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WASHINGTON--With a new administration and a Democratic Congress, now is the time to overhaul copyright law, advocates for reform said Wednesday--but the complex nature of the issue makes copyright legislation nearly as unrealistic as ever.

Representatives of songwriters and the recording industry faced off against open Internet advocates at the Future of Music Coalition's Policy Day here in Washington, demonstrating the entrenched divisions that remain within Democratic constituencies over copyright issues.

For nearly two years, progressive activists have lobbied the Biden administration to weaken international patent protections on COVID treatments. The political pressure was immense. And at several points, it seemed like some officials were ready to cave.

But fortunately for American innovation — and patients worldwide — the Biden administration recently rejected these requests. At the World Trade Organization meeting that recently wrapped up in Abu Dhabi, the U.S. delegation refused to lend its support to the proposal, effectively killing it for now.

This excerpt illustrates the impact Bayh-Dole has had on influencing the technological and economic future of the United States. Ironically, at the time, the law’s future impact and magnitude wasn’t fully appreciated. The day after its enactment, the New York Times only mentioned the initiative briefly on page 38, buried five paragraphs into an article about patents. Clearly, its potential was overlooked. Yet, a similar naïveté is currently influencing the Department of Health and Human Services’ (HHS) and the Department of Commerce’s (DOC) plan. The Biden-Harris Administration is trying to reinterpret the Bayh-Dole Act to authorize federal control over prices of inventions originating from universities. This could have devastating consequences. The Bayh-Dole Act was specifically designed to spur innovation and collaboration between our universities and the private sector. Forty years later, the results speak for themselves. In 1980, only 23 institutions had technology transfer options. Today, every single major research institution in the United States has a technology transfer option. By 1980, there were 30,000 patents acquired using federally funded research, resulting in only 1,500 improved products. In 2020 alone, 27,112 disclosures were filed, resulting in 8,706 patents.

The recent actions from the Biden Administration threaten this innovation. By controlling prices, incentives can be distorted, and further development can be disrupted. This is a rare opportunity for Democrats and Republicans to work together to boost American industry.

Scarlett Johansson called out OpenAI this week for mimicking her voice for a new chatbot, underscoring the urgency that many artists feel about regulating artificial intelligence.

But in Congress, taking on AI is starting to resemble wrestling an octopus. It’s so sprawling, it’s hard to know how to begin.

Artificial intelligence companies may have to become a lot more transparent about how they train their models, if a new bill from Rep. Adam Schiff passes in Congress. Schiff has proposed the Generative AI Copyright Disclosure Act, which would require firms like OpenAI to list the copyrighted works they use to build generative-AI systems. The bill comes amid a growing outcry about the burgeoning industry using copyrighted materials to inform their large language models, and it’s the latest in a number of Congressional pushes to regulate the technology and protect human content creators.

“AI has the disruptive potential of changing our economy, our political system, and our day-to-day lives,” Schiff said in a statement. “We must balance the immense potential of AI with the crucial need for ethical guidelines and protections. . . . This is about respecting creativity in the age of AI and marrying technological progress with fairness.”

Levie’s remarks fly in the face of what has become a standard position among Silicon Valley’s AI elites like Sam Altman. “Yes, regulate us!” they say. But Levie notes that when it comes to exactly what the laws should say, the consensus falls apart. “We as a tech industry do not know what we're actually asking for,” Levie said, “I have not been to a dinner with more than five AI people where there's a single agreement on how you would regulate AI.” Not that it matters—Levie thinks that dreams of a sweeping AI bill are doomed. “The good news is there's no way the US would ever be coordinated in this kind of way. There simply will not be an AI Act in the US.”

Levie is known for his irreverent loquaciousness. But in this case he’s simply more candid than many of his colleagues, whose regulate-us-please position is a form of sophisticated rope-a-dope. The single public event of TechNet Day, at least as far as I could discern, was a livestreamed panel discussion about AI innovation that included Google’s president of global affairs Kent Walker and Michael Kratsios, the most recent US Chief Technology Officer and now an executive at Scale AI. The feeling among those panelists was that the government should focus on protecting US leadership in the field. While conceding that the technology has its risks, they argued that existing laws pretty much cover the potential nastiness.

6-27-2024, "A National Advisory Referendum on AI?," Default, https://www.lawfaremedia.org/article/a-national-advisory-referendum-on-ai

It’s Day 575 AGPT (after ChatGPT). OpenAI introduced ChatGPT-3.5 to the world on Nov. 30, 2022. Since then, Congress has embraced the posture of a bystander at a playground when someone else’s kid falls off the swings—concerned, but unsure of whether, when, and how they should respond. Members from Sen. Mike Rounds (R-S.D.) to Rep. Ted Lieu (D-Calif.) have shown a willingness to theorize about how best to respond to mitigate the risks posed by artificial intelligence (AI), but those theories have landed as hard as the kid still waiting for someone to help them up. On Day 324 AGPT, I called on Congress to hold a national advisory referendum on how best to regulate AI. Specifically, I urged federal lawmakers to issue the federal equivalent of a formal poll that would inform but not bind Congress. The whole election infrastructure need not be rolled out. Congress could and should provide Americans with a wide range of means to participate, such as through mail ballots and even an online ballot. The referendum could address a range of questions, though I would recommend focusing on policy questions tied to the day-to-day lives of Americans—their work, their data, and the long-term well-being of their communities. A traditional poll, akin to a Pew Research Center survey, would not do. The first national advisory referendum would lead to an overdue voter education effort on the potential and perils of AI. The formality and significance of the referendum would give stakeholders including AI labs and civil society groups like the Center for AI Safety, which aims to reduce societal-scale risks from artificial intelligence, a chance to inform voters about the current capabilities of this emerging technology. Such education has been lacking. Only a third of Americans have “heard a lot about AI.” A traditional poll would also fail to create the political pressure necessary to spur congressional action. There is no shortage of polling going on. Those efforts have not moved Congress, which is running out of time to regulate AI. As of June 20, the Senate has just 30 days in session prior to the 2024 election. Passage of substantive AI regulation in such a short window will require popular support, perhaps as expressed through a national referendum. What may have been radical on Day 324 AGPT is necessary now. Numerous outlets report that ChatGPT-5 may be launched in the coming weeks. The ongoing introduction of AI agents that proactively take actions on behalf of users has introduced a new regulatory front. All the while, the risks of AI tools causing some significant disruption to our information ecosystem or financial systems, to just name two areas, have been increasing. Congress cannot continue to defer to states, the executive branch, and other nations to fill in the regulatory void. A quick review of some of the regulatory theories contemplated by Congress bolsters the case for seeking direction from the people. The bills that have been introduced appear to have low odds of passing, have been rendered more or less moot as a result of being incorporated by executive orders, or, if enacted, have high odds of generating substantial legal challenges, which may undermine their usefulness given the rapid rate of advances in AI. Other congressional actions, namely publication of a policy memo authored by the Bipartisan Senate AI Working Group and the convening of numerous hearings on AI, have done little more than indicate a general willingness to regulate AI. A national referendum would help transition Congress from brainstorming to implementing policy and iterating on that policy as conditions and AI evolve. A Brief Overview of the Current Regulatory Landscape Congress seems to be experiencing paralysis by analysis when it comes to AI regulation. This uncertainty has turned what could have been a relatively short and intense study of AI’s risks and the proper regulatory response into an ongoing, slow-paced inquiry. Consider that Congress managed to pass sweeping coronavirus legislation within nine months of the pandemic’s onset. The pandemic presented a more immediate, dire change than AI, but Congress’s comparatively swift response shows that it is capable of meaningful action even in an evolving, complex policy area. Despite consensus that AI requires regulation, members have expressed divergent regulatory goals. On the one hand, officials including AI Working Group member and Senate Majority Leader Chuck Schumer (D-N.Y.) have identified innovation as the “North Star” of AI regulation. On the other hand, officials such as Rep. Ro Khanna (D-Calif.) have called attention to the risks posed by that innovation, such as labor displacement. A number of other concerns have likewise drawn attention. Schumer has also framed the need to regulate AI as a national security imperative. In particular, he warned that policymakers cannot allow China to take the lead in the race to develop and deploy the most sophisticated AI. The aforementioned AI Working Group’s recently released “roadmap” reinforces the idea that Congress seems to lack direction when it comes to regulating AI. The roadmap reflects what senators learned from a series of forums, called the AI Insight Forums, they held over the past year pertaining to the promises and perils of AI. The roadmap’s coverage of everything from discrimination brought on by biased algorithms to existential risks posed by AI demonstrates awareness of the manifold regulatory issues posed by AI. Yet the dearth of specific legislative proposals in that roadmap suggests officials are still unsure about which issues to prioritize and how to address them. A high-level look at specific legislative proposals bolsters the argument that Congress does not know how, when, and why to regulate AI. Dozens of bills have been drafted. Some bills, like one sponsored by Sen. Amy Klobuchar (D-Minn.) that addresses the use of “deceptive AI” in elections, deal with only a small (albeit important) part of the regulatory battlefield. Others would create new entities tasked with tackling a broader set of AI’s anticipated effects. A more in-depth analysis of pending bills helps illustrate the wide range of regulatory ideas. AI Leadership to Enable Accountable Deployment Act or AI LEAD Act The AI LEAD Act introduced by Sen. Gary Peters (D-Mich.) would create a “Chief Artificial Intelligence Officers Council” tasked with “coordination regarding agency practices relating to the design, acquisition, development, modernization, use, operation, sharing, risk management, and performance of artificial intelligence technologies,” among other tasks. The director of the Office of Management and Budget would form the council and serve as its chair. This proposal reflects congressional concern with how the federal government itself adopts and implements AI. Chief artificial intelligence officers representing federal agencies would make up the rest of the council, according to the proposal. These officers would be appointed by the head of their respective agencies and take on a litany of tasks including promoting AI innovation, setting the agency’s AI policies, working with agency officials to ensure responsible use of AI by agency staff, and creating an “Artificial Intelligence Governance Board” within their agency. Though the AI LEAD Act has yet to gain traction, the Biden administration recently issued an executive order that more or less required executive agencies to adopt the act’s provisions. If there is a change in administration come November, this order could be rescinded—paving the way for Congress to take up the act. A national referendum that included questions on the need for safeguards around government use of AI could inform Congress’s decision to formalize the AI officer mandate via legislation. National AI Commission Act One of the Hill’s most tech-savvy legislators, Rep. Lieu, authored the National AI Commission Act. The bill was introduced in the House in June 2023 and was referred to the House Committee on Science, Space, and Technology. No further action has been taken. The commission the act proposes would be housed within Congress and made up of 20 commissioners, with each party appointing half of the members. To be appointed, members would have to demonstrate some sort of expertise, ranging from computer science and AI to national security. Members would serve for the entire duration of the commission, which is currently proposed to last for approximately 1.5 years. Within six months, the commission would need to submit a report to Congress and the president outlining its recommendations for how best to: A year later, the commission would submit a follow-up report with new findings and updated recommendations before it expires. This bill brings to mind the AI Insight Forums organized by the AI Working Group. On a number of occasions, the group invited a carefully selected group of experts to share with lawmakers strategies for limiting AI’s harms and accentuating its benefits. Schumer, a member of the group, described those selected as “balanced and diverse.” Sen. Josh Hawley (R-Mo.), by contrast, chalked up the forums to an off-the-record opportunity for “monopolists” to steer regulation. Sen. Elizabeth Warren (D-Mass.) took issue with the proceedings being closed to the media. Lieu’s proposal would address some of those concerns and create a more formal approach to providing Congress with regulatory guidance. Though some may argue that the need for such a commission has dissipated given the number of bills already pending before Congress, the case for the National AI Commission will likely remain strong so long as lawmakers are still weighing the proper regulatory approach. Lawmakers would likely benefit from the in-depth analysis provided by a bipartisan bunch of AI experts, especially given the possibility that new, even more advanced AI models may be deployed in the coming weeks. An expert commission could help lawmakers understand the marginal risks presented by AI advances and develop regulation that targets the most likely and significant sources of harm. Digital Platform Commission Act Transparency concerns aside, the AI Insight Forums influenced Sens. Michael Bennet (D-Colo.) and Peter Welch (D-Vt.) to update their Digital Platform Commission Act to more explicitly regulate the use of AI by platforms. Modeled after the Food and Drug Administration and Federal Communications Commission (FCC), five members of Congress would make up the commission, according to the proposal. In brief, the commission would possess “rulemaking, investigative, and related authorities to regulate access to, competition among, and consumer protections for digital platforms.” It would also play a role in preventing unacceptable concentration among platforms. The act would mandate that the commission receive pre-merger notifications concerning designated platforms. It also empowers the commission to inform the Justice Department and Federal Trade Commission about any issues with proposed mergers. Pursuant to the updated version of the bill, the commission’s regulatory bailiwick would extend to digital platforms that provide “content primarily generated by algorithmic processes.” Platforms designated by the commission as “systemically important” would be subject to algorithmic audits and public risk assessments of their tools. Starting a whole new agency would require quite a bit of financial and political capital. The AI referendum would give voters a chance to signal whether the treasure is worth the trek in this case or if simply relying on preexisting regulators is their preferred approach. On the whole, these proposals provide a glimpse into the diverse regulatory preferences of Congress. That diversity is not a strength, at least with respect to indicating that Congress will soon rally behind a specific regulatory approach. Other Proposals Congress is not the only actor unsure of how to proceed on AI. The think tanks, scholars, and civil society groups that Congress commonly leans on for regulatory ideas also have yet to reach a consensus on the best means to address AI. Former FCC Chair Tom Wheeler has endorsed a new AI agency responsible for identifying and quantifying AI risks, developing a code of conduct that is flexible enough to respond to AI’s rapidly changing risk profile, and enforcing compliance with that code. However, he has also questioned the feasibility of launching such an agency. Anton Korinek of Brookings has urged the creation of an AI body akin to the National Transportation Safety Board or Federal Aviation Administration—two entities spun up in response to novel technology. Korinek’s “AI Control Council” would have an expansive mandate “to ensure that the ever more powerful AI systems we are creating act in society’s interest.” This mandate would include oversight of the use of AI across the entire economy. He also expects that the council would have the authority and resources to support research related to directing AI toward the public interest—something Korinek doubts will be undertaken by private researchers. The council’s power would not end there. Korinek insists that for the council to be “truly effective,” it must be able to “oversee AI development by private and public actors[.]” This would include the authority to monitor AI development, require completion of impact assessments of advanced AI systems, and prevent the likelihood of any risks revealed by those assessments. Stakeholders, myself included, have introduced a broad set of other proposals. Though such brainstorming has benefits, the impending release of new models and the nearing election suggest that the window for meaningful regulation may be closing. Further delay may further expose Americans to the very real risks posed by AI, such as rapid labor displacement due to automation and AI-facilitated cyberattacks on critical infrastructure. A Referendum on AI Regulation A national advisory referendum on AI could help Congress and others rally behind a specific response to AI. Congress possesses the authority to pass a statute to place a nonbinding advisory question on the ballot. Under the Necessary and Proper Clause, Congress may exercise all implied and incidental powers “conducive” to the “beneficial exercise” of its enumerated powers, such as regulating interstate commerce and promoting the general welfare. A nonbinding referendum on AI would fall within that expansive power because of AI’s substantial and long-lasting impacts on our economy, culture, and politics. Members of Congress have weighed using such power on several occasions. Officials debated asking the American public if they supported joining the League of Nations following World War I. In 1964, Rep. Charles Gubser (R-Calif.) sponsored a resolution for an annual nationwide opinion poll on key policy questions. Prominent officials have also recognized the potential and value of a national referendum. For instance, in 1980, House Majority Leader Richard Gephardt “introduced a bill to poll citizens on three designated issues every two years during the federal election cycle.” As briefly discussed, an AI referendum would serve several purposes. First, the extensive impact of AI on various aspects of daily life—from education and health care to the economy and transportation—renders it an issue too significant to be shaped by a single state. California arguably set the nation’s privacy law when it passed the first comprehensive privacy bill in 2020—a bill that several states went on to closely emulate. No one state should have that sway in the context of regulating AI because the odds are high that the citizens of any one state think differently than the average American about AI. While the referendum would be nonbinding, it nevertheless gives officials an indication of how the whole of the American public thinks about AI, a marked improvement on the unrepresentative AI Insight Forums. Second, posing specific questions regarding the values and goals that should inform AI regulation would stimulate more detailed public discourse on the subject. In other words, the very process of asking Americans for feedback on AI regulation would stimulate more popular education on AI’s risks and benefits. That information campaign would not only add weight to the results of the referendum but also allow for more robust public participation in future AI policy debates. Third, this approach would prevent Congress from enacting legislation that diverges from public opinion and carries long-term, irreversible unintended consequences. Significant regulatory undertakings are challenging to redirect once established. What questions to include on the referendum is a tricky question in and of itself. This may be where the AI Working Group’s roadmap actually comes in handy. The roadmap provides an overview of the key regulatory topics raised by AI: U.S. Innovation in AI; AI and the Workforce; High Impact Uses of AI; Elections and Democracy; Privacy and Liability; Transparency, Explainability, Intellectual Property, and Copyright; Safeguarding Against AI Risks; and National Security. A referendum that addressed these answers and provided the people with a means to express their preferences and priorities could motivate and steer Congress.

5-26-2024, "Mapping the Regulatory Landscape for New Technologies," Default, https://www.lawfaremedia.org/article/mapping-the-regulatory-landscape-for-new-technologies

Criticisms of the pace of congressional action on artificial intelligence (AI) regulation were also swift. Brookings Institution fellow Darrell West said that Congress was “way behind on AI regulation.” Others chimed in and observed that “the fact remains that Congress has yet to pass any legislation on AI, allowing the U.S. to cede the initiative on this issue to the European Union (EU), which recently agreed on the AI Act, the world’s most comprehensive AI legislation.” The gradual and then sudden rise of AI and debate about legislative speed on acting (or not acting) has raised important questions about tech policy: What is the role of Congress in regulating new technologies, and if not Congress, who does regulate, and what is “enough” regulation? The answer is that it depends. But at the least, the assumption that Congress bears the responsibility to regulate new technologies is inconsistent with its expertise and incentives and, not surprisingly, the experience and history of tech regulation. Revisiting technologies from nuclear weapons to AI and through social media and crypto shows that only rarely, when technologies (like nuclear weapons) are so novel that they lack any statutory precedent, does Congress pass new laws to regulate new technology. But inaction on lawmaking does not mean that regulation languishes. The past and present of tech policy shows that the conventional wisdom that puts the regulatory responsibility squarely at the feet of Congress ignores both the incentives of practice of the larger set of regulatory actors—scientists or innovators themselves, executive branch agencies, the media, investors, and even the public—who influence, rein in, and moderate the arc of new technologies. Regulation via Fire Alarms Scholars have argued that Congress has long engaged in “fire alarm oversight,” setting up procedures and practices that allowed the public and interest groups opportunities to evaluate administrative decisions and pull the fire alarm when they saw evidence of executive overreach. With goals of reelection and the realities of multiple, complex issues to cover, “Instead of sniffing for fires, Congress places fire-alarm boxes on street corners, builds neighborhood fire houses, and sometimes dispatches its own hook-and-ladder in response to an alarm.” Part of the logic for this approach on tech policy is that the expertise gap between Congress and technical experts is enormous, making it difficult to legislate wisely. New technology is the product of Ph.D.s whose expertise is often narrow but advanced. As Nobel physics laureate Richard Feynman said in a lecture, “I think I can safely say that no one understands quantum mechanics.” Several decades later in a quantum hearing in the House, Rep. Adam Kinzinger (R-Ill.) said to a witness that “I can understand about 50 percent of the things you say.” In the 115th Congress, only 7 percent of Congress reported having a STEM background. In addition, Congress has not prioritized legislation because the public, in general, tends not to pull the fire alarm on tech issues. For the past two decades, Americans have invariably cited the economy as their top concern when Gallup has asked about the country’s “most important problem.” This has been followed by government (polarization), the situation in Iraq, COVID-19, unemployment, terrorism, and immigration—nowhere has the public noted anything tech related. The public tends not to have the specialized expertise, let alone the bandwidth, to adjudicate scientific risk the way they might weigh policies like education that directly affect their families. Congress’s lack of action isn’t necessarily a cause for concern. Even if technologies are new, their regulatory frameworks can often rely on existing statutes, which means new laws are not always needed for new technologies. Nuclear weapons presented a truly novel weapon for which there were no relevant existing laws, which is why Congress had to pass the 1946 Atomic Energy Act that gave civilians control over nuclear weapons and established the Atomic Energy Commission to control and manage the new technology. But AI and other new technologies are better seen as new wine that can fit in older bottles. Elected officials, then, tend to have few incentives to take up and use political capital to pass legislation on new technology, which explains why they rarely do. Mark Zuckerberg has repeatedly testified about social media content moderation on Capitol Hill, but Congress has never passed federal legislation on this issue. Members of Congress carp about the 1996 Communications Decency Act when it comes to moderating a technology (social media) that did not exist anywhere close to its current form in 1996, but it has proved more resilient and preferable to any alternatives. The 1976 Copyright Act, which certainly predated generative AI, has emerged as the legal framework for adjudicating fair use of prior written content, with four specific statutory factors used to make that determination about whether or not the training process for AI models infringes on copyright law. In short, Congress has neither the knowledge nor the incentive to create new laws, not least because in a lot of cases, older laws can actually apply to new technologies. Even still, the absence of new laws does not mean that new forms of regulation do not emerge. One just has to look elsewhere. Non-legislative Actors and Their Regulatory Reach Tech opens up far more direct nongovernment regulatory channels because many technologies, even those with a significant national security focus or applications like AI, are consumer facing. The public—individuals and investors—plays a role when it interacts directly with these technologies, acts as beta testers for nascent technologies, and provides feedback that developers reject at their peril. But the public, like legislators, can also have an expertise or awareness gap, and specialized journalists, from bloggers to organized media outlets, play a crucial role as interlocutors that surface tech mis- or oversteps. Their reporting percolates through to the public and also to legislators who in turn put pressure back on developers. Finally, the developers themselves are key actors in this regulatory picture. They have financial incentives to innovate aggressively or naïvely in ways that can lead to harm (for example, foreign election interference via social media) but can also innovate responsibly, sometimes pushed from within the company, sometimes through breakaway firms, and sometimes learning from previous mistakes. The public uses social media platforms like Facebook, and Meta is a publicly traded company, which creates strong incentives for the company to be responsive to public concerns. Even if they do not initially release products compatible with user preferences, they are subject to market pressures not to reject the public’s preferences. In 2007, Facebook released a feature called Beacon that would allow Facebook to monitor and record user activity on third-party sites. Facebook would not only collect data on that activity but also send a news alert to users’ friends about purchases the user had made, without including an opt-out. The feature triggered an online petition (signed by almost 70,000 people) objecting to Beacon, class-action lawsuits, and demands that users be able to opt out of the program. A couple weeks later, Facebook established a privacy control that allowed users to turn Beacon off completely, and Zuckerberg changed the policy to opt-in and posted an apology on the Facebook site. “We’ve made a lot of mistakes building this feature, but we’ve made even more with how we’ve handled them,” he wrote. “We simply did a bad job with this release, and I apologize for it …. I’m not proud of the way we’ve handled the situation and I know we can do better.” As part of the class-action settlement, Facebook not only shuttered Beacon but also paid a $9.5 million settlement fund for an independent foundation that would promote online privacy and safety. None of the action and reaction in response to the product overreach took place within the context of legislative or even government regulatory frameworks. It was individual users who organized to influence the platform combined with investors (in this case advertisers) who pulled their financial support and pulled the strings of influence within the company. The public’s expertise gap persists but is offset, in part, by a small set of users who have considerable expertise and emerge as interlocutors. In the Beacon case, the tech guru interlocutor was Stefan Berteau, who had been testing the privacy settings of Facebook and uncovered Beacon, then publishing his findings. Users had been unaware of these privacy concerns, and the post gained attention and started the movement to halt Beacon’s implementation because it made this technical information accessible and comprehensible to a general audience. Individuals with niche knowledge about new technologies and who write for journalistic outlets are best positioned to expose tech missteps and initiate cascades that lead to change. Given the expertise asymmetries inherent in new technologies, tech journalists have played an important role in translating their significance to general audiences. Not only do they have the expertise to understand the technology, even if self-taught, but they also have the contacts and networks to get scoops that can act as fire alarms that reverberate through the broader technology ecosystem. For example, it is difficult to beat Coindesk for coverage of cryptocurrency scandals. In 2014, after the first Bitcoin exchange, Mt. Gox, was hacked and stopped allowing withdrawals, one individual who had funds in the exchange turned to both the established Wall Street Journal and Coindesk—then a scrappy new crypto outlet—to publicize the concern. The media scrutiny eventually forced the exchange owner to confess the truth: that the exchange had been hacked and the Bitcoin was gone. Coindesk had helped surface the scandal, and its reporting contributed to crypto’s reputation as a vehicle for illicit activity and sparked more robust security measures on exchanges. Lastly, the impetus for innovation comes from scientists and developers, who determine not just the original iteration of an idea but follow-on adjustments. Many of the most disruptive innovations have emerged as a result of arms race dynamics that pushed innovation cycles faster than regulatory feedback could be incorporated. Firms compete fiercely for talent and investment dollars, sometimes releasing products prematurely because of these market pressures. Early users of Google’s Gemini, an AI image generation model, were shocked by the historically inaccurate and sometimes offensive content it produced. The model was pulled offline and Google’s co-founder, Sergey Brin, admitted that the company had “messed up … mostly due to just not thorough testing.” The geopolitical and financial push behind innovations is strong, but so are the social norms pushing back against technology, which have manifested not just among the public but in the tech firms themselves. The “techlash,” or backlash against large tech companies, is real. Facebook was the face of, and in the crosshairs of, that techlash. In March 2019, an NBC News/Wall Street Journal poll found that only 6 percent of people trusted Facebook either “a lot” or “quite a bit,” with 2 percent reporting that they trusted Facebook “some” and 60 percent “not at all.” This low trust in tech goes beyond social media and its role in election interference and political violence abroad. In the United States, trust in the tech sector as a whole declined to 57 percent in 2021, a more than 20-point drop from 2012. AI has emerged against the backdrop of a broad-based techlash, and the question of trust and responsibility has been a current in its development. In 2021, OpenAI employees left the company to found Anthropic and implement a vision that they believed focused on “safety and controllability” and could provide a “constitutional AI” model based on basic principles of human fairness. Anthropic’s model is not open source, but the company publishes research and findings that create transparency around model training and intended “harmlessness” and “helpfulness” measures. Microsoft has an entire unit dedicated to trustworthy AI. Four of the biggest players in generative AI—Anthropic, Google DeepMind, Microsoft, and OpenAI—voluntarily established an institution called the Frontier Model Forum to help establish responsible development norms, support research on AI risk, and create new governance frameworks. Cynics could interpret these examples as Big Tech virtue signaling—instances of disingenuously articulating a responsible position while racing toward an unknown future. But the hivemind—the larger community of the public, investors, and government regulators—can help offer an ethical compass about those ethical red lines in ways that were absent with the far more closed, insular process of nuclear weapons and social media development. Regulation Under Uncertainty The relevance of previous laws and pressure from the public, knowledgeable journalists, and expert insiders do not exonerate Congress from having a regulatory function. But regulation is more than just new laws: Hearings on technology serve a useful purpose for both members of Congress and the public to learn about complex technologies, and the provenance of regulation goes well beyond legislative action. Skeptics—and technological “doomers,” in particular—might wonder whether this more diverse ecosystem is sufficient to prevent the development of potentially cataclysmic systems. Scholars of nuclear strategy and policy use the term “firebreaks” to describe the boundaries that make it difficult for conflict involving conventional weapons to escalate to nuclear weapons. These can include operational barriers, like separating conventional and nuclear forces, but also psychological barriers stemming from a mental and ethical aversion to employing more lethal and more taboo weapons. These firebreaks could emerge because there were actual technical differences between conventional and nuclear weapons. The line between conventional and nuclear marked a transition to something new and manifestly different. There’s no equivalent for AI. No one can demonstrably say when a machine becomes “intelligent” or agree on what artificial general intelligence would be. There are no clear thresholds that regulators could apply, no AI firebreak to demarcate the line between a useful technological tool and something too radical or dangerous to develop or use. The risks are uncertain, and AI might never present the same type of existential risk as nuclear weapons. How a country finesses its regulatory framework to stay short of a nebulous line in AI will depend on where its private sector, mass public, and public sector stand on technological risk. In the United States, which leads globally in AI, risk acceptance has led to innovation and the resources to double down on innovation. This differs sharply with AI development in the European Union, where legislators have been more aggressive about leaning in to new AI laws, eliciting praise from some and criticism from others, including company executives worried that legislation will “jeopardise Europe’s competitiveness and technological sovereignty.” Where countries sit economically and geopolitically is ultimately where they stand when it comes to thinking about tech regulation. The science of new technologies—quantum, AI, and others in the future—may prove to be the easy question. The art of knowing when that technology has gone too far may prove to be more difficult. But mapping the regulatory landscape and the ways in which it goes beyond the obvious government actors is a step toward understanding how that determination is made.

But policy accomplishments don't really help a president much in terms of popularity. LBJ wasn't popular because he signed Medicare or the Civil Rights Act. It works the other way around; he was able to pass those in part because he was popular in 1964-65, thanks to a very strong economy and public goodwill in the wake of the Kennedy assassination. Notably, all his Great Society legislation didn't help him out once the public got annoyed by the Vietnam War; his party lost many seats in 1966 and he chose to resign rather than face the voters' wrath in 1968.

Beyond that, to the extent productivity and popularity may be related today, they may run in the opposite direction. In a polarized political environment, a president's achievements are likely to generate as least as many enemies as friends. Take health care reform, Obama's signature accomplishment. No Democrat could credibly run for president in 2008 (or for many years before that) without health care reform being a top priority. That was the nature of the Democratic coalition for decades. Conversely, the Republican coalition had been organized for decades around preventing Democrats from enacting health care reform. Obama's efforts were bound to produce substantial pushback, just as Clinton's did twenty years ago. The passage of health care reform indeed exacerbated Democratic congressional losses in 2010, and may well have handed Republicans the House of Representatives.

The paradox for Biden is that the more successful he is at addressing the pandemic and the economy, the more difficulty he could encounter in building bipartisan coalitions to address other problems. Political Science 101 would suggest that if Biden gets credit for ending the pandemic and restoring a strong economy, that popularity should translate into greater political capital for other problems in the queue.

Political Science 301 offers a cautionary warning: Solved problems fade from view. Biden is appropriately addressing the issues voters care about. But if the pandemic and the economy evolve as expected, voters will quickly bank those successes and focus on thornier problems — like immigration.

Despite the relief plan's popularity outside the Beltway, it is unlikely that momentum from its passage will hurtle Biden into future legislative wins, Howell said.

“The idea that a legislative win begets a subsequent legislative win in this environment is probably asking for too much,” he said, noting the prospect of passing COVID-19 relief was higher than more hot-button issues like immigration or health care.

POLITICAL CAPITAL is crucial for any president. With it, he can win legislative victories; without it, opponents circle like sharks. For Joe Biden — after a solid second half — the issue is how he will spend his new political capital after the Democrats’ decent showing in the Nov. 8 elections.

WITH POLITICAL CAPITAL, Biden can afford to alienate his allies in organized labor; yesterday he essentially told Congress to intervene and end the railroad strike threat.

He was the top-ranking Democrat on the highly influential Senate Judiciary and Senate Foreign Relations committees for decades. Then, in 2008, Biden served as a sounding board for Obama on national security and foreign policy, according to The New Yorker. And in the Obama White House, Biden subsequently took on a foreign policy-centric portfolio and served as the White House proxy in Congress during contentious moments, like passing the 2009 economic stimulus package and avoiding the fiscal cliff.

Biden’s reputation as a dealmaker throughout his time in the Senate and as vice president was forged by his unconventional partnerships across the aisle.

A number of studies have shown that Congress considers current levels of presidential approval when passing legislation (Brady and Volden 1998; Cohen et al. 2000; Edwards 1980, 1989). Early studies were able to find correlations between approval ratings and success in Congress (see, e.g., Edwards 1980; Ostrom and Simon 1985). However, later research depicts the relationship between approval ratings and legislative success as more conditional (Canes-Wrone and De Marchi 2002; Edwards 1989). Supporting a piece of legislation championed by an unpopular president could ultimately result in negative consequences for members of Congress. If presidents propose legislation to Congress that is salient with the mass electorate and has higher levels of approval, however, then members stand to gain from supporting the president.9

On a similar note, the honeymoon period of a president’s initial time in office has been shown to increase the likelihood of legislative success (Beckmann and Godfrey 2007; Brace and Hinckley 1991; Farnsworth and Lichter 2011; McCarty 1997). Presidents lose their favorability with the public and with Congress the longer that they are in office (McCarty 1997), which is why they often push for significant legislative accomplishments early in their term. Members of Congress are uniquely aware of the public’s sentiments after a presidential election, especially because they share a common constituency with the president and are more likely to capitulate to a president’s agenda.10 Therefore, a president should receive more cooperation from members of Congress for their legislative agenda items earlier in his term.

The concept of political capital captures many of the aspects of a president's political authority. Paul Light defines several components of political capital: party support of the president in Congress, public approval of the president's conduct of his job, the president's electoral margin, and patronage appointments (Light 1999, 15). Light derived this list from the observations of 126 White House staff members he interviewed (1999, 14). His indicators have two central uses. First, Light's research reveals that they are central to the “players' perspective” in Washington. That is, those “in the game” view these items as crucial for presidential effectiveness. Second, they relate to many central aspects of political authority as defined by Skowronek. So on both theoretical and practical levels, the components of political capital are central to the fate of presidencies. The data here will reveal that presidents over the last 70 years have suffered from a trend of declining levels of political capital, a trend that is at the heart of their political authority problem.

Third, agenda-setting offers the White House the opportunity to highlight its priorities, how they are distributed across various policy issues, and in which way policies should be packaged (Rudalevige 2005, 437ff; Wayne 2009b, 317ff). Because the resources of any administration to lobby Congress are not infinite and the multiple political arenas are usually heavily crowded with myriad policy items and problems striving to be solved, the White House needs to prioritize its policy agenda. This involves, among other things, to select some issues over others, decide about their sequencing, how to pursue them, and how much political capital it wants or needs to spend on any given item. Therefore, the administration will focus on certain policies with more attention, on others with less, depending on the prioritization by the president but also upon other considerations, such as the overall density of the policy agenda or imminent pressures of the time. The trick is to not overwhelm Congress with the president’s initiatives. As Lyndon B. Johnson famously quipped, “Congress is like a Whiskey drinker. You can put an awful lot of whiskey into a man if you just let him sip it. But if you try to force the whole bottle down his throat at one time, he’ll throw it up.” (cited in Rudalevige 2002, 113). Thus, the failure to prioritize easily leads to overload of Pennsylvania Avenue with Congress at the one end, and to excessive demands and exhaustion for the White House at the other end. The rocky start of the Clinton administration underlines this argument: since the White House did not pursue a ‘rifle-approach’ to define clear policy priorities for its initial months and then execute them, it got lost in numerous legislative battles and mine-fields early on in its first year. Instead it followed a ‘shotgun-approach’ by addressing as many issues as possible at once leading to an overkill and chaos (Rockman 1996; `Sinclair 2000b).

The disconnect between this perspective and the Tea Party's has formed a fault line, causing numerous, highly charged political dustups. Foremost among these fights was the effort to defund Obamacare in fall 2013 and the subsequent government shutdown. But other fights — for instance, the attempt to reform the farm bill's massive agricultural subsidies or to transform the federal transportation system rather than bail out the Highway Trust Fund — have followed in the same pattern: The Tea Party has forced establishment Republicans into public debates over proposals unlikely to advance so long as President Obama is in the White House, and the end result has been the kind of temporary yet highly visible inaction that feeds perfectly into a media narrative of Republican obstructionism.

But inaction is not a necessary consequence of such internal divisions. Last year's debate over the border supplemental appropriation, for example, represented Tea Party-instigated conflict at its most constructive. From the start of the discussion about how best to address the border crisis before Congress's summer recess, House conservatives insisted that whatever border-security provisions Congress considered would be woefully inadequate unless passed in conjunction with language ending the White House's unilateral Deferred Action for Childhood Arrivals (DACA) policy that had drawn so many young migrants on the dangerous journey from Central America to the United States. Pundits warned of the consequences over a fight on a border supplemental, and as the week-long debate proceeded with no clear end in sight, the media asserted that Republicans would pay a price for leaving Washington without addressing the issue.

Farmers are a key piece of Biden’s overall strategy to slash greenhouse gases across the U.S. economy: American agriculture contributes about 9 percent of U.S. emissions, but in theory has the potential to more than offset its own footprint. Recent interest among farmers and buy-in from powerful food and ag industry groups are giving Biden a rare opportunity to enlist agriculture in his sweeping climate agenda. But the window for action may be limited as the new president’s political capital wanes and midterm elections draw closer.

The farm bill, officially titled the Agriculture Improvement Act, is a major agriculture policy bill that is passed every five years and subject to the influence of both parties. This year it will go before a GOP-led House and Democratic-led Senate — where it needs 60 votes to pass — with both chambers very narrowly divided.

Some of the most contentious areas in the climate arena pertain to whether Congress should be incentivizing climate-smart farming practices.

Food stamp legislation all but certainly had enough support to pass on a floor vote if the Ag Committee would have allowed it; President Johnson was even able to get a pilot “surplus commodities” program instituted administratively in 1962. Finally, to save the farm bill, the Southerners struck an agreement to build on the surplus commodities demonstration and include food stamps in the package. This arrangement was permanently enshrined in the 1977 farm bill.

“That historical contingency forever changed the politics of the farm and thus the direction of our country’s ag policy,” said Jonathan Coppess, the author of The Fault Lines of Farm Policy and the former administrator of the Farm Service Agency at the Department of Agriculture under President Barack Obama.