The Academic Expert before Congress: Observations and Lessons from Bill Van Alstyne's Testimony
Devins, Neal, Duke Law Journal
Between 1968 and 1985, Professor Bill Van Alstyne testified on seventeen occasions before congressional committees. (1) That testimony, as well as Van Alstyne's writings on academic freedom, serve as a template for academics who want to speak out on public issues. Van Alstyne not only wrote about academics' fiduciary duty to maintain "standard[s] of professional integrity," (2) but also served as living proof that an academic could live by this creed. His testimony was both scholarly and nonpartisan. Starting in 1986, however, Congress became less and less interested in hearing from Van Alstyne. He has testified only twice since 1985 and not at all since 1999. (3)
Why have congressional committees largely lost interest in hearing from Van Alstyne? For reasons I detail, attitudes in Congress toward academic experts have undergone a sea change. Over the past twenty-five years, committee staffers have increasingly turned away from nonpartisan, unpredictable academic witnesses like Bill Van Alstyne. The ever-growing divide that separates Democrats and Republicans explains this phenomenon.
Changes in Congress have been matched by changes in the academy. Today's academics appear increasingly partisan, increasingly political. Rather than defend (through word and deed) traditional understandings of academic expertise, they are increasingly willing to feign expertise to stake out positions on hot-button political issues. (4)
Let me begin by sharing a couple of stories--one from Van Alstyne and one from another friend of mine. Both stories center on their respective experiences before the Senate Judiciary Committee in the past few years. These stories, I think, put into focus the issues that this Essay will examine. Indeed, my decision to write this Essay was triggered by the quite different reactions that Van Alstyne and my other friend had toward Judiciary Committee Chair Orrin Hatch's apparent efforts to use committee hearings to advance partisan goals.
In 1999, after being asked by the committee to comment on proposed flag burning legislation, Van Alstyne wrote a letter in which he concluded that the act did not honestly serve a "constitutionally proper concern." (5) This position was contrary to Senator Hatch's political preferences, and the Senator concluded that the letter ought not to be published. Provoked, Van Alstyne distributed the letter to all members of the committee and, ultimately, Senator Patrick Leahy inserted the letter into the published hearings. In explaining why he had circulated the letter to the committee, Van Alstyne explained that he thought it wrong to squelch his views for partisan reasons. (6)
Three years later, Senator Hatch asked another friend of mine to testify. Hatch wanted testimony that would back up his position in an ongoing controversy involving the George W. Bush White House. My friend testified in a way that supported Hatch's views, prompting another witness at the hearing to tell my friend that Hatch owed him for preparing helpful testimony on short notice. Although I am certain that my friend worked diligently in preparing his testimony and that he believed in the correctness of his testimony, it is also clear to me that my friend understood and was not especially surprised by the fact that Hatch's staff contacted him because they thought he would prepare testimony that bolstered their position.
These stories show that today's academics see congressional hearings as increasingly partisan and politicized. Many of the experts now called before Congress consider themselves witnesses for Republicans or Democrats; that is, they see Congress as a highly partisan institution and the academic witness as someone who helps advance the agenda of one or the other party. Although partisanship certainly played a role in earlier hearings, today's Congress is much less interested in hearing from nonpartisan experts.
This Essay uses Bill Van Alstyne's experiences before Congress as a lens through which to contemplate larger changes in both Congress and the academy. …