Tom Williams/CQ Roll Call via AP Images
From left, Intel CEO Pat Gelsinger, Micron CEO Sanjay Mehrotra, and Tim Archer, president and CEO of Lam Research, testify during a Senate Commerce Committee hearing last year focused on American semiconductor competitiveness, supply chains, and CHIPS legislation.
Update: This story has been updated to incorporate comments from GAO that were received after press time. In addition, an earlier version stated that a GAO semiconductor supply chain report was a technology assessment; it was not and this has been changed.
In the spring of 2018, lawmakers dragged Mark Zuckerberg into Congress to grill him about Facebook’s treatment of its users’ data. But members notably lacked a basic understanding of the company’s business model and underlying technology. The embarrassing spectacle fueled an effort to bring back Congress’s Office of Technology Assessment (OTA), which lawmakers relied on to brief them on the policy implications of technological developments until it was defunded in the early 1990s.
But the strategy did not go according to plan. Over the last few years, much of this responsibility has shifted to the Government Accountability Office, which for over a hundred years has been known as a stalwart investigator rooting out waste, fraud, and abuse at federal agencies. Whereas GAO’s typical audit reports make recommendations for agencies to implement for better operation under the law, the technology assessments (TAs) it has been conducting a lot more of recently present specific policy options for lawmakers to consider. Given the office’s newest set of external advisers, this has made GAO look a lot more like the last thing Washington needs: another compromised think tank.
Among the members of GAO’s 29-person Polaris Council—which has consulted with science and technology analysts at the agency since 2020—is Rob Atkinson, president of the Information Technology and Innovation Foundation. ITIF’s list of major donors includes the country’s largest corporations, trade associations, and foundations.
Atkinson’s position allows him to influence GAO just as broadly, but the co-author of Big Is Beautiful is most visibly going to bat for multinational high-tech companies, which are trying to avoid antitrust enforcement and other regulatory efforts from U.S. allies in Europe and Asia.
The council also includes IBM’s Center for the Business of Government’s Dan Chenok, who arguably presents an even clearer conflict of interest given IBM’s position as a prime government contractor, though he has been more of a fixture in policy circles regarding federal technology acquisition. And it includes Tom Kalil, the chief innovation officer of Schmidt Futures, founded by former Google CEO Eric Schmidt, which has funded numerous positions within the Biden administration and insinuated itself throughout the government to influence science and technology policy.
According to GAO’s handbook for conducting technology assessments, members of the Polaris Council can advise the agency on its “outreach” for advisers. Last September, GAO produced an assessment of carbon capture technology, where the experts consulted included an executive of the oil and gas behemoth Baker Hughes, as well as representatives from consultants Carbon Direct, Industrial Economics Incorporated, and Carbon Solutions LLC; product manufacturers Twelve, LanzaTech, and Shell Environmental Products; and the National Carbon Capture Center (sponsored by the Department of Energy, Southern Company, and BP).
GAO spokesperson Chuck Young said that the expert meeting also included representatives from the Environmental Protection Agency, Department of Energy, a national laboratory, academics, and non-governmental organizations. In addition, there were reviews of “scholarly or peer-reviewed material; government reports; trade or industry papers; legislative materials, and association, nonprofit, and think tank publications; and minutes and comments from a range of public meetings held in communities to discuss whether to allow carbon capture facilities to be sited there.”
Young also said in a statement to the Prospect that “The Polaris Council’s insight is strictly advisory and has no bearing on direction, legislative recommendations or policy options.” He added that it meets once a year, and its members come from a “wide range of scientific disciplines and sectors and are not solely from industry.” Six of the 29 members are from the private sector, Young stated, though that might not include Atkinson and Kalil, who are from non-governmental organizations.
“Much of this new technology is driven by the private sector and failing to include their views among the range of views would not result in the comprehensive and fact based work GAO is known for,” Young said.
A New “Great Science Heist”?
Atkinson and his organization take pains to position themselves as neutral arbiters. “Dr. Atkinson was invited to contribute his expertise to the Polaris Council because the Information Technology and Innovation Foundation is widely recognized as the top think tank for science and technology policy,” ITIF spokesperson Riley Nelson said in an email, adding, “Note that ITIF is an independent, nonprofit, nonpartisan think tank.”
ITIF discloses 76 donors that have contributed more than $10,000 in the last fiscal year; the list includes Airbnb, AMD, Amazon, Apple, AT&T, Boeing, Boston Dynamics, Charter Communications, Comcast, Disney, Facebook, Google, Infineon (a German semiconductor manufacturer), Intel, the Charles Koch Institute, Microsoft, NBCUniversal, Qualcomm, the Semiconductor Industry Association, TSMC, Texas Instruments, T-Mobile, Uber, Verizon, 12 different pharmaceutical companies, and Schmidt Futures, which has another member on the Polaris Council. Total contributions, which hit $6.8 million in 2022, have been steadily increasing over the last few years, with Atkinson’s own compensation more than doubling since 2021 to reach over $1 million in 2022.
One example of Atkinson’s influence at GAO involves how the agency is handling questions of industrial policy, represented in part by the $50 billion up for grabs through the CHIPS and Science Act. Companies like ITIF sponsor Intel are openly resisting export controls of critical technologies like semiconductors to China, in an effort to bolster U.S. supply chains. In testimony to the Senate Small Business Committee in 2019, Atkinson appeared to disagree, even suggesting that the government isn’t doing enough. “The point is not to just limit access and transfer of sensitive military technology subject to deemed export controls, but also advanced technology that can help China compete with the United States,” he told the committee. This sounds much like the Biden administration’s rhetoric on export controls.
Over the last few years, much of the responsibility for technology assessments has shifted to the Government Accountability Office.
But an ITIF report in July entitled “Export Controls Shrink the Global Markets U.S. Semiconductors Need to Survive” more dutifully echoes Intel’s position.
“The federal government must do all it can to maximize the available market,” Atkinson wrote in the report. “Given that U.S. and allied semiconductor firms are in increasingly stiff competition with China, a critical factor for success is which country captures more marginal new sales. If U.S. export policy limits sales to China, then U.S. costs won’t fall as much as they would otherwise, which will make their products less competitive. American companies will be less profitable, so they will have less to invest in critically needed R&D.”
That’s directly in line with remarks Intel CEO Pat Gelsinger recently made at the Aspen Security Forum, arguing that the export controls disincentivize creation of new fabrication centers the company has committed to building under the CHIPS Act. “Right now, China represents 25 percent to 30 percent of semiconductor exports … if I have 25 percent to 30 percent less market, I need to build less factories. Right?” Gelsinger said.
Atkinson has already weighed in on the semiconductor issue through GAO, proposing what would essentially amount to the institutionalization and expansion of the principles in the Bayh-Dole Act of 1980, the policy legacy of which The Intercept has dubbed “The Great American Science Heist.”
GAO referred to Atkinson in its July 2022 report about policy considerations for mitigating risks and shortages in the semiconductor supply chain: “One expert stated that federal agencies could do more to support innovation while working towards their mission, and said that agencies should have a formalized process to support innovation.”
The report quoted Atkinson in a footnote to the above statement, citing an ITIF report titled “Why the United States Needs a National Advanced Industry and Technology Agency,” which uses the rhetoric of innovation—along with an appeal to the need for “global competitiveness”—to endorse the transfer of patents derived using public resources to companies that could then create a monopoly by controlling a license to use the technology.
“A technology-based view of innovation argues that basic science is just one input, and that good policy means more than supporting investigator-led basic research,” the footnote reads. “It means links with industry. It means funding aligned with key national goals. It means directly supporting industry technology and production efforts. It means supporting engineering, not just science. And it means giving more support to areas of science critical to competitiveness, such as computer science.”
Atkinson’s proposal asks nothing of the companies in return. The new agency dedicated to tech transfers that Atkinson, through GAO, recommends could therefore leave precautions written into the Bayh-Dole Act in the dust—such as one that would allow the government to force technology transfer through march-in rights if the companies aren’t making it available for use by others on “reasonable terms.”
C-SPAN
Robert Atkinson speaking at a forum of the Information Technology and Innovation Foundation in November 2022
March-in rights are more commonly referred to in health care policy, where the government is under pressure to use them for lowering the price of lifesaving drugs. (ITIF has formally opposed that as well.) But there are also active tech transfer offices in the departments of Defense, Commerce, and Homeland Security, where companies can enter into Cooperative Research and Development Agreements, or CRADAs, under the Federal Technology Transfer Act of 1986.
CRADAs, which are part of the way that CHIPS funding will be disbursed, were intended to assist small businesses. But where previous policies like the Bayh-Dole Act made such conditions explicit, the 1986 law only suggested it. This window has allowed major companies like Microsoft, for example, to potentially control licenses for the use of artificial intelligence and other applications that result from the company’s use of public resources at the Department of Defense. Other notable CRADA participants include AT&T, T-Mobile, Cisco, Nokia, Dell, and Intel, all of which have entered CRADAs with the National Institute of Standards and Technology to explore the implementation of cybersecurity in computer networking.
Schmidt Futures’ representation on the Polaris Council is another way that organization is attempting to shape semiconductor policy. The Tech Transparency Project has outlined how Schmidt helped lay the groundwork for the CHIPS Act, despite his personal investments in semiconductor companies that would stand to benefit from the law.
GAO spokesperson Chuck Young said that the methodology of the semiconductor report was rigorous, “including an extensive literature review of 198 documents from academic literature, policy proposals from think tanks, and public responses to federal agencies’ requests for information.” He added that “Whether someone was on the Council did not factor into whether they were selected to participate in the expert interviews.”
Indeed, the GAO’s semiconductor report also featured hundreds of policy ideas, as well as experts who advised against financial incentives for companies and in favor of attaching criteria like the prohibition on stock buybacks for the receipt of federal funds for research and development. There were also experts who argued against “creating a ‘fast track’ process at the U.S. Environmental Protection Agency for pre-construction and operating permits related to the Clean Air Act.” But those proposals did not make it into GAO’s topline summary for lawmakers. Instead, under a heading of “Federal Actions that Could Reduce Semiconductor Supply Chain Risks,” the GAO lists “providing financial incentives and streamlining permitting processes to increase domestic manufacturing capacity.”
These design features, combined with the fact that GAO doesn’t always identify the experts making specific proposals in their technology assessments, could allow an industry-friendly lawmaker to attribute recommendations to GAO itself, when they may be only one of a slew of options the consultants have submitted for consideration.
The False Hope of a New OTA
Following the Facebook hearings in 2018, Congress passed an appropriations bill that directed GAO to work with the National Academy of Public Administration (NAPA), a congressionally chartered nonprofit, “to evaluate previous and current efforts related to technology assessment support to the Congress, including those of the former Office of Technology Assessment.”
The provision brought together advocates from across the political spectrum, like Zach Graves and Daniel Schuman. Graves was the executive director of a Silicon Valley–based free-market tech policy group formerly known as the Lincoln Network, which has since been rebranded as a “libertarian populist” group called the Foundation for American Innovation (FAI). Schuman was, and remains, a policy director at Demand Progress Education Fund, with a background advocating for transparency and ethics in Congress. Both lobbied for the return of technology assessments.
But instead of recommending that Congress reauthorize the OTA, the NAPA report recommended Congress “enhance existing entities”—GAO and the Congressional Research Service—and create a new advisory office to coordinate their work. “To enhance its capabilities to produce quality [science and technology] studies and analysis,” NAPA said GAO should “receive authority and develop capability to explore innovative network models to more quickly produce work for Congress, engaging with outside networks to leverage external expertise.”
Schuman told me he had misgivings about NAPA doing the report from the start, due to previous experiences where they failed to sufficiently consult with civil society groups and generally lacked appropriate standards for such assessments. But, he said, there was a forceful push for NAPA’s inclusion.
Big Tech’s fingerprints can be seen on numerous GAO products released since the formation of the Polaris Council.
After the GAO’s creation of the Polaris Council, Graves and Schuman criticized NAPA for being incomplete. “NAPA may have considered revising OTA as part of its deliberations, but those deliberations do not appear in the report. This is unfortunate, as the desirability of reviving OTA is clearly a live issue in Congress,” Graves and Schuman said.
FAI did not respond to a request for comment. Weeks after publication, Graves called the story a “conspiracy theory,” and added that GAO technology assessments “have focused on hard science and technology issues, and have very little to do with things big tech cares about.”
Graves actually sits on the Polaris Council. In a Federalist Society piece published last month, FAI policy analysts urged Congress to be prepared to tackle more of the work of preparing regulations, and advocated dedicating more resources for GAO to help by setting up the congressional equivalent of the executive branch’s Office of Information and Regulatory Affairs, to provide independent assistance analyzing regulations.
NAPA did at least recommend GAO create boundaries between teams working on the performance audits GAO is known for and those who would produce the more analytical technology assessments. “There is opportunity to build a culture best suited to the unique features of TAs, and which are quite different in important ways to audit and performance assessment work,” NAPA wrote, noting, “Some degree of separation between audit and TAs will also help the GAO preserve the independence and objectivity of its audit work, the Agency’s core mission.”
But the GAO seems to have dismissed NAPA’s recommendations for a structural separation. In 2019, before the NAPA report was out, GAO launched the expansion of its Science, Technology Assessment, and Analytics (STAA) teams. A September 2022 update from the agency celebrates the science and technology analysts’ work with other GAO teams and STAA having input on 28 audit reports. The agency’s plan for 2023 noted that the STAA team would also help set GAO’s longer-term agenda.
From GAO to Policy
Big Tech’s fingerprints can be seen on numerous GAO products released since the formation of the Polaris Council, including a March 2022 audit of federal acquisition practices at agencies like NASA and the Departments of Defense and Homeland Security. The March 2022 audit was not requested by Congress; it was done under authorities enjoyed by GAO chief Gene Dodaro, who was appointed by President Barack Obama in 2010 for a 15-year term. GAO said they used this authority because of “interest across the Congress.”
The audit report, which notes that staff “validated our analysis with members of GAO’s Polaris Council,” recommends the government agencies use an “agile” process for the development and delivery of software. It highlighted an advantage to the companies having “empowered” acquisition teams and the government’s “comparative inflexibility in hiring qualified personnel as needs for a program fluctuate.”
Within five months, the Senate Homeland Security and Governmental Affairs Committee approved the AGILE Procurement Act. Citing findings from GAO, the legislation sponsored by committee chairman Gary Peters (D-MI) and committee member Joni Ernst (R-IA) would make it easier for those currently working in related industries to be expedited into the federal workforce for stints on procurement teams. The AGILE Procurement Act would also seek to “streamline” the acquisition process through the Office of Management and Budget. The bill has not yet become law, though a similar bill did pass the full House last year.
The federal workers’ union has opposed these kinds of workforce programs, citing disruption and conflict-of-interest issues. (GAO counters that they “did not make recommendations related to workforce specifically.”)
GAO stated that their acquisition audit again used a “robust and rigorous methodology,” with a range of product types and industries covered. “Nothing in our report, findings, or analysis changed in response to discussions with the Polaris Council members—these discussions were merely an additional check on the findings that resulted from our already rigorous methodology,” spokesperson Young said.
During a May 2022 committee hearing on the issue, Grant Schneider, a former OMB official who directs cybersecurity policy for Venable, a law firm that works for major tech companies and internet service providers, suggested something needed to be done about the ethics laws meant to avoid such conflicts.
“You know, we need good strong ethics rules but sometimes they’re a barrier for many government jobs, especially for contracting officers who get excluded from being able to work at lots of companies or if they work at a company are excluded from working back in the government,” he told the committee.
While Polaris Council deliberations are not public, at least the advisers are known. The GAO has not disclosed members of Dodaro’s advisory board, and as an arm of Congress, the agency is not required to adhere to laws like the Federal Advisory Committee Act and the Freedom of Information Act. (GAO claims to hold itself to the “spirit” of FOIA.) GAO advisers and consultants are unpaid, but that means the agendas of the people who pay them may conflict with the public interest.
The situation has the attention of a key lawmaker. “GAO is an influential oversight agency that should take every step possible to ensure its operations and decision-making processes are clear and accessible to everyone,” Gerry Connolly (D-VA), ranking member of the House Oversight and Accountability’s Cybersecurity, Information Technology, and Government Innovation subcommittee, told the Prospect.
Other good-government advocates have stressed the importance of transparency into the activities of all GAO’s advisory boards, not just the membership. Noting requirements for registered lobbyists to disclose their engagements with lawmakers and other government officials, Public Citizen’s Craig Holman said that at GAO, special interests could instead “get their messages transmitted to Congress under the pretense of fact-based, nonpartisan reports.” He called it “an influence peddler’s dream come true.”
