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Thursday, September 24, 2009

Read the Bill! Or Read the Bill?

At the Volokh blog, the conspirators have been having a very interesting conversation about whether legislators should be obliged to read the full text of every piece of legislation on which they vote.  I won't provide all the links; you can surf on over and check it out.

A couple of comments.  First, asking in an extended and thoughtful fashion whether legislators should read the full text of the bill is different from simply shouting "Read the bill!" or waving copies of a bill in the air.  One is conversation and dialogue; the other is political theater and sloganeering.  The slogan "read the bill" has often been wielded against people who have actually read the bill (as if there were only one) by people who have not, and it often signifies, not that the shouters think their opponents haven't read the bill, but either that they disagree with some provision of the bill (about which they themselves may be in error) or that they can't believe anyone who actually read the bill could possibly disagree with them.  They would not be satisfied if their opponents read the bill and still supported it -- I am reminded of the Onion story in which God answers the prayers of a dying boy with a simple "No" -- so the nature and heat of the dispute can't be about reading the bill as such.  The conspirators who have argued for reading the bill are not making the equivalent of a "Read the bill!" assertion, and good for them.

Second, it is not sure what can be meant by an obligation to read the bill.  Surely it would be unenforceable as a legal obligation, except by some highly unlikely disciplinary mechanism within Congress itself.  (Would there be pop quizzes?)  That does not make it meaningless.  Much of what legislators are supposed to do, under their constitutional oaths, falls under the heading of moral obligation, or of a mixed moral/political obligation that is practically unenforceable.  That doesn't mean it has no weight or that we can't or shouldn't argue about it.  It does mean that we should recognize the debate for what it is and not treat it as anything other than a politically enforceable matter.  And it is one that should, of course, be applied even-handedly.  If reading the bill is the moral good people are interested in, then perhaps they should go to town halls with the text of some bill of which they overwhelmingly approve, and which their representative supported, and ask whether he or she read that bill, instead of focusing only on the legislation they disagree with.  

Third, I think one can have this debate in good faith or not.  If you support the "read the bill" obligation only because you think it would make lawmaking slower and more difficult and retard the pace of legislation, I don't think that's a valid reason in and of itself to support reading the bill as an obligation.  I'm not saying that wanting less legislation, as an absolute matter, isn't a valid desire, although I don't share it (as an absolute obligation; I'm not saying I want more or less legislation).  But in this case, "read the bill" would only be a means to an end, not an end in itself.  Whether or not you support reading the bill shouldn't only be about whether you want more or less legislation.  I am mindful of some of the positions Justice Scalia has taken, on matters such as standing and separation of powers.  If made in good faith, they are either right or wrong; if they are only about finding ways to slow the pace of legislation that might be more likely to be liberal than conservative, they are on more unsteady footing.  

Finally, and more positively, I haven't bothered linking to all the posts because I think Eric Posner has it quite right in his post on the subject.  Here's his opening salvo; go to his post for the rest.

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.

Posted by Paul Horwitz on September 24, 2009 at 11:37 AM in Paul Horwitz | Permalink

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Comments

If your not going to read the bills you vote on, why did we ellect you?

Why not build a machine to push yah or nay based on some algerathim of partisanship? If you don't think you should be required to because there is too many bills that are too large, then make the bills smaller and fewer.

If your not going to read the bill, we will ellect someone that will.

No government action should be so complicated and cumbersome that the people we ellect specifically to keep track and understand the actions of government, don't even bother.

But beyond that, I think it's more important that the bills are posted for me to read and understand in it's final version. So I can make my decision if I as a constituant want to give my congressmen my approval or disaproval.

I get a lot of: "Just go along with the health care bill as is, because it will change later anyway." Like we are suposed to suport something we don't like because after it passes, it will most likely change and that change could potentially be to your liking rather than even further away.

Posted by: Mr. Kelly | Oct 2, 2009 3:39:24 PM

An actual "read the bill" mandate may be both ill-advised and unenforceable. All the points about delegating, relying on summaries and staff advice, and such, are valid.

But Shag's final line, about the time required for a "read the bill" mandate, reminded me that the better question is whether any "rule" should be limited only to timing itself, not reading. An enforceable timing/notice/posting rule, if workable, is needed to ensure that staff and others have time to review the bills. After all, much of the recent criticism of the monster-size bills, whether stimulus or cap-and-trade, seemed to be about voting within hours of introduction, so that no one could review. Further, we then had the spectacle of "surprise" provisions that everyone denied inserting (e.g., the AIG bonuses).

Having no time for review seems to me a fairly indefensible system, because all of the arguments against a "read-the-bill" mandate work only if there is adequate time. So for me the only question is whether some procedural mandate could cure the problem. I have not seen much proposed on that, such as a rule forbidding votes without a 3 or 5 day pause, etc. Pres. Obama had his five-day pledge on signing, which was mostly borken and then withdrawn. But what about Congress as a whole, or its committees?

I'd be interested in what you and others, here or at Volokh, would say about that.

Posted by: anonner | Sep 28, 2009 12:18:23 PM

Most people enjoy eating the sausage rather than watching how it is made. Many have read and reread (many times) the Constitution but disagreements among the elite continue. The masses prefer sound bites - as do some among the elite. And consider the role of the legal profession after a statute is enacted in the search for loopholes. (Some skeptics might say that the loopholes are built into the process to encourage full employment for the legal profession.) How about a study as to the amount of time that would be involved if "Read the Bill" was in place AND enforced.

Posted by: Shag from Brookline | Sep 25, 2009 7:16:07 AM

"the only way to know if what is being voted on is good law is to read it"

This is the facile assumption that Eric, Paul, and others have been (persuasively, IMO) challenging. Governance is complex, and individual legislators have to delegate particular tasks in order to execute their jobs efficiently. Judges, for example, often delegate to clerks the responsibility to read and summarize briefs, so that the judges can get a sense of the arguments and then focus on the most crucial parts of the briefs in more detail. Does this mean judges who so delegate are shirking their duty, or that they don't have a sense of what the arguments in the case are? Hardly. A "read the brief" principle for every federal judge would likely make their jobs impossible. Similarly, if a trusted and talented advisor tells a legislator what the content of a bill is based on that advisor's detailed reading of the relevant provisions, the legislator is well-informed and can tell perfectly well whether the bill is good law without reading every word of the text.

Posted by: Dave | Sep 24, 2009 2:05:24 PM

I agree with Eric Posner's point that the goal of the legislature is to produce good law--and the only way to know if what is being voted on is good law is to read it.

But we've all see those bills. They're LONG. What should a legislator do in keeping with the goal of creating good law if he or she simply doesn't have the time to read every lengthy bill put before him/her? Would I rather my senators and representatives vote based on an approximation of what is in the bill, or not vote at all? Or vote on party lines, since that is usually how it breaks down anyway?

Posted by: GJELblogger | Sep 24, 2009 1:45:48 PM

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