‘Sincerely, Elizabeth Warren’: How lawmakers use letters to get their way

Members of Congress can help swing new tech policies with a smart letter — but in an era of gridlock, the missives also highlight how little else lawmakers can do.

Letter to Gary Gensler from Elizabeth Warren

Letters from lawmakers can give agencies political cover to expand their power.

Illustration: Christopher T. Fong/Protocol

Gary Gensler sent ripples through the crypto world with a mini-campaign announcing his view that the Securities and Exchange Commission can help regulate many digital tokens. One lawmaker, however, likely wasn't too surprised.

Democratic Sen. Elizabeth Warren, a vocal crypto skeptic and member of the committee that oversees the SEC, wrote to Gensler, the agency's chair, weeks earlier. In a five-page July letter, Warren outlined her concerns for consumers and put a full page of single-spaced questions to Gensler, which she supported with 25 footnotes to media reports, regulatory filings and gold-star policy research.

The SEC had already begun trying to enforce securities law on digital tokens, and Gensler, a Warren favorite with a history as an aggressive regulator, had begged for more authority from Congress. His responses to Warren, however, showed him going beyond mere pleas on an issue that has fallen between regulatory cracks — even in the face of ongoing skepticism from other lawmakers.

"The SEC has taken and will continue to take our authorities as far as they go," Gensler wrote.

In the era of email, lawmakers may dash off a couple letters a week to other parts of the government. Often, the missives are little more than press releases on congressional letterhead: complaints about gas prices, scoldings of scandal-plagued CEOs, generic support for kids and veterans or even favors for lobbyists.

Like Warren's prodding of Gensler, though, the occasional smart letter can work as an obscure policy lever, convincing agencies they have political cover to take on more controversial enforcement, interpret statutes more broadly and even dust off powers they've long abandoned, all without Congress taking a single vote. And in an era when successful votes are hard to come by, these letters, for better or worse, are sometimes the best lawmakers can do.

"When you hit a year like 2021 has been with Capitol Hill, you definitely have to look for external ways to tout your priorities," said Jonathan Schwantes, who spent nearly a decade as a lawyer on the Senate Judiciary Committee and is now senior policy counsel for Consumer Reports.

Warren isn't the only lawmaker whose letter-writing habit has gotten things moving in the executive branch. In April, for instance, Democratic Sens. Richard Blumenthal and Ed Markey pressed the National Highway Traffic Safety Administration to investigate a Tesla crash thoroughly, saying the carmaker's Autopilot feature did too little to make sure drivers are engaged. The agency opened a probe in August that will look into the issue across the company's vehicles.

Blumenthal has also pushed the Federal Trade Commission to issue rules on privacy, which the agency seems poised to try once it gains a third Democratic commissioner, while Markey has been the key voice in the Capitol urging the FTC toward its recent embrace of teen privacy online.

Letters rarely change policy alone, and often need to go hand-in-hand with other bully-pulpit activities. Washington denizens often describe speeches, hearings, bill proposals, letters to private companies and individuals and other moves short of passing laws as exercises in trying to nudge agencies.

Sen. Mark Warner, for instance, introduced legislation on digital design features that try to fool users into certain actions such as giving up data or opting in to paid services, and he addressed a commission workshop on the topic earlier this year. Last month, the FTC announced it aims to take on the practices, known as dark patterns, when they "trick or trap consumers into subscription services."

Politics by post

Generating tech policy through stern letter-writing is not new. Even in the infancy of tech policy, a series of letters and hearings by former Republican Sen. Orrin Hatch helped spur the U.S. antitrust case against Microsoft, which was filed in 1998 and is still the most significant tech competition lawsuit to have finished.

"It certainly didn't hurt, and in some ways helped, because I think it called attention to the severity of the problem presented by Microsoft at the time," said Jeff Blattner, a one-time aide to Sen. Edward Kennedy, who helped oversee the case at the Justice Department. "It definitely helped to move the public debate toward enforcement."

Of course, a letter by itself can do little if a department or independent agency isn't interested in a lawmaker's view — and no matter how fancy congressional stationery or how stern the wording, a letter can't replace an actual law granting new powers or increasing budgets.

Those who have sent and received such congressional letters insist they're all valuable to the departments and agencies carrying out the statutes that lawmakers write. But former staff will concede that many letters are half-hearted political exercises, and only a small minority get most of an agency's attention.

Usually those more serious letters come from lawmakers with knowledge and power on a relevant issue, often a member of the committee that oversees the agency's policy area or else the panel that funds the agency. Those members of Congress, after all, can follow up with tough questioning at the next hearing or, in extreme cases, take out their frustration on an agency's budget. Specific queries and nuanced suggestions tend to trump hot rhetoric, and lawmakers often have better luck when agency leadership is in the same political party.

Agencies like the Federal Communications Commission are often deluged with letters that look more like signaling exercises for constituents.

"At the FCC, you would maybe get 30 to 60 letters a month," said Greg Guice, who ran the commission's Office of Legislative Affairs for three years after a stint as a congressional committee staffer. "Of those, you might get four or five from committee members."

The beginning of an administration can be a particularly fruitful time for lawmakers to write, as incoming leadership is already assessing where an agency's policies stand in trying to implement new ideas and priorities. The same is true of the period after an agency receives new mandates or funding in a major bill, such as the infrastructure package that President Biden plans to sign into law in the coming days.

That package, however, is one of Congress' very few recent major legislative accomplishments. Some former staff said the gridlock that has paralyzed the Hill and stops it from making progress on pressing tech issues may make letters all the more important. In some cases, a note to an agency may be one of the few levers of power readily available to those who are nominally charged with making laws.

Blumenthal, for instance, has admitted Congress "failed abjectly" to pass privacy legislation in explaining his hope that the FTC would "fill gaps" to protect consumers, while Markey has said his push for teen privacy online springs from his inability to get protection for them in the 1998 bill he helped pass on privacy for kids under age 13.

"Where the opportunities to advance new law on Capitol Hill are sort of diminished, agencies that have those abilities and have the charge from Congress to do them should," said Guice, who added that the Democrats in Washington are trying to charge up long-dormant agencies to regulate businesses, particularly on tech issues.

In some cases, agencies have abandoned powers they had, such as the FTC's decades-long reluctance to issue rules governing unfair or deceptive business practices after congressional pushback. A letter from a lawmaker could potentially help in that case, especially if combined with newly aggressive leadership on the same page as the lawmaker, like FTC Chair Lina Khan. In many cases, however, the digital economy has raised questions about privacy, competition and other issues that agencies are ill-equipped to address, at least in a comprehensive way, without congressional action.

That often leaves lawmakers hoping for a successful letter, but knowing that it's just one small step toward addressing the issues they're worried about.

"It is a way to raise awareness," said Schwantes. "As a pure political tool, it's an effective one. It's not as good as passing a law, it's not as good as holding a hearing, but it's up there."



Achieving work equity in a hybrid world means equipping employees with the tech tools that enable them to feel fully seen, heard and valued no matter where they are. Work equity is the outcome of a business that champions work-from-anywhere, deploying technology to give workers autonomy and increase collaboration across underrepresented groups.



Circle’s CEO: This is not the time to ‘go crazy’

Jeremy Allaire is leading the stablecoin powerhouse in a time of heightened regulation.

“It’s a complex environment. So every CEO and every board has to be a little bit cautious, because there’s a lot of uncertainty,” Circle CEO Jeremy Allaire told Protocol at Converge22.

Photo: Circle

Sitting solo on a San Francisco stage, Circle CEO Jeremy Allaire asked tennis superstar Serena Williams what it’s like to face “unrelenting skepticism.”

“What do you do when someone says you can’t do this?” Allaire asked the athlete turned VC, who was beaming into Circle’s Converge22 convention by video.

Keep Reading Show less
Benjamin Pimentel

Benjamin Pimentel ( @benpimentel) covers crypto and fintech from San Francisco. He has reported on many of the biggest tech stories over the past 20 years for the San Francisco Chronicle, Dow Jones MarketWatch and Business Insider, from the dot-com crash, the rise of cloud computing, social networking and AI to the impact of the Great Recession and the COVID crisis on Silicon Valley and beyond. He can be reached at bpimentel@protocol.com or via Google Voice at (925) 307-9342.

Sponsored Content

Great products are built on strong patents

Experts say robust intellectual property protection is essential to ensure the long-term R&D required to innovate and maintain America's technology leadership.

Every great tech product that you rely on each day, from the smartphone in your pocket to your music streaming service and navigational system in the car, shares one important thing: part of its innovative design is protected by intellectual property (IP) laws.

From 5G to artificial intelligence, IP protection offers a powerful incentive for researchers to create ground-breaking products, and governmental leaders say its protection is an essential part of maintaining US technology leadership. To quote Secretary of Commerce Gina Raimondo: "intellectual property protection is vital for American innovation and entrepreneurship.”

Keep Reading Show less
James Daly
James Daly has a deep knowledge of creating brand voice identity, including understanding various audiences and targeting messaging accordingly. He enjoys commissioning, editing, writing, and business development, particularly in launching new ventures and building passionate audiences. Daly has led teams large and small to multiple awards and quantifiable success through a strategy built on teamwork, passion, fact-checking, intelligence, analytics, and audience growth while meeting budget goals and production deadlines in fast-paced environments. Daly is the Editorial Director of 2030 Media and a contributor at Wired.

Is Salesforce still a growth company? Investors are skeptical

Salesforce is betting that customer data platform Genie and new Slack features can push the company to $50 billion in revenue by 2026. But investors are skeptical about the company’s ability to deliver.

Photo: Marlena Sloss/Bloomberg via Getty Images

Salesforce has long been enterprise tech’s golden child. The company said everything customers wanted to hear and did everything investors wanted to see: It produced robust, consistent growth from groundbreaking products combined with an aggressive M&A strategy and a cherished culture, all operating under the helm of a bombastic, but respected, CEO and team of well-coiffed executives.

Dreamforce is the embodiment of that success. Every year, alongside frustrating San Francisco residents, the over-the-top celebration serves as a battle cry to the enterprise software industry, reminding everyone that Marc Benioff’s mighty fiefdom is poised to expand even deeper into your corporate IT stack.

Keep Reading Show less
Joe Williams

Joe Williams is a writer-at-large at Protocol. He previously covered enterprise software for Protocol, Bloomberg and Business Insider. Joe can be reached at JoeWilliams@Protocol.com. To share information confidentially, he can also be contacted on a non-work device via Signal (+1-309-265-6120) or JPW53189@protonmail.com.


The US and EU are splitting on tech policy. That’s putting the web at risk.

A conversation with Cédric O, the former French minister of state for digital.

“With the difficulty of the U.S. in finding political agreement or political basis to legislate more, we are facing a risk of decoupling in the long term between the EU and the U.S.”

Photo: David Paul Morris/Bloomberg via Getty Images

Cédric O, France’s former minister of state for digital, has been an advocate of Europe’s approach to tech and at the forefront of the continent’s relations with U.S. giants. Protocol caught up with O last week at a conference in New York focusing on social media’s negative effects on society and the possibilities of blockchain-based protocols for alternative networks.

O said watching the U.S. lag in tech policy — even as some states pass their own measures and federal bills gain momentum — has made him worry about the EU and U.S. decoupling. While not as drastic as a disentangling of economic fortunes between the West and China, such a divergence, as O describes it, could still make it functionally impossible for companies to serve users on both sides of the Atlantic with the same product.

Keep Reading Show less
Ben Brody

Ben Brody (@ BenBrodyDC) is a senior reporter at Protocol focusing on how Congress, courts and agencies affect the online world we live in. He formerly covered tech policy and lobbying (including antitrust, Section 230 and privacy) at Bloomberg News, where he previously reported on the influence industry, government ethics and the 2016 presidential election. Before that, Ben covered business news at CNNMoney and AdAge, and all manner of stories in and around New York. He still loves appearing on the New York news radio he grew up with.

A 'Soho house for techies': VCs place a bet on community

Contrary is the latest venture firm to experiment with building community spaces instead of offices.

Contrary NYC is meant to re-create being part of a members-only club where engineers and entrepreneurs can hang out together, have a space to work, and host events for people in tech.

Photo: Courtesy of Contrary

In the pre-pandemic times, Contrary’s network of venture scouts, founders, and top technologists reflected the magnetic pull Silicon Valley had on the tech industry. About 80% were based in the Bay Area, with a smattering living elsewhere. Today, when Contrary asked where people in its network were living, the split had changed with 40% in the Bay Area and another 40% living in or planning to move to New York.

It’s totally bifurcated now, said Contrary’s founder Eric Tarczynski.

Keep Reading Show less
Biz Carson

Biz Carson ( @bizcarson) is a San Francisco-based reporter at Protocol, covering Silicon Valley with a focus on startups and venture capital. Previously, she reported for Forbes and was co-editor of Forbes Next Billion-Dollar Startups list. Before that, she worked for Business Insider, Gigaom, and Wired and started her career as a newspaper designer for Gannett.

Latest Stories