DownsizeDC.org
July 22, 2009
Detailed Criticism of the Read the Bills Act, A Response
By Jim Babka

A commenter over at Ed Brayton's Dispatches from the Culture Wars blog details why he...

...strongly reject(s) the "Read the Bill Act"[link added] for three primary reasons and some minor reasons as well:

Such opposition is so rare that it presents an opportunity. Let's look at his opposition points...

1) Bills should be fleshed out enough by the lawyers in their capacity as legislative aides in the direct employment of Congressmen in order to execute the principles being legislated. I also do not have a problem if these aides out-source some of the work to lawyers not in the direct employment of the Congressmen when expertise is not available amongst Committee members' legal staffs. When cases come to trial, judges should have a clarity and comprehensiveness that requires detail. I too reject lobbyists' drafts being copied and pasted into legislation but do not perceive the relationship between that and mandating Congress read all bills in their entirety.

This objection is flawed in several ways.

First, you didn't elect the staff or the lawyers. They are in no way accountable to you, the voter. This is an issue of Representation, pure and simple. For example, there’s massive opposition across America to the Real ID Act. For example…

What if the lawyers reviewing the bill on behalf of a Congressman want a law requiring YOU to purchase such an ID because they work for the security industry looking to get the contract? What if they slip something in an unrelated bill, at the last moment, and don’t tell their boss about it? …or without permitting the rest of Congress time to read it? …and there, but for that little bit of information, your Representative might have opposed the bill? …enough Representatives would’ve opposed the bill to defeat it?

There may be other ways of resolving these concerns, but the best solution is for members of Congress to be able to read the bill.

Second, and even more important, ignorance of the law is no excuse for YOU. If you don’t believe me, try it as a defense in court. So how is it acceptable that a Congressperson can be ignorant of what's in the bills they're both writing and voting upon? Does that seem just and proper to you?

Third, Congress is supposed to be a deliberative body. Deliberation, by definition, takes time. And it is far, far easier to get it right to start with, than to fix it later, which brings us to the fourth point to be made here...

Why should judges have “clarity and comprehensiveness,” but not REPRESENTATIVES? Why the double-standard?

a) Both the legislator and the judge swear the same oath, however... b) The legislator has direct representation responsibility, the judge does not

But I save the best for last. The fifth, and most important point to make in response is best explained with an analogy. Let's say you're about to make a large contractual obligation. Your agent tells you, “Everything is OK, go ahead and sign it.” Later, you find out he didn't actually read it, but delegated that responsibility to still other agents who had a vested interest in getting you to sign the contract, rather than protecting your interests. Have you been fairly represented? What if they snuck a clause in at the last minute that required you to pay an extra fee for some service that your agent didn’t disclose in their report to you?

Would you be out of line, per this critic's suggestion, if you were upset by such representation? Intellectual consistency would seemingly demand anyone who opposed Read the Bills to say, “Thank you. Would you please do that kind of thing to me again?”

And that’s where the “I’m an executive, so I delegate” approach to legislation gets you.

That’s an unfortunate position.

2) It would be physically impossible for an elected legislator to read bills that are adequately written to achieve all the objectives Congress faces. I too see this as a sophomoric libertarian attempt to limit government.

Well, I don't know about "libertarian." Name calling really isn't necessary.

But as for silly attempts to limit government, we...

  • stand by the Constitution -- the original silly attempt to limit government
  • support the continued use of Courts -- especially when they attempt to limit the powers of Congress
  • freely admit to wanting to limit government -- even if one might find the attempt "silly"

As for intent… According to Steny Hoyer, current House Majority Leader, explaining what the effect would be if the members merely had to read a long bill before they vote, "If every member pledged to not vote for it if they hadn't read it in its entirety, I think we would have very few votes."

If that’s true, and I believe that it is, required reading of the bills would result in a great outcome – fewer bills, covering fewer subjects.

It's like asking CEOs to read every product specification their company produces. [I am in favor of CEOs now being required to sign off on their financial statements, which can be digested in a reasonable period of time.]

There is a double-standard here. Yes, it is like asking CEOs to read... their financial statements. But let's look at the comparison closer.

CEOs have an immense responsibility. Sarbanes-Oxley requires them not only to read (like our modest proposal does), but also to personally verify the accuracy of all elements of their financial statements -- something that is almost metaphysically impossible.

  • Thus, being the CEO of a publicly traded company now carries immense liability.
  • There's nothing matching it in Congress, which plays with far, far, far larger amounts of YOUR money, and routinely defrauds its citizens.
  • CEOs, in general, are paragons of virtue, in comparison with politicians, and when they screw up, fewer people are hurt, then when politicians act incorrectly.
  • Relationships with the CEO’s company are also voluntary; not so for Senator Blowhard’s schemes and Representative Dogooder’s plans.

Yet this opponent to Read the Bills would prefer to saddle CEOs with not just reading, but knowing for sure that all details of a financial statement are true and accurate. In the same breath he insists that requiring Congress to simply read a bill – where they will saddle us with a tax, regulation, or another one of their programs that don't work – is asking too much.

In addition, the notion of "reasonable time" is a relative value judgment. Here's how we'd judge it, and once again, note that our values are not the efficient, get it done at any cost paradigm, but rather we refer to the Constitution.

By our count, Congress has 22 specifically "enumerated" powers in the Constitution. The Ninth and Tenth Amendment make it clear that this is a government LIMITED to its enumerated powers. The number, 22, is debatable -- and this is a side point where we can debate the number of angels who can dance on the head of a pin.**

The point is that Congressional powers are fewer and limited than Congress currently advertises.

We believe that a government that confined itself to its legal powers as defined in the U.S. Constitution would be small enough that they'd have all the time they needed to study every bill that came up for a vote, reviewing and debating all jots and tittles, and still having time to get back for planting season, harvest, and holidays. 

Critics may not like this. They might crave an even larger government. Fine: Then Amend the Constitution to cover all the currently illegal things our government does in our name.

Instead, our discerning critic continues...

In fact, I think it's naive to believe even relevant Committee members managing the legislation should read all bills in their entirety. It's a waste of Congress's precious time - these people are executives, [emphasis added] not auditors or legal aides.

There is an Executive Branch and a Legislative Branch in our government. It is a large categorical mistake to assume their duties are both executive in nature. Obviously, we at DownsizeDC.org, prefer the Constitutional view over the efficient, get it done at any cost view.

That doesn't mean we shouldn't work to increase accountability for what congress-people support that's passed, but delegation of authority and the specialization of tasks are not negative work standards, but instead primary factors that's led to economic growth and more robust policies.

Perhaps you've heard the joke that requires no explanation because everyone gets it: "I'm from the government, and I'm here to help."

But that bit of humor explains, in part, why the efficient, get it done at any cost paradigm is not something we want from government. Why don't we want greater efficiency in civil government? Because unlike private initiatives and business they...

a) have little incentive to get it right. Failure is always deflected unto some other target, providing politicians the opportunity to play the part of our rescuers
b) have some incentive to get things wrong. Failure of government leads to expansion of government. This has been well documented, and is known as Crisis Politics
c) are part of a Fatal Conceit. They rely on central planning, rather than prices and market feedback. Knowledge is too specialized and dispersed for politicians to micro-manage properly, even with significant deliberation
d) have guns, prisons, etc.

It's dangerous when they get things wrong In other words, government efficiency rarely gets us actual efficiency, and it’s dangerous. Congress isn’t a business.

Here are some examples of things we rightly demand of government that interfere with corporate efficiency...

* Separation of Powers
* Freedom of Information requests (which come from outside the bureaucracy)
* A vote before passage
* Debate before a vote
* Committee hearings
* Investigations
* Blue Ribbon Commissions
* Campaigning
* Elections

3) I think such a bill would favor more lawyers being legislators. While I agree they probably should be the best represented group like they are now, diversity of experiences within Congress is a good thing. We need more economists, scientists, academics, business executives, and military officers - among others. Having to read impossibly large amounts of legalese much of which will not be understood by the non-lawyers, nor would there be time for a tutorial, is not a productive use of time - in fact I think the task impossible for anyone. There are valid reasons we are not each entrepreneurs of one, but most often a part of a team each with specific duties.

This advocacy of Congressional diversity is noble. Personally, I agree with our critic on this point. I very much like the idea of citizen legislators. But his analysis on how we get that diversity is precisely backwards, and makes me wonder if before criticizing, before writing such a detailed objection, he actually "read" our bill.

To begin with, DownsizeDC.org’s Read the Bills Act requires that the bill be read aloud, word for word, in order, by the clerk, seven days before the final vote could be cast. How long would Congress tolerate sitting through the reading of unbearably long bills? We think that under this regime, the incentive would be shorter bills, and that change would come in a hurry.

In most instances, a short piece is easier to read than a longer piece, and would therefore require less legal expertise.

Further, our proposal requires that where a bill amends a bill, the text amended be included in the draft of the new bill! One wouldn't need to be a lawyer! …to have a copy of the Federal Code and Federal Register at their side to merely begin to comprehend how the law is being amended. Reading the bill would actually be easier.

I do believe Committees responsible for the generation of bills that are passed have more of an obligation to both develop bills in a more transparent manner and monitor the success of passed bills in a more transparent manner - that would require added staff at the elected member and/or committee level which I support. Read the Bill's Act to me takes from where we are now with all our attendant weaknesses and puts us back to some far more primitive time.

It's hard to tell. That “primitive time” remark may be simple ad hominem. I hope not. This critic is an intellectual, and so my best guess is that he is intimating, "Small government, primitive. Big government, progress."

We hold exactly the opposite belief, and the tag line below my signature on my personal outgoing emails reads, "Big government harms you, hurts your family, damages your industry, and destroys your community -- it even kills people. We must Downsize DC for Human Progress." Frankly, I don't have enough raw faith to believe in the notion that a grand collection of Ivy League wiz-kids, planning things from on high, are necessary to keep us from returning to caves. ***

While I understand this was the very sort of argument made to justify passing the Patriot Act, I would still lobby for my Congressmen to vote against the Patriot Act given we knew there were unacceptable powers included that were both unconstitutional and bad policy without having to read the bill it entirety - especially given the fact the Patriot Act didn't spend adequate time in the relevant Congressional Committees where bills are appropriately scrutinized to summate the issues and flesh out the words to support those issues.

If you want fix something, put more onus on laws that require the Committees to provide better executive summaries to the entire House and/or Senate prior to presenting to the Floor and better reporting of how a passed bill is faring relative to this stated objectives. That would achieve the marketed claim far more than what appears now to be a pathetically disingenuous claim to cripple the Congress.

Well, perhaps the critic can write a bill for that. I can’t begin to imagine how you’d design such a procedure and make it enforceable.

Of course, per our critic, we needn't worry about you being able to read his bill for ourselves -- we should just trust an efficient, executive process. I have tried to write in a friendly professional manner here. But this last criticism is a bit sharp as I close because the Read the Bills Act also requires a seven day waiting period, after the final reading, during which the bill should be posted online for watchdog groups, like DownsizeDC.org (who drafted and campaigns for the Read the Bills Act), for reporters, and for YOU, dear reader, to be able to read.

Even our critic could read the bills before their voted on, and he could offer his comments on them.

Yet he offers no praise for this portion of the bill. Instead, he directly asserts (above) that the bill is "pathetically disingenuous," and (elsewhere) has "fundamentally massive weaknesses." Massive?

So it is fair, even proper to ask, “Does the critic object to you being guaranteed the chance to read the bill?”

In summary, unlike our thoughtful critic, we don't want the Congress to be more efficient. We want them to be more deliberate and abide by the Constitution. We don't want them to get more done. We want them to do less.

That's the difference in positions presented here, in a nutshell. Which do you want? Bigger government or smaller government? …more bills or fewer bills?

And even if you want bigger government, or you’re worried that somehow Congress won’t be able to do their job because you don’t like the Constitution’s limitations, is there a logical way to explain rushing unread pages bills through, hours before the vote or in the middle of the night, as good government? …to claims that it's representing the people?

And is rushed legislation likely to be better than unrushed legislation? That hardly sounds efficient.

If unrushed, then by what means should we slow them down? I propose we make them read their bills in just the fashion described in DownsizeDC.org's Read the Bills Act. 

**For what it's worth, we arrive at that quantity of 22 legislative powers because we also believe that the Constitution contains judicial powers, executive powers, procedural directions, and processes by which the People can constitute their government (such as how to admit a state into the Union). The ability to allocate taxpayer funds, impose taxes and duties, and regulate the behavior of citizens is limited, again by our count, to 22 items, such as...

* via Treaty, the Senate can do virtually anything, and we must be wary of DETAILS of all treaties because of that fact
* through Article I, Section 8 of the Constitution, where 20 specific powers are spelled out (enumerated)
* by Amendment 16, where the power to directly tax the people without reference to apportionment was dubiously ratified

*** Frankly, I don’t know understand how one can recognize the miracle of biological evolution, and then miss the prudence of markets, choosing the Intelligent Design of politicians and bureaucrats. Nature is consistent.

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