[Delivered to a Congressional caucus meeting concerned with responding to 9/11]
Good afternoon. I’d like to take my time with you this afternoon to outline some of the pros and cons of creating an e-Congress as a security measure in the face of a credible threat to the U.S. Capitol. I’m going to divide these pros and cons into three categories: security considerations, democratic accountability considerations and political considerations. Finally, I want to consider your duty to ensure that not just Congress, but the other 80,000 state and local legislative bodies, can operate in the face of a credible terrorist threat to their face-to-face place of business.
But before we start with these pros and cons, I want to note that there are two types of e-Congress proposals on the table: a back office e-Congress, and a front office e-Congress. By a back office e-Congress I mean the ability to take your work home at night and have full access to the resources you’d have if you were on Capitol Hill. Even before September 11, this type of e-Congress, a telecommuting Congress, if you will, was well under development. Accordingly, I will not dwell on it here. By a front office e-Congress I mean the exercise of its formal legislative powers. This is the part of Congress that, unlike the back office, the law dictates must be displayed publicly.
Now let us move on to the security considerations. The security argument for an e-Congress, in my opinion, is really quite simple: it’s simply not prudent to put all your eggs in one basket. Whether all members are in the U.S. Capitol building or under some mountain to the West really doesn’t matter. Having all members of Congress in one place makes them an easy target. If you spread them out, you give your enemy 535 targets to hit. And those targets don’t need to be highly visible places such as the U.S. Capitol building or that mountain I alluded to. They could be anywhere. So, at a first cut, the security argument for an e-Congress looks pretty compelling.
But whenever technology, especially telecommunications, is involved, you introduce new security threats. Now let me admit, I am no security expert. I am a political scientist. Let me further admit that I have some antipathy to computer security experts. I was around during the Y2K scare, and I saw how wrong the computer security experts were. Security experts are a bit like lawyers — and I apologize to the lawyers in the audience — they’re good at coming up with downside scenarios. But if we left American commerce to lawyers rather than entrepreneurs, we’d still be in the agricultural age. And if we leave vital issues of democracy to the computer security experts, we will similarly be left in the agricultural age of democracy — the age of chads and dimples.
So, with that caveat, let me acknowledge what I believe to be the two main security cons–no pun intended. First, the telecom network could go down. And if there is no telecom network, there can be no e-Congress. I have two responses to this argument. First, if you build a half dozen or more redundant networks, including redundant satellites, redundant wired networks, and redundant terrestrial wireless networks, the risks of a telecom failure drop dramatically. Of course, the risks never completely disappear. They never do. But what would be so terrible even if the telecom networks did completely fail. Unless the transportation networks also failed, Congress could physically convene within 24 hours or less. Meanwhile, it could have averted a far greater catastrophe: its own destruction.
Now for the second security threat: how can you authenticate a member from a distance? Well, again, there is no 100 percent secure system. But with enough redundancy in the authentication system — and for 535 members of Congress you could pile on the redundancies until members cry “uncle” — you can do a pretty darn good job. Let’s consider this scenario. Every member has his own dedicated terminal in a secure location within his own district. He is given a password to access the system that only he is supposed to know. He is given a physical token, an electronic ID card, that he needs to activate the system. And he must pass a half dozen biometric tests to confirm his identity, including a scan of his iris, thumb print, and facial characteristics. Finally, he must have a brief videoconference with the doorman to the virtual chamber who knows the member by face and can exchange secret code words to confirm identity. Now whether you’d really want all this redundancy is a security question that only you could answer. But the idea is that if cost and convenience are taken out of the picture, you can have a system pretty much as secure as you want.
Democratic Process and Accountability
Okay, let’s move on to considerations of democratic process and accountability. These I divide into three categories: collegiality, duty to the public, and constitutionality.
First, collegiality. I’m going to dwell on this a bit because it seems such a popular argument by e-Congress opponents. By this I mean the relationships, trust, and social capital that are vital to the effective functioning of this institution. There is a widespread fear both among members and political scientists that if you take away an important forum for members to engage in face-to-face interaction, you will damage this institution. As you all know, talking to people face-to-face is different from talking to them via an e-mail. The theory is that the more removed a communication is from face-to-face, the greater the difficulty in building a relationship of trust and the greater the tendency, as they say in computerspeak, to flame each other. Today, one of the few opportunities left for members to build social capital is the walk to and personal exchanges on the floor. In the old days, before the advent of airplanes and the interstate highway system, members stayed in the Capital over the weekends and spent more time socializing with each other. Now they head back to their districts. So the time on the floor is more important than ever. Congress, so this reasoning goes, already devotes too much energy to unproductive partisan bickering. An e-Congress will only make the problem worse.
I have four responses to this argument. First, the gap between commuting — by that I mean face-to-face — and telecommuting based communication is narrowing. It is true that even with what we call “broadband” Internet communication, the gap will remain very wide. But broadband is hardly state-of-the-art or much more than an interim technology until we get real high bandwidth communication. With Internet2, allowing for high-definition videoconferencing, the gap between face-to-face and remote communication is very small. Currently, Internet2 is only available at about 200 top universities. But if Congress made it a priority, it could get an Internet2 connection into every Congressional district.
Second, I think it fair to say that in the face of a common external threat, Congress would be more unified than under normal circumstances. Certainly, this has been the experience after Sept. 11. And I see no reason why it shouldn’t apply in the future, as well. In other words, the very conditions that would lead to the breakdown of face-to-face communication, would lead to greater collegiality.
Third, other forums to build social capital could be strengthened. As we have seen, these forums existed in the past, and they could be recreated by the leadership if the demand was there.
Fourth, an e-Congress would allow members to spend more time in their districts and in face-to-face contact with their constituents. At a time of crisis, such as the collapse of the World Trade Towers on September 11, this advantage should not be underestimated. As you all know, New York’s Mayor Rudolph Guiliani certainly put it to good use.
Now let me move on to my second small “d” democratic argument: your duty to the public. Members of Congress are paid to do a vital job. If you don’t do that job because of what the public perceives to be an easily foreseeable and avoidable inconvenience, I think the public would have grounds to fire you. Imagine if a senior staffer of yours didn’t come in to work every time it snowed or rained or the forecast was for cloudy skies. Imagine if the staffer missed just one legislative or campaign crisis without a damn good excuse. How long would you keep him or her? Similarly, if there is an economic or security crisis and you don’t show up for work, I don’t believe the American people are going to cut you a lot of slack.
Next, the constitutional argument. The founding fathers had a clear notion that they wanted American democracy based on a system of checks and balances. They were fearful of having an individual branch of government become too powerful. Clearly, if Congress cannot convene, then the system of checks and balances breaks down. Power would tend to concentrate in the congressional leadership. But more troubling, it would concentrate in the President of the United States. Already, the Bush administration has asked for the power of the purse, for as much as 30 days at a time, if you cannot convene. I believe you’re going to have a tough time convincing the American public that the fundamental principles on which our government was founded should be discarded because of an antipathy to technology that may come to seem self-indulgent at best and, as we shall see in a moment, self-serving at worst.
Finally, let’s move on to political considerations, which many here may consider to be the meat and the potatoes of the matter. I need to apologize for a mistaken impression I’ve given you because I’ve only emphasized the political upside of an e-Congress. In fact, I’ve only told you half the story.
Let’s assume that an e-Congress would not change the public’s right to see you in action. After all, can you imagine that just because you convened remotely the American public would allow you to do your business in secret? I doubt it very much. So a remote Congress would be a better documented and publicized Congress than any Congress in history. And once you let an e-Congress out of the bag, you might never be able to go back to the old ways.
This new visibility has potentially very great political consequences. As you all know, information is power, and publicity, by expanding the scope of conflict, changes the power dynamics. It brings new issues and new players into the power calculus. It changes the balance of power. No wonder that governments and politicians throughout time have been obsessively concerned with the publicity system within which they operate.
Enhanced publicity for legislative deliberations has three general consequences: First, it changes the audience for communication from colleagues to the general public. Meetings become a forum for communicating to the public, not to each other. The question whether this shift is good or bad is highly contentious. Providing members have ample opportunity to communicate efficiently in private, I consider this shift good. The value of a public meeting, after all, is that it is public. But if such private opportunities do not exist, great harm can be done by a system of deliberation that is too focused on the general public.
Second, it decentralizes power within legislative bodies. It shifts the balance of power from senior to junior members. Remember how Newt Gingrich used C-SPAN in the 1980s when he was a backbencher? Senior members of a legislature are less in need of publicity. They already control the levers of power. They can play the inside game. But junior members lack those levers and so often find it in their interest to play the outside game.
Third, legislative publicity changes the balance of power between branches of government. Mayor Daley in Chicago has been staunchly opposed to televising the City Council because it would give the City Council a platform from which to get their agenda out and possibly even attack him. Conversely, one of the major reasons the Senate accepted TV coverage is that the House already had it. Senators, including Senate leaders, feared that the Senate would become a second-class member of Congress unless it had a TV platform like the House.
These internal and external considerations suggest a balancing act for legislative leaders. Are they better off being a big fish in a small pond, or a small fish in a bigger pond? Do they pursue the power of their institution or their own personal power? Do they risk giving the President more legislative power, or do they risk sharing more of that power with their rank-and-file members?
So all in all, the power considerations are complex and involve many tradeoffs.
Accessible legislative records tend to help challengers at the expense of incumbents. I don’t need to explain the reasons for this to you. The reasons were burned in your brain in politics 101. But let me give you an example of this principle in practice. Most public bodies, including Congress, have developed ingenious systems to prevent challengers from using video footage of public meetings for political purposes. Congress does it by giving a non-profit, C-SPAN, control over the video records. If Congress held the copyright, it would have to make video records public, just like the congressional print record is public. But by giving C-SPAN the copyright, C-SPAN can insist that users of its archives sign a contract stipulating they won’t use the materials for political purposes. These types of clever stratagems may not work as well in a fully integrated e-Congress.
Similarly, consider feelings about televised markup hearings, instant meeting transcripts, and roll call votes searchable by member rather than by bill. All these practices might be hard to maintain in an e-Congress.
Now for a few final points: I suggest you consider having a public debate about what parliamentary procedure in an e-Congress would look like. No Secret Service, no Capitol Police, no security agency, is qualified to make these types of decisions. Obviously, authentication procedures, like the keys to your office, are an appropriate concern of security personnel. But in all matters of democratic procedure, whether in a physical or cyber world, you need to take matters into your own hands.
Second, for the same reasons you are helping local and state governments solve the mess created by our prehistoric voting technology, I also suggest that you take steps to help these governments prepare for the evacuation of their brick and mortar legislative chambers. The fact is: the concerns that can lead to an evacuation of Congress can also lead to the evacuation of the East Podunk school board. There are some 80,000 plus legislative bodies in the United States, including state legislatures, school boards, and city councils. On average, they hold more than 20,000 public meetings a day. Maintaining this democratic infrastructure in a time of crisis should be as important as maintaining our transportation, power, and telecommunications systems.
Last but not least, it’s important to understand that this e-Congress proposal has very little to do with the proposal to create a replacement Congress in case a sitting Congress was obliterated or otherwise incapacitated. Obviously, the e-Congress reform proposal is not a remedy for an obliterated Congress. Rather, it’s a preventative measure to ensure that Congress is not obliterated in the first place. However, there’s a relationship between the two, if you accept that an ounce of prevention is worth a pound of cure. This is because a well-designed e-Congress could significantly mitigate the threat of obliteration in the first place.
So where are we? Congress has a duty to continue its work in the face of what is in reality a minor inconvenience. Security considerations suggest that the best way to ensure continued operation is by developing a capability for an e-Congress. But the same technology necessary for an e-Congress would also make the actions of members more transparent and thus subject to later challenge. And once an e-Congress was out of the bag, it would probably be hard to get it back in. In the final analysis, then, there may be a conflict between the security of Congress as an institution and the security of its members; a conflict between the re-election interests of Congress and the public’s interest in a functioning and accountable government. I hope this is not so. I hope my analysis has missed some important consideration. But if not, the decision facing you takes on added historic import. Conflict between the interests of leaders and their people has been a major, if not the major, reason for the fall of empires. In America, a constitutional system was designed to closely align the interests of leaders and people. But the founders never anticipated the need or possibility of an e-Congress. Perhaps this omission, with the consequence that Congress is annihilated and chaos ensues, could one day bring the whole edifice of American democracy tumbling down. I believe that it was this fear that brought you here today.
My recommendation to you is to hold public hearings and move ahead with an e-Congress plan. In the long run, we’re going to get an e-Congress because it’s in the national interest. As the events of September 11 illustrate, the sooner it happens, the better.