Should Lawmakers, Um, Read the Laws They're Voting On?:
Sounds like something you'd ask in a third-grade civics class. But an odd editorial in today's Washington Post, takes to task "a group of well-meaning professional activists — and, so far, over nearly 60,000 online petitioners" who have demanded that members of Congress sign a pledge "never to vote on any bill unless they have read every word of it." While the activists "have a point," the Post concedes, their "proposal would bring government to a standstill." No reasonable functioning human being, the Post (correctly) points out, could possibly read every word of every bill that comes out of Congress, and legislators need time to do other things — to "hammer out legislation, draft amendments, interact with constituents, lead hearings . . . At some point, it's fine for members of Congress to rely on expert staff members."
I suspect that there's a fairly clear divide among people on this question. Some, like me, think it's pretty obvious: 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. Seems pretty basic, actually. It's a task that, I would think, is primary — drafting amendments, and interacting with constituents, and the many other things members of Congress do, are secondary; Law-Making is what they are in Washington (or, for that matter, in Albany, or Harrisburg, or Springfield) to do, and the idea that they should "rely on experts" to do their job is pretty spectacularly wrong. But I know that there are plenty of people who agree with what the editorial is saying, and who think that there's no point in demanding the impossible.
I'm not a fool - I know full well that not a single member of Congress read every word of, say, the 1,427-page Waxman-Markley energy bill. But I think we give up something valuable if we accept that as acceptable behavior. I guess it didn't occur to the editorialists at the Post that if members of Congress actually tried to live up to this most basic obligation, that 1,427-page long bills would no longer be introduced, which would surely, all other things being equal, be a good thing for the Republic.
[Thanks to the Cato Info Policy newsletter for the pointer]
Questions for Those Who Want Legislators to Pledge To Read Every Word of Every Bill Before Voting:
As a follow up to David Post's post below
, I have some practical questions for those who think that legislators should "never vote on any bill unless they have read every word of it."
1. Would you also require the legislator to understand
the bill? Or is mere reading, with no comprehension, enough? And if comprehension is required, how much comprehension is required, and how would you test that?
2. Imagine a particular bill is a long list of amendments to prior sections of the U.S. Code — perhaps hundreds of pages of amendments such as, "Insert 'and affects' after 'channels' in 5 U.S.C. 1040(a)(7)(C)." Would you also require the legislator to read the law that is being amended?
3. Imagine that a legislator has promised to vote against legislation of that general type — for example, he has promised to vote against all tax increases, and the bill includes a tax increase. Does he still have to read every word of the bill even though he has promised to vote against it?
4. Imagine a bill is up for a vote, and the bill is overwhelmingly popular: No one opposes it. It is also hundreds of pages long. Should the legislator have to read every word anyway? Or is there some threshold of controversy or importance that needs to be crossed before the reading requirement is triggered?
5. Does the reading requirement apply to procedural votes, like cloture, or is it only on the passage of the legislation itself?
UPDATE: Here's a bonus question:
6. Imagine Congress wants to dramatically limit the role of the federal government in American life, and there are bills up for a vote that do just that. The bills are very long, however, as they need to amend many laws, remove old parts, and introduce new parts that dramatically cut back on the size and scope of the federal bureaucracy. Do legislators need to read every word of those bills, too?
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.
Another Question for Those Who Want Legislators to Take the "Read the Bill" Pledge:
Another question for the ReadtheBillers. The rubber meets the road with elections. So imagine you go into the voting booth and you have two choices. The first choice is Legislator A, who votes the way you like, shares your ideology, and generally "gets it," even though he's not exactly a policy wonk and he doesn't actually read the bills. The second choice is Legislator B, who usually votes the wrong way, and is misguided on everything important, but who very conscientiously reads every word of every bill on his way to his wrong votes. Would you vote for Legislator A or Legislator B? Or perhaps you would write-in David Bernstein
Should legislators read bills?
I have read with dismay David and Jonathan’s arguments that all legislators should read all bills before voting. The argument fits a genre of populist rhetoric that claims that problems of governance can be solved with simple, common-sense rules, denying that political institutions are highly complex organizations that have evolved in response to needs and pressures, and that simple-sounding rules rarely do any good in complex settings. Here, we should keep in mind that the ultimate function of the legislature is to produce good law; that determining whether a particular law is good or bad is such a complex and subtle task that all legislatures have found it necessary to divide labor, form committees, hire staff, expect particular legislators to become experts and leaders in particular domains, and, indeed, delegate many functions to unelected expert regulators. This means that, for virtually any law, only a handful of people can possibly have a sophisticated understanding of the bill in question. It’s not a matter of reading the bill or not; it’s a matter of knowing about the problems that the bill hopes to solve. You can read the Bankruptcy Code from start to finish and even if you have an IQ of 200, you won’t understand it unless you also know how courts interpret the Code, how businesses respond to it, how state governments work around it, how regulators like the IRS use it, how it affects the incentives of individuals and firms, the meaning of moral hazard, something about risk aversion, how credit markets work, and on and on. I would say a half hour conversation with a credible expert would be vastly more useful than reading the Code, and if you say the legislators should talk to the expert and read the Code, you need also to believe that reading the Code will add to understanding and the legislator has nothing better to do with his time (for example, consult another expert with a different background, or consult an expert about another bill). I don’t believe that in any sophisticated private firm operating in a market one would ever see serious discussion along these lines: delegation to trusted subordinates is the essence of organization in complex settings, and people are evaluated on the basis of outcomes (profits, in the case of firms; the quality of the legislation they voted for, in the case of legislators), not on their conformity with simple-minded rules of behavior.
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.]