The world is full of amateurs: gifted amateurs, devoted amateurs. You can pick almost any group that has any kind of intrinsic interest in it, from dragonflies to pill bugs to orb-weaving spiders. Anybody can pick up information in interesting places, find new species or rediscover what was thought to be a vanished species, or some new biological fact about a species already known.
The patent system is just one example of how government institutions create single points of failure by concentrating decision-making power in the hands of the few, whether legislators in Congress, cabinet officials in the executive branch, or bureaucrats in agencies. Administrative practices are constructed around the belief that government professionals know best how to translate broad legislative mandates into specific regulatory decisions in the public interest. Governance, the theory goes, is best entrusted to a bureaucracy operating at one remove from the pressure of electoral politics and the biased influence of the public at large.
This chapter is an excerpt from Wiki Government: How Technology Can Make Government Better, Democracy Stronger, and Citizens More Powerful, Beth Simone Noveck, Brookings Institution Press, 2009.
The rationale for this closed model of decision making, as explained by such theorists as Max Weber and Walter Lippmann, is rooted in the assumptions of an earlier age. Although citizens may express personal opinions, they are thought to lack the ability to make informed decisions on complex policy matters. Moreover, democratic pessimists warn, government officials must be protected from the factionalized public that Madison so feared in Federalist 10. To ward off this danger, centralized power is concentrated in the apolitical professional or, in Weber’s words, “the personally detached and strictly objective expert.”[45] Only government professionals possess the impartiality, expertise, resources, discipline, and time to make public decisions. Or so it is assumed. The assumption is not unjustified insofar as the technology has not been available before to organize participation easily. Participation in a representative democracy is largely confined to voting in elections, joining interest groups, and getting involved in local civic or political affairs.
Thus the patent examiner, like her counterparts throughout government, must act as an expert in fields far outside her ken. The process of determining which inventor deserves a patent demands that she analyze and synthesize scientific and technical information about cutting-edge areas of innovation over which she has no real mastery. In any given subject area there are scientists, engineers, and lawyers with greater expertise, as well as laypersons with valuable insights, but the patent examiner has no access to them. In this she is not alone. In a survey of environmental lawyers, for example, only 8 percent of respondents thought that the EPA has sufficient time to search the relevant science before making a decision about environmental policy, and only 6 percent believed that agencies employ adequate analysis in their decision making.[46] The bureaucrat in Washington often lacks access to the right information or to the expertise necessary to make sense of a welter of available information. This can pose a challenge to good decision making and to creativity in problem solving.
The single point of failure results not just from a lack of time or resources or technology. It goes much deeper than that. Simply put, professionals do not have a monopoly on information or expertise, as the social psychologist Philip Tetlock observes. In his award-winning book Expert Political Judgment (Princeton University Press), Tetlock analyzes the predictions of professional political pundits against modest performance benchmarks. He finds “few signs that expertise translates into greater ability to make either ‘well-calibrated’ or ‘discriminating’ forecasts.”[47] While smart people can explain, they often cannot predict and therefore make decisions based on spectacularly bad guesses.
Pacifists do not abandon Mahatma Gandhi’s worldview just because of the sublime naïveté of his remark in 1940 that he did not consider Adolf Hitler to be as bad as “frequently depicted” and that “he seems to be gaining his victories without much bloodshed”; many environmentalists defend Paul Ehrlich despite his notoriously bad track record in the 1970s and the 1980s (he predicted massive food shortages just as new technologies were producing substantial surpluses); Republicans do not change their views about the economic competence of Democratic administrations just because Martin Feldstein predicted that the legacy of the Clinton 1993 budget would be stagnation for the rest of the decade; social democrats do not overhaul their outlook just because Lester Thurow predicted that the 1990s would witness the ascendancy of the more compassionate capitalism of Europe and Japan over the “devil take the hindmost” American model.[48]
It turns out that professional status has much less bearing on the quality of information than might be assumed and that professionals— whether in politics or other domains—are notoriously unsuccessful at making accurate predictions. Or as Scott Page, the University of Michigan author of The Difference, pithily puts it: “Diversity trumps ability”—this is a mathematical truth, not a feel-good mantra.[49]
Moreover, government or government-endorsed professionals are not more impervious to political influence than the impassioned public that bureaucrats are supposed to keep at arm’s length. Often the scientists and outside experts who are asked to give impartial advice to government are lobbyists passing by another name. The National Coal Council, made up almost exclusively of coal industry representatives, sits on the Department of Energy’s federal advisory committee on coal policy: the department has adopted 80 percent of the Coal Council’s recommendations.[50] White House officials regularly replace experts on agency advisory panels with ideologues and political allies (or eliminate advisory councils altogether). An Environmental Working Group study finds that the seven EPA panels that evaluated proposed safe daily exposure levels to commercial chemicals in 2007 included seventeen members who were employed by, or who received research funding from, companies with a financial stake in the outcome.[51]
In a published statement titled Restoring Scientific Integrity in Policy Making, over 60 preeminent scientists, including Nobel laureates and National Medal of Science recipients, lambasted George W. Bush’s administration for having “manipulated the process through which science enters into its decisions.”[52] In 2008, 889 of nearly 1,600 EPA staff scientists reported that they had experienced political interference in their work over the last five years.[53] But if the Bush administration is among the more egregious violators of the presumed wall between politics and institutionalized expertise, its actions only go to show how easy it is for any executive to abuse his power while claiming the mantle of expertise.
Taking a historical view, the journalist Chris Mooney, in his book The Republican War on Science, persuasively explains that the marriage of big business to the religious right in the Reagan era has resulted in a systematic abuse of science in regulatory decision making.[54] What began during World War II as an intimate relationship between science and politics—the flames of whose passion were fueled by the competitive jealousy of the cold war and the attentions of an intellectually inclined Kennedy administration—has now waned. The rise of conservatism spurred a movement to create alternative sources for scientific information. Hiding behind the skirt of science, antievolution and antiabortion politics create pressure to misrepresent science to serve political ends. At the same time, the fear by big business that scientific research might impel expensive environmental and consumer regulation further contributes to a distortion of the use of science in policy making. Mooney readily acknowledges that the Left as well as the Right makes decisions on the basis of political value judgments rather than facts. But whereas Democrats, he contends, sometimes conduct politics in spite of science, choosing to ignore the data in pursuit of a normative end, Republicans dress up politics as science and attempt to name such positions “creation science” behind a veneer of scientific legitimacy.
The problem of relying solely on professionals is compounded by the practice of confidential decision making. While federal government agencies are required by law to conduct meetings in the open (and many state governments have similar sunshine laws), this spirit is violated by regular backroom dealings with lobbyists.[55] Under the Bush administration, the attorney general changed the presumption of disclosure under Freedom of Information Act requests away from the prevailing standard to make it more difficult for agencies to release information and allow agencies to defend decisions to withhold records “unless they lack a sound legal basis.”[56] President Obama changed it back. It is not surprising that the American people perceive government to be taking place behind closed doors (three-quarters of American adults surveyed in 2008 view the federal government as secretive, an increase from 62 percent in 2006).[57] Massive financial bailout measures taken late in 2008 met with concerns that these troubled asset relief programs lacked transparency or monitoring. There have been myriad instances of information being deliberately hidden.
The Bush administration threatened to shut down the award-winning economic indicators website, which combines data like GDP, net imports and exports, and retail sales to make it convenient for viewers to assess the state of the economy.[58] The administration also announced it would no longer produce the Census Bureau’s Survey of Income and Program Participation, which identifies which programs best assist low-income families, and stop publishing its report on international terrorism, making it more difficult for citizens to find important and useful news.[59] The Bush administration has taken down reports about mass layoffs and, by executive order, limited the publication of presidential records.[60] Until 1999 the USPTO did not publish patent applications until they were granted.[61] Even today, the office is circumspect about Internet research to avoid compromising the privacy and confidentiality of the decision making process.[62] The less those outside the government know about its activities, self-evidently, the greater the need to rely on internal experts. When the public cannot see how decisions are arrived at, it cannot identify problems and criticize mistakes. Accountability declines and so does government effectiveness.
[45] Essays in Sociology, Max Weber, edited by H. H. Gerth and C. Wright Mills, Routledge, 1991.
[46] “In Defense of Regulatory Peer Review,” J. B. Ruhl and James Salzman, Washington University Law Review, Vol. 84, 2006: 1–61.
[47] Expert Political Judgment: How Good Is It? How Can We Know?, Philip E. Tetlock, Princeton University Press, 2005, p. 20.
[48] Ibid., p. 15.
[49] The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies, Scott E. Page, Princeton University Press, 2007.
[50] “Industry-Packed Federal Advisory Board Told DOE to Double U.S. Coal Consumption,” Joaquin Sapien, May 19, 2008.
[51] “EPA Axes Panel Chair at Request of Chemical Industry Lobbyists,” Sonya Lunder and Jane Houlihan, March 2008.
[52] “Restoring Scientific Integrity in Policy Making: Scientists Sign-On Statement,” Union of Concerned Scientists, February 8, 2005.
[53] “Interference at EPA: Science and Politics at the U.S. Environmental Protection Agency,” Union of Concerned Scientists, April 23, 2008.
[54] The Republican War on Science, Chris Mooney, Basic Books, 2005.
[55] Government in the Sunshine Act, P.L. 409, 94th Cong. September 13, 1976.
[56] “The Freedom of Information Act,” John Ashcroft, Memorandum for All Heads of Departments and Agencies, October 12, 2001.
[57] “More People See Federal Government as Secretive; Nearly All Want to Know Where Candidates Stand on Transparency,” Sunshine Week, March 15, 2008 (accessed October 2008); Nation of Secrets: The Threat to Democracy and the American Way of Life, Ted Gup, Doubleday, 2007.
[58] “Bush Administration Hides More Data, Shuts Down Website Tracking U.S. Economic Indicators,” Amanda Terkel, February 13, 2008.
[60] Ibid.
[61] American Inventors Protection Act, P.L. 113, 106th Cong. November 29, 1999.
[62] U.S. Patent and Trademark Office, Manual of Patent Examining Procedures, sec. 904.02(c) (8th ed., 2001) (“This policy also applies to use of the Internet as a communications medium for connecting to commercial database providers”); U.S. Patent and Trademark Office, “Patent Internet Usage Policy,” 64 Federal Register (June 21, 1999) (“If security and confidentiality cannot be attained for a specific use, transaction, or activity, then that specific use, transaction, or activity shall NOT be undertaken/conducted”), p. 33,060.