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Read the Bill -- A Reply to Eric:

I have read with dismay Eric's defense of the expectation that legislators should not read legislation upon which they will vote. I am dismayed because I think has adopted a caricature of the "Read the Bill" position, and because his post reflects an unrealistic account of how legislatures work that is contrary to my experience of the legislative process on Capitol Hill and after ten years of work for an interest group in Washington, D.C. (during which I was involved in drafting, commenting upon and analyzing legislative language with representatives and their staff, among other things), and because it presents an overly idealized view of the role of "experts" within our political system.

No one denies that an effective legislative process requires a "division of labor" or "delegation to trusted subordinates." As I've already written below:

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.
The question, which is relevant in private firms as well as in public entities, is what the proper scope of such delegations should be and, to what extent, principals need to perform certain functions for themselves.

The fact of the matter is that most legislative staff spend relatively little of their time reading and seeking to understand proposed legislation, let alone the small fraction of proposed legislation that may actually come up for a vote. They spend most of their time drafting correspondence, committee reports, talking points, memoranda, and the like, reading the same, as well as responding to constituent requests, meeting with staff from other offices, communicating with agencies, and so on. Legislative counsels also spend a decent amount of time drafting legislation. Under what I have proposed, none of this would change. Most legislative staff would continue to spend the vast majority of their time the same way that they do now. Committees and committee staff would still do the bulk of the heavy lifting on issues within their jurisdiction.

Since the legislator is the principal, I believe the legislator must, at the end of the day, assure him or herself that a given piece of legislation does what it is intended to do, and have some understanding of how it will achieve that end. This does not require tremendous expertise, but it does require, at a minimum, reading the bill's language (perhaps with the Ramseyer comparison already required in all House committee reports), meeting with more expert staff and, in many cases, hearing from experts. Is this too much to do for the small fraction of proposed legislation that may actually become law — that is, those pieces of legislation that pass committee and have a chance of a scheduled floor vote — hardly.

Two final points. First, Eric writes "political institutions are highly complex organizations that have evolved in response to needs and pressures." This is true as a descriptive claim, but it is hardly a justification of these political institutions. Much of what has evolved is the result of special interest pressures, rent-seeking, and the interests of political officials in evading accountability and capturing rents of their own. A process in which bills can be proposed and voted upon before anyone has had time to read them, including legislators and their staffs (as when omnibus amendments are offered on the floor on the eve of final passage), rarely serves the interest of "good legislation." It primarily serves those who seek either to push politically unpopular legislative changes or to enact targeted favors for prized constituencies. I've seen this first hand, and written up quite a few examples of the results. Does a "read the bill" obligation make all of this go away? Of course not. But it would make it harder for narrow interests to insert favors into highly complex bills, it would tend to encourage less complex legislation, and it would also further the goals of accountability and transparency. Legislators could be held accountable more easily, and the legislative process would be more transparent because if legislators had to have time to read the bills, then the interested public is more likely to have time to read legislation as well.

Second, I reject Eric's claim that "simple rules rarely do any good in complex settings." I am actually quite sympathetic to the opposite view, but that's a discussion for another time. I have other things to attend to, including a lecture by former OIRA Adminsitrator Susan Dudley this afternoon.

[NOTE: I made a few edits to fix typos and awkward phrasings.]

PatHMV (mail) (www):
Very good rebuttal.

I don't understand why Posner and Kerr are devoting so much energy to fighting strawmen caricatures of your argument rather than proposing alternative solutions to the problem.

I mean, it would be an improvement to require simply that the relevant COMMITEE members have actually read the bills they are voting on. Surely the committee members should have sufficient subject-matter expertise in their areas that they could and should comprehend the actual bill language.

Heck, at this point, I'd settle for a requirement that at least one single member of Congress from each party must actually read the entire bill before voting on it.

Barring that, if Congressmen want to be able to continue relying on surrogates to actually understand what they're voting on, the memos and summaries provided to Congress should all be signed by their specific authors, and the Congressmen should be on record, somehow, as to the specific summaries they have relied upon in determining what the bill does. That would allow for some additional level of accountability.

In most corporate organizations, the higher levels of review for contracts and such are mostly done by reading the summaries... and signing off on the transmittal memo chain. That signature chain ensures the CEO and the board of directors that they can identify who screwed up, if some contract goes awry. It makes people accountable for their work, by having to sign on the dotted line. Current congressional practice appears to have little way to hold any staffers (let alone particular congressmen) accountable, should bad language get in a bill which does something horribly different from what it was supposed to do, according to the summaries.
9.24.2009 12:23pm
Ben Herne (mail):
"In Rush to Pass 1,000-Page Health Care Bill, Congress Accidentally Enacts Walton, Indiana, Yellow Pages": Parody
9.24.2009 12:30pm
Jon Roland (mail) (www):
I suggest we work together in trying to draft a better bill to require members of Congress to draft better bills. Not enough people have read or understand this one yet.
9.24.2009 12:43pm
NotPrincipleBut:
principal
9.24.2009 12:44pm
A.S.:
Since the legislator is the principle

I appreciate the typo, but, really, "legislator" and "principle" rarely belong in the same sentence.
9.24.2009 12:45pm
scosm:
This strikes me as a very grade school-ish type of proposal (not that it has bad intentions), i.e. have your mom or dad sign your paper that got a bad grade and bring it back to the teacher. Would the legislators have to certify that they actually understood the legislation? If a statute amends a particular provision of the U.S. Code would the legislator have to read all the portions of the statute that are affected? Slow or fastidious, careful readers wouldn't even be allowed in Congress anymore.
9.24.2009 12:51pm
byomtov (mail):
I wonder if "read the bill" supporters also think that critics of the bill are obligated to read it before criticizing it.

After all, their actions may well determine whether or not the bill passes. Surely thay should be thoroughly familiar with what they are attacking.
9.24.2009 12:51pm
ShelbyC:
byomtov:

I wonder if "read the bill" supporters also think that critics of the bill are obligated to read it before criticizing it.


All newborns shall be put to the sword. Furthermore...


No, I don't think it works the other way :-).
9.24.2009 1:00pm
TNeloms:
I think everything you say is reasonable, but the following is probably the key point, and you gloss over it without defending it:


I believe the legislator must, at the end of the time, assure him or herself that a given piece of legislation does what it is intended to do, and have some understanding of how it will achieve that end. This does not require tremendous expertise, but it does require, at a minimum, reading the bill's language


The first part that I bolded (understanding the bill) is something that most people who have been arguing against you would either agree with, or at least find reasonable. The second part (reading the language) is what many are objecting to, and you don't explain why you think it's true.

Orin, for example, explicitly said in the comments that he finds the goal of having legislators understand what they pass very worthy, but doesn't think that requiring a reading of the actual language the best, or maybe even a good, means of achieving that goal.

I don't think I have seen any of the ReadTheBill supporters explain why reading every word is actually important, and reading a summary or detailed explanation prepared by a staffer (maybe for certain parts) is not sufficient. Perhaps the summaries and explanations that are currently prepared are not sufficient, but then why not push for more competent and thorough preparation of summaries?

If you can either explain why you think reading every word is important, or agree that knowing and understanding is the key issue and that reading thorough and competent summaries would be just as good, then I think most people on both sides will have reached an agreement.
9.24.2009 1:04pm
anomdebus (mail):
I would be happy with a Sarbanes-Oxley treatment that punishes legislators for legislative malpractice. What, you say, legislators are already punished by being voted out when they screw up really, really bad? Why didn't the same remedy suffice with shareholder's revolt against rogue CFO's?
9.24.2009 1:09pm
Redman:
Considering the mental capacity of most legislators, do you really think reading the bill will help?
9.24.2009 1:13pm
yankee (mail):
I am dismayed because I think has adopted a caricature of the "Read the Bill" position
In what sense is it a caricature? The view Eric criticized is that "all legislators should read all bills before voting." Isn't that the position you're advocating? In this very post you say that legislators should "at a minimum, [read] the bill's language" before voting. Similarly, David Post's original post that sparked this discussion said that "you can't know what a law means unless you've read its language, and you shouldn't be voting on a law if you don't know what it means."

In your other post you say that the "read the entire bill before voting" requirement should only apply to voting in favor of legislation, which is a nuance Eric's criticism doesn't capture. But your claim that he is criticizing a "caricature" isn't based on the vote for/vote against distinction.
9.24.2009 1:13pm
Melancton Smith:
It is about accountability, plain and simple. Read it or not, summary or detail, if they vote on it, they own the vote and can't make excuses like they didn't read it or their dog ate their summary.
9.24.2009 1:13pm
Barry Kirk (mail) (www):
How about taking any bill and putting a freeze on it at a certain point. After that point, there is a waiting period before it can be voted on. During the freeze, nothing further can be added to the bill.

If they want to open it up for more modifications, the waiting period is reset.

Now, I understand that somebody may introduce a minor, but annoying tweak or special interest favor just prior to the freeze taking effect, so here is the work around for that.

There are two freeze time scales... One for adding or modifying existing language and a smaller time period for removing sections.

Here is an example of what I'm saying.

Let's say that the add/modify freeze time period is 4 months and the deletion freeze time period is 2 months.

So, a bill is introduced and debated and amended... At a certain point, the legislature votes to freeze the bill. At that point nothing can be added or modified until the entire legislature votes yea or nay on the passing the bill 4 months later.

This will give people time to read the bill and find objectionable language and/or set asides. For the first 2 months after freezing the bill, legislatures will have the ability to remove language from the bill.

After that, their will be a 2 month waiting period before it goes up for a yea/nay vote.

The point is that given that long waiting period during which the bill is frozen. Each legislator won't have any excuses that they didn't know what they were voting on.

Any controversial sections will become very public and can be fiercely debated. If the bill is found to be not workable, well it can be unfrozen and the clock gets reset.

Yes this will slow things down, but is that a bad thing considering that a bad law can be with us forever?

If an emergency comes up, and the legislature needs to vote instantly on a bill, then 2 things can be done.

First, put a time limit on how long the law lasts. Say 4 months. That would allow a permanent bill to be introduced and go through the freeze process.

Second, require that any emergency legislation require a 90% super majority to pass.

Any case... Just a thought.
9.24.2009 1:14pm
A.S.:
[NOTE: I made a few edits to fix typos and awkward phrasings.]

Dang it! It was more fun the other way.

So, here's a question for those saying that there is no need for legislators to read the bill before voting: does the bill need to even actually exist prior to voting?

It seems to me that if legislators are delegating to staff the reading of a bill, why is there any need to actually have a bill before voting? The legislators can vote on a summary and, if the summary passes, the staff can work that summary into actual legislation.

I note this because, as absurd as it sounds, this is the actual way the Senate Finance Committee works. At least according to this story, the Senate Finance Committee translates the summary into actual legislation only after the Committee has voted on it.

So, question to those saying all legislators need is a summary: is this practice acceptable? If it is acceptable for the Committee, how about for the full Congress? Should Congress be able to pass a summary, have the President sign a summary and then the staff create the bill text? If legislators are entitled to rely on Staff, why would this not be an accpetable result?
9.24.2009 1:14pm
Barry Kirk (mail) (www):
Make that 6 months instead of 4 months for an emergency law to be in effect.
9.24.2009 1:18pm
yankee (mail):
So, question to those saying all legislators need is a summary: is this practice acceptable? If it is acceptable for the Committee, how about for the full Congress? Should Congress be able to pass a summary, have the President sign a summary and then the staff create the bill text? If legislators are entitled to rely on Staff, why would this not be an accpetable result?
Well, this is what would actually happen if the "read the entire bill before voting" demand were taken seriously, except that "the staff" would be replaced by "administrative agencies." The net effect would be to move a vast amount of lawmaking authority to the executive branch.
9.24.2009 1:19pm
ShelbyC:
Question: Should judges use the summary that the legislators read to determine legislative intent? What if I can show that the law was passed using a summary that suggested one thing, but the text of the bill that nobody read suggested another?
9.24.2009 1:29pm
LN (mail):

Read it or not, summary or detail, if they vote on it, they own the vote and can't make excuses like they didn't read it or their dog ate their summary.


Who cares if politicians make excuses? Is that what this is all about -- some particular kind of excuse is intolerable, and needs to be replaced with other excuses? "Oh I didn't support that part of the bill, but I voted it for it anyway because I thought the bill as a whole was for the best."
9.24.2009 1:33pm
CEpperson:
To me the biggest point is that if Congress had to actually read what they voted for then these huge bills will not be put forth in the first place.

I do not think that just having them read the bills will magically make it better, but if they actually have to be aware of the language of the bill they are voting for then there can actually be real debate on the bill. I am tired of debate on the theory and find out that the bill had nothing to do with that. Debate is being used as a smoke screen and not really deliberative. How can it when some bills are not even written till after its passed (this should be criminal).
9.24.2009 1:36pm
karrde (mail) (www):
I think the Read The Bill movement is a response to large bills being passed by Congress in a time-scale in which few inside Congress are assumed to have read the whole thing, and almost no one outside of Congress can say with certainty that they have read/understood the whole thing.
9.24.2009 1:50pm
Baelln1:

The legislative product (laws) are fundamentally written communications ('commands') to the populace.

If those legislator communications become too long & complex for even the communicators themselves to read & understand-- how is it remotely possible for the general populace to understand and comply … or the justice system to fairly adjudicate them (??)

The core issue here is really one's concept of "the-rule-of-law".

Classic Anglo-American rule-of-law requires certainty of the law, equality before the law, plus fair and independent judicial review.


American legislators impose complex laws, products of arbitrary political compromise. Government administrative and legal bureaucrats then enforce some of those commands, ignore others, modify them all in practice, greatly increase the complexity of law enforcement overall… establishing vast arbitrary power over the citizenry.

No legislator should ethically vote 'For' any legislation that he has not fully read and understood.

A "Nay" vote should be the default… it would dramatically smooth the legislative process and citizen well being.
9.24.2009 1:52pm
silvermine (mail) (www):
This idea of laws so complicated most people (including the legislators) can't understand them, and that no one need be able to read them because we have people and committees to interpret them for us... Well it all sort of reminds me of back when religion was the same way. The people didn't know how to read, you went to church where the religious leaders would tell you what the Bible said (or what they wish it said but didn't) and everyone was expected to obey and believe them, because there was no way for them to read it themselves.

But heck, let's go back to the dark ages. We already have political style simony (buy yourself an ambassadorship, for example), and indulgences (hey! you can be a tax cheat and run the Treasury, as long as you confess and receive absolution), too.

Okay, I just thought of this off the top of my head, but I think I'm going to think about for a while. We need a great american reformation. :P

(Energy Star appliances and hybrid cars as relics, perhaps? :D)
9.24.2009 2:48pm
Mac (mail):
Apparently, the Democrats in the Senate not only do not want to "read the Bill", but don't want you to either.

I suppose, they realized after the Townhalls, when constituents showed up with the House version of the bill and were quoting from it to disprove the statements of Members of Congress, that it was way too dangerous to let us see what they were proposing and have their abject ignorance exposed.

I think the logic, if any, is that if they are too stupid to understand the bill, we are really too stupid to read the actual thing, past events to the contrary.

Or, to put it another way, they think if we were dumb enough to elect them, we are really too dumb to read the bill.
9.24.2009 2:51pm
CCJ (mail):
Should the President be required to read an entire bill before he signs or vetoes it?
9.24.2009 2:54pm
LN (mail):
I was at the airport a few months ago and CNN was on TV. They spent an hour asking people to "grade" Obama's attempts at health care reform and they looked at polls. Apparently Democrats thought Obama was doing well and Republicans thought he was doing terribly.

They didn't spend a single minute going over any issues of substance.

Let's get real. Virtually no one here is actually going to bother to read any bills. Virtually no one here is actually going to bother to read even summaries of the bills. This stuff is complicated. And boring.

But people here are going to engage in high-level debates about socialism, "reading the bill," cutting spending, balancing the budget. They are engaged with general principles, with broad narratives, with morality plays. That stuff is pretty interesting.

What's ironic about this "read the bill" nonsense is that it really just another example of how the public is just not interested in the details. No one wants to read the bill, but people want to complain about lawyers, complexity, injustices, the decline of society.
9.24.2009 3:04pm
Mac (mail):
LN,

There were plenty of people at Townhalls who had read the Bill. I read a number of portions of it. When people feel they are going to get screwed, they tend to be much more mindful of the details. Unlike Members of Congress who are content to be doing the screwing.
9.24.2009 3:10pm
Harry Schell (mail):
I think in many cases it should be a requirement that not only Congress and otehr politicians read and understand what they are doing but also live with the consequences as citizens do (daily), not just at election time.

Such as: FICA, personal savings and maybe a 401k are good enough for citizens, so Congresscritters should be happy with the same. Medicare, ditto. Affirmative action, ditto. Light bulbs, ditto. Citizens are denied any means of effective self-defense, then all must be safe and people like Mike Bloomberg don't need an NYPD escort (he can use his own money to hire the guns to protect him).

Any number of things...
9.24.2009 3:24pm
Salaryman (mail):
Forget requiring that Congresspersons read the bills before they vote. Just mandate that any bill has to be posted online in its entirety for a specified period before being voted on and that it must be passed in the posted form. The American people would therefore have a chance to review, comment upon, ridicule, laud, protest and/or support whatever statute is being proposed. You could have a two-thirds supermajority requirement for asserted "emergencies" (if it is so urgent that a bill get passed w/o giving voters the chance to review it and pressure their representatives one way or the other, you should be able to get 67% support for it, right?).
9.24.2009 3:52pm
Mac (mail):

Salaryman,

Just mandate that any bill has to be posted online in its entirety for a specified period before being voted on and that it must be passed in the posted form


Here, here! Great idea.


Harry Schell (mail):
I think in many cases it should be a requirement that not only Congress and otehr politicians read and understand what they are doing but also live with the consequences as citizens do (daily), not just at election time.



Yes, including health care. Is it totally lost on the health care "reform" supporters that Congress has specificcaly exempted themselves?
9.24.2009 4:01pm
Barry Kirk (mail) (www):
Salaryman,

Look at my post above... I think we are on the same page...

The point is that if a bill is posted and frozen for a time period before a vote... It no longer becomes necessary for the representatives to read the bill.

The constituents for that representative will have time to read it, or read a trusted source that provides mummeries and they will have time to inform their representative of their feelings about a bill.

The point is that it will allow the people to become much more engaged in the process... Ooops did I say something "dangerous" ;)
9.24.2009 4:04pm
Barry Kirk (mail) (www):
Just had another thought...

Freeze the bill until after the next election. Have the legislature and any one running for office commit before the election to how they will vote on pending legislation.

If people are upset, they can vote to change the legislator before he/she gets a chance to vote on the bill.

Would that mean we would really have representation?
9.24.2009 4:08pm
Mac (mail):

If people are upset, they can vote to change the legislator before he/she gets a chance to vote on the bill.


Barry Kirk,

Aw, they'd say what they think the majority wants to hear and figure out a way to weasel out of it. That, they are experts at.

However, I do rather like the idea.
9.24.2009 4:53pm
Mac (mail):

If people are upset, they can vote to change the legislator before he/she gets a chance to vote on the bill.


Barry Kirk,

Aw, they'd say what they think the majority wants to hear and figure out a way to weasel out of it. That, they are experts at.

However, I do rather like the idea.
9.24.2009 4:53pm
Powdered Wig:
Can I suggest a modification of this requirement?

Instead of requiring that they read the bill (impractical in some extraordinary circumstances difficult to determine in advance), how about simply requiring a statement under penalty of perjury whether they have read the entire bill? Simple yes or no. Doesn't affect the vote tally.

On emergency bills, you would have lots of people saying "no" on the grounds that there isn't time. They could just say "no" and look bad next to the Congressmen who did read the bill.

But on most bills, you'd develop a record of who was and wasn't doing their jobs. Voters could take that into account in reelection decisions. Challengers could argue that incumbents aren't doing their jobs -- and really have proof.

Oh, and there would be great fun arguing "Legislative Intent" before the courts anytime the majority didn't even read the bill.
9.24.2009 4:57pm
LN (mail):
Right... because voters will judge legislators not on their ability to achieve particular outcomes or on their general values, but on their record of reading every footnote in the legislation that is passed.

I mean, that's what politicians rely on already, isn't it? "I got a 800 on the Verbal section of the SAT... I've read more many more books than my opponent... no other candidate reads as fast as I do." Is there a more popular buzzword in campaign ads than "attention to detail"?
9.24.2009 5:06pm
TFKW:
I'm all for the suggestion of posting the bill online, and I love the one about just forcing legislators to sign a statement one way or the other as to whether they read it.

As to the main issue, I'm solidly in the "read the bill camp", but not because I think members of congress will actually be able to understand what they are voting on or make voting decisions based on the actual text of bills. I just think that not reading the bill is disrespectful to their constituents and their office. Also I don't care how much time it takes up to actually read every word -- legislators get paid enough to pull some all-nighters for us.
9.24.2009 7:23pm
Jon Roland (mail) (www):
Perhaps a better approach would be some kind of sunset requirement, such as this one:

Sunset of legislation
Every bill enacted by Congress shall expire one year after enactment unless re-enacted, and unless the re-enactment shall be by a 60% vote in each House, it shall be rescinded to the date of previous enactment.

That would limit the damage of bad legislation and give people time to review it, and put the burden on proponents to re-enact rather than on opponents to mount an effort to repeal it.
9.24.2009 7:32pm
ohwilleke:
This proposal isn't even close to reality.

Even on committees, not all legislators are lawyers who primary expertise translating ideas into precise language and visa versa. Our political system selects for people who understand what their constituents care about and can translate their ideas into an imprecise vernacular that has emotional meaning to the public. People who fit this profile only infrequently overlap with people who are capable of turning ideas into precise legislative language and fully appreciating the implications of legal language.

The entire legislative system is premised upon trust. Committee memberships are selected so that partisan and subpartisan divides and differences in expertise resolve most proposals before they hit the floor, and so that members can rely upon the positive recommendations of follow legislators that they trust to decide how to vote on legislation.

Legislative staffs are employees at will, selected on a political basis, who owe sole and pure allegiance to their elected official bosses, so that their bosses can trust what they have to say so that they don't have to do it themselves.

Almost all legal documents are drafted in the manner that a comment suggests that the Senate Finance Committee uses. First, the principals in a deal, who are often non-lawyers, articulate the essential terms of the deal as an agreement in prinicipal, in inexact language. Then, technical experts, often lawyers, draft precise language that articulates thoe ideas in a consistent, unambiguous way, with awareness of the pitfalls that can come up.

Every now and again, a drafter will have to go back to the principals and let them know that a key policy issue has been left unresolved, or that what seemed clear is in fact conceptually inconsistent upon closer examination. I see this kind of problem as a lawyer in private practice most often when partners try to agree on the terms of a partnership (where the typical problem is a failure to distinguish between allocations of gains and losses on one hand, and distributions of property to partners on the other), and when individuals try to articulate who they would like to inherit their wealth if certain combinations of people have predecased them (many people are simply inable to think about these issues without case by case roleplaying).

While some kinds of bills (those enacting a coherent compact chunk of language that will appear in only one place on a topic not covered by existing law) are quite easy to read, a large share of laws make small piecemeal additions to lots of laws that are conceptually easy to understand, but make for very difficult reading.

For example, pollution that involves nuclear materials is exempt from almost all other environmental laws, because there is a special couple of environmental laws that deal specifically with nuclear pollution (basically, U.S. law makes nuclear waste federal property to prevent proliferation, rather than a private responsibility the way that toxic wastes are). Suppose that it becomes unclear whether certain nano-technology waste is toxic or nuclear and Congress steps in with a resolution of the issue by stating that it is nuclear.

A drafter has to ferret out every single environmental law with a nuclear exclusion, and in each law the exclusion appears in different places and often with different phrase structure because different environmental laws (clean air, clean water, superfund, NEPA, etc.) are structured in different ways. The most important mistake that a drafter is likely to make is not drafting amendments to the laws that are located incorrectly, but overlooking an environmental law with a nuclear exclusion that needs to be included. Special interests who are aware of the flaw, often have an interest in remaining silent until the law is passed and getting an unintended loophole. But, a hypothetical perfectly diligent lawmaker without encylopedic knowledge of the U.S. Code could easily read every single word of the bill, determine that it says what it means to say, and yet overlook what is really important, the law that is omitted from the text.

This example isn't a fluke. The most important issue concerning a draft bill is frequently the fact that it omits something. An anti-discrimination bill, for example, might apply to employment but not public accomodations that is governed by a separate statute. This may be good, it may be bad, but it an obvious sort of thing that one catches with bill language.

In tax law, there are many rules that only make sense if you understand the underlying business transaction that Congress is trying to regulate, but the transaction itself isn't described explicitly in the Code section that regulates it. This is why legislative history written by committee staff is so essential to understanding it. In the heat of the moment (conference committee deals are particularly prone to this disease), legislators who all understand the underlying transaction because they have been haggling over it for weeks simply record the key terms of the deal in legislative language and time doesn't permit drafters to fill in all of the background that really illuminates the deal before it is enacted.

In civil law countries with largely stable civil codes, it is often possible to tweak a single definition and get an intended result throughout the entire law. But, American laws aren't written that way. Partly this is because the U.S. had a long tradition of non-lawyer judges and informally educated lawyers until relatively late in its legislative history. In contrast, while the Europeans and the Japanese have very old civilizations, almost all of these countries have statutes (often on the close model of pre-Nazi regimes, but still formally anew) that have been adopted through a legislative process after World War II when the existing legislative regimes were destroyed. Most of the other countries of the world declared independence after World War II and have relatively recently drafted statutes for the same reason.

The U.S. federal government, in contrast, has a continuous legislative history that goes back to 1789 when the current constitution was adopted and the organizational laws of the U.S. government were adopted. This was almost a century before a coherent, regulated and consistently trained population of lawyers developed in the U.S. (that happened in the late 19th century). Congress itself wasn't very regularized or stable until then either. We have always been a legal culture that litigates by sound bite. So, everything important about a law needs to be in the section that a lawyer would usually cite or very close to it. This makes for unwieldly statutes, but our history of legislating and litigating has embedded this approach in our legal DNA. In a world with that style of legislation, and politicians from a wide variety of backgrounds, reading the bill will never be very useful for most legislators most of the time. Putting legislation into precise wording is an enforcement mechanism to allow courts and government agencies to function, and it is a dispute resolution mechanism in legislative debates over what has been agreed to by the principals.

Also, people forget that the vast majority of legislation is not controversial, and that the vast majority of legislation often only matters to government employees in a particular agency and often, to a single regulated industry. More often than not it resolves intragovernmental turf fights. While codified statutes and regulations get longer and longer every year, "private law" and select other statutory provisions like criminal law and the part of the tax law that impacts your ordinary 1040 filer, is a small percentage of the total and is much more stable. Section 1983 of the title of the U.S. Code on the Judiciary, for example, would have been familiar and recognizable to contemporaries of Abraham Lincoln. Laws like copyright laws or bankruptcy laws are amended in ways that have broad impact just once or twice in a generation, even though they, like all other parts of the statutory law, get regular little tweaks often with arcane impact.
9.24.2009 8:17pm
brian S (mail):
Jonathan:

While there may be some merit in legislators reading the bills they are voting on, your long experience with the legislative process should tell you that it is unrealistic to expect more than a very small handful of legislators to have read more than the enacting clause of any substantive proposal.

That's why it is a good thing that (a) bills have floor managers, whose job is to understand and be able to explain the features of a bill to their colleagues; and (b) Congress has a relatively public process, in which bill language is supposed to be published well in advance of floor action so that external actors can pull "fire alarms" and (c) we have a bicameral structure AND a veto process, allowing errors or problems to be identified before a bill becomes a law.

The Internet and THOMAS have given the American people dramatically greater ability to conduct fire-alarm oversight of the legislative process than ever before. Celebrate Federalist 51!

If only every state would do as well....
9.25.2009 6:07pm
Rich Rostrom (mail):
ISTM arguable that strict review of all legislation by every legislator is not practical. If that is true, then this is my answer:

Each legislator must either read the bill himself or explicitly designate someone else to do so for him. This could be a member of his staff. For instance, suppose a bill makes several dozen amendments to a single law or a group of related laws, all of the amendments being part of a global change in language. I would not be distressed if a legislator delegated to a staffer the task of verifying that all these changes were done correctly.

The designated person could also be a fellow legislator with the same views on the subject of the bill. Or a member of that legislator's staff. A group of legislators might operate a pool of specialists.

But the designation should be explicit, and the legislator must take responsibility for it as well as for the vote.

And, of course, no legislation should pass without review.
9.25.2009 6:22pm
Rose2.0 (mail):
The arguments against reading the bill sound like a snow job I have heard before. I'm only one of a significant number of lawyers who have posted on this blog (obviously), but I personally read, understand, digest, revise and interpret 1000 pages of legal material every month, at the least, and have for 16 years. It's my job. Do I read some parts more carefully than others? Sure. Do I have someone else reading, digesting, annotating? Frequently. I'm still responsible for reading and understanding it all.

This is their job. While I might not be as adamant in this position on routine legislative matters, this is hardly one of them. Any committee member should certainly be conversant with the subject matter. The point that I believe is getting lost is this -- these people are not just reading the legislation, they are purportedly WRITING it. How can one construe this later, or even begin to approach considering legislative intent, if there's no actual nexus between the "drafter" and the legislation?
When I write something, I do know every word -- because I'm responsible for it, and because I know I will be called upon to defend it. I don't expect less of my senator, and I don't think that's naive or simplistic.
9.26.2009 10:38pm

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