Protocol | Policy

Washington's tech issues provide lobbyists an opening

Fifteen years after "a series of tubes," Congress knows it's still struggling with tech, and the industry's lobbyists are filling the gap more than ever.

Facebook CEO Mark Zuckerberg appears on a screen behind a lawmaker's empty chair as he testifies remotely during Senate hearing.

Facebook CEO Mark Zuckerberg testifies remotely during the Senate hearing in January.

Photo: Bill Clark/Getty Images

In 2006, late Alaska Sen. Ted Stevens, who was then chairing the committee that oversees tech policy, famously compared the web to "a series of tubes" during a debate over net neutrality. Stevens suggested the internet could get hopelessly clogged with information, and appeared to refer to an email as "an internet." Late-night derision ensued, cementing the view that lawmakers are too out of touch to be in charge of an industry defined by constant innovation and disruption.

In that year, the lobbyists from AT&T, Comcast and other telecom companies whose point Stevens was mangling were Washington's main tech lobbyists. Google, Amazon and Apple among them spent less than $3.5 million that year to influence federal policy. Two-year-old Facebook was still six years away from going public and hadn't even gotten in on the game. Speed forward to 2020, and those four giants spent nearly $54 million on lobbying, with Facebook alone responsible for nearly $20 million — likely none of which counts the companies' legal bills.

The reasons for this spending surge are as varied as the threats the companies face and the opportunities they hope to seize, but one of them is the quest to take advantage of lawmakers' ignorance, or busyness, to advance their company's agenda.

"They certainly have technical expertise that we do not on the outside," Jane Chung, big tech accountability advocate at consumer group Public Citizen, who recently authored a report on big tech's lobbying, said of the companies. "They use that expertise selectively and choose to highlight areas of the technology that benefit whatever narrative they are peddling at the moment."

Ask lobbyists about their strategy, and most of the time, they'll say it's to "educate lawmakers about the issue." While it's true Congress does need outside experts to inform lawmaking, that's usually K Street speak for telling Congress that a particular bill will destroy a beloved product, or that a narrower legal definition would be much more accurate when it would also be much easier for a company to deal with. Lobbyists routinely plant questions for rivals at hearings, suggest bill text and seek exemptions to get out of regulation, much of it under the guise of helping Congress craft better policy.

Lobbying goes on in every industry, far beyond tech. But the quickly-evolving, detailed nitty-gritty of the tech sector makes it ripe for outside influence, particularly when Congress is desperate to figure out something to do on privacy, competition, content moderation and more. Big topics — including autonomous vehicles, artificial intelligence, space exploration and cryptocurrency — are just on the horizon.

And there is apparently plenty of education that still needs to be done. Just since the 2018 Cambridge Analytica hearings, long after the "series of tubes" speech, lawmakers have used precious hearing time to ask Mark Zuckerberg how he makes his money if Facebook is free, to suggest WhatsApp sends emails, to wonder if Google intervenes in individual searches, to question CEOs about companies they don't even run or to simply ask the same questions their colleagues asked an hour earlier.

'Brain drain'

In some ways, the knowledge gap seems an outgrowth of Congress's culture. Senate Majority Leader Chuck Schumer famously still uses a flip phone, and he's not alone. Lawmakers are far more likely in hearings to refer to their kids' or grandkids' internet usage than to ask about the cloud. The challenge of defining complicated concepts such as digital platforms, AI or data sale — even for experts — has famously slowed down legislation and regulation, sometimes by years. According to a 2017 survey of senior congressional staff, just 15% said they were very satisfied with the knowledge, skills and abilities of the staff around them, and only 6% said they were very satisfied with the tech infrastructure.

Many lobbyists claim that they bring genuine knowledge that Congress and the executive branch lacks, either because elected officials have more political than technical expertise or because government salaries aren't too attractive to potential staffers with tech experience.

At the end of April, House Majority Leader Steny Hoyer and Democratic Caucus Chair Hakeem Jeffries called for a 20% boost to House salaries and expenses, lamenting "brain drain and accelerated staff-turnover [that] impact our ability to effectively serve the American people."

Zach Graves, who has studied Washington's technological expertise as head of policy at the Lincoln Network, said "the historic arc of congressional staff capacity has been pretty strongly downward."

"Your top tech antitrust lawyer is going to be able to make a lot more money working for Facebook or Google than working on the House Judiciary Committee," Graves said. He and others did, however, praise the sophistication of the panel's recent probe of competition by Facebook, Google, Apple and Amazon, despite the competition subcommittee's Democrats only having four lawyers and one technologist on staff.

Into that void step the very lobbyists, company officials, trade groups, astroturf campaigns, industry-allied researchers and others who choose to work for the companies. Congress, executive agencies and even law enforcement all get the "let us enlighten you" treatment. Enterprise companies urge that privacy laws should focus on the most sensitive data and leave the average productivity app more or less alone, for instance, while social media platforms will do everything they can to exempt ad targeting from regulation. (In the senior staff survey, access to quality, non-partisan expertise was another sore spot, with less than a quarter of staff very satisfied.)

Sometimes these lobbyists even head into government or campaigns, as when a former Apple lobbyist, Cynthia Hogan, helped Joe Biden search for a vice president. The companies have not been shy about bringing on board those with ties to the administration either. Most recently, for example, Amazon hired Ricchetti Inc., which is run by the brother of top Biden adviser Steve Ricchetti.

"When I was in the business, we thought we were doing the Lord's work," Steve Billet, a professor at George Washington University and former government affairs official at AT&T, told Protocol, noting that lawmakers' legal staffers may be responsible for a wide range of issues of national importance.

Staffers "cover everything from pharmaceuticals to telecommunications to energy," Billet said. "They really don't have a lot of time to become a real expert in any one of them."

He added that lobbyists have "an enormous advantage" in the face of that knowledge gap, but said that he always tried to be honest with staffers about what other lobbyists would say, and the strengths and weaknesses of their arguments, if only to ensure staffers would continue to come to him.

Sending feedback

There's little doubt that lawmakers have put together completely illiterate bills in the past that could benefit from even self-interested lobbying, and that additional spin is unnecessary to convince many lawmakers to avoid whacking American businesses too hard. Consumer groups lobby too, and plenty of lawmakers listen to their pleas to ignore everything the big companies say.

Staff, often on their own time, have also tried to catch up, and members of Congress and agency officials have become regular visitors to conferences where they can mix with Silicon Valley types. There are pockets of great expertise on the Hill, with some lawmakers and committee staff having delved into the issues as they became more prominent, Chung and Graves both noted. Much of the companies' Washington spending also goes to political donations and the hiring of those who are influential with lawmakers rather than technologists.

Still, government officials concede that they're frequently scrambling to get up to speed on new topics, and they rely on the very industries that would be most affected to tell them when laws and regulations go too far. The lawmakers will release draft texts to get responses from "stakeholders and industry," inviting lobbyists to present their views. Many efforts to boost in-house technological fluency have failed, such as a 2019 attempt to revive the old Office of Technology Assessment. Lobbyists, for better or worse, are a key part of the legislative bargaining process, so long as lawmakers continue to be stumped by tech.

And it seems that the government will, indeed, continue to be stumped. In April, during video testimony by acting Federal Trade Commission Chair Rebecca Slaughter, her feed broke up, prompting members of the House panel holding the hearing to suggest she was muted, using device data, "just holding really still" or having broadband issues. (Indeed, it turned out to be ethernet trouble.)

The teleconference glitch was standard fare for the pandemic, but once she was back, Slaughter got a question from another lawmaker, who, after apparently forgetting to unmute himself, urged her to commit to incorporating economic analysis into any rulemaking.

"Absolutely," Slaughter said. "Input from the subject matter experts has always been and will always be a very important part of the commission's work."

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