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The End of Transparency (Before It Ever Began):

Earlier this week, the White House officially abandoned President Obama's "Sunlight before Signing" pledge (which I discussed here and here). As the NYT reported:

During the presidential campaign, Barack Obama promised that once a bill was passed by Congress, the White House would post it online for five days before he signed it.

"When there's a bill that ends up on my desk as president, you the public will have five days to look online and find out what's in it before I sign it, so that you know what your government's doing," Mr. Obama said as a candidate, telling voters he would make government more transparent and accountable.

When he took office in January, his team added that in posting nonemergency bills, it would "allow the public to review and comment" before Mr. Obama signed them.

Five months into his administration, Mr. Obama has signed two dozen bills, but he has almost never waited five days. On the recent credit card legislation, which included a controversial measure to allow guns in national parks, he waited just two. . . .

Now, in a tacit acknowledgment that the campaign pledge was easier to make than to fulfill, the White House is changing its terms. Instead of starting the five-day clock when Congress passes a bill, administration officials say they intend to start it earlier and post the bills sooner.

"In order to continue providing the American people more transparency in government, once it is clear that a bill will be coming to the president's desk, the White House will post the bill online," said Nick Shapiro, a White House spokesman. "This will give the American people a greater ability to review the bill, often many more than five days before the president signs it into law."

The Administration also appears to be backing off its promises for greater access to government documents under the Freedom of Information Act (FOIA).

One argument for modifying (abandoning) the "Sunlight before Signing" policy is that the public no longer has any meaningful opportunity to influence prospective laws once legislation has passed Congress. Yet this is only true if the White House does not intend to be responsive to public concerns. Further, the original pledge was about ensuring that the executive branch did its part to ensure transparency and accountability in government, and was never pitched as a substitute for actions Congressional leaders could take to increase legislative transparency.

The explanation of the policy change also presupposes that there is meaningful opportunity for public involvement while legislation is still pending and subject to revision. Yet as the debate over the Waxman-Markey climate change bill illustrates, this is not a fair assumption. As Jim notes below, the House is preparing to vote on an 1,000-plus-page bill that was subject to a 300-page amendment last night — an amendment that was not even available to many members of Congress until today. Most members of Congress have had no meaningful opportunity to read, let alone digest, the bill. The same is true for most legislative staff. Forget the public.

If legislation of this sort, which establishes the first-ever regulatory controls on the most ubiquitous byproduct of modern industrial society, imposes new efficiency requirements on all-manner of appliances and consumer products, could trigger the imposition of tariffs on foreign products (likely in violation of U.S. trade commitments), furthers the federal government's environmentally destructive love affair with corn-based ethanol, contains numerous provisions drafted or urged by various special interest groups, and (at least in one version) contained provisions designed to create a national housing code, can be adopted by a House of Congress within hours of being written (let alone becoming public), then any claim of transparency in government is a farce.

UPDATE: FWIW, the Waxman-Markey climate bill passed 219-212. Any guess how many of those 219 (or, for that matter, the 212) really know everything that is in the bill?

SECOND UPDATE: As it turns out, there was not even a copy of the final bill language available in any form when the bill passed. Rather, as David Freddoso reports, the House Clerk had a copy of the 1090-page bill that emerged by committee and a copy of the 300-page set of amendments agreed upon at 3am Friday morning, and many provisions in the latter consist of the likes of "Page 15, beginning line 8, strike paragraph (11) . . ." In other words, it is highly doubtful that more than a handful of member of Congress knew the contents of the legislation they voted on. (LvPL)

Eric Baker (mail):

As Jim notes below, the House is preparing to vote on an 1,000-plus-page bill that was subject to a 300-page amendment last night -- an amendment that was not even available to many members of Congress until today. Most members of Congress have had no meaningful opportunity to read, let alone digest, the bill. The same is true for most legislative staff. Forget the public.


Is this, too much writing to be read and retained before having to make a decision, a change from sop in the past? "Unwritten rules" and such.

Whether new or not, is there any move afoot to change it through binding rules (a law?) requiring more time?

I support a law that requires the lawmakers to read, aloud, the text of all legislation to the assembled lawmakers prior to voting. With 100% attendance required. I'd stop short of corporal punishment for anyone who fell asleep during the reading... but am open to persuasion on that.
6.26.2009 7:25pm
martinned (mail) (www):

If legislation of this sort (...) can be adopted by a House of Congress within hours of being written (let alone becoming public), then any claim of transparency in government is a farce.

Forget transparency. If this is the procedure, the bigger worry is about democracy.
6.26.2009 7:26pm
ruuffles (mail) (www):

I support a law that requires the lawmakers to read, aloud, the text of all legislation to the assembled lawmakers prior to voting. With 100% attendance required.

That in and of itself is cruel and unusual. I'd be satisfied with signing an oath under perjury (like on 1040s) swearing to have read it in its entirety before being allowed to vote.
6.26.2009 7:34pm
ruuffles (mail) (www):
And it just passed, 219-212.
6.26.2009 7:36pm
rosetta's stones:
I'm struggling to understand why Pelosi would want to put this up for a vote right now. The effort is a waste, certainly, as this isn't going anywhere, even if it does somehow pass today. I'm assuming she herself needs to be able to say she put it up for a vote, which tells me the kooks in San Fran are after her scalp to some significant degree. Overall, it just seems a strategic blunder, and a sign of weakness.

It'll be an even bigger blunder for these congresscritters, if it somehow wakes people up to the weird process they're engaging in. Transparency is working, in that case, just that the dupes themselves are being exposed.
6.26.2009 7:38pm
cboldt (mail):
-- Forget the public. --
.
Sums up the situation well, I think.
6.26.2009 7:39pm
martinned (mail) (www):

That in and of itself is cruel and unusual. I'd be satisfied with signing an oath under perjury (like on 1040s) swearing to have read it in its entirety before being allowed to vote.

Even then the question is what the point would be. These things can be pretty illegible, either because they consist of stacks of amendments to other statutes, or because they're ridiculously detailed. (Somehow I have the impression that US federal statutes are more detailed than statutes in other countries, but I could be wrong.)

In the end, the only fix is more parties. More political parties means more party discipline. More party discipline means that each party can simply appoint one or more specialists for a given area, who sit in the relevant committees and who, together with the party leadership, determine the party position. Even the European Parliament, which, by European standards, has very weak party discipline, still works with rapporteurs and shadow rapporteurs, who speak for the Parliament and for their party, respectively, in the negotiations over a bill. Once sufficient parties are on board to have a majority, the bill is normally passed. That way, the integrity of the vote is maintained without everyone having to study every bill.
6.26.2009 7:44pm
cboldt (mail):
-- It'll be an even bigger blunder for these congresscritters, if it somehow wakes people up to the weird process they're engaging in. --
.
ROTFL. Congress has no worry on that front. When the bill language is timely made public, the public doesn't read it (instead deferring to the press for summaries); and what part of the public does read it usually doesn't have a clue about what it says.
.
Working in secret poses no risk to Congress. See most Conference Committees.
6.26.2009 7:45pm
Volokh Groupie:
Why does every major bill signing nowadays seem like a Patriot Act redux?
6.26.2009 7:47pm
rosetta's stones:

In the end, the only fix is more parties. More political parties means more party discipline.


I go the other way. Add more members to the House. Make the proportion represented more like 100 years or so ago, before it was frozen. Nothing sacrosanct about 435 serving 3/4M each. Fire a bunch of staffers, and hire more congresscritters, and put 'em to work.




Working in secret poses no risk to Congress.


Agreed, but working slapdash and then adding 300 pages to a nonsense bill, after the bars close, then voting on them 12 hours later, is wonderful campaign fodder. Some among that 219 yeas are gonna lose their job over their vote today.
6.26.2009 7:54pm
martinned (mail) (www):

I go the other way. Add more members to the House. Make the proportion represented more like 100 years or so ago, before it was frozen. Nothing sacrosanct about 435 serving 3/4M each. Fire a bunch of staffers, and hire more congresscritters, and put 'em to work.

Sounds good to me, but that doesn't solve the problem of having everyone who votes read 1000-page bills or 300-page amendments, not to mention the problem of having them read and actually understand. On the contrary, more congressmen means more committees, more bills and more amendments = more for everyone to study.
6.26.2009 8:00pm
peacerebel (mail) (www):
I think congresscritters' salaries should be set and paid by their respective state legislatures. Same with their staffs except for staff related to house duties such as Speaker. And the states should pay rent for office space at the capitol.
6.26.2009 8:01pm
cboldt (mail):
-- Some among that 219 yeas are gonna lose their job over their vote today. --
.
I think the only ones at risk over their vote today are the eight GOP members who voted aye. And seeing as how this bill won't get through the Senate, even those eight have plently of opportunity to redeem their vote on this.
.
Agreed though, this issue and this vote makes good campaign fodder.
6.26.2009 8:03pm
martinned (mail) (www):
@peacerebel: And what purpose would that serve? Some restored federalism? I suspect that would be unlawful/unconstitutional. (I don't think members of Congress are supposed to be directly financially dependent on anyone, not even a state legislature.)
6.26.2009 8:05pm
Fub:
Eric Baker wrote at 6.26.2009 7:25pm:
I'd stop short of corporal punishment for anyone who fell asleep during the reading... but am open to persuasion on that.
How about a compromise? One day of listening to Vogon poetry for each offense.
6.26.2009 8:10pm
peacerebel (mail) (www):
Change the Constitution if necessary. My hope is it would remind them who they're supposed to be working for. (You mean as opposed to being financially dependent on lobbyists?)
6.26.2009 8:12pm
martinned (mail) (www):
@peacerebel: If you're going to change the Constitution, why not simply repeal the 17th amendment and go back to having senators appointed by the state legislature?
6.26.2009 8:16pm
rosetta's stones:

During the last votes of the day, Markey, Texas Rep. Gene Green — a very reluctant supporter — and Caucus Chairman John Larson leaned over Texas Rep. Henry Cuellar in a heated discussion until Cuellar finally shook Markey's hand and the huddle broke up. That scene played out again and again Thursday and Friday as Democrats felt the full weight of the White House and its leadership bear down on them.


More than 8 jobs will be at stake. Cuellar is from Laredo, and I knew of him a bit when I lived in that city, down in the Valley, but more importantly know of the moneyed interests who he don't dare offend down there... all gas and ag related. I'm sure the Stimulus money toting poverty pimps leaned on him heavily, because they got plenty of poverty down there, too, but it opens up a whole 'nother brand of trouble for him.
6.26.2009 8:18pm
peacerebel (mail) (www):
martinned: I'm perfectly okay with that, too.
6.26.2009 8:25pm
George Smith:
"A republic, if you can keep it" said Ben Franklin. Apparently we can't,
6.26.2009 8:28pm
Desiderius:
martinned:

"Forget transparency. If this is the procedure, the bigger worry is about democracy."

Hear, hear!
6.26.2009 8:30pm
Soronel Haetir (mail):
What I don't get about this particular pledge broken is 'why?" This seems like one of the few things that is completely and totally under the control of the POTUS. Why abandon such a simple thing when it just makes all the complicated things look that much worse?
6.26.2009 8:39pm
martinned (mail) (www):
@Soronel Haetir: Exactly. Also, how come all of Congress's paperwork isn't online yet? How hard is it to put all bills, at all stages, in an online database?
6.26.2009 8:43pm
John Moore (www):
When Obama promises something, it means nothing. That should be obvious by now. With a fawning press which often fails to even report his lies and contradictions, there is no check on this serial liar's behavior.
6.26.2009 8:46pm
Bruce Hayden (mail):
I think the only ones at risk over their vote today are the eight GOP members who voted aye. And seeing as how this bill won't get through the Senate, even those eight have plently of opportunity to redeem their vote on this.
I don't think this is accurate. The Democrats also voted, sight almost entirely unseen, for the almost $1 trillion "stimulus" bill that hasn't apparently done anything except greatly increase the deficit.

The problem for the Democrats is that a lot of the new 1st and 2nd term Democrats are sitting in seats held by Republicans just 4 years ago. These are mostly swing seats, and can just as easily swing back to the Republicans in 2010. Some are Republican districts, or at least districts carried by McCain (and most were carried by GW Bush). Some of these voted against these two bills, but many voted in favor. I suspect that many of them will regret their votes.
6.26.2009 8:47pm
ChrisIowa (mail):
The process is completely transparent. Its clear to everyone that no one has read the bill.
6.26.2009 8:54pm
geokstr (mail):
Where are all the usual leftward commenters on this site? Finally actually found a topic that is totally indefensible no matter how they spin, twist, or dissemble about it?
6.26.2009 9:18pm
mw713 (mail):
Time to make a new rule:

If your state is bankrupt, you shouldn't be eligible for a leadership position in the House or the Senate. If the rest of us have to pay your state's bills, you don't get to make decisions on our legislation.
6.26.2009 9:53pm
MarkField (mail):

Where are all the usual leftward commenters on this site? Finally actually found a topic that is totally indefensible no matter how they spin, twist, or dissemble about it?


Those of us on the Left Coast are just getting home from work, eating dinner, etc.

I think the biggest problem here is Congress, not Obama's campaign promise. Frankly, the promise was pretty meaningless; just one of those pabalum phrases politicians like to use. After all, a president only has 10 days to sign a bill anyway, and is presumably well-advised on any bill which passes.

The question is harder with respect to Congress. I personally favor a suggestion once made, IIRC, by Brett Bellmore: the bill must be publicly available in final form at least X (5 would be good) days before the vote. That would at least assure there's water in the trough, even if making the horse drink is a challenge (and a much greater one for horse's asses).

As a practical matter, though, I don't see any way for Members of Congress to have an informed opinion on each and every bill that comes up. This isn't a new problem; it's been getting worse every year since 1789. Congress does too many things for each Member to keep track of individually.

This means that everybody there is relying on indirect validation from others s/he trusts to make a decision. That's not a very good solution, but it IS practical.

By the way, those supporting changes in the number of House members might consider whether state legislators do a better job of actually reading bills. At least here in CA (not that we're much of a good example for anything), I seriously doubt that's the case. If that's generally true, it suggests that simply fiddling with the numbers isn't likely to change that. Reading a tax bill just isn't going to compete with exciting stuff like going out to dinner with your mistress.
6.26.2009 9:54pm
first history:
matinned:

Also, how come all of Congress's paperwork isn't online yet? How hard is it to put all bills, at all stages, in an online database?

It's been online since 1995; go to see Thomas, at the Library of Congress. You can search legislation, committee reports, nominees, roll call votes, the Congressional Record and treaties by keyword, bill number, sponsor, and Congressional sessions back to 1989. Some records go back to 1973. See here for the list of online records.

As someone has said, legislating is like making sausage. If you like your food, don't see a film like Food, Inc. If you like the result of legislation, why pay attention to the process?
6.26.2009 9:57pm
Toby:

As a practical matter, though, I don't see any way for Members of Congress to have an informed opinion on each and every bill that comes up. This isn't a new problem; it's been getting worse every year since 1789. Congress does too many things for each Member to keep track of individually.

Yep. There's yet another cogent argument for limited government. They can't bother to read it, yet give it the force of law. SHould all civilians get a pass on following the US law because "congress is doing too many things for citizens to kepp track of individually"
6.26.2009 10:04pm
Soronel Haetir (mail):
mw713,

Great idea, especialy if you don't even let them vote if their state is in the red. Right now there likely wouldn't be a quorum.


I think the biggest problem here is Congress, not Obama's campaign promise. Frankly, the promise was pretty meaningless; just one of those pabalum phrases
politicians like to use. After all, a president only has 10 days to sign a bill anyway, and is presumably well-advised on any bill which passes.


The point wasn't the information possessed by the President, the point was the information possessed by everyone else. Given the legislative process what Obama promised would have given everyone a chance to see the bill as actually passed before the legislation got signed. With the number of times people have turned around and claimed ignorance of what was signed such a move could only be a Good Thing. Perhaps a bill would only rarely get vetoed for something snuck inat the last moment but at least people would be called to account for it.

I see five days of comment plus four to digest the comments as reasonable given the way bills transform during the crafting process. And yes, the way legislation simply amends the current United States Code striking words here and adding paragraphs there does not make for a product that can actually be read in the usual case.

I wonder if there is a service that could automate showing what the U.S.C. would look like if any particular bill were signed.
6.26.2009 10:11pm
Psalm91 (mail):
MF:

Those of us on the Left Coast are just getting home from work, eating dinner, etc."

Yes, we are working all day out here. This is just the end of the world, the worst thing ever....again. Nothing like this ever occurred under Tom Delay.
6.26.2009 10:11pm
Soronel Haetir (mail):
What bothers me more than some/most members not having read the bills is that in cases like this I doubt any of them have a grasp on every element. I'd at least like there to be /one/ person voting on the damn thing who knows every single thing in it inside out, but when you get 300 pages of amendments at the last minute on top of everything else I doubt anyone has a clue what the thing actually says.
6.26.2009 10:20pm
Allan Walstad (mail):

Congress does too many things for each Member to keep track of individually.

Under the Constitution, Congress does NOT have all that much to do. The feds are limited to a few enumerated powers, with all else reserved to the states. They operate light-years outside those limits. I don't have a solution, because once the lawlessness becomes entrenched there is no actual power to stop it. But simple honesty and respect for the Constitution would require informed people to object, rather than babble on superficially about how this pol or that pol can't be trusted. They CAN be trusted--to be pols.
6.26.2009 10:29pm
Eli Rabett (www):
Lawyers arguing that laws are too complex? Strikes me much like rich folk and corporate types arguing that the regulations about what is taxable income is too complex after they have paid their lobbyists zillions to make sure.

Cry me a river
6.26.2009 11:05pm
MarkField (mail):

This is just the end of the world, the worst thing ever....again. Nothing like this ever occurred under Tom Delay.


Yeah, he would never allow something like the Commodity Futures Modernization Act to pass.


I'd at least like there to be /one/ person voting on the damn thing who knows every single thing in it inside out, but when you get 300 pages of amendments at the last minute on top of everything else I doubt anyone has a clue what the thing actually says.


I suppose it's possible someone does, though it's hard to know. As I said, I think there ought to be a 5 day holding period before passage, which would solve both this problem and the issue of Obama's promise.


Under the Constitution, Congress does NOT have all that much to do.


It had a LOT to do even, or especially, in the beginning. It had to establish and organize the 4 Cabinet offices (State, Treasury, War, AG); come up with a full tax code; decide whether to assume state war debts and whether to fund the debt; pass a judiciary act (which is still in effect in many cases); and do a lot more besides. Nor were Congresscritters any more responsible then than they are now (Madison and a few others excepted). Lots of them never made the session due to travel and personal issues, and those who did were just as happy to use up their per diems at nice restaurants as they are today. I'll bet many of them never read the bills then either; it's not like human weakness is a new thing.
6.26.2009 11:07pm
An:

I understand there were 'place markers' in this bill. Can someone tell me how, in God's name, they can vote on a bill thats not even finished?
6.26.2009 11:13pm
Allan Walstad (mail):
MarkField--I'm curious as to how many pages long the bills were in the first few Congresses, and how many bills there were. The more the feds are doing, the harder it is for people to keep track--that old "rational ignorance" thing. The harder it is for people to keep track, the less likely pols will be held accountable, and the more politics devolves into buying off an array of special interests (with their own money, of course).

Anyway, don't you think your list of projects c. 1790 sounds like pretty small stuff compared with the vast array of bureaucracies and enterprises involved in thousands of pages of legislation these days? How many people altogether do you suppose were working in the federal bureaucracy compared with, say, the Department of Motor Vehicles of the State of North Dakota today?
6.26.2009 11:29pm
Sarcastro (www):

This is just the end of the world, the worst thing ever....again

Listen, that Franklin "if you can keep it" quote is too awesome to break only at the real end. Same with the "they can vote themselves money from the Public Treasury" quote.

We need to keep declaring goodbye sweet America or else those quotes will die!

I would like to close by agreeing with John Moore that the only thing more horrible than the fact that Obama has kept none of his promises is how he keeps pushing through legislation that keeps his promises!

[Though this lefty is pissed a the lack of transparency.]
6.26.2009 11:34pm
MarkField (mail):

I'm curious as to how many pages long the bills were in the first few Congresses, and how many bills there were.


Fair questions, but I don't even know how to find the answers (at least not easily).


Anyway, don't you think your list of projects c. 1790 sounds like pretty small stuff compared with the vast array of bureaucracies and enterprises involved in thousands of pages of legislation these days?


I think that creating an entire tax code from scratch was pretty complex even in those days (it mostly involved tariff rates on specified products). However, I suspect bills were written much more generally in those days and would have been shorter than if we wrote the same bill today. That's conceptually easier, but it leaves more discretion to courts and the Executive.
6.27.2009 12:26am
Allan Walstad (mail):
Mark--ok, thanks for the response. I may poke around a bit to see how much verbiage the earlier Congresses were generating, just out of curiosity. Right now it's past my East Coast bedtime.
6.27.2009 12:54am
John Moore (www):
Sarcastro:

I would like to close by agreeing with John Moore that the only thing more horrible than the fact that Obama has kept none lied in many of his promises is how he keeps pushing through legislation that keeps his other promises!


Fixed
6.27.2009 1:14am
cboldt (mail):
-- I may poke around a bit to see how much verbiage the earlier Congresses were generating, just out of curiosity. --
.
A very rough proxy for that is obtained by reviewing Questions asked in US Census: 1790-2000.
6.27.2009 1:52am
Volokh Groupie:

Lawyers arguing that laws are too complex? Strikes me much like rich folk and corporate types arguing that the regulations about what is taxable income is too complex after they have paid their lobbyists zillions to make sure.

Cry me a river


I'm not sure what part of transparency and the lack of availability of legislation that is up for vote pertains at all to this comment. And that is what this post and comments were about.

Keep up with the actual post before posting this dribble.
6.27.2009 2:23am
cboldt (mail):
-- What bothers me more than some/most members not having read the bills is that in cases like this I doubt any of them have a grasp on every element. --
.
One thing that bothers me more than either of those two points is that, in many cases, what they read stands for (says) something different from what the legislator/reader CLAIMS it says. I have seen examples ranging from mild error to "critical confusion" (the language does the opposite of what the opponent/proponent claims). Scare quotes around "critical confusion" because I expect the orator isn't really confused, but rather is engaged in a snow job on the public.
.
Another point that bothers me more is that Congress presumes that every issue is properly and best a federal issue. There is virtually no serious challenge to legislating based on the question, "do we have this power as against the states," and only rarely "do we have this power as against the Courts (or the exec)?"
.
Technically, I should say that I'm less bothered than amused. Congress claiming it can "fix" what ails the US. Hahahahah. All they are doing is lining their own pockets, and drawing in as many enablers to share the booty as it takes.
6.27.2009 2:29am
cboldt (mail):
-- I understand there were 'place markers' in this bill. Can someone tell me how, in God's name, they can vote on a bill thats not even finished? --
.
It's impossible to discuss this issue without a cite to what you term a "place marker." The phrase "place marker" is commonly used to characterize legislation that is "half done" on purpose - legislating this far, then wait and see how it works. In other words, the "place marker" bill itself is finished, and any gaps are by design, either to get passage, ostensibly as a matter of prudential care, or to work within an annual budget.
.
The House has also been known to vote on a bill that they KNOW will be (literally) completely gutted by the Senate. This was so with FISA.
6.27.2009 2:41am
Tom Grant (mail):
The public be damned.

As to the question: Not one of them has read it. None of their staffs has read it.

Maybe some of the lobbyists.

Vote them all out.
6.27.2009 2:54am
Kazinski:
Obama is also breaking his promise to not to let political factors trump the science. The EPA is suppressing an internal EPA review of climate change that varies with the flawed IPCC view.


A source inside the Environmental Protection Agency confirmed many of the claims made by analyst Alan Carlin, the economist/physicist who yesterday went public with accusations that science was being ignored in evaluating the danger of CO2.

The source, who chooses not to be identified for fear of retaliation, said that Carlin was rebuffed in his attempt to introduce scientific evidence that does not accord with the EPA's view of global warming, which largely relies on IPCC reports. The source also saw Carlin's report and said that it was 'based on 8 points of peer-reviewed, recent and relevant scientific publications' that cast doubt on the wisdom of regulating CO2 as a pollutant.

The EPA's draft Endangerment Finding was initially written over a year ago during the Bush administration, and Lisa Jackson (the new head of the EPA) and her team wanted to get the Finding out on or near Earth Day, according to a schedule that was made public about a week before formal publication of the proposal. The draft was submitted to agency workgroups with only one week for review and comment, which is unprecedented, and received only light comments--except for Carlin's.
6.27.2009 3:03am
mad_as_H (mail):
1. Citizen review of all their expense accounts.
2. Stop paying taxes.
3. Start local - go national.
4. Call them EVERY DAY.
5. FORCE them to spend ONE HALF of their time in their respective state and NOT in DC.
6. KEEP SCORE on their voting record. Don't pay attention to political ads. Real Clear Politics is a good place to start.
7. Do anything you can to defeat Liberal Politicians (95% who are Democrats), including donations to their opponents in the next election cycle.
8. ESPECIALLY VOTE OUT THE POLITICAL TALKING HEADS WHO APPEAR ON CNN, AND OTHER NAZI NEWS CHANNELS.
6.27.2009 3:11am
Ridge_Runner:
It has been many decades since Congress passed legislation and the executive agencies promulgated regulations in a way which allowed for meaningful digestion of the content by the nominal gatekeepers. All of this stuff is pushed through by enablers, sponsors, "keepers" (for the many terminally stupid gatekeepers, aka "empty suits"), who help to maintain the illusion that this continental commercial Empire with a globe-spanning military establishment and pro-consuls calling the shots from hundreds of military bases and "security agency" redoubts in client states is still a well-ordered republic.

Y'all just noticed that it's not? Well, better late than never.
6.27.2009 4:27am
martinned (mail) (www):

It's been online since 1995; go to see Thomas, at the Library of Congress. You can search legislation, committee reports, nominees, roll call votes, the Congressional Record and treaties by keyword, bill number, sponsor, and Congressional sessions back to 1989. Some records go back to 1973. See here for the list of online records.

If it's all already online, what was the point of Obama's promise???
6.27.2009 5:49am
george andersen (mail):
Why am I not surprised. This administration is all about results, not process. Unfortunately for us mere citizens, the results they seek may have far reaching and lasting consequences. Thus for us, it should be all about process. I still have hope that my fellow citizens will awaken before Benjamin Franklin's veiled prophecy comes true, here paraphrased as: we have created a representative democracy, madam, if you can keep it.

I find it interesting that Obama decried Bush's strong executive, but now in power he appears to consolidate his own power. I also question his Con Law background. Maybe I missed it, but I have heard no discussion from him or his surrogates about the Constitutional impact of his legislative agenda - perhaps it will come out when he tries to assert his idol's "Second Bill of Rights"?
6.27.2009 7:00am
alanstorm (mail):

As a practical matter, though, I don't see any way for Members of Congress to have an informed opinion on each and every bill that comes up...Congress does too many things for each Member to keep track of individually.


That's part of the problem. THAT'S THEIR JOB, and they aren't doing it. If you look around at various members' sites, you will notice that they are involved with all sorts of fluff, like resolutions to declare March as National Baby Food Appreciation Month or other timewasters. Now, if they would restrict themselves to those items, that would be fine. Or, they could actually pay attention to the country's well-being. So far, the evidence says that they are failing at doing both.


Frankly, the promise was pretty meaningless; just one of those pabalum phrases politicians like to use.


Maybe, but it's also one ridiculously easy to keep. If he can't manage that...well, I had no confidence in this dunce to begin with, and so far it appears I overestimated him.
6.27.2009 7:23am
Federal Dog:
"As a practical matter, though, I don't see any way for Members of Congress to have an informed opinion on each and every bill that comes up. This isn't a new problem; it's been getting worse every year since 1789. Congress does too many things for each Member to keep track of individually."

As a practical matter, this is an obvious way to effectively limit the function of (and damage done by) government. If legislators have no firsthand knowledge of legislation, and no informed opinion based on that knowledge, they may not vote.

Full stop.

The fact that this will result in enactment of only a fraction of proposed legislation is a feature, not a bug.
6.27.2009 7:25am
martinned (mail) (www):
I only noticed this one now:


On the recent credit card legislation, which included a controversial measure to allow guns in national parks,

IIRC, in the British House of Commons, the Speaker, who is supposed to be highly impartial, traditionally has the power to rule certain amendments out of order, on the grounds that they had insufficient connection with the subject of the bill. In the US, the procedure rules seem to favour sticking all sorts of strange amendments onto bills. Maybe that should be examined. (Although I suppose not much can be done about amendments inserted in order to get them past the presidential veto.)
6.27.2009 8:20am
cboldt (mail):
-- If it's all already online, what was the point of Obama's promise? --
.
The promise was one of timing of availability, not availability per se.
.
The reason legislators (and often the executive, which has more control over and direct input to statutory language than the public thinks/knows) delay making details available is to limit the opportunity, duration and ability of the public to object. Issues that are "in the mind" for a short time are more easily forgotten and/or replaced with new crises. A sophisticated form of "crowd control" if you will.
.
When a politician says "more transparency," it's code for "more smoke and mirrors." Giving passed legislation a 5 day layover before sign into into law is a nearly useless form of transparency anyway. Breaking this promise does no harm, it's just one of many examples of a politician saying something that sounds good, and the people falling for it.
6.27.2009 8:24am
cboldt (mail):
-- IIRC, in the British House of Commons, the Speaker, who is supposed to be highly impartial, traditionally has the power to rule certain amendments out of order, on the grounds that they had insufficient connection with the subject of the bill. In the US, the procedure rules seem to favour sticking all sorts of strange amendments onto bills. --
.
Similar rules are in place in the US legislative process. Depending on the subject matter and procedural posture, the rules have facilities for waiver, in the unlikely event a legislator objects to a provision on grounds of germaneness. The rules absolutely do not favor hybrid/multi-issue bills or extraneous provisions. Issues are combined in the US as a part of the normal political process of give and take across issues - you scratch my back on this and I'll scratch yours on that. A legislator who demands sticking to the rules will find his own power cut.
.
For an extreme example, there is a Constitutional provision that all bills for raising revenue (tax the people) absolutely must originate in the House. I have seen instances where the Senate presented the first/original language for a revenue-raising bill, and in order to "satisfy" the constitutional requirement of House-first, the Senate "substituted" its language into a totally unrelated revenue bill that had already been passed by the House. This is trivially easy, and the House passes scores of bills that sit around the Senate waiting for action. A "legislative vehicle" (House bill that will be gutted) is always available for this maneuver.
.
My point being that legislators view rules as things to be gotten around or broken. Rules and laws only apply to the little people.
6.27.2009 8:36am
george andersen (mail):
Another thought...

Every lawyer knows that he/she has deadlines. These deadlines serve two, perhaps three, purposes: order in the court system; proper preparation before argument; and fairness. Why should our legislators be held to a lesser standard? Anything worth doing on a national level is worthy of consideration, and passing bills that nobody has read, and which have 300 page amendments added to them in the middle of the night before they are to be voted on, seems to me to violate due process, at least as contemplated by the Framers, if not as interpreted by the Courts. Perhaps the Court should, in this limited area, assert its power, through the Constitution, over the legislature. While the legislature is preeminent among equals, perhaps the courts should exercise some oversight as to process. I am aware of the long history, starting with Marbury v Madison, of the autonomy of the three branches. However, the reasoning is flawed, or at least incomplete, as made evident by our current predicament. While Congress and the Executive seek to make the entire private sector accountable to them, and the Executive already appoints and Congress oversees judges through its power of impeachment, Congress's power has become more autonomous and Congress as a result has correspondingly seen its role as an decider, even a dictatorial crafter of public policy, rather than an implementor of its constituencies' various wills. Congress's power was increased exponentially by the 17th Amendment, pursuant to which (and ignored by all law schools, which also seem to be outcome rather than process driven) Senators became answerable to the public rather than the Several States. Direct election of Senators had two, hopefully unintended consequences - it simultaneuosly reduced the power of the Several States while increasing the power of individual Senators by allowing them to campaign among the public.

I am aware of the much maligned Supreme Court decisions between the Civil War and the "switch in time that saved nine". However, this country was founded because the the English government saw its colonists as mere sources of revenue, thereby abrogating its implied and perceived by its governed's contract to provide order at a reasonable price without micromanaging their lives. Thus, as the national conscience groped with the fundamental unfairness of treating people people as chattel, the Court, in its limited wisdom, tried at the same time to absolutely protect property rights.

The conservatives are correct in their assertion that we have an activist Court as far as public policy is concerned, and Roosevelt's dogma continues to wield tremendous influence. However, they are incorrect in their perception as to checks and balances.
6.27.2009 8:48am
rosetta's stones:
Please. There is no comparison between the governing style in 1789 and today's. We have long since made the clear departure that exists today. They had to work soberly and efficiently back then, and with sparse documentation, promoting arguments over principle. That mattered then, and used to matter even 100 years ago, when Senators would argue first over Constitutionality, then get to legislating. How quaint, eh?

And photocopying and word processing and personal computers have compounded the madness. Previously, communications and transmittals and publications were husbanded, and economized. We all thought 30 years ago that we were moving to a paperless society, with freer information flow, in our workplaces and everywhere else, while still retaining the previous husbandry. HA.

Originally, it resulted in the total paper mass rising an order of magnitude. Freer, yes, but it encouraged sloppiness and inefficiency, which the congresscritters are still stuck in, even if the rest of us have evolved away from that foolishness (I hope). So, they pull an all nighter and crank out 300 pages sorta like their college days, because they know they can, and don't have to act soberly, plus they want to game the system, and not allow the opposition to easily scan the information and hammer them over it.

Time constraints would be a good move, and fair for everybody, and would promote sobriety and principled consideration:



Body publishes final bill

Review period = 10 business days min.

Any changes? ===> 10 more business days.

Final bills voted within the body, and published.

Reconciliation, and reconciled final bill published.

Reconciled final bill review period = 10 business days min.

Reconciled final bill voted within each body.

Approved reconciled final bill review period = 10 business days min.

Send bill to the Executive.



Still plenty of room for shenanigans, especially in the reconciliation process, but public publishings, and time constraints for watchdog review, are the best you can hope for in restraining the unrestrained.
6.27.2009 8:54am
cboldt (mail):
-- Perhaps the Court should, in this limited area, assert its power, through the Constitution, over the legislature. --
.
ROTFL. What's the case or controversy? Plus, Courts are already given the "power to legislate" by Congress - when Congress produces vague language and delegates authority, some other organization takes up the controls. See Federal Reserve (which is as much a branch of the Federal government as Federal Express is).
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There is no orderly way to rein in an out of control government. It either fixes itself, or it collapses. History is littered with examples. In the case of the US, I have adopted the approach that I will vote for the person who promises the biggest handouts from other people's pockets.
6.27.2009 9:04am
Ben P:

I'm not sure what part of transparency and the lack of availability of legislation that is up for vote pertains at all to this comment. And that is what this post and comments were about.

Keep up with the actual post before posting this dribble.


I thought it was at least tangentially relevant. Not in the politics of the comment, but it's substance.


Do you really think that your average congressman who is a lawyer, a local businessman, or a lifelong politician has enough expertise to even know how to go about drafting complicated legislation?


Particularly in complicated areas much of the "drafting" process is illusory, and congresspeople rely on outside experts many of whom are *gasp* lobbyists, in order actually get the text of legislation. Then it goes to committee where people get to complain about provisions they don't like and congresspeople then insert provisions their people like to placate their own supporters.
6.27.2009 9:05am
Duracomm (mail):
Eli Rabett and Sarcastro,

I guarantee that this bill will increase environmental destruction not reduce it.

The ethanol provisions in the bill are one thing that will drive this destruction. Who knows what other environmentally destructive provisions are buried in the thing.

But that is what you get when you cheerlead the passage of a global warming bill without bothering to take a look what it contains.

And at this point nobody really knows what is in this bill.
6.27.2009 9:07am
Bill Harshaw (mail) (www):
0 = Number of commenters on this post who have read all the terms of their EULA's before agreeing to them

0 = Number of commenters on this post who have participated in the OSTP sessions on transparency.
6.27.2009 9:11am
Cheap Energy (mail):
This energy bill, and the upcoming health care bills, will clearly ensure a previously unheard of degree of government intrusion into the everyday lives of Americans. The loss of individual liberty, and privacy, will be profound. The damage to the economy will be permanent - it is now almost certain for instance that the $40 Trillion dollars in Medicare liabilites cannot be paid.

There is no constitutional basis for such laws (don't bother to hide behind ridiculous Commerce Clause rulings). So they will further, and significantly, erode respect for the rule of law.

(I know that for me, Congress has pretty much zeroed out any moral authority they may have once had. Its all about coercion now.)

If a Republican administration had proposed seizing such powers, and invading individual privacy and rights to such a degree, the Left would be up in arms, crying fascism. Instead, from the Left we have silence or enthusiastic support.

You may come to regret having given the government such powers.
6.27.2009 9:14am
rosetta's stones:

And at this point nobody really knows what is in this bill.


That's why all the arm twisting, and presumably payoffs, to the arm twistees.

Carrots and sticks used to pass legislation... publicly displayed... not behind the scenes as per normal.

The arm twistees know of the risks, because they don't know what's in that bill. It could contain language like from that old movie, where the el sleazo caudillo dictator mandates that underwear is to be worn on the outside.

When the arm twisting and payoffs are out in the open, you know the sh!t is bad. I'd hope everybody, on all sides of this, recognizes that fact. This is bad governance, even worse than normal.
6.27.2009 9:16am
martinned (mail) (www):

Issues are combined in the US as a part of the normal political process of give and take across issues - you scratch my back on this and I'll scratch yours on that.

That's the nature of politics, and rightly so. That is how you achieve a pareto improvement for all involved. But only in the US do these compromises across wildly different areas of policy get combined into a single act. I'd say that is because it is easier to put an amendment (say, about guns in national parks) into an existing bill than to simply turn it into a separate bill. The latter exposes the law not only to a presidential veto, but also to vetos by all sorts of other key players along the way, not to mention delay.

In most other countries I know of, a compromise law like the guns in national parks thing would simply be put in the legislative agenda for the year and passed as a separate bill. But the procedures etc. of US Congress make that difficult.
6.27.2009 9:52am
cboldt (mail):
-- 0 = Number of commenters on this post who have read all the terms of their EULA's before agreeing to them --
.
I think that's a really good point. Most people don't read them because they figure they'll abide by them, and if they don't, they won't be caught, and if they are caught, the penalty isn't serious.
.
Congress is in a similar pattern, inasmuch as they are not (much if at all) detrimented by their own legislation (and are sometimes enriched by it). Hence, there is no -personal- reason to read the legislation, other than sufficiently to be able to obtain reelection from their constituents.
.
-- 0 = Number of commenters on this post who have participated in the OSTP sessions on transparency. --
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I used to inform my representatives and senators of facts they had misstated, and errors in their own logic that would reverse the way they would vote on an issue. Then I figured out it was a complete waste of time. OTOH, if I had big bucks, I could buy legislation.
6.27.2009 9:58am
cboldt (mail):
-- ... it is easier to put an amendment (say, about guns in national parks) into an existing bill than to simply turn it into a separate bill. --
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As a matter of procedure, it is no easier and no harder. Either way there is a certain amount of writing, debate, and a vote. There is a separate vote on this amendment, for example.
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Combining the gun provision with the CreditCard bill made it difficult for Democrats to vote NO, and made it difficult for the president to veto the bill. If the gun provision had been taken up as a stand-alone, it would have failed for political reasons.
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-- a compromise law like the guns in national parks thing would simply be put in the legislative agenda for the year and passed as a separate bill. But the procedures etc. of US Congress make that difficult --
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The procedures pose no impediment at all. The impediment is political. This was a contentious political issue that would not be brought up by the Democrats, who (other than amendment) have complete control over the contents of legislation brought up for debate and vote.
6.27.2009 10:04am
Laurence Dale (mail):
Speaking of the rushed vote on the global warming bill in the House of Representatives yesterday, check out this Onion-style parody entitled: "Democrats Force Quick Vote on 'Cap and Tax' Legislation, Citing an 'Escalating Skepticism Crisis' Regarding Climate Warming Theories: www.optoons.blogspot.com (June 27 entry)
6.27.2009 10:08am
Bruce Hayden (mail):
When the arm twisting and payoffs are out in the open, you know the sh!t is bad. I'd hope everybody, on all sides of this, recognizes that fact. This is bad governance, even worse than normal.
The question arises then, why the remarkable hurry here. Last time around, the argument for passing a bill before anyone could read it was that it was that urgent, in order to save the economy. Now, maybe 4 months later, most of the "stimulus' money hasn't been spent, no jobs have likely been saved, but not that many lost either (yet), because of that, and we are left asking why the big hurry that time?

This time, Nancy Pelosi and crew didn't even have that excuse as a fig leaf. Whatever damage is supposed to be happening has been going on for more than any of our lifetimes, and waiting another couple days, or even weeks, so everyone can know what they are voting for or against isn't going to have a detectable effect on the situation, even if you accept Al Gore's drug induced fantasies as the reality of the situation.

My first thought was that this was the naked use of power. The Democrats won, and so their leadership is going to exhibit their power.

Another idea though is that the bill was rapidly losing support as more and more Americans realized what was afoot. We don't know what's in it yet, but I have no doubt that it is full of a lot of manure. Who got free allotments and who didn't? This was likely industrial policy written large. And, of course, there is the problem of why did some industries score big, and others not? And that leads to the question of who paid whom off, when, and for how much? The longer and more extensive the review, the more manure would be evident, and who paid whom for what.
6.27.2009 10:08am
Psalm91 (mail):
Lots of complaining but not much analysis or actual work here. Lots of consternation but no persperation. There must be some conservative counterparts to Marcy Wheeler and Glenn Greenwald and others who actually read and analyze documents and records.

1. Someone wrote the legislation. Who did it? This can be determined. If it is a 300 page last minute amendment, check the record to see where it came from, and so on.

2. It is not credible to assume that all of the energy lobbyists, paid millions of dollars, do not know what is in every bill, every amendment, every vote, and so on. Lobbyists wrote all of the significant legislation in their subject area during the Bush era. Who is writing it now? Critics can get some answers.
6.27.2009 10:13am
rosetta's stones:
"Last time around, the argument for passing a bill before anyone could read it was that it was that urgent, in order to save the economy. Now, maybe 4 months later, most of the "stimulus' money hasn't been spent..."

Some of it was "spent" in passing this bill yesterday. That's the evil of that stimulus nonsense... it's being used to leverage additional bad legislation... to buy votes for it.

How's that working out for you?

Again, nobody, on any side of this, should be happy with this process.
6.27.2009 10:16am
martinned (mail) (www):

This was a contentious political issue that would not be brought up by the Democrats, who (other than amendment) have complete control over the contents of legislation brought up for debate and vote.

My point exactly. (Otherwise, I'd say I simply used a somewhat wider definition of "procedure" than cboldt did.)
6.27.2009 10:21am
Ben P:

That mattered then, and used to matter even 100 years ago, when Senators would argue first over Constitutionality, then get to legislating. How quaint, eh?



Where's the Congressional record of argument over the constitutionality of the alien and sedition act? Specifically how many federalists were concerned? (I'll take it for a given the anti-federalists thought it was probably unconstitutional, most likely because it was being advanced by the federalists)
6.27.2009 10:37am
BGates:
Bill:
0 = number of people besides myself who are bound by my agreement to an EULA

300,000,000 = number of people outside of Congress who are bound by their decisions

not much analysis or actual work here
in the 26 hours since the 300 page amendment was introduced? No, there's been exactly as much analysis in this blog comment thread as there was in the House of Representatives. Only a fool could think that reflected worse on us.
6.27.2009 10:42am
rosetta's stones:
Ben, not to say that they argued comprehensively back then, or arrived at the correct answer, but the guys who just voted to regulate just about everything that ever wept, crept or crawled didn't appear to argue a whit over Constitutionality.
6.27.2009 10:59am
MarkField (mail):

That's part of the problem. THAT'S THEIR JOB, and they aren't doing it. If you look around at various members' sites, you will notice that they are involved with all sorts of fluff, like resolutions to declare March as National Baby Food Appreciation Month or other timewasters. Now, if they would restrict themselves to those items, that would be fine. Or, they could actually pay attention to the country's well-being. So far, the evidence says that they are failing at doing both.


The problem is, that's not their only job. They also have the job of reading other bills; tending to constituents; raising money for re-election; and drinking and whoring. Ok, that last part is cynical even if partly true.

My point is that you're not allowing for human nature here. In my experience, it didn't matter whether the teacher assigned War And Peace or The Old Man And The Sea, half the students read the Cliff Notes and some didn't read anything at all. That's the way people are, and there's no way to enforce the reading. What are we going to do, give an extensive test before each vote?


Where's the Congressional record of argument over the constitutionality of the alien and sedition act?


While the original point was overstated, there was debate about the constitutionality of the Alien and Sedition Acts. You can find all those old debates here.
6.27.2009 11:02am
Kirk:
I support a law that requires the lawmakers to read, aloud, the text of all legislation to the assembled lawmakers prior to voting. With 100% attendance required. I'd stop short of corporal punishment for anyone who fell asleep during the reading... but am open to persuasion on that.

Let's work on this!

1. Define a quorum as a certain percentage of members seated.

2. If a member falls asleep during the reading, he/she is expelled from the chamber for the duration of the reading.

3. Whenever the number of members present during the reading falls below a quorum, and thus the bill cannot possibly pass, the entire process must be restarted (or the bill can be abandoned, of course.)

But even w/o my modifications, think of the beneficial effect the mere act of having to read the entire thing out loud would have on the volume of legislation passed!


ruuffles, the problem with your suggestion is how to enforce it. Eric's proposal has the great advantages of being fairly understandable and transparent.
6.27.2009 11:03am
martinned (mail) (www):

But even w/o my modifications, think of the beneficial effect the mere act of having to read the entire thing out loud would have on the volume of legislation passed!

Well, they would go back to writing simpler statutes, which leave more room for interpretation to the executive, the courts and the states. Is that really something y'all would want?

P.S. Kirk: Given that you recently argued that the press should have no special rights, what do you think of this one?
6.27.2009 11:11am
inmypajamas:
The problem is, that's not their only job. They also have the job of reading other bills; tending to constituents; raising money for re-election; and drinking and whoring. Ok, that last part is cynical even if partly true.

My point is that you're not allowing for human nature here.


Wow, I wish I had a job where my boss would make allowances for my not doing the job I was paid for because of "human nature". In the private sector, when you don't do your job, you're fired. Honestly, if you have that many excuses as to why you just can't get to your core responsibilities, you're in the wrong job.
6.27.2009 12:02pm
martinned (mail) (www):
@inmypajamas: I think the point was that it quite simply cannot be done. It's not just about the reading. Reading bills and amendments without further research is pointless. To fix this, Congress either needs internal specialisation, which they have to some extent through the use of committees, or they need to pass simpler or fewer bills. Simpler bills means more freedom for the executive, the courts, and the states, and fewer bills either means increased federalism, which is unlikely, or a kind of unregulated society that is only possible in some libertarians' wet dreams.
6.27.2009 12:06pm
Federal Dog:
To fix this, Congress either needs internal specialisation, which they have to some extent through the use of committees, or they need to pass simpler or fewer bills.
6.27.2009 12:17pm
RPT (mail):
"BGates:

not much analysis or actual work here

....in the 26 hours since the 300 page amendment was introduced? No, there's been exactly as much analysis in this blog comment thread as there was in the House of Representatives. Only a fool could think that reflected worse on us."

The point was that the amendment did not come out of thin air. Who drafted it? Who introduced it? Why didn't Boehner read the whole thing? Are you telling us that the corporate lobbyists were caught by surprise?
6.27.2009 12:19pm
rosetta's stones:
Simpler bills means more freedom for the executive, the courts, and the states, and fewer bills either means increased federalism, which is unlikely, or a kind of unregulated society that is only possible in some libertarians' wet dreams.

No true "freedom" is granted by legislation. In practice, legislation today removes freedom.

The executive and the courts have the limited powers the Constitution sets out, not "freedom". This is not a race to power.

Increased federalism is made unlikely by processes which we witnessed yesterday, and made further unlikely by facile analysis of falsely presented polarities, as the mythical "unregulated society" presents.
6.27.2009 12:30pm
Soronel Haetir (mail):

What are we going to do, give an extensive test before each vote?


Works for me. You don't know what you're voting on, you don't get to have a say. The committee members whose name name is on the measure get an even more extensive test.
6.27.2009 12:30pm
Bruce Hayden (mail):
Why didn't Boehner read the whole thing
My understanding is that he read until he was cut off, after completing his (or the Republican's) allotted time. You can blame the Republicans for a lot of things, but I don't think that you can blame them for the lack of transparency here.
6.27.2009 12:41pm
Volokh Groupie:

I thought it was at least tangentially relevant. Not in the politics of the comment, but it's substance.



The substance was about the amount of time that a particular bill was up online before being voted on (something which those who refer to Thomas seem to be glossing over). Completely ignoring that and trying to trivialize/apologize for it by saying 'well these people are lazy idiots who won't read it anyway' is a spin. It's spin when republicans passed the 350 or so odd page patriot act under the guise of national security and its the same spin that those sympathetic to this administration are trying to use.



Do you really think that your average congressman who is a lawyer, a local businessman, or a lifelong politician has enough expertise to even know how to go about drafting complicated legislation?


Don't be disingenuous if you want to be taken seriously. I assume anyone on this blog knows that each senator and congressman is assigned a budget to hire staffers who typically have a wide range of competencies and are the ones who will be doing the reading and giving a summary. Additionally, most subcommittees have multiple staffers whose specific expertise DOES revolve around those topics and who are usually able to inform the reps of varying politics. Even worse is that your apologism is obscuring the fact that not only are these bills not available to congressman but additionally to the public. With the proliferation of blogs runs by SME's in every area from science to farming to economics there would literally be almost instantaneous feedback from people ranging from joe romm to roger pielke to jeff sachs---who are experts. Congressmen today rely on those experts and those public sources of analysis. There is really no defense for not posting what a document to a pdf file and putting it on a site even if you can't upload it onto Thomas for whatever reason.




Particularly in complicated areas much of the "drafting" process is illusory, and congresspeople rely on outside experts many of whom are *gasp* lobbyists, in order actually get the text of legislation. Then it goes to committee where people get to complain about provisions they don't like and congresspeople then insert provisions their people like to placate their own supporters.


How can congresspeople rely on outside experts if those experts have no access to the document and neither do the congressmen? And like I just mentioned, all of those with the expertise and willingness to examine a bill are not lobbyists and its an outright lie to claim that. Go to scienceblog.com if you want to put that ridiculous assertion to bed. Only if you have a closed, corrupt process will it be entirely at the whim of lobbyists.

Its incredibly frustrating here to see the obfuscation by what are ostensibly supporters of this bill/president. It's reminiscent of the past administration albeit on different issues. If we can't trust the government for basic transparency how can you trust them on anything else?
6.27.2009 12:58pm
Volokh Groupie:

There is no constitutional basis for such laws (don't bother to hide behind ridiculous Commerce Clause rulings). So they will further, and significantly, erode respect for the rule of law.



There is no issue of constitutionality here. You might wish there was and if there were 4 other Thomas clones on the bench you might be right, but cap and trade, healthcare, etc are not likely to fail any such test.





And if you think there aren't any SME's outside of lobbyists who would be interested in look at this bill i'd suggest you google W-M and start at Hrynyshyn, Pielke, Romm, Hayes, Blackwelder, Jenkins, Noble, Knappenberger, etc.
6.27.2009 1:07pm
MarkField (mail):

Wow, I wish I had a job where my boss would make allowances for my not doing the job I was paid for because of "human nature". In the private sector, when you don't do your job, you're fired. Honestly, if you have that many excuses as to why you just can't get to your core responsibilities, you're in the wrong job.


In addition to what martinned said, you DO get to replace your Congressman every two years. If he's not reading the bills, vote against him.

Those who keep saying Congress should pass fewer laws are missing the point. Forget about Congress for the moment and ask if the same problem exists in the state legislatures. Clearly it does, yet there's no Constitutional limit on their powers. The problem is inherent in the process, not limited to Congress.

I share the view that this is not at all a good thing, but we need solutions that take into account the practical realities. Here are some of my suggestions:

1. Legislators should have more staff and fewer perks. Get rid of their limos and hire some experts.

2. Require all bills to be published in final form 5 days before the vote.

3. Publicize the assessments of independent experts (not lobbyists or political hacks) before the vote and make them easy to find even for a Congressman.

4. Put term limits on Congress (12 years or 18 years would be good) so they don't worry about re-election so much.

5. Solve the gerrymandering problem (sorry, no great ideas here).
6.27.2009 1:11pm
martinned (mail) (www):
@Federal Dog: No need for the fix. I included that option.

@rosetta's stones: What I had in mind is freedom of manoevre. To use my favourite example again, I imagine that everyone involved in the congressional debates about the Sherman Act actually read the thing. After all, it's only a few lines long. What it does is to authorise the creation of a body of antitrust common law. Simple enough for Congress.

Similarly, statutes could be made substantially simpler by using standards instead of rules. Using standards means delegating some of the judgement involved to the executive and the legislature. In the (in)glorious VC torture memo debates, for example, the argument was that the law was too vague. I think that is nonsense, but it does illustrate the dilemma; if Congress doesn't trust the prosecutors and the courts with something like

""torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control"
, they have to write the statute with more detail. More detail means more work, not only because there's more bill to read, but also because more detail means that it is extra important to make sure you've considered all the angles, that there isn't some eventuality you've forgotten. If Congress can't keep up with the work, they should write standards instead of rules, and trust the other two branches of government to act responsibly within their areas of competence in enforcing/carrying out the law.
6.27.2009 1:18pm
Allan Walstad (mail):

allowing for human nature

My impression was that the Framers explicitly tried to allow for human nature in devising the Constitution. That is, they sought through checks and balances and limitations on federal powers to prevent the national political process from running amuck as various groups seek to use political power levers to benefit themselves at the expense of others. Unfortunately, the Constitutional barriers have long since been overrun. The problem isn't that Congresscritters aren't reading the bills. The problem is that a large fraction of what they are passing is patently unconstitutional not to mention misguided.
6.27.2009 1:20pm
Allan Walstad (mail):

There is no issue of constitutionality here.

Oh my GAWD!
6.27.2009 1:23pm
martinned (mail) (www):

3. Publicize the assessments of independent experts (not lobbyists or political hacks) before the vote and make them easy to find even for a Congressman.

Many countries, including my own, have a Council of State to do that. I'm not sure how much that helps. For one thing, many people on the council are retired politicians. (Who else would you put there, given that the Council is supposed to advise on all bills that come before Parliament.) Also, because their advice isn't very exciting, it is easy to ignore when political realities demand it. Finally, their advice comes before any amendments, in fact before the bill is even sent to parliament, so subsequent amendments don't get reviewed.
6.27.2009 1:24pm
Bill Harshaw (mail) (www):
Anyone remember Prof. Kerr's admission that he failed to catch the significance of a legislative change? I forget what it was, but in form it was a "amend subsection I(a)(ii)(B) to read: "xxxxx" " So even if a smart person reads legislative language, comprehension is not automatic.

I think the discussion here points to the idea that the process of legal drafting, enactment, and codification is bound irretrievably to the past of typesetting and could be greatly improved by modern technology. Thomas, though good when Newt ordained it, is simply taking old ways and putting them online, not redoing the process.

Of course, simplifying the process would be adverse to the interests of the legal class, whose rational choice is to maximize confusion
6.27.2009 1:45pm
rosetta's stones:
That's a good start, martinned, you seem to have accepted the "simpler" component.

Now then, "fewer" goes hand-in-hand with that. And "cheaper" caps it all off nicely.

And along the way, we can work back in some Constitutional limits. Those will dovetail nicely with the above 3, I think you'll find.

Gosh, next thing you know, we might even slow the growth of government or something outrageous like that, and leave the People more prosperity and freedom.
6.27.2009 1:47pm
martinned (mail) (www):

That's a good start, martinned, you seem to have accepted the "simpler" component.

Not only have I accepted it, but I'm all for it. The question is whether you are (and should be). I've always found US statutes extraordinarily detailed, although I guess that is only to be expected in a presidential system.
6.27.2009 2:01pm
Desiderius:
MarkField,

"3. Publicize the assessments of independent experts (not lobbyists or political hacks) before the vote and make them easy to find even for a Congressman."

Perhaps we could also convene a House of Lords who would no doubt be moved by loftier instincts than mere commoners, or we could consult a Host of Angels to advise us from on higher still, or dispense with half-measures an seek to divine the thoughts of the Big Independent in the Sky.

I prefer the Founders' solution of lowering the stakes and limiting the breadth of the duties with which the institution with a monopoly of coercive power is entrusted, thereby lessening the pull that brings those lobbyists and hacks into the process in the first place.
6.27.2009 2:12pm
rosetta's stones:
I've always found US statutes extraordinarily detailed, although I guess that is only to be expected in a presidential system.

Why would it be expected?

It's only expected if you're divvying up pie, and people fight to ensure they get the biggest slice possible. Nothing to do with the presidential system, although presidents have certainly fostered it, and keep their hand firmly on the pie knife... aka the Porkulus package, most recently.
6.27.2009 2:18pm
martinned (mail) (www):
@rosetta's stones: Like I said, using standards instead of rules implies a degree of trust by the legislator in the other two branches. In a parliamentary system, where parliament controls the executive, such trust is more likely to exist. (i.e. if the executive does something outrageous with the torture statute, parliament can simply fire them.)
6.27.2009 2:30pm
MarkField (mail):

Many countries, including my own, have a Council of State to do that. I'm not sure how much that helps. For one thing, many people on the council are retired politicians.


I didn't know this. While it's interesting, I had in mind something more like the independent experts appointed by a court. Professional economists, physicists, etc. Maybe even some judges.


I prefer the Founders' solution of lowering the stakes and limiting the breadth of the duties with which the institution with a monopoly of coercive power is entrusted, thereby lessening the pull that brings those lobbyists and hacks into the process in the first place.


The Founders did limit the power of the federal government, but they did nothing to limit the power of state governments. In the Debates, it was often expressly noted that state governments retained mostly unlimited power.

This means that we have to face the fact that the problem is inherent in the system. People need to stop Quixotic complaints that Congress passes too many laws -- we're never going back to that time, if indeed it ever existed -- and try to create some "pigouvian" solutions.


My impression was that the Framers explicitly tried to allow for human nature in devising the Constitution. That is, they sought through checks and balances and limitations on federal powers to prevent the national political process from running amuck as various groups seek to use political power levers to benefit themselves at the expense of others.


I agree that they did this. I see two problems with this as an explanation. First, it addresses the problem of the quality of legislation, but not the quantity. See my comment above about state legislatures. All states have pretty much the same checks and balances, yet the problem persists. Second, creating institutional hurdles doesn't mean people will do their jobs. If Congress doesn't do its job, all the paper in the world won't save the government. Congress isn't a check for much of anything if it votes blindly or on purely partisan grounds.
6.27.2009 2:33pm
martinned (mail) (www):

I didn't know this. While it's interesting, I had in mind something more like the independent experts appointed by a court. Professional economists, physicists, etc. Maybe even some judges.

That would work, but then you'd need different experts for different areas of policy. The former ministers, etc., that we have in the Council of State tend to be experienced enough to be able to tell whether a certain approach will work in practice. In other words, they give advice about the public administration and law angles, mostly. The economists and physicists come in at an earlier stage, during the government's drafting process. Their advice is usually part of the government's memo in support of the bill, at least if the government ends up taking their advice.
6.27.2009 2:47pm
Timber (mail):

Why does every major bill signing nowadays seem like a Patriot Act redux?


Much like Obama's deficits, the Patriot act has got nothing on the ramming of this and the so-called stimulus bills.
6.27.2009 2:52pm
martinned (mail) (www):

Congress isn't a check for much of anything if it votes blindly or on purely partisan grounds.

One remark: voting on purely partisan grounds isn't so bad, as long as you have more parties than just two or three. In multiparty systems, voting along party lines is what voters expect from their representatives. That's why they vote for one party rather than another. As long as the party specialist on the bill/area of policy knows what he/she is talking about, this isn't much of a problem. Any member of the legislature who wants to can get as involved as they like, but ultimately all differences are resolved within the party first, followed by a fully partisan vote.

(In the Dutch parliament, a roll call vote is quite rare. In most matters, the spokesperson simply says how the party votes.)
6.27.2009 2:52pm
RPT (mail):
"Much like Obama's deficits, the Patriot act has got nothing on the ramming of this and the so-called stimulus bills."

How can there be an "Obama deficit" when he's only been in office since January 20? What kind of accounting are you using? Are you considering that he has the wars on the books, in contrast to the Bush years?
6.27.2009 2:58pm
RPT (mail):
"How can congresspeople rely on outside experts if those experts have no access to the document and neither do the congressmen?"

Sorry, but I do not believe that there is any piece of legislation, and particularly in this area, that was not reviewed by lobbyists/interest group representatives on one or more sides of the issue. What do you think they do for their money? They know what is in the works, what is being offered by whom, when, and so on. The R complaint here is not enough time to create a public frame of the issue. Can't believe that their people/stff/lobbyists who actually read the legisation didn't read the 300 page amendment.

Re the 300 pages issue, haven't the lawyers here ever had to review/digest large transactional documents and/or pleadings and/or discovery documents? 20 motions in limine on short notice? 300 pages is pretty light in my experience, especially with the large crew of people available to do it. Until proven otherwise, I think this is just R's complaining about not having enough PR campaign time.
6.27.2009 3:09pm
cboldt (mail):
Bill Harshaw: -- Anyone remember Prof. Kerr's admission that he failed to catch the significance of a legislative change? --
.
I do. The change he didn't notice was the use of the phrase "or affecting" in the statutory exposition of a crime. I researched that specific (computer crime) amendment and found a significant amount of outrage expressed in the Congressional Record, where the outrage wasn't about adding that phrase, but that the Courts decided a certain case as though that phrase was absent in the first place. The thread was Are All Computer Crimes Now Federal, and it ran just a few weeks ago (June 3, 2009).
.
IMO, that particular change was not a hard one to catch. The phrase "or affecting" is MONUMENTAL in effect, to those who have studied commerce clause jurisprudence.
.
I've seen a number of "more sneaky" changes; e.g., the one that gave the AG the power of appointment of replacement AUSA's. There was -NO- debate in Congress on that one. Likewise, many (thousands) of earmarks go without debate.
6.27.2009 3:12pm
rosetta's stones:
"...using standards instead of rules implies a degree of trust by the legislator in the other two branches."

The Constitution is silent on the matter of trust, and to say the Congress must "trust" another branch is an abomination, and no excuse to leap outside Constitutional limits, certainly. The Constitution implies a mistrust in power being accumulated somewhere, and looked to break power up among various groups, but this does not assert any need for legislative complexity, or a need to strive for or achieve or preclude a lack of "trust".

You're reaching here, martinned. Complexity is not needed, nor implied or stated. Nor are "experts" to help congresscritters steal expertly, or to review legislation (and courts don't need experts either, to saw an old log). These congresscritters are all expert thieves, already. What they want and need is a bigger slice of pie. Thus, the complexity we see.
6.27.2009 4:03pm
rosetta's stones:
"The Founders did limit the power of the federal government, but they did nothing to limit the power of state governments. In the Debates, it was often expressly noted that state governments retained mostly unlimited power.

This means that we have to face the fact that the problem is inherent in the system. People need to stop Quixotic complaints that Congress passes too many laws -- we're never going back to that time, if indeed it ever existed -- and try to create some "pigouvian" solutions."


Mark, I didn't comment when you first said this, but I will now. States have to balance their budget. The Feds print money. There is an inherent difference, practically, here.

There was at the Founding, as well. What you reference as a "problem" was a feature, certainly not an oversight, and certainly not an excuse to be used today to junk any notion of asserting limitations on the federal government. It is a reason to reassert limitations, if anything.

Yes, limits once did exist. And these problems are not "inherent" in the system. These problems are created extra-constitutionally.

Argue to expand government, if you want, but let's be accurate where we can.
6.27.2009 4:11pm
MarkField (mail):

Mark, I didn't comment when you first said this, but I will now. States have to balance their budget. The Feds print money. There is an inherent difference, practically, here.


While states are generally required by their own constitutions to balance the budget, I don't think that solves the problem. In fact, I think it reinforces my point.

States can pass lots of very complex regulatory schemes which don't have any real budget impact. They can also have large budgets or small, as long as they balance. Your point, while true, doesn't affect my point that the problem we're dealing with -- legislators who don't really know the ins and outs of the bill they're voting on -- is not unique to Congress, but seems to be inherent in legislatures generally. That means we need a broader solution.
6.27.2009 4:28pm
MarkField (mail):

Argue to expand government, if you want, but let's be accurate where we can.


Like most people, I suspect, I want government to act when it's doing something I support and not act when it wants to do something I don't.
6.27.2009 4:29pm
Desiderius:
MarkField,

"Your point, while true, doesn't affect my point that the problem we're dealing with -- legislators who don't really know the ins and outs of the bill they're voting on -- is not unique to Congress, but seems to be inherent in legislatures generally. That means we need a broader solution."

But that problem, as you noted, flows directly from the undue influence of lobbyists and others with unprecedented and growing skin in the game. So the broader solution we're positing is to reduce the overall level of skin to be had. This solution has a proud tradition behind it, and that tradition has not always been misplaced on the "Right".

"Like most people, I suspect, I want government to act when it's doing something I support and not act when it wants to do something I don't."

No self-respecting liberal. I support the continued advance of computing power, and for that purpose I want government to have as little to do with it as possible.
6.27.2009 5:31pm
MarkField (mail):

No self-respecting liberal.


More of a cynic, whether it's my own motives or others'.


But that problem, as you noted, flows directly from the undue influence of lobbyists and others with unprecedented and growing skin in the game. So the broader solution we're positing is to reduce the overall level of skin to be had.


The problem I have with this (aside from my liberal view that sometimes government actually increases freedom) is that it's never been the case. From day one, state governments have been able to legislate pretty much at will. Rather than rage against the dying of the light, I'd rather come up with some ways to mitigate the defects in the system that lead to bad bills.
6.27.2009 6:05pm
Allan Walstad (mail):

The Founders did limit the power of the federal government, but they did nothing to limit the power of state governments.

Right, but there are many states, so there is more of an opportunity for people to "vote with their feet." Not a perfect solution, of course. The political process has run amuck in the states too. If the feds bail out the most profligate ones (which I don't believe they have any Constitutional authority to do), then there goes whatever constraints on fiscal irresponsibility the states might have had.
6.27.2009 6:23pm
MarkField (mail):

Right, but there are many states, so there is more of an opportunity for people to "vote with their feet."


Sure, but

1. That right only exists because of the federal constitution and the way the courts have interpreted a right to travel; and

2. In every state the right exists to change the system by election. As Madison said in Federalist 44:

"If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution [necessary and proper clause], and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers."
6.27.2009 7:01pm
Desiderius:
MarkField,

"More of a cynic, whether it's my own motives or others'."

Every dog has his day, and the cynics are getting theirs in spades. I refuse to count you among their number.
6.27.2009 7:07pm
rosetta's stones:
"From day one, state governments have been able to legislate pretty much at will. Rather than rage against the dying of the light, I'd rather come up with some ways to mitigate the defects in the system that lead to bad bills."

Mark, I don't understand why you're conflating the state legislatures with the Congress. These are 2 separate issues, theoretically and practically and functionally and every other way I can think of. The relationship between the 2 is defined, and you'd have to identify where you see this conflation, in the flesh.

You may have a point somehow, but you're clouding it and I don't see it. The Congress can be reformed, even if we do nothing else. And even if we do anything and everything with some count or all of the states, it does nothing to reform Congress.

I'm assuming you don't recognize the sovereignity of the states, and seek a conflation here?
6.27.2009 7:09pm
Desiderius:
MarkField,

"Rather than rage against the dying of the light"

It only takes a spark to get the fire going. Why let the illiberal have all the fun?
6.27.2009 7:10pm
rosetta's stones:
And again, we get back to the point that state legislatures have to balance their budgets, and the feds do not have to. They can print cash. They both function accordingly, and different from each other. I can't see what point you're making in conflating them.
6.27.2009 7:12pm
Desiderius:
What about incorporation?
6.27.2009 7:25pm
MarkField (mail):

Mark, I don't understand why you're conflating the state legislatures with the Congress.


The basic complaint in this thread (not the post) is that Members of Congress haven't read the bills they vote for and don't really understand them. I say this is true of the state legislators as well. Assuming I'm right, then explanations based on the particular features of Congress (limited power under the Constitution, etc.) won't suffice. It's a more general problem. In fact, it's pretty clear from martinned's posts that the same thing happens in European legislatures, so it's not even an American phenomenon.

This means we need to think more broadly about how to improve the legislative process, rather than complain about how Congress oversteps its bounds. I made some suggestions higher up, and I think it would be good if others did the same. As you can see from this thread, this isn't particularly a left/right issue -- we all find it annoying -- so it should be possible to come up with some ideas.
6.27.2009 8:51pm
MarkField (mail):

It only takes a spark to get the fire going.


You mean it's really NOT better to curse the damn darkness?
6.27.2009 8:53pm
Volokh Groupie:


Sorry, but I do not believe that there is any piece of legislation, and particularly in this area, that was not reviewed by lobbyists/interest group representatives on one or more sides of the issue. What do you think they do for their money? They know what is in the works, what is being offered by whom, when, and so on. The R complaint here is not enough time to create a public frame of the issue. Can't believe that their people/stff/lobbyists who actually read the legisation didn't read the 300 page amendment.


Then you truly have not followed the debate over W-M at all. The initial bill was supposed to have an auction of all credits. After negotiations with farming state reps and other business interests that got reduced and we're now looking at the majority of credits being given away. As a result concern of fraud, the impotence of the environmental impact of the bill and a number of other issues rose and many environmentalists (who constitute at least some of your lobbyists) began opposing W-M. And that's only one of the issues with the bills. The main feature of W-M or any cap and trade bill is that it will be a complicated attempt at some type of market regulation of carbon emissions. There are absolutely a number of issues which can be slipped in 300 pages or which can be picked up after reading through the document for a day or two that may change either/both environmental and cost analysis. The breadth of what the bill attempts to do means that many many experts in different fields can contribute important critiques or suggestions. This isn't simply an issue of your favorite senator running it by his neighborhood climate scientist and economist/policy wonk. To claim that having a limited number of a bill writers' lobbyists vet a piece of legislation serves as a legitimate check is disingenuous, dangerously shortsighted and ignorant. (though I guess why should climate policy be any different from oil or healthcare?)




Re the 300 pages issue, haven't the lawyers here ever had to review/digest large transactional documents and/or pleadings and/or discovery documents? 20 motions in limine on short notice? 300 pages is pretty light in my experience, especially with the large crew of people available to do it.



How many lawyers do you know who are well versed with IPCC reports and who have a basic grasp of climate feedbacks and their associated economic costs? This isn't some easily grasped piece of legalese in some specialty area dominated by lawyers. In any event, its not like people are asking for months or even multiple weeks to review the bill. They're asking for multiple days. You put together a team that has the competencies I listed that also has to perform regular congressional duties and we'll see if they can read and meaningfully analyze a 300 pg addition in a couple hours. I doubt you could even assemble such a team in that time.



Until proven otherwise, I think this is just R's complaining about not having enough PR campaign time.


You could have saved a lot of time on your posts by just typing, 'my guy won' and then sticking your tongue out at everyone. Principles be damned when you know your guy is always right.
6.27.2009 9:11pm
rosetta's stones:
"The basic complaint in this thread (not the post) is that Members of Congress haven't read the bills they vote for and don't really understand them. I say this is true of the state legislators as well. Assuming I'm right, then explanations based on the particular features of Congress (limited power under the Constitution, etc.) won't suffice."

Of course they will suffice, if they were attended to. They're not. You seem to be pressing to remove any effort to restore some semblance of limited government. That won't do.

Again, state's have to balance their budgets, and further, they couldn't even enter into this sorta broad, sweeping interstate regulation, constitutionally. Congress long ago slipped those bounds, sadly. You're comparing apples and hockey skates, and to no purpose, or none that I can understand.


"It's a more general problem. In fact, it's pretty clear from martinned's posts that the same thing happens in European legislatures, so it's not even an American phenomenon."

It doesn't happen at the state level. They balance their budgets, or else. (or else Obama prints money and gives it to them, unconstitutionally)

This means we need to think more broadly about how to improve the legislative process, rather than complain about how Congress oversteps its bounds.

We can do both, Mark, we can chew bubble gum and walk.
6.27.2009 10:08pm
Allan Walstad (mail):
MarkField:


Right, but there are many states, so there is more of an opportunity for people to "vote with their feet."

Sure, but

1. That right only exists because of the federal constitution and the way the courts have interpreted a right to travel; and

2. In every state the right exists to change the system by election.

I'm not sure how you intended your #1 to be a response to my point. I'm saying that there's more of a problem or danger in the political process running amuck at the federal level than the state level, because there's more of an opportunity for people to move from one state to another than to leave the country entirely. (By "run amuck" I mean the devolution of government into a massive political robbery and coercion racket in which groups seek to use political power levers to benefit themselves at the expense of others. That's pretty much where we have come.)

As for #2, I agree in principle, but the problem is with the dynamics of unfettered majoritarianism, which the Constitutional checks and balances and power limitations were supposed to control. Once government gets big enough and takes enough of people's money, the incentive for individuals and groups is to try to get their share (or more), rather than to try to stand in the way of the juggernaut. The incentive for politicians is to generate highly visible benefits while spreading the costs as thinly as possible (or concealing them, or blaming them on others, or dumping them on future generations or political scapegoat groups) in order to assemble a voting majority of loyal special interests and local constituents. That's how you get these monumental spending bills, counterproductive regulatory systems, albatross proto-socialist boondoggles, etc.
6.27.2009 10:31pm
Desiderius:
MarkField,

"You mean it's really NOT better to curse the damn darkness?"

And, furthermore, the light is not yet fully extinguished.
6.27.2009 11:03pm
MarkField (mail):

It doesn't happen at the state level. They balance their budgets, or else. (or else Obama prints money and gives it to them, unconstitutionally


We are clearly talking past each other. I am NOT talking about the failure to balance budgets. I'm talking about the problem of passing bills that haven't been read. They may not even be budget bills.


I'm not sure how you intended your #1 to be a response to my point.


I'm just pointing out that it isn't really the states which provide any solution of "voting with your feet". It's the federal government which creates that option.


the problem is with the dynamics of unfettered majoritarianism, which the Constitutional checks and balances and power limitations were supposed to control.


I agree that this is a problem, it's just not the problem I'm talking about. I'm only trying to figure out how to get Congress (and others) to pay attention to the bills they actually vote on.
6.27.2009 11:20pm
Allan Walstad (mail):

I'm just pointing out that it isn't really the states which provide any solution of "voting with your feet". It's the federal government which creates that option.

Agreed.

Re unfettered majoritarianism:

...it's just not the problem I'm talking about. I'm only trying to figure out how to get Congress (and others) to pay attention to the bills they actually vote on.

I'm suggesting that the latter is very closely connected to the former. As long as the feds are permitted the massive role they presently play, the incentives will tend to push in favor of monumental, complicated spending and regulatory bills that individual pols don't read and most likely could not possibly read in their entirety.
6.27.2009 11:58pm
Cheap Energy (mail):

I'm only trying to figure out how to get Congress (and others) to pay attention to the bills they actually vote on.



(1) One might assume "good will", i.e. they really want to do a good job. Then many of the more or less mechanistic, procedural improvements discussed above could help. Absent "good will", the procedural patches won't help much.

Passing huge and important bills before they can be read (or in this case, actually even written) seems to demonstrate we can't assume good will. Congress should be ashamed of this, but instead Pelosi et al are acting like Tony Suprano with a law degree. Its whatever they can steal.

2) Negative feedback - one might hope to hold them accountable at the polls. Gerrymandering, a hopelessly biased media, and the shear scope of the government make this a blunt instrument indeed (a low pass filter in technical terms).

3) Dramtically reduce the scope and funding of the Federal government (there's really no reason Congress needs to be in session more than a couple of months a year at most - the Texas legislature only meets every other year.) While this seems unlikely today, there are a lot of promises being made that CANNOT be kept. When that hits the wall, we may get a Cromwell. A Supreme Court that can make things up out of whole cloth today could make other decisions.

Complex systems may reach a "tipping point", where a small change in input yields large changes in output. I think we are near, or perhaps already past, that point.
6.28.2009 12:08am
pintler:
I think it's ironic that the debate is over a 5 day delay. Outside of a declaration of war, or maybe response to a pandemic, what does congress ever do that would be hurt by publicizing the final language and then waiting 60 days for a vote?

We legislate like impulse buyers shop.
6.28.2009 6:30am
MarkField (mail):

I'm suggesting that the latter is very closely connected to the former. As long as the feds are permitted the massive role they presently play, the incentives will tend to push in favor of monumental, complicated spending and regulatory bills that individual pols don't read and most likely could not possibly read in their entirety.


Ok, I was missing your point till now. I'm not sure, though, why there'd be the connection you suggest. It seems to me perfectly logical that Congress could spend lots of money and impose lots of regulation in simpler bills which they've actually read.


I think it's ironic that the debate is over a 5 day delay. Outside of a declaration of war, or maybe response to a pandemic, what does congress ever do that would be hurt by publicizing the final language and then waiting 60 days for a vote?


I think this is right for most bills. The problem is that because there are a few which really do need immediate action, and because it's hard to define such bills in advance, I think the best we can do is a minimal limit like 5 days. Otherwise Congress will just exploit any exceptions and turn them into standard practice.
6.28.2009 11:00am
Bill Harshaw (mail) (www):
I'd make two points in addition to Mark's:

1 It may be a mistake to conflate the House and the Senate. My impression is the House operates under the rule of the Rules Committee, which limits the ability of an individual member to raise points of order. (I think a point of order is the only parliamentary way to enforce a rule, like having the text available. After all, isn't that what the first, second, and third "reading"s of the bill are supposed to ensure? In the Senate, an individual Senator can gum up the works, meaning there can be plenty of time for consideration of amendments. I suspect if you did a search for cases when people complained about not having the text of the bill available, it would be more common in the House.

2 Much of the added language derived from the negotiations with House Ag and Rep. Peterson. That was discussed with the representatives of the agricultural committee and got lots, I mean lots, of attention from those interests. And that was a take it or leave it deal, so it doesn't much matter what the public or the rest of the House thinks of the language.
6.28.2009 11:55am
cboldt (mail):
-- I suspect if you did a search for cases when people complained about not having the text of the bill available, it would be more common in the House. --
.
It's not uncommon in the Senate. The power of one Senator to gum up the works is used judiciously, at least it would not be used to block voting on something for the mere reason that few people (and no senator) had read the proposed language.
6.28.2009 12:38pm
pintler:

The problem is that because there are a few which really do need immediate action, and because it's hard to define such bills in advance,


I initially thought that, but then had a hard time thinking up an actual example. Any takers?


I think the best we can do is a minimal limit like 5 days. Otherwise Congress will just exploit any exceptions and turn them into standard practice.


Perhaps require a super majority - 75% maybe - to waive the waiting period. Surely if the issue is so critical and the solution so unanimously obvious that won't be a problem. If it is a problem, maybe that is a hint that the proposal needs a little work.
6.28.2009 12:47pm
cboldt (mail):
Perhaps require a super majority - 75% maybe - to waive the waiting period.
.
It takes a two thirds supermajority to suspend the rules, including timing rules. No rule was broken in passage of Captain Trade.
How Measures Are Brought to the House Floor: A Brief Introduction (PDF - CRS RS20067)
6.28.2009 1:19pm
MarkField (mail):

I initially thought that, but then had a hard time thinking up an actual example. Any takers?


Well, the TARP bill was argued to be one, though I think that's pretty debateable. Declarations of war obviously qualify, and I can think of others (emergency supplies for natural disasters, for example).


Perhaps require a super majority - 75% maybe - to waive the waiting period. Surely if the issue is so critical and the solution so unanimously obvious that won't be a problem. If it is a problem, maybe that is a hint that the proposal needs a little work.


In addition to cboldt's point, I'd add that the abuse can go the other way too. Since I live in CA, it's pretty easy for me to envision a small minority gumming up the works deliberately.* I don't care much for supermajority rules in the ordinary course; I think majority rule is pretty good thing most of the time. I'd just like to structure the system so it operates more like it ideally should.

This isn't a partisan shot -- Dems do it too.
6.28.2009 1:46pm
pintler:

No rule was broken in passage of Captain Trade.


Indeed; I was proposing a new rule.


and I can think of others (emergency supplies for natural disasters, for example)


To be devil's advocate, isn't it better to have the first sixty days - flying in field hospitals, search teams, water purification teams, etc - handled by the executive under standing law? You don't want to have to assemble congress before doing that. And sixty days of cooling off is smart before, e.g., voting zillions in relief funds. Let the dust settle and the picture become clear; don't make a knee jerk vote while CNN is still doing 24 hr coverage.


it's pretty easy for me to envision a small minority gumming up the works deliberately.


They can only delay the inevitable for sixty days. That's sixty days for people to actually understand what is being proposed. It would inject a little more reflection in the process, and we need that.

The executive is there to make the day to day decisions - snow is forecast - pay overtime to have the crews standing by, or not, and decisions like that. The legislature is there to set long term policy - the destination - not adjust the helm and sails for every wave and wind shift.
6.28.2009 5:11pm
MarkField (mail):

To be devil's advocate, isn't it better to have the first sixty days - flying in field hospitals, search teams, water purification teams, etc - handled by the executive under standing law?


In any well-maintained system, you wouldn't need emergency legislation at all because you'd have an emergency preparedness system already in place. That, unfortunately, doesn't seem to be the case; if it were the case, then I'd agree with you.


They can only delay the inevitable for sixty days. That's sixty days for people to actually understand what is being proposed. It would inject a little more reflection in the process, and we need that.


I'm very sympathetic to "more reflection" as a goal. My only real concern is that there'll be a situation in which more immediate action really IS required and held up for partisan reasons. I'm placing a somewhat higher probability on that than you are, which explains my caution in agreeing.
6.28.2009 5:45pm
rosetta's stones:


It doesn't happen at the state level. They balance their budgets, or else. (or else Obama prints money and gives it to them, unconstitutionally




We are clearly talking past each other. I am NOT talking about the failure to balance budgets. I'm talking about the problem of passing bills that haven't been read. They may not even be budget bills.


Mark, you were using the states' current functioning as some sort of support for a supposed systemic problem that exists, that the Founders built into the system somehow. States function differently than the Feds, is my response above, and conflating them with this issue is pointless.

Let me know if you find a state inserting 300 pages into a massive broadsweeping bill 12 hours before passage, or if martinned can find a Euro parliament doing so. You won't, I suspect. This is a Beltway disfunction, and we should direct our attention there, and avoid other distractions.




"I'm only trying to figure out how to get Congress (and others) to pay attention to the bills they actually vote on."

They won't, until they are placed under some fiscal restraints, and are forced to do so, as the states are (or used to be). Unfortunately, a wrecked economy appears to be the only possible restraint in this case. We can interject some speed bumps, or rather the congresscritters can, but I doubt they will, so we're left with whatever the Senate manages to slow down (not that this global warming thing needs slowing down, it was stillborn the other day, but still).


"My only real concern is that there'll be a situation in which more immediate action really IS required and held up for partisan reasons."

One man's partisanship is another man's sober process. If your aim is sober process, you have to commit to it, and not seek reasons to avoid it. Which is it, for you?

I'd suggest starting with fiscal discipline, like the states once did, and then begin using some of these other tools being discussed here to arrive at that discipline. The states (pre Porkulus handouts) used to do this, however, we seem to be going the precise opposite direction, and instilling the federal government's fiscal INdiscipline onto the states. Wrong. Wrong. Wrong.
6.28.2009 7:51pm
Mekhong Kurt (mail):
Apparently, lawmakers scarcely ever read the bills on which they vote, though to be fair, much of what I've read indicates they themselves very often have maybe only 12-13 hours to read it themselves.

As ponderous as the process is, I am hesitant to suggest something bound to gum up the works even more, but it appears it's perhaps needed: by law, a bill has to sit, oh, say 10 days -- I mean 10 consecutive 24-hour days, none of this parliamentary trick of passing a day and starting a new one with a couple of bangs of a gavel, and I don't mean 10 business days (since Congress takes so many and such long vacations) before a bill is allowed to come up for vote. That way, any member of Congress has had at least SOME time to read the bill.

Further, I would bar amendments UNLESS something like 2/3 or 3/4 of the total membership of the chamber -- the total, not present -- agreed an amendment both appropriate and essential *right now.* That would lessen how much congress critters have to read.

I also would like to see an elimination of the "aye" and "nay" system, through which members vote -- but we don't know *how* they voted. Representatives and Senators should be required -- by law -- to put their name on their vote, and to put their name on their abstention, and to put their name on their "nothing" -- no vote, no abstention, no reaction. And only if they are really away for the entire day -- real day, not a congressional parlor trick one -- then that needs to be recorded as their "vote."

In short, I'd like to see every single Representative and Senator publicly on record and therefore accountable when it comes to voting, or to abstaining, or to refusing to do either of those.

Mekhong Kurt
6.29.2009 12:30pm

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