Friday, September 25, 2009

Don't Read That Bill

Via Sullivan, there's a lively debate over at Volokh in which David Post and Jonathan Adler are arguing that Members of Congress should in fact read every word of every bill that they vote for -- in fact, Adler goes so far as to say that Members should not only read the bill, but should also read every law (and regulation?) that the law would alter. Since I've said that such claims are "annoyingly stupid and dishonest,"I suppose I should see if they have a case.

First, Post (top of the linked page) makes a straightforward point: "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." I see no justification for the first part -- that you can't know what a law means unless you've read its language. It's true that someone has to read the language, but I see no argument here for why its insufficient for Members of Congress to hire experts to do the reading for them. Post counters that lawmaking is a primary function of Congress, and therefore "the idea that they should 'rely on experts' to do their job is pretty spectacularly wrong." But that's mistaken. People rely on expert help all the time in doing important job tasks -- you wouldn't storm out of a fancy restaurant because you found out that the Big Name Chef gets help chopping the salad. What we hire Members of Congress for is their judgment, not their expertise in legislative drafting. That's why no one ever campaigns for the House on a platform that she is an expert in understanding legal language.

Adler's argument...well, I guess I don't see an argument. First, he says (bottom of the linked page):
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.
Since the question here is whether reading the bill's language is helpful in assuring that "a given piece of legislation does what it is intended to do," then I see nothing here but an assertion that, well, it is.

Eventually, however, he argues that if Members were forced to read bills
[I]t 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.
OK, let's take these one by one. Would it make it harder for narrow interests to sneak things into bills? I don't see why not. Congress is responsive to the needs of narrow interests for all kinds of well-understood reasons. Political scientists may disagree about how much of this goes on and what the causes are, but I've never seen a serious argument that ignorance of Members of Congress about what they're doing is any part of it.

Would forcing Members to read bills "encourage less complex legislation"? Yes. Is that a good thing? Not at all. Anything that Congress fails to specify winds up being decided by either regulatory agencies, who are a lot less responsive to voters, or courts, which are even less responsive to voters. So requiring (or encouraging) Congress to pass short, vague bills isn't a recipe for Congress to ignore big problems; it's just a recipe for a weakening Congress within the political system.

Would forcing Members to read bills "further the goals of accountability and transparency"? On transparency, his argument is just that inserting a bit of time before floor votes would be a good the extent that this is true, the part about actually reading the bills is irrelevant. As far as accountability is concerned, Members of Congress are already accountable for their votes, and any Member foolish enough to claim that he only cast a vote one way because he didn't know what was in the bill is going to be in big trouble, regardless of what mechanism he uses to "know" the bill.

Look, Members of Congress have serious and difficult responsibilities. They need to vote on bills that require knowledge of arcane and difficult areas of public policy, of economics, of national security, and much, much more. Because they aren't going to be able to be experts in each area, they absolutely must depend on division of labor (i.e. the committee system), on delegation to staff, and (most of all) listening critically to interested groups as they make their cases for or against things. One of the most important skills a Member needs is the ability to know which things she really must understand, and which things it is safe to trust to others' understanding. The question the "read the bill" advocates need to address is what actually reading bills would add to any of that, and I'm not seeing anything in these posts that makes a serious argument for it. Why, for example, is it OK for Members to defer to CBO on how much a bill will cost, but not OK to defer to a summary of what the bill will do? Why shouldn't Members have to do the economic analysis themselves, instead of trusting CBO? Why shouldn't Members test weapons systems themselves, or survey newly proposed national parks themselves? If we are to have a functioning Congress, Members have to use experts for all sorts of things, and I'm not hearing any reason why bill language is a special case.

Bottom line: those who say they want Members of Congress to read bills have no case at all.

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