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Read the Bill - A Response to Orin:

I won't speak for David, but as I've also blogged in support of the idea that legislators have an obligation to read legislation before they vote on it, I'll answer Orin's questions.

1. I believe no legislator should vote in favor of substantive legislation that he or she has not read or does not understand. If such a bill comes to a vote, the legislator should abstain or vote against the bill. Why is it okay to vote against the bill and not for it? Because a legislator should not act to alter or impose legal rights or obligations without understanding the changes in legal rights or obligations that he or she is imposing. A vote against legislation is a vote to preserve the status quo, and by voting against legislation a legislator is not altering anyone's rights or obligations. [Note: This does suggest a status quo bias, more than a libertarian one, as I think this principle should apply whether a law would increase or decrease the scope of government.]

2. Where legislation is a string of amendments to existing laws, a legislator should read what is necessary to understand the legislation. This probably requires reading the bill and, if the bill is unintelligible when read in isolation, some sort of before/after comparison of every provision of the U.S. Code that would be revised.

3. If a legislator does not believe he or she can ever vote in favor of legislation that contains a certain type of provision — a tax increase, a provision supporting or limiting abortion, or whatever — it would certainly be sufficient to stop reading once a legislator has reached an objectionable provision. As noted above, I also think it is reasonable for a legislator to vote against any and all legislation that he or she has not had the opportunity to read.

4. I would not excuse particularly popular legislation. If legislation is that popular, a delay of a day or two won't prevent its passage. I suppose there is an argument for excusing the failure to read lengthy legislation in emergency circumstances. On the other hand, if the nature of the emergency and length of the bill are such that a legislator does not have time to read the bill I would be quite suspicious about the wisdom of the legislation if for no other reason than if there's not time to read the bill, how could there have been time to draft a coherent and effective piece of legislation?

5. Since I think the legislators primary obligation is to read and understand substantive legislation before voting in favor of it, I don't think the standard applies to procedural votes. It would make sense, however, for a legislator to vote against ending debate before having read the bill, as this would provide time for legislators to read the bill.

6. Yes. Even though I would like to see the size and scope of the federal government shrunk dramatically, I think the legislators obligation is to read and understand that which he or she would legislate — that is, that which he would do to alter existing legal rights or obligations — so I would apply it to measures that would shrink the government as well.

Would my approach make it more difficult to enact legislation? Probably. Would it make it more difficult to pass widely supported or particularly important legislation? I doubt it. After all, if legislation is that good or that popular (even if not both), it should be able to withstand this requirement.

One final note: Of course this requirement is not enforceable. In an ideal world, legislators would recognize that reading and understanding legislation before they vote for it is a part and parcel of their obligation as legislators, and voters would not reelect those legislators that cannot or will not fulfill this obligation. I am under no illusion that this will actually happen, but it is a principle worth supporting nonetheless.

UPDATE: A question frequently asked of us "read the bill" types is "Why should legislators have to read the bills when they have staff? Isn't that what staff is for?" Not really. It is certainly appropriate for legislators to rely upon staff to draft legislation, review legislative proposals, and serve as a filter identifying bills that might be worthy of support, and so on.. Indeed, legislators could not do their jobs without such assistance. But this does not relieve legislators of reading those pieces of legislation that seek to enact.

Think of the legislator like a senior partner. It's perfectly appropriate for the senior partner to rely upon associates to conduct research, draft documents, review documents, and so on. But if the partner is going to sign his or her name to a legal brief, he or she better have read it. It is simply inappropriate for the partner to simply sign a document or brief on an associate's say-so. By the same token, when the legislator is prepared to enact legislation, he or she should have read the bill.

ruuffles (mail) (www):
A recent scandal and the congressional response shows a perfect result of what happens when Reps either don't read the bill or try to make it too simple.

Consider the Defund ACORN Act, here.

Here are some key provisions

a) Prohibitions- With respect to any covered organization, the following prohibitions apply:

(1) No Federal contract, grant, cooperative agreement, or any other form of agreement (including a memorandum of understanding) may be awarded to or entered into with the organization.

(2) No Federal funds in any other form may be provided to the organization.

...

(b) Covered Organization- In this section, the term 'covered organization' means any of the following:

...

(3) Any organization that has filed a fraudulent form with any Federal or State regulatory agency.


Know any organizations besides ACORN that might fit?
9.23.2009 7:29pm
Guest12345:


Know any organizations besides ACORN that might fit?


There was a farm bill recently, in 2007 I think, that had a provision to pay a certain number of millions of dollars to anyone whose property met particular criteria. There was exactly one company that met the terms. I can't believe that this wasn't known by whoever injected that bit into the legislation.
9.23.2009 7:54pm
TNeloms:

In an ideal world, legislators would recognize that reading and understanding legislation before they vote for it is a part and parcel of their obligation as legislators


This is the key point that takes what is a reasonable idea (wanting legislators to know the contents of the bill) and makes it more extreme and onerous (requiring that they actually read the words of the bill). Why is relying on a competent summary of certain parts of the bill not enough?

(Sometimes, in fact, a summary may be more helpful than the actual words, for example when a list of banned chemicals is replaced with a description of the entire class of chemicals that are banned.)
9.23.2009 7:56pm
ruuffles (mail) (www):

I can't believe that this wasn't known by whoever injected that bit into the legislation.

I meant to imply it was written too broadly, as supposed to too narrowly. In particular,

(3) Any organization that has filed a fraudulent form with any Federal or State regulatory agency.

I don't usually read the text of bills this carefully, but I don't see any other language that limits the application of this definition of "covered organization."
9.23.2009 7:57pm
David Welker (www):
This is ridiculous.

It is not important that every single legislator read every bill they vote for. What is important is they understand what they are voting for. Such understanding can come from reading, but it can come in other ways as well. It is quite possible to come to an adequate understanding of a bill through staff and fellow legislators.

This is called division of labor. A computer scientist does not understand every line of code in a major computer program before making a change. But instead, that computer scientist works on a team, and organizationally, there exists someone who understands the parts of the program they do not.

Obviously, the motive for proposing this ridiculous "read the bill" requirement is to make government as inefficient as possible. Since inefficient government pisses off voters, voters will dislike government and this will advice libertarian ends.

Basically, the goal is to reduce the size of government by making it as unpleasant as possible. It is sort of like the "starve the beast" theory. You know: the theory by which conservatives will save the country by destroying it.

After all, the stereotypical inefficient DMV with unpleasant and rude employees is a libertarian's best friend and a liberal's worst nightmare.

This is a proposal whose intent is to make government work as poorly as possible, as even obvious but relatively minor problems are not capable of being fixed due to the unreasonable burden placed on lawmakers.

Why are private sector entities, in many cases, much more efficient and pleasant to deal with? The answer is in part because there is someone with the power to make decisions.

I should point out that there would be an unintended consequence of making it a requirement that all legislators voting on a provision read every line that libertarians would probably not like -- you could expect lawmakers to delegate ever greater amounts of regulatory authority to Federal agencies. After all, you could draft very concise legislation granting broad powers to regulatory agencies as long as you keep checks and balances to a minimum. It really is all those detailed checks and balances that make legislation more difficult to read.

I would find such an expansion of the regulatory state as an "unintended consequence" of this libertarian-motivated proposal to muck up the workings of government amusing, to say the least. What a delicious way for libertarians to learn that the so-called "law of unintended consequences" does not only apply to proposals by liberals.

A final point. Adler's distinction between voting for or against legislation is quite ridiculous and intellectually vacuous. To not change something is a choice with consequences. You cannot understand the consequences of this choice if you do not read the bill. End of story.

And yes. If you vote no on a proposed bill, you should understand the consequences of your choice.

Would you excuse a driver who doesn't understand the consequences of not stepping on the gas when it is appropriate to prevent an accident? I think not. We should hold legislators to at least the same standard we hold drivers.
9.23.2009 7:58pm
Jonathan H. Adler (mail) (www):
Why are private sector entities, in many cases, much more efficient and pleasant to deal with? The answer is in part because there is someone with the power to make decisions.

The primary reason is because private sector entities face competition. Monopoly firms tend not to me "much more efficient and pleasant to deal with." As governments tend to be monopolies, we cannot depend upon heirarchical structures to make them "pleasant" and "efficient." Instead, we need to find other ways of enhancing accountability, including transparency, fair notice, an opportunity to be heard, and so on.

As for my motivations, I do not believe that my proposal would necessarily make the legislature less "efficient" or even result in fewer pieces of meaningful legislation getting passed. Bills would likely be shorter and easier to understand -- and less encumbered with special interest favors of one sort or another -- and I believe legislation would tend to track popular preferences more closely, but I do not believe this would necessarily produce less government overall.

JHA
9.23.2009 8:13pm
yankee (mail):
I believe no legislator should vote in favor of substantive legislation that he or she has not read or does not understand. If such a bill comes to a vote, the legislator should abstain or vote against the bill. Why is it okay to vote against the bill and not for it? Because a legislator should not act to alter or impose legal rights or obligations without understanding the changes in legal rights or obligations that he or she is imposing.


There's an obvious hole in this logic. First you say that legislators should not vote in favor of legislation they have not read or do not understand, but then you attempt to justify this rule only by reference to understanding. Are you claiming that it is impossible to understand a bill without reading it in its entirety? If so, this is a proposition in need of some defense, since there are ways to learn about a bill other than reading it in its entirety.

I think you also need to say something about why a very large status quo bias is desirable.
9.23.2009 8:18pm
David Welker (www):
JHA,

I agree with you that government not having any competition is a major problem and also reason it is often less efficient than private sector entities. I think the fact that there is no one authorized to make a decision or the decision-making process is too burdensome is another reason in many cases as well.

When you mention the special interest point, it actually does make me lean towards your position. If legislators had to read the bill, then it would follow that citizens would be able to read the bill. This would make Congress more accountable. On the other hand, perhaps the idea of throwing "sunlight" on these bills is overrated. Already, there are organizations devoted to identifying special interest influence -- such influence is often the focus of news stories -- yet it does seem that unelected special interests nonetheless exert disproportionate power in our society.

And I think you may be right that this would be substantively neutral from a conservative/liberal perspective.

I think an unintended consequence might be a shift of power from Congress to regulatory agencies. Which I am not sure is good for either liberals or conservatives.

In any case, I have decided to upgrade the "read the bill" idea to an "interesting idea" from a blatantly political idea. I have to admit, sometimes I am too cynical about procedural proposals.
9.23.2009 8:26pm
jasmindad:
It's completely silly to require that a legislator read every word of a legislation he or she is voting on. It's completely proper that when questions are raised about a piece of legislation he or she has voted on, the legislator is not allowed the defense, "Gee, it was a large bill, do you expect me to read every line of such bills?" It's the legislator's job to take *responsibility* for votes on bills. This can be done in many ways, only one of which is to read and comprehend everything in the bill. It can also be done by hiring competent staff to review &brief him or her on every substantive aspect of the legislation. The real issue is not reading or even comprehending, but to take responsibility. That's how political responsibility works.
9.23.2009 8:38pm
Jon Roland (mail) (www):
One of the benefits of such a proposal is that it makes it easier to repeal legislation than to adopt new legislation. See this for an example of one I would introduce if elected to the Senate.
9.23.2009 9:34pm
Ben P:

Know any organizations besides ACORN that might fit?



I honestly can't tell if you meant that sarcastically or truthfully.

other organizations.
9.23.2009 9:47pm
Jonathan H. Adler (mail) (www):
yankee --

Here's a brief -- and probably inadequate -- response to your question. This is worth a post all its own.

The short, overly simplistic version is simply that our entire legal system is based on principles that contain such a bias, we just don't recognize it as such. So, for instance, we say its better to let a guilty person to go free than to imprison an innocent. In other words, its better to maintain the status quo ante of there being an unrighted wrong than to create an additional injustice. The due process guarantee is another example: Before the government can deprive an individual of a liberty or property interest, it must provide notice and an opportunity to be heard. This protects existing interests, rights, and obligations, and imposes a cost on changing the status quo. A third example is the weight given legitimate reliance interests in property and contract law. And so on.

In sum, a basic premise of our system is that there is at least a minimal burden to be met by those who would seek to alter existing rights and obligations. Requiring those who would take such a step to understand be aware of what they are doing is arguably the least intrusive and burdensome means of doing this. It is also that which does the most to enhance democratic accountability.

Again, I've short-handed a lot here, but you should get the basic idea.

JHA
9.23.2009 10:03pm
pireader (mail):
Professor Adler --

Your analogy to a senior partner seems skewed. A better analogy is the CEO of a large corporation, who must approve agreements, financial statements, product designs, appropriation requests, management appointments, compensation packages, etc. etc. It's not just the volume of paper, it's also the range of issues. Even the most-talented individuals cannot be expert on all those subjects.

A CEO is responsible for putting proper checking processes in place, so that he only signs documents after they've been vetted by expert staff. But asking him to pore over every detail himself is just silly.

For example, the recent merger agreement between Morgan Chase and Bear Stearns (49 single-space pages, plus attachments) supposedly contained a drafting error. If it did, would the CEO of Morgan Chase then be derelict for signing it without reading every page?

Obviously not ... although he might be derelict if he had somehow short-circuited the normal document-review processes without good reason.

Members of Congress face a torrent of paper as voluminous and varied as any CEO's ... 2000 pages of statutes a year, plus the bills that fail, the committee reports, the amendments, etc. Why shouldn't they do what any sensible CEO does: put sound processes in place and rely on them?
9.23.2009 10:19pm
David Welker (www):
JHA,

Your right. Your argument is definitely inadequate.

It is fine to favor the status quo in the particular contexts you mention. But why should the status quo be favored out of pure ignorance? The law favors the status quo in some contexts, but we will still have a trial and put a lot of work into deciding whether the status quo should be changed.

What you are advocating when you say that those who vote no do not need to read the bill? You are saying they do not need to put forth any work to determine whether the status quo ought to be changed. So, that is more akin to saying that we shouldn't even have a trial when the district attorney brings criminal charges, because why should the judge be bothered to do the hard work of looking at the evidence.

In other words, you are taking status quo bias to a whole new level. You are not merely requiring a trial to be held before changing the status quo with a criminal trial. You are instead saying that no trial need be held at all.

It should be pointed out that Congress is already biased in favor of the status quo. Your advocacy of having representatives who vote no not even read the legislation they are voting on takes that to another level.

Finally, in many contexts, the law does not favor the status quo. We expect drivers to stop their cars when they come to a red light or a stop sign, even though under the status quo the car would continue in motion through the red light or stop sign.

Is it too much to expect members of Congress to be as responsible as drivers? (Accepting for the sake of argument that it is important to read a bill to enable legislation to be understood.)
9.23.2009 10:25pm
Jonathan H. Adler (mail) (www):
pireader --

It's fine to have staff read, review, etc. much of the paper that crosses a legislators desk. I already said that. The one exception is the legislation for which the legislator -- and only the legislator -- may vote on. Just as only the attorney of record can sign the document to be filed and, in the corporate context, there are some documents only the CEO may sign, and those are the documents the CEO must actually read.

Mr. Welker --

You're confusing the burdens we place on government action and those we place on private parties, so your driving example is not responsive.

In all the examples I noted, and the other examples you mention, if the government does nothing, nothing changes, and the status quo remains in place. If there is no procedurally sufficient trial or adjudication, the status quo remains in place, and the guilty person remains free, the tort victim does not receive compensation, the wrongfully ousted property owner does not get their property returned, the welfare cheat does not get their welfare benefits taken away, and so on. This is not something confined to a few contexts, it is a bias imposed on government action in virtually every context, even when the government is doing no more than resolve disputes among private citizens. The moving party -- that is, the party seeking to use the government to alter the status quo -- bears the burden -- and whatever the burden (which may vary depending on the context) ties go to the status quo.

The due process requirement -- a requirement we impose on government actors but not private parties -- is a rule that preserves the status quo as against government action unless certain burdens are met. These burdens are often met without difficulty -- much as my "read the bill" rule would be met without difficulty -- but they are burdens nonetheless. In the due process context, we actually require much more -- notice, opportunity to be heard, neutral decision-maker -- all I'm calling for is the decisionmaker to read the bill. Indeed, what I'm calling for has much less of a status quo bias than the above examples, as the only burden that I am imposing is that the decision-makers who would alter the status quo know what they are doing -- and, yes, I don't think one really understands legislation if one has not read it. Reading is necessary for understanding, though it may not be sufficient.

That's all on this for now. I have looming deadlines I'm about to miss.

JHA
9.23.2009 11:15pm
Freed Hops:
The complexity of legislation and the minutiae contained therein is making this small business owner feel more a subject to complexity rather than a citizen in a republic. Yeah, the world is complex. People are complex. Congresscritters are irreducibly complex and in a sometimes unintended, sometimes intended way, absolutely menacing.

Gimmick or not... There is some definite truthiness in the proposal.
9.23.2009 11:24pm
Nebuchadnezzar (mail):
For example, the recent merger agreement between Morgan Chase and Bear Stearns (49 single-space pages, plus attachments) supposedly contained a drafting error. If it did, would the CEO of Morgan Chase then be derelict for signing it without reading every page?

Good lord, yes!

Two points -- 1) this is probably one of the most important agreements the CEO of Morgan Chase signed in that year; and 2) 49 pages is a sneeze in the world of M&A. If you can't adequately read a 49 page agreement on e.g. the short plane ride from DC to New York, you have no business being a junior VP in the M&A department, much less the CEO of the entire bank.
9.24.2009 12:13am
einhverfr (mail) (www):
There is another function that staff can have here. If there is a confusing but important piece of legislation discussion with staffers, understanding staffer opinions, etc. can be helpful for verifying understanding.

Staffers can help a congressman understand a bill, but they are no substitute for reading it.
9.24.2009 12:19am
Bill Dyer (mail) (www):
If I, as a practicing lawyer who advises clients on the applicability of federal statutes, I admit or am otherwise proved in a malpractice lawsuit not to have even read the statute in question, then I am guilty of professional negligence per se. The liability portion of the case will be immediately disposed of against me on summary judgment -- no one could possibly argue that there is ever an excuse for a lawyer to give legal advice regarding a statute he hasn't even read -- and the case will proceed to a determination of how large the damages award against me will be and, probably, whether I'm also guilty of gross negligence that should be punished by punitive damages. The State Bar may also take an interest. So in my career, failing to read a statute does have enforceable penalties that deter lawyers from this particular type of malpractice, even if they're imperfect.

Pledges and promises to read are meaningless. I propose a constitutional amendment to require legislators to read what they're voting on, with sharp teeth and a quick, simple enforcement mechanism with an easy safe harbor provision.
9.24.2009 12:33am
Bill Dyer (mail) (www):
(Sorry, one too many "I" pronouns in that first sentence.)
9.24.2009 12:34am
einhverfr (mail) (www):
David Welker:

If in doubt, delay change. The status quo should be favored where one does not understand the ramifications of change.

So yes, status quo vs ignorant, reckless change should always have the same winner.
9.24.2009 12:53am
David Welker (www):
JHA,

Here is my final, simple analogy.

Someone who votes no without reading the legislation they are voting against is like a juror who votes to acquit a criminal defendant without even hearing the evidence.

Yes, there is a status quo bias, but juries still have an obligation to hear cases and pay attention to the evidence to decide whether to change the status quo or not. It would be irresponsible for a juror to not pay attention and consider the evidence.

A juror who has already made up their mind not to convict without hearing the evidence against the accused is being deeply irresponsible. This is true despite the status quo bias in our system.

The bottom-line is that status quo bias does not justify voting against a bill that one has not read anymore than status-quo bias justifies a juror voting to acquit without even considering the evidence.

In your view, it is not possible to understand legislation without reading it. Given that view, it is not possible to understand the consequences of voting no without reading the legislation, anymore than it is possible to understand the consequences of a yes vote without reading the legislation.

In what sense is it permissible to vote either for or against legislation without attempting to understand the consequences? Is it really your position that ignorant obstruction is acceptable? There is nothing wrong with obstruction of course -- but one would hope it is informed rather than ignorant obstruction.

At this point, I am quite confident that whatever response you could possibly produce in defense of ignorance in voting no would be completely inadequate. I am thoroughly convinced that your point of view on this issue is completely wrong.

A no vote, just like a yes vote, is a choice with consequences. And of course our elected representatives absolutely owe it to their constituents to be informed of the consequences of their decisions. Any other point of view is simple indefensible.
9.24.2009 2:10am
pgepps (www):
Status quo bias = presumption to the negative in any debate = "first, do no harm"

That's pretty common-sensical. To rage against it because voting negative is "a choice with consequences" is to use a trivial truth to overturn basic moral responsibility.

Obviously, one is responsible for what one leaves alone as well as what one changes. But not understanding what may be done is certainly a reason to first seek understanding, not a reason to "just do something."

The proper approach is for staff and colleagues to carry the weight of all the "other stuff" for which legislators were *NOT* elected, while the legislators do the job of deliberating upon and making responsible decisions concerning legislation.

And if the legislation is so contorted that reading it is impracticable, then the legislation is too contorted to be properly promulgated for non-legislators and non-lawyers.

In fact, the tendency of our current legislative practice is to move "resident" (legal, illegal, permanent, temporary) and "citizen" into the same status, and to make the only fully represented, fully enfranchised citizens lawyers. We are slouching toward something resembling the old Roman system, with patrician citizens who must be padrones for otherwise disenfranchised "freemen."
9.24.2009 2:17am
David Welker (www):

If in doubt, delay change. The status quo should be favored where one does not understand the ramifications of change.

So yes, status quo vs ignorant, reckless change should always have the same winner.


First of all, I do not advocate ignorance. I am against both ignorant change and ignorant maintenance of the status quo.

Further, ignorance maintenance of the status quo can be just as reckless as ignorant change.

That is obviously true.

If the status quo is that you have a bad diet and do not get enough exercise, that status quo could cause you to die of heart disease, whether you are ignorant of that fact or not.

If the status quo is that your unemployed, but you have a family to support and bills and rent to pay, the status quo can cause serious problems in your life whether you are ignorant of that fact or not.

The bottom-line, in life and legislation, maintaining the status quo is a choice with consequences. Ignorance of those consequences does not constitute an excuse, whether the decision is to go with the status quo or to cause change.

The fact that maintaining the status quo is a choice with consequences is obvious and undeniable. It is equally obvious that it is irresponsible to not consider the consequences of one's choices to the best of one's ability.

The bottom-line is that these points are so simple and obvious, that there is no serious argument that you or anyone else could make against them.
9.24.2009 2:28am
David Welker (www):
pgepps,

The idea, "first, do no harm" cannot be taken literally. In life, some actions will inevitably have risk associated with them. In other words, sometimes an action will in fact do harm. But we cannot live life without risk. In fact, risk is the essence of entrepreneurship and progress.

Surgeons do not follow this maxim literally either. Instead, they along with the patient, often determine that surgery is the best option, even though surgery always carries a risk of harm. If the principle "first, do no harm" was taken literally, we would not have surgery or surgeons.

The idea to "first, do no harm" should be thought of as nothing more than a reminder that one should take informed risks rather than uninformed risks and sometimes inaction should be preferred to action. That is all the phrase should be taken to mean -- it cannot be taken literally.

Anyway, it should be remembered that the status quo can also cause harm. One cannot escape risk, but one should try to make sure the risks ones takes are informed risks to the extent practicable. Obviously, one has to also consider costs and benefits when it comes to gathering information about risks. One would not want to frozen in a state of perpetual indecision -- especially since indecision is a type of decision (a decision to wait before making another decision has consequences, after all).

Maintaining the status quo is a risk. Change is a risk. In neither case is there an excuse for willful ignorance.

If JHA is right, and I don't believe he is, then reading the raw text of legislation is necessary to perceive its consequences. It follows then that not reading the raw text of legislation before voting no would constitute willful ignorance of the consequences of a legislative choice. And that would be simply inexcusable.
9.24.2009 3:02am
pireader (mail):
Professor Adler --

We went past each other ... let's try once more.

You've got this yardstick in your head that calls for senior people to read through the details of everything they must personally approve (sign, vote on, whatever).

Your original post applied that yardstick to Congress. I inquired whether the same yardstick applies to corporate CEOs. You said "Yes".

Well, neither Congress Members, nor corporate CEOs, nor others in positions of great and broad responsibility anywhere in the world operate the way your yardstick calls for. And the reason why they don't seems clear ... the volume of documents and the range of issues they address is simply too great.

I admire your self-confidence. A lesser man might question his yardstick's appicability to the real world.
9.24.2009 8:04am
Jonathan H. Adler (mail) (www):
pireader --

We are talking past each other, as I don't believe the legislator, senior partner or CEO must "read through the details of everything they must personally approve." Let's start with senior partners. They must "personally approve" lots of things -- expenditures, proposals, investigations, assignments, memoranda, etc. Within the set of those things they must approve there is a subset -- legal documents that they are signing as officers of the court -- that it is irresponsible for them to sign without ahving read and personally approved, even if they had someone else to the leg work. The same is true with CEOs. The must personally approve lots of things, but there is still a subset of documents, contracts, statements, etc. that the CEO must sign and attest to the truthfulness of, and these documents the CEO should have read -- if for no other reason than corporate officers are increasingly at risk of liability if the documents are inaccurate. And, the same is true of members of Congress. Members of Congress approve without reading all sorts of documents -- constituent letters, submitted testimony, committee schedules, committee reports, investigations, etc. In my brief time on the Hill I wrote all sorts of things on behalf of the Senator that went out under his name that he never saw or read, and that's no problem. Here, as in the other example, there is a subset of responsibilities that they must fulfill themselves -- in this case, reading an understanding that which the legislator would legislate.

JHA
9.24.2009 10:01am
Stephen Goldstein (mail):
welker . . . .

"The bottom-line is that these points are so simple and obvious, that there is no serious argument that you or anyone else could make against them."

Actually, FWIW, IMO your point is not that clear, or at least, it's incomplete . . . .

Adler espouses a principle . . . legislators should not vote FOR a bill that they have not read or understand; rather they should vote AGAINST (he doesn't deal with the case where the legislator has read but, still, does not understand).

Your point, as I read it, is that voting AGAINST, in ignorance, is just-as-bad as voting FOR.

Personally, I find Adler's arguments persuasive. But the real problem with your point is that it is incomplete — you say that a legislator should never be in a position of having to vote in ignorance — a wonderful sentiment, against which, as you say, no credible arguement can be made.

Problem is, your position fails to inform what should be done WHEN a legislator has not done what they should have done.

Say you've been elected to a seat in the House of Representatives. You have 434 peers.

A vote has been scheduled on a very important bill, the so-called "ObamaCare" which is intended to result in better health care for all Americans.

Your staff is not of one mind — in your meetings proponents and opponents point as the same provisions to support their positions. Ditto for your constituents. Yikes!

Now you have a 2,000 page bill with all the details and three staff reports amounting to another 300 pages of advocacy FOR and AGAINST. And there are more reports from CBO, LRS and those briefs from the lobbyists.

Sadly, you've been busy lately, running your reelection campaign, and you've not been able to read enough of the material to get a good sense of what it all means.

You planned to stay up last night, if necessary, to read it all 'cause you know how irresponsible it would be to do otherwise. (Reminds you of your college days when you had to cram for those darn exams.)

Unfortunately, you didn't make it! You fell asleep in your reading chair with four binders sitting, open, on your lap.

And now, you are in the chamber, the Speaker has called the House to order and you rise, moving that the vote be postponed for one day ('cause you think you could get to them tonight).

Your motion fails for lack of a second and the roll call begins.

Based on your earlier posts we agree that you have failed as a representative — you can't possibly represent the interests of your constituents if you don't know what you're getting them into (or, to your point, keeping them out of). This failure, to use your word, is inexcusable.

You know you should resign but, still, there is the vote that is being called right now.

Adler, again, offers good arguments as to why, if you vote in ignorance, AGAINST is not-as-bad as FOR.

You've ignored the basic difference in premise between your sentiment and Adler's principle.

Adler explains what should be done NOW (present tense).

You explain what SHOULD HAVE BEEN DONE (past subjunctive?).

So, given that, last night, you did not do what you should have done, what will you do now?

The Speaker is not going to come to your desk and stand over you, like your second grade teacher, and have the House wait while you go, page by page, through the bill!

Your choices, NOW, are to leave the room or vote. If you choose to vote, your choices are: Yes, No, or Present (isn't that the legislative equivalent of nolo contendere).

What are you going to do? Now?
9.24.2009 10:10am
Jonathan H. Adler (mail) (www):
Mr. Welker --

At this point I think you're being obtuse. Of course action and inaction both have consequences. My point is that throughout our legal system is a presumption that a tie goes to the status quo.

So, of course legislators should read all bills however they intend to vote. The question is what to do if there is a vote and they have not had time to read the bill. As I've noted before, I think fiinal bill text should be made publicly available for several days before there is a vote, but this doesn't always happen (and often by design). If, to take a not so hypothetical example, a 500 page bill is dropped the day the vote is scheduled. the best cause of action in such a scenario is to seek to prevent the end of debate so that they can understand the bill. Sometimes this works. But if it doesn't, what is the legislator to do? Flip a coin? Base their opinion on the say-so of a 24-year-old legislative staffer? A lobbyist? A newspaper editorial? No.

My argument is that in this instance -- if there is no opportunity to read the bill -- they should vote against it. This is not a defense of voting out of ignorance, but of opposing a change when the bare minimum acceptable process -- providing an opportunity for legislators to read and understand the legislation -- has not been provided. Voting against legislation in such an instance is not permanent opposition, but it maintains the status quo until those who are proposing change have satisfied their (minimal) burden.

We accept this basic framework throughout the judicial and administrative context. I think the same principle should apply here.

JHA
9.24.2009 10:12am
CarLitGuy:
I've had a bit to do with legislation - proposal, revision, education, and ultimately preparation of the final form for voting. This was at the state, rather than the national level, and in my professional capacity as someone in the business being legislated, rather than as a state legislator. (So there is no confusion, and any assumed bias is disclosed). Its been my pleasure, and sometimes, the cause of great consternation and dismay, to have been involved in such processes in numerous states, working with individual legislators, attorney generals, their respective offices, and sometimes with administrative bodies.

Prior to that involvement, I held the personal belief that legislaotrs should read and understand anything they were voting yes/no on, and should abstain from voting on anything they didn't understand. After my experiences of these past years, I continue to hold that view.

Now, some will suggest that it is unreasonable to expect that people be required to read hundreds of pages of obscure markup - I feel it is more unreasonable to submuit such as a bill in the first place. Others suggest that "staff" should be responsible. In my view, one of staff's jobs is to take those short form bills (i.e., in paragraph 2.1.1(a)2(c), pp2, strike through "and", replace with "or") and provide the full text with the proposed changes for the legislator's review - a before and after, if you will, with a summury as to the stated intent (the policy) backing the change to existing law. The legislator can then review the changes, determine if additional research or communication with his constituency is needed to vote intelligently on our behalf, and delegate responsibility to his staff to do such research as needed to clarify the impact of the legislation on his or her constituency.

Ultimately, its the legislator's job to vote, I expect my representatives to actually read and understand what they are voting on. "I didn't read it" is not an excuse - simply an explanation that they failed to do the job they were elected for. "My staff summarized it for me" is like relying on cliff notes - an explanation that the representative did the minimum needed to prepare for the test. At the very least, be honest enough to abstain from voting on things one knows nothing about, and did not deem important enough to actually read.

This does not seem to me, from experience, to be so much to ask.
9.24.2009 10:35am
einhverfr (mail) (www):
David Welker:

First of all, I do not advocate ignorance. I am against both ignorant change and ignorant maintenance of the status quo.

Further, ignorance maintenance of the status quo can be just as reckless as ignorant change.


The question though is whether ignorant change is better or worse than ignorant maintenance of the status quo. For example, there may be bills that even after reading and with the help of staff a congressman might have doubt about understanding. This doubt may persist through the debate. Or one might run into specific cases where it was impossible to give a bill the attention it deserved. I think where regulation is at issue, the default vote should be "no." If the bill is hard to comprehend, one can always wait for a clearer version to come along.

Now, obviously there are exceptions to the above rule. I am not an absolutist here. Things like appropriations bills are not going to be audited by every single representative. And obviously voting against such a bill just because you haven't read it is not an ideologically neutral position (rather it is an argument for either delegating financial control to the executive or drastically reducing the size and complexity of the federal government).

But we see a lot of these viewpoints on stage in the health care reform debate. The fact is that our health care system is in need of at least some changes. The bills are very long and complicated, and they are difficult to understand. Yet we are told that they MUST be passed NOW because otherwise the alternative is for our system to become even more unworkable. That is very close to your heart disease metaphor.

However, there are many Americans, myself included, who agree with SOME of the ideas in the bills but feel that this is NOT a way to pass legislation. Many of us believe that there will be many unpleasant surprises in these bills and side-effects which were not foreseen but may leave us for a time worse off than we are today. Hence I tell my congressmen to vote against most of the bills out there on this and other issues.

Back to your heart disease metaphor. It is true without change, the effect is bad, but you can't make every change overnight. To combat existing heart disease, one has to make a commitment to continuing (and after a bit incremental) change regarding exercise, etc. If something is that messed up in our system we need a commitment to CONTINUING rather than one-time reform. I would like to see modest health care reform legislation pass every year for a decade, with each bill being limited in scope, bipartisan in support, and well discussed/debated. I suppose though I can dream on......
9.24.2009 11:02am
pireader (mail):
Professor Adler --

Yes, some documents are more-important than others ... let's focus on the truly important ones.

Frankly, you're just mistaken. The typical big-company CEO doesn't pore through the guts of his company's accounting looking for mistakes before he certifies it to the SEC, even though he's personally liable. He's not an accounting expert; if there were a problem he wouldn't find it. Instead, he puts a lot of effort in hiring a good CFO and a good Chief Accountant; he talks to them about their policies and approaches; he listens intently for whispers of problems down inside his organization; he discusses it all with his internal and external auditors. And then he signs.

More generally, CEOs, Members of Congress, and other senior leaders of large organizations, often face lengthy, complex documents that they must sign or vote on.

No matter how important the document, they usually don't work through the details ... and they shouldn't. Instead, they understand what policy decisions the document embodies, and they ensure that competent specialists have vetted the details. Then they sign and move on.

It's not because they're lazy; it's because they wouldn't catch the problems anyway. There's too much material and it's too diverse.

And that's where your senior partner analogy breaks down. Your partner is functioning as an expert, in his domain of expertise. CEOs aren't and neither are Members of Congress. So their obligations and responsibilities are different.
9.24.2009 12:08pm
Wince and Nod (mail) (www):
Mr. Welker,

If a legislator did not have time to understand the bill the legislator should vote no, on the theory that ignorant change is nearly always worse than ignorant maintenance of the status quo.

Voting on legislation is not like running a two minute drill or a fluid battle situation. It does not benefit from 'getting inside your opponents OODA loop'. It benefits from deliberation. A no vote which is actually a vote for more deliberation is a good thing.

Yours,
Tom DeGisi, aka Wince
9.24.2009 12:36pm
FWB (mail):
The Staff are not elected to represent the people. The People place their trust in their elected servant. It is a requirement of the trust that the servant does the job. Letting staff do the work is akin to hiring your normal babysitter and coming home early to find out that the person you hired farmed the job out to another person. Congresscritters are hired as servants to do a job. They take an oath to uphold the Constitution.

If a Congresscritter even thinks something in a bill might be unconstitutional, he is duty bound to vote against the bill.

From Tucker (1899):


On the requirements of a Legislator to remain obedient to the Constitution.
185. ..."The case is different with the legislator and executive. He is bound to support the Constitution, - to uphold it as one of the pillars to an edifice. He is under the Constitution, not above it. He cannot support it by doing an act repugnant to it. 'His public office is a public trust.' If he doubts his power to do under the authority of the Constitution, he is bound to resolve the doubt against the act, not in favor of it."

"Mr. Cooley thus states it: 'Legislators have their authority measured by the Constitution; they are chosen to do what it permits, and nothing more, and they take a solemn oath to obey and support it. When they disregard its provisions they usurp authority, abuse their trust and violate the promises they have confirmed by an oath. To pass an act when they are in doubt whether it does not violate the Constitution is to treat as of no force the most imperative obligations any person can assume. ... A witness in court who would treat his oath thus lightly, and affirm things of which he was in doubt, would be held a criminal. Indeed, it is because the legislature has applied the judgement of its members to the question of its authority to pass the proposed law, and has only passed it after being satisfied of the authority, that the judiciary waive their own doubts and give it their support.'"

"He holds the same views as to the duty of the President, and maintains that the President, even where the judiciary has sanctioned the constitutionality of an act, is not only duty bound to give his approval to a similar act, but may, in consonance with his duty, withhold his approval. It follows from this, that a legislator cannot justify a vote for a law on the ground that as judge he would not declare it void. The legislator crosses no forbidden line when he refuses to enact what he believes is repugnant to the Constitution. The judiciary does cross a forbidden line where it declares a law void, unless it be without doubt repugnant to the Constitution. The legislator is never warranted in voting for a law he does not believe the Constitution sanctions, to support which he has sworn as an affirmative duty, not that he will not pull down the pillars of the edifice, but, as one of the many pillars, he will uphold it."

"In the case of the law-maker, the question to be asked is: 'Have I the right under the Constitution to pass this act ?' The onus is for him to show his authority. In the case of a judge, the question is: 'Is the law clearly unconstitutional ? In annulling the law in support of the Constitution will I transcend my judicial functions and usurp the legislative; or is the repugnancy so strong that I will only act judicially in annulling the effect of the law, and not transcend the boundary of my power ?' The burden shifts in the two cases. The legislator must show that he has the right; the judge must show the legislator was clearly wrong."

"Hence the law-maker may not justify a vote for a measure which as judge he could not declare void; but, if the judiciary declares such an act unconstitutional, it should forbid the law-maker to pass similar legislation. On the other hand, though the judiciary cannot declare a law unconstitutional because not clearly repugnant, it does not justify the law-maker in voting for it."

The Constitution of the United States: A Critical Discussion of its Genesis, Development, and Interpretation, John Randolph Tucker, LL.D., 1899. ISBN 0-8377-1206-8 Cooley on Constitutional Law, Pp. 153-54. 161-63., Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the States of the American Union, Judge Thomas Cooley, 1868. Thomas M. Cooley, LL.D., General Principles of Constitutional Law in the United States of America, (3rd ed. 1898).


If those elected to serve would merely follow the Constitution, the legislation offered would be simple. Congress has no broad, indepth powers.

Tiocfaidh ar la!
9.24.2009 1:41pm
David Welker (www):

So, of course legislators should read all bills however they intend to vote. The question is what to do if there is a vote and they have not had time to read the bill.


I thought your argument was that if one intended on voting no, they did not have to read the bill, even if sufficient time was available to read the bill.

Obviously, if it is physically impossible to read the bill, then legislators cannot be expected to read it.

Did you really think I was arguing that legislators should be expected to do that which is impossible? That would be a very silly and unreasonable point of view.

Given your views on the importance of reading a bill -- a view I do no agree with -- I agree that a no vote would be justifiable in this circumstance.

But, that, along with the deal breaking provision where you no your going to vote no matter what else the bill says, is the exception. The rule, we agree, is that the bill should be read regardless of how one intends to vote.

You assert that I am being obtuse. But, it seems strange to me that you would assume that I or anyone else would ever think a lawmaker has a duty to do that which is impossible.
9.24.2009 2:38pm
silvermine (mail) (www):
See, it seems to me that if I break a law, I will be fired or put in jail. So I'm expected to know exactly what all of them say. But you tell me it is impossible for the people passing them to know what is in them?

The elites can't understand it, but the plebes will be thrown in jail doesn't sound like a winning argument to me. But it's clear to me that's how they feel -- Geitner gets to run the Treasury. If I said TurboTax messed up my return, I'd get a lot of fun visits from the IRS.
9.24.2009 3:03pm
Mac (mail):

If I said TurboTax messed up my return, I'd get a lot of fun visits from the IRS.

And you had signed a statement from your employer to the effect that you understood that you owed the tax and had paid the tax plus penalty for prior years, but did not bother to correct your "mistake" in subsequent years since the IRS had not found that error, yet.

Clearly, all you need to do to avoid the IRS is to get Obama to appoint you to
Treasury.

Then there is Rangle who heads the Ways and Means committee and who pleads ignorance of the law for why he had not paid significant amounts of tax. He writes the damn tax laws! I guess, "I never read the Bill I wrote", is a great excuse for non-payment of taxes.
9.24.2009 4:11pm
David M. Nieporent (www):
In your view, it is not possible to understand legislation without reading it. Given that view, it is not possible to understand the consequences of voting no without reading the legislation,
Wrong. The consequences of voting no are that the current laws remain in place, which one already knows as a responsible legislator.
9.25.2009 10:21am

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