Congress is worse for determining copyright law. They are captured by political interests.

But a good job of fact-finding should not always be presumed. Legislators often act in their self-interest and pursue fact-finding to support a desired legislative outcome.208 If lawmakers do not care about collecting the necessary facts and just want to “deliver[ ] the goods” to interest groups, then judicial deference based on institutional capacity is flawed.209 Therefore, deference based on institutional capacity to collect facts to serve the public must be tempered by the realization that the legislative institution may not have adequate incentives to actually do a good job fact-finding.210 Just because the legislature has superior institutional capacity, it does not follow that the legislature actually uses this capacity wisely. Congressional performance in collecting facts to serve the public preferences is related directly to political salience of the issue.211 Significant public scrutiny or opposition will likely increase the attention or care that legislators take.212 For example, Congress has made “short thrift to fact finding” in certain legislation taken pursuant to the Commerce Clause or the Fourteenth Amendment’s enforcement power. Congress lacked incentives to engage in comprehensive fact-finding because of the lack of interest group or federalism-based opposition to this legislation.213 Thus, perhaps the Supreme Court’s intervention to curtail some congressional activity on behalf of federalism is due to the absence of congressional attention to federalism when enacting legislation.214 In the previous Part, I explained that incentives and structure make it more likely that the strength of opposition ensures a more properly functioning political process in takings than in copyright extensions. If the political process is well-functioning, we should expect the legislature to take fact-finding seriously. By examining the fact-finding behind the governmental action in Kelo and Eldred, it appears that the tools of superior institutional capacity more likely will be exercised in takings than in copyright extensions. Consequently, copyright extension warrants less judicial deference to Congress’s fact-finding than takings.