Speaking of Science: Introducing Notice and Comment into the Legislative Process

Congress enacts, on a nearly continuous basis, a variety of laws that affect scientific research and progress. Some of these laws have an unquestionably positive effect. For instance, Congress’s creation of the National Institutes of Health, the National Academy of Sciences, and NASA; its various appropriations to fund ground-breaking research; and a multitude of other laws have incalculably advanced human knowledge, and it is to Congress’s great credit that these laws have been and are continuing to be enacted. However, not all laws that affect the progress of sciences are an unalloyed good. Quite the opposite, often the laws aim to, and in fact do, retard the progress of scientific research. The question is then whether the benefit from those laws outweighs the costs imposed on scientific progress. Congress, however, often does not fully consider the costs that the legislation imposes on science, either for lack of information or as a result of conscious disregard for the views of a politically insignificant group. The public is not able to hold Congress accountable because it lacks an ability to participate in the process and lacks an objective basis against which to measure congressional action. The problem is not congressional malfeasance or ignorance but rather the structure of the legislative process itself. The general public is often taught and told that lawmaking is a process that begins in a committee where the proposal is carefully studied, debated, amended, and voted on. The reality, of course, is much different. First, bills often skip the committee process, and amendments are often added last minute without a chance for a meaningful debate. But even where the process is followed, it is often hard to portray the committee hearings as a true deliberative process. Instead, they are often described as a Kabuki theater, where the Chair and the Ranking Member designate the witnesses they wish to call to support the preformulated position. Interested parties cannot provide testimony unless asked to do so by the relevant committee. Thus, oftentimes the people with the deepest knowledge, but low political skills, are cut out of the process. The end result is that Congress votes on legislation without fully understanding the implication thereof. The voters also are injured in that it is hard to hold Congress accountable if one cannot point out that it ignored the views of the scientific communities. This Article proposes a solution to the problem. Bills that affect the progress of science ought to be evaluated by an independent body similar to the Congressional Budget Office. Like the CBO, this body would not have any authority to block a bill, but it would be able to “score” it (i.e., provide information on the effect the bill will have on research). In order to accomplish its task, this newly created body would be required to provide notice of pending legislation and then seek comments from the interested parties, much like what is done in the administrative rulemaking process. The comments then would be collected and analyzed, and the final report would be presented to Congress before it votes. Congress would continue to be able to vote as it pleases, but with this process in place, it would be forced to do so with its eyes wide open. By understanding the full scope and the implication for the scientific progress of the bills it wishes to enact, Congress would produce better legislation, which would be less detrimental to the scientific progress.