidence— to performance audits and performance data collected to measure progress toward achieving an agency’s established mission or program-related goals or objectives. The evidence base is cumulative and decisionmakers also should  consider additional studies drawn from science and social science.

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Congress’ evidence problem goes beyond the decimation of the ranks of professional congressional staffs with policy expertise. First, policy expertise comes from lobbyists and agency and executive branch detailees – the proverbial “fox guarding the hen house.” Second, understanding the weight of evidence goes beyond policy skills – it is the ability to assess the strengths and weaknesses of different research designs supporting data-based conclusions. To address the decline in congressional productivity requires hands-on legislative leadership and training in evaluation and data science – new personnel skills now required in federal agencies, but not in Congress.

Current congressional support agencies do not fill this need.  The General Accountability Office (GAO) uses a forensic auditing approach, while the Congressional Research Service (CRS) uses a policy analysis approach that-balances pro and con perspectives. Busy members require timely, readily accessible expertise on “evidence” organized around the congressional schedule. Occasional commissioned reports from a new OTA would not fill the gap.

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Congressional oversight Informed by evidence is critical to democracy. Congress has a distinctive role across administrations to provide core policy leadership that ensures consistent data-driven use of performance information. Let me explain how.

Agency leaders respond to Member inquiries and oversight. According to the GAO, agency managers are not using performance information at least in part because they are not called to account for these data currently when interacting with Congress.  Performance measures are meant to spur creative problem-solving and inform future policymaking, but legislators lack skills to query and probe at the data levels. Even new and junior Members can take immediate actions within their purview to improve oversight (committee work, floor debate, and constituency casework) as well as exploiting the congressional “bully pulpit” throughout the legislative process.

Congress sets goals – evidence is critical to meaningful goal-setting ensuring that policymaking is forward-looking, not just based on prior failures and successes. While the President manages, Congress does more than simply decide if a program should be funded and at what level, Congress also sets the goals of project, program and agency performance.

Congress provides a publicly accountable programmatic review that differs from the policy role played by Presidents. Presidents focus on their agendas, while Congress works across the board to ensure that agencies and programs are working in a cost-effective and efficient manner; ensuring that presidents comply with legislative intent and agencies or programs are fulfilling their statutory mission; evaluating program performance; investigating waste, fraud, and abuse in governmental programs; and overseeing the agency rulemaking process.

Congress helps ensure that both political parties are able to define grounded, divergent political agendas. It is no accident that both the “conservative” Heritage Foundation and the “liberal” Brookings Institute both advocate for evidence-based policymaking. Evidence-based agenda setting does not eliminate consensus-building, but it does give voters choices and a greater ability to make informed decisions at the ballot box. Neither the Republican or the Democratic parties have party foundations that develop draft policy agendas and legislation as is true in other countries.

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Not to be undersold is that evidence-based public policy is actually an antidote to excessive polarization. Political scientist James M. Curry stresses that limiting information is about power. Not only have leadership staff increased fourfold, information about legislation has become so limited in Congress that Members lacking time, resources and staff, are forced to rely on cues from their leadership. By increasing access to information for the rank-and-file, an enhanced ability of Members and their staff to assess evidence will increase accountability and democratize how policy agendas are built and are grounded on best practices and facts.

Finally, Congress helps educate the public – oversight does more than protect congressional prerogatives, Members inform constituents in publicly available hearings, floor debates and responses.

Under separation-of-powers in a democracy, Congress needs its own independent judgement where Members supported by their staffs are able to draw their own conclusions about evidence.