Good morning! It’s Friday, November 3, 2023. The 2024 elections are 368 days away. The Iowa caucuses are 73 days away.
Every Friday, I turn my eye to the function and dysfunction of Washington, recapping what lawmakers were — and weren’t — able to get done in the past week. These weekly features can take a lot of time and effort to put together; if you appreciate them, I hope you’ll consider donating to support Wake Up To Politics.
Your contribution goes a long way to making sure I can continue doing this work and keep it free and accessible for all. Now, onto this Friday’s column on the week in Washington:
Back in July, I wrote about the years-long trend of Congress absenting itself from many of the nation’s biggest policy fights, instead allowing the executive and judicial branches to effectively make law without them, so as not to dirty their own hands.
In recent years, there have been few better examples of this phenomenon than the effort to rein in Big Tech companies, the powerful firms that increasingly dominate so much of our daily lives. These efforts have champions on both sides of the aisle; polls show that large bipartisan majorities of Americans support legislation to protect privacy, increase oversight of online advertising, and regulate the use of artificial intelligence (AI) algorithms.
And yet, every time Congress has come close to passing such legislation, they have failed to get across the finish line. “Members of Congress and their staff have lost the instinct and ability to legislate,” Steven Pearlstein wrote earlier this year, in a detailed Washington Post piece investigating lawmakers’ failure to pass a major tech bill.
Last week, former White House adviser Tim Wu came to a similar conclusion in a piece in The Atlantic, writing that “the story of [legislation to protect children online] in recent years could be taught as a reverse civics lesson, where bills that have the support of the president, the public, and both houses of Congress fail to become law.” Wu noted that Congress has held 39 hearings on children and social media since 2017, but no bill on the topic has ever received a floor vote in either chamber.
“It would almost be reassuring if we could blame partisanship or corporate lobbyists for the outcome,” Wu wrote. “But this is a story of culture war, personal grievance, and petty beefs so indefensible as to be a disgrace to the Republic.”
President Biden stepped into that policy vacuum this week, just as presidents always end up doing, leaving the country with a fragile patchwork of executive orders masquerading as law, vulnerable to being overturned by the courts or reversed by a future White House occupant.
According to the Associated Press, Biden was partially motivated to act on AI after watching the new “Mission: Impossible” movie this summer. He was also reportedly prodded on the issue by his deputy chief of staff Bruce Reed, who began crafting an executive order after Congress’ latest tech bill collapsed last year, and former President Barack Obama, who has been quietly advising Biden on the issue.
Those efforts culminated on Monday with Biden’s release of a document the White House called the nation’s first executive order on AI, although then-President Donald Trump previously released one in 2019. Biden also boasted that his is the “most significant action any government anywhere in the world has ever taken on AI safety, security, and trust.”
The president’s own powers are fairly limited, though, so the executive order is mostly a list of directives for other agencies to take various actions at a later date. And even then, many of the results will be non-binding, such as creating guidance for landlords to keep AI from exacerbating housing discrimination and developing “principles and best practices to mitigate the harms and maximize the benefits of AI for workers.”
For the most part, the president cannot reach into private industry, so the executive order is constrained to instructions for the government’s relationship with AI, like the creation of a watermark to authenticate government communications and an evaluation of federal agencies’ use of online data.
“To better protect Americans’ privacy, including from the risks posed by AI, the President calls on Congress to pass bipartisan data privacy legislation to protect all Americans, especially kids,” the White House said in a statement unveiling the order. (Good luck!)
However, in the most significant portion of the order, Biden did invoke the Defense Production Act, a Korean War-era law that allows the president to make orders directly of private companies. Biden mandated that companies notify the government when they are developing computer models requiring more than 1026 mathematical operations to train; firms will then have to conduct certain safety tests on these models and share the results with the feds.
For context, “1026 is 100 trillion trillion operations. GPT-4 [the current model being used by ChatGPT] is rumored to have required roughly 20 trillion trillion operations,” tech journalist Timothy Lee writes. “So, the new rules will likely apply to any future model that required several times more computing power than GPT-4. Given the exponential growth in computing power, it seems likely that the next generation of foundation models from OpenAI and its competitors will be subject to the rules.”
The Defense Production Act can only be used “in the event of domestic or foreign threats to the security of the United States,” which gives you an idea of how the White House is looking at AI and the next models coming down the pike. The order specifically mentions AI models that could “substantially [lower] the barrier of entry for non-experts to design, synthesize, acquire, or use chemical, biological, radiological, or nuclear (CBRN) weapons.”
At one point will Congress be compelled to act as well? Senate Majority Leader Chuck Schumer (D-NY) has made AI something of a pet issue, organizing several “AI insight forums” on the Capitol in recent weeks and putting together a good old-fashioned Senate “gang” on the issue. (Schumer’s bipartisan group of senators met with President Biden this week, the day after he released his executive order.)
In June, I covered Schumer’s first major AI speech, where he promised that legislative action on AI would be coming. “Don’t count Congress out,” he pleaded. Asked when he would have a bill ready, Schumer declined to give a timeline. “It’s not going to be days or weeks, but it’s not going to be years,” he promised. “Months would be the proper timeline that I would give you.”
Four and a half months later, Schumer and his gang-mates have yet to introduce a bill, much less put it through the process of floor consideration. (Other interesting bipartisan proposals have been introduced by other senators, including recent bills to require disclosures for AI-generated content and to protect artists from having their work replicated through AI.)
Those bipartisan bills (and the existence of a bipartisan gang, even if it hasn’t produced anything yet) give reason for hope that, at least, Congress is talking about these issues across party lines. This week also offered reason for pessimism, though, in the area of tech privacy, which overlaps with the AI space. Rep. Ken Buck (R-CO), who has played a key role in the recent bipartisan privacy packages, announced plans to retire at the end of this term.
During the last Congress, Buck and former Rep. David Cicilline (D-RI) — who has also retired — worked together to advance several bills through the Judiciary Committee to rein in Big Tech, none of which received votes from the full House. In this Congress, Buck has also been working on legislation to address AI.
Now, he’s disillusioned and calling it quits. “I’ve always felt like this place avoids some issues, doesn’t respond to challenges. And that’s frustrating for me,” Buck told the Washington Post this morning. “This place is a get-reelected place, not a solve-a-problem place.”
More function and dysfunction.
But that’s a more pessimistic note than I like to end the week on! As I always tell you, even with dysfunction on the big issues, the gears of legislating do continue to turn each week — and I like to give space each Friday to what is getting done, no matter how small. Let’s take a look:
Israel. The big news this week was the House’s passage of the Israel Security Supplemental Appropriations Act, which would provide $14.3 billion in aid to Israel while also cutting $14.3 billion in funding for the IRS. The bill passed 226-196, with 12 Democrats in favor and two Republicans opposed.
But the House also passed a smattering of related measures with much larger bipartisan majorities, including bills sanctioning Hamas (passed 363-46) and requiring a review of U.S.-funded Palestinian schools to ensure their curricula does not “encourage violence or intolerance” (passed unanimously), and a resolution condemning campus antisemitism (passed 396-23).
Over in the Senate, former Treasury Secretary Jack Lew was confirmed as ambassador to Israel in a 53-43 vote, with two Republicans in favor. A new ambassador to Egypt was also confirmed unanimously.
Military nominations. The Senate voted 95-1 to confirm Adm. Lisa Franchetti as Chief of Naval Operations, 95-1 to confirm Gen. David Allvin, to be Air Force Chief of Staff, and unanimously to confirm Gen. Christopher Mahoney as Assistant Commandant of the Marine Corps.
With Frnachetti and Allvin’s confirmations, there are no vacancies in the Joint Chiefs of Staff for the first time since Sen. Tommy Tuberville (R-AL) launched his blockade on military promotions. (Tuberville cannot completely block the promotions, but he can force the Senate to take time-consuming individual votes on each one, instead of speeding through them as they normally would. The chamber moved through three this week; there are hundreds more waiting in limbo.)
During the roll call votes themselves, Tuberville supported all three nominations; Sen. Roger Marshall (R-KS) was the lone vote against Franchetti and Allvin. Franchetti will be the first female member of the Joint Chiefs of Staff.
Appropriations. The Senate voted 82-15 to pass its first three appropriations bills of the year. The House voted 214-97 to pass its sixth. None of the 12 needed appropriations bills have passed both chambers, which means the government is poised to shut down on November 17 — two weeks away — unless a stopgap bill is passed.
More news to know.
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