How Does Burden Become A Law?: Part III

Last week, a new Task Force on Government Regulation of Higher Education held its first session. The group was convened by Sens. Lamar Alexander (R-TN), Richard Burr (R-NC), Barbara Mikulski (D-MD), and Michael Bennet (D-CO) to address a long-time pet project of Alexander’s: regulatory and reporting burdens for colleges. It’s true that colleges spend hundreds of thousands of hours each year (850,000 to date, with another 150,000 expected next year for the new graduation rate survey) responding to the Department of Education’s required data reporting submissions to IPEDS, meet stringent requirements for the National Science Foundation and other non-Higher Education Act programs, and complying with disclosures that range from campus crime logs to fire safety. But all the bellyaching from members of Congress raises the question, How did these federal disclosure requirements come to be, anyway?

The answer (ironically) turns out to be—members of Congress. Though lawmakers frequently charge the Department of Education as the main perpetrators of burden, it’s as often the lawmakers themselves writing new requirements into law.

All the bellyaching from Congress raises the question, How did these federal disclosure requirements come to be, anyway?

As we’ve written before, burdensome regulations that require colleges to comply with specific campus security and fire safety disclosures have come about as the result of tragedies (a rape and murder at Lehigh University and a fire at Seton Hall University in which three students died and 58 were injured, respectively). But there’s another, less compelling reason some regulations are created: the infamous connections between members of Congress and their campaign donors and lobbyists. “Follow the money” is a pretty safe starting point for many political decisions, and this is true also with the addition of burdensome regulations in the Higher Education Act. Consider the case of peer-to-peer file sharing regulations to which all colleges and universities have been subject since 2008.

According to the Motion Picture Association of America (MPAA), more than 2.4 million people across the country—including the graduates of our nations’ colleges and universities—rely on the entertainment industry for their jobs. Piracy from Recording Industry Association of America (RIAA) members alone allegedly cost the U.S. $12.5 billion and more than 71,000 jobs annually. With pressure from MPAA and RIAA, Congress approved the Higher Education Opportunity Act in 2008, a reauthorization bill that included a new provision to require institutions of higher education to inform their students of the illegal nature and consequences of distributing copyrighted materials, to employ at least one technology aimed at curbing online piracy over their networks, and to encourage the adoption of legal alternatives to downloading, like iTunes.

The requirements seemed like a heavy lift for institutions, especially in light of the dozens of other reporting requirements they faced. A survey of schools found that colleges spent a lot on anti-piracy efforts – $408,000 on average at private universities and $170,000 on average at public colleges in the 2007-08 academic year. And Educause, a higher education IT organization, said at the time that it opposed the provision because efforts to prevent piracy would be expensive and ineffective, and students hadn’t expressed much willingness to use legal downloading services, anyway.

According to former Capitol Hill staffers, this regulation was largely kick-started by Sen. Chris Dodd, a powerhouse of a politician who served in Congress for thirty years, most recently as the senior senator from Connecticut, chairman of the Democratic Committee, and a 2008 presidential primary candidate. His influence, plus the pressure placed on members of Congress by RIAA and MPAA, was sufficient to change some minds – staffers say they hadn’t initially planned to include the language around campus piracy. The power of the purse may have helped, too, given that the two associations spent more than $8.5 million lobbying Congress and the administration in 2008, and gave more than $500,000 in campaign contributions to federal candidates. And at the same time Congress was debating the issue, colleges began receiving many more notifications than normal of online piracy on campuses. RIAA said these notices were coincidental, but others said the spike was a tactic designed to raise the profile of online piracy.

Despite institutional concerns over burden, the provision became law. And what happened to Sen. Dodd? He became chairman and CEO of the Motion Picture Association of America. In this role he is putting out fires on everything from violence in movies to the Stop Online Piracy Act. And he is still working to ensure, as he said at a 2012 panel discussion on campus piracy with a room full of state attorneys general, that “…any overall solution [to online piracy] will need to include a plan of action at our nation’s colleges and universities.”

Piracy is a real problem for the nation’s entertainment industry. And institutional burden is a real problem for our colleges and universities. Who is to say which issue should take priority? Well, Congress.

But Congress is completely contradictory on this. Rhetorically it is opposed to burden, and members of Congress are running around town convening a task force on burden and funding a $1 million study by the National Academy of Sciences’ National Research Council on regulatory burden in higher education. But the same legislators have enshrined in law more and more disclosures and reporting requirements from colleges for decades. Let’s hope the new year finds them more willing to evaluate policies that could actually reduce paperwork for schools – and less susceptible to campaign donations as the election season heats up."