Over at the Volokh Conspiracy, a battle royale raged over whether legislators should be required to read bills before voting on them. While no one suggests that legislators shouldn’t read bills, or that they shouldn’t have sufficient time to read bills before voting if they desire to do so, the argument is focused on whether the actual reading of a bill by the actual person voting on the bill should be mandated.
There are numerous posts on the subject already, and well worth the read. But in response to Jonathon Adler and David Post, Eric Posner has offered a response to the imposition of a bill-reading mandate that incorporates some thoughts that go well beyond the topic at hand.
In the context of bills, there are two problems with the obvious “just read the frigging bill” position. Much of what’s in a bill is technical stuff that isn’t substantive to the law proposed, and much of what’s in the bill requires a depth of knowledge on the internal subject of the bill that is beyond a legislator’s ken. In other words, they would learn more about a bill from a trusted expert on the subject who has read the bill than by reading it themselves. And yet, this still isn’t an excuse for not taking personal responsibility for the critical duty to know what you’re voting on. After all, if your “trusted expert” is not to be trusted, or not so expert, then the legislator becomes a patsy. That won’t do.
This problem could be alleviated if laws were written so as to be clear and comprehensible to an ordinary person of reasonable intelligence with a high school education, right? Then, even a politician could understand them and would have some clue what he was voting on. This is a core belief of those who contend that the law has become overly and needless prolix.
Orin Kerr, however, takes the wind out of their sails:
There are numerous posts on the subject already, and well worth the read. But in response to Jonathon Adler and David Post, Eric Posner has offered a response to the imposition of a bill-reading mandate that incorporates some thoughts that go well beyond the topic at hand.
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.We are constantly confronted with people who are fed up, and rightfully so, with the complexity of law, and who demand a simple solution to the law. There’s always a simple solution, and it has such surface appeal that there is always support behind it arguing that we, lawyers, have made a horrific mess of things in our effort to overlawyer every iota of the human experience. The snappy response is to quote H.L. Mencken, “For every complex problem, there is a solution that is simple, neat, and wrong.”
In the context of bills, there are two problems with the obvious “just read the frigging bill” position. Much of what’s in a bill is technical stuff that isn’t substantive to the law proposed, and much of what’s in the bill requires a depth of knowledge on the internal subject of the bill that is beyond a legislator’s ken. In other words, they would learn more about a bill from a trusted expert on the subject who has read the bill than by reading it themselves. And yet, this still isn’t an excuse for not taking personal responsibility for the critical duty to know what you’re voting on. After all, if your “trusted expert” is not to be trusted, or not so expert, then the legislator becomes a patsy. That won’t do.
This problem could be alleviated if laws were written so as to be clear and comprehensible to an ordinary person of reasonable intelligence with a high school education, right? Then, even a politician could understand them and would have some clue what he was voting on. This is a core belief of those who contend that the law has become overly and needless prolix.
Orin Kerr, however, takes the wind out of their sails:
Complicated Karen: I’ve been thinking about how much privacy the law should give to private e-mails held by an ISP. A lot of people think e-mail should be protected by a warrant requirement. What do you think?
Clear Chris: I completely agree. I propose a simple rule: E-mail should be protected by a warrant.
Complicated Karen: Great. Now let’s start thinking about some exceptions. Imagine an Internet subscriber wants the ISP to disclose the contents of his e-mail. Maybe he has forgotten the password, or he needs an authenticated version. Should we have an exception for consent?
Clear Chris: Well, yes, of course. If the person really consents, then the government shouldn’t need a warrant. That’s obvious.
Complicated Karen: Great. What kind of standard would you choose for consent? Knowing? Knowing and voluntary? Intelligent? Is it consent in fact? Would you allow implied consent? And what about third party consent? How about business e-mail?
Clear Chris: Woah, that’s a lot of questions! I don’t really know, to be honest. I just want the exception to be clear so people can understand it.
Complicated Karen: Sure, I agree, clear is great. At the same time, we need to think about just what kind of consent you have in mind. Otherwise it will just punt the issue for the courts to make up the law later on. Moving along, what about an exception for emergencies? Should we have an emergency exception? For example what if the police tip off the ISP that the e-mail is being used by a kidnapper, and the government would need several hours or more to get a warrant. Should we allow emergency disclosure if the ISP wants to disclose?
Clear Chris: I don’t know, once we start getting exceptions, it seems like the exceptions are going to swallow the rule. But I’m not a nut; if there’s really a kidnapping, and the ISP is willing to disclose, I think an emergency exception for kidnapping is reasonable. But I want the exception limited to kidnapping.
Complicated Karen: How about terrorists attacks? Serial killers? Maybe we should craft a general exception for severe emergencies?
Clear Chris: I’ll have to think about that one; I’m pretty skeptical, but I’m not sure I would want to totally rule that out. Let’s come back to that one.
Complicated Karen: Sure. What about if the ISP is outside the U.S.? What then?
Clear Chris: Who has an e-mail account outside the U.S.?
Complicated Karen: A lot of people do, actually. Someone in the US might have an account with servers in Canada. And for that matter, someone in Paris might have a Gmail account in the U.S. Do you want to require a warrant for all of these cases?
Clear Chris: I’ve never thought about that one, I have to admit. But well, yeah, sure, let’s have a warrant requirement for those. I want a clear and simple rule, so let’s keep it clear and simple.
Complicated Karen: Sure, that’s fine. But to do that, we’re going to modify some other laws. Under current U.S. law, U.S. officials can’t get a warrant for overseas: warrants are traditionally for U.S. use only. And how do you want to create U.S. jurisdiction over crimes occurring abroad? If a person commits a crime in France, that can’t authorize a U.S. warrant under U.S. law. We either need to negotiate a treaty with the French government to handle that, or else we can say that French crimes committed in France are U.S. crimes, too, allowing warrants to be issued in the U.S.
Clear Chris: Yikes, are you nuts? Suddenly you’re talking about the treaties and French law, and all I wanted to do was have a simple rule! You keep trying to make things complicated. Why not just make it simple?
Complicated Karen: I’m trying to keep it simple, actually. But to make the law what you want it to be, you need to think about these issues: Otherwise you’ll announce a simple rule but it won’t have any legal effect because of other aspects of existing law.
Clear Chris: Lawyers! You guys always like to make things complicated; No wonder you bill by the hour.
As he concludes, it’s not that clear and concise laws aren’t a good thing and a goal, but that there are competing interests between clarity and comprehensiveness that must be satisfied. This isn’t to say that we don’t have bad, overly prolix, incomprehensible laws, or that every law needs to be as lengthy and painful to read as it is. No one suggests that Washington is doing a bang up job on drafting legislation. But that the cure could be worse than the disease.
And, of course, none of this alters one basic principle that shouldn’t get lost in the sauce. No bill should sail through so quickly that any legislator who wants to read, digest, comprehend it is not given the opportunity to do so. Like, oh, what happened with the USA Patriot Act.
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I dunno. “Outsource your reading, outsource your ethics,” would work for me. But there is a history of politicians getting away, politically, with “that wasn’t what we meant for the bill to do!” despite claims from opponents that it would do the undesirable thing. I don’t think, for example, that the cleverly-named “Yacht Tax” was at all intended to sink the US mid-size boat manufacturing industry — although that’s just what the critics said, at the time, it would do, and what it done did.
It gets more complicated with arguments around the USA PATRIOT Act (hey, don’t blame me; the name’s in all caps) and the reduction in civil liberties which did happen and the Obamacare reform and the elimination of private health care that the critics say would happen, as the critics [argued | argue], credibly, that that’s among the goals of some of the proponents.
As for me, whenever a politician tells me that they’ve got to rush and pass a bill, my hand moves in its well-practiced draw stroke to whip out my thesaurus, and start looking for synonyms for “weasel.” It’s not always weaselry (hell, I’ve been involved in agitating for the successful passage of one bill where it really needed to be done “now or maybe never”) but that is the way to bet.
Do you really think that a reading requirement would change this? Do you think they would be too embarrassed to later claim that they didn’t understand what they were doing if they were presumed to have read the bill? Consider Bob Barr‘s New York Times op-ed on Troy Davis, where he later claimed that “nothing in the statute should have left the courts with the impression that they were barred from hearing claims of actual innocence like Troy Davis’s.” Of course, he co-wrote the bill.
Maybe the fault lies not with the stars but with ourselves. I take it Amy Bach’s book is broaching the idea that the collective, popular character in the country has shifted and we no longer care, as a country, about injustice. And there’s always a sophist’s point that we really don’t know what justice or injustice really is.
When that is the national character, it may be folly to believe that elected representatives and judges will do anything other than reflect what we already are. Making them read what they vote on might just be more whistling past the graveyard.
Maybe the truth is that they don’t care because we don’t care.
No, that’s too depressing. Can’t segue into despair, now, can we?
I think the biggest advantage of forcing legislators to read the bill is that it might slow down the rate at which they pass legislation.
Rather than “take it” what Amy Bach is saying, it would be more effective to read it. That’s not her point at all. Her point is that we do care, but can’t see the ordinary injustice because it’s so ordinary; have no means of measuring the ordinary injustice and have no system in place to prevent ordinary injustice.
It is amazing how quickly a bad bill can pass when there is an episode of legislative hysteria. Once passed it can take years to correct the problems caused by such a bill.
I would like a rule where they cannot pass a new law in odd numbered years.
Do you really think that a reading requirement would change this?
Nah. I wish I did. It would, though, make the IDidn’tUnderstandWhatIWasVotingFor argument a littler lamer than it already is.
Consider the example you raise — would Barr’s argument perhaps not have seemed quite as lame if, instead of having been one of the titular (and perhaps actual, for all I know) authors of the statute, he’d just been one of the majority that voted for it?
The reading requirement is just another attack by the folks who oppose the bill, for reasons good and/or ill. I don’t think it’s as strong a one as the one where Congresscritters would have been required to have one of their own health plan choices be the “public option” — which was shot down, without even a committee vote.
That’s one of those Menckian solutions, I think — there are odd-numbered years (and even-numbered ones, for that matter) where a law really ought to be passed.