What doesn't work
<http://constitutionalism.blogspot.com/2009/06/what-doesnt-work.html>
What doesn't work is for citizens to demand change from others without
writing the language in which that change will be implemented. If you
file a court action, complaining of some injustice, and demanding
relief, you might "win" the judgment but lose the case if you don't
draft the order for the judge to sign. Leave it to the judge to draft it
and he is likely to accept a draft prepared by your opponent, which
doesn't give you the relief you thought you won. Similarly with other
reforms. We can't leave the drafting of the language of proposals to
others. If we want it done right we have to write it. That applies not
just to court orders, or to legislation, but to how we want the
Constitution to be interpreted. That is why I have proposed Clarifying
Amendments in my Draft Amendments to the U.S. Constitution
<http://www.constitution.org/reform/us/con_amend.htm>. They need never
be ratified if enough of us use them as a standard for our demands for
how we want the Constitution interpreted.
I spent a couple of years in Washington, lobbying for various causes
without pay. I learned how other lobbyists developed the kind of
influence they have. It's not just that they bring money or votes. I
didn't bring either of those. But I found I could earn access to members
of Congress by helping them review their legislation to make sure it was
what they wanted. Most members don't know how to draft legislation to
the point where it is ready to be submitted, dropped in the "hopper".
They provide a rough draft to the Congressional Research Service (CRS),
who then puts it in final form, doing the numbering and finding the
cites to existing legislation that would be affected by it and that it
would amend. But they usually don't fully understand what the member
wants to achieve, or get it quite right. A member will have a few
legislative staffers to help with review, but they tend to be busy with
other tasks, and they don't always understand exactly what the member
wants, either. Of course, sometimes the legislation is really the
staffer's idea and the member needs to make sure it is also what he
wants. So I learned how to do that research and draft legislation ready
for the hopper. I would try to anticipate objections from other
stakeholders, and avoid ambiguities, so they would have less reason to
tear it apart. I found that that was what the most influential lobbyists
did. They didn't ask members to have legislation drafted for them. They
did it themselves, giving sympathetic members a finished product.
Interest groups who didn't do that seldom got anything like what they
wanted, if they got anything at all.
The same principle works for publicity. The way to get articles written
in the major media the way you want them written is to submit press
releases that are ready to print without editing. Journalists are lazy.
They would rather submit a press release and put their names on it than
to write an article from scratch. You might have to submit hundreds of
such press releases to get one published, but often all it takes is one
to justify the effort to have written all the others.
Or consider court rules. They can be as important, if not more so, than
legislation, although they are adopted by the judges, sometimes in
defiance of legislation. Such rules tend to be written for the
convenience of judges, but the language they contain usually started as
the language in a lawyer's brief in some case. If enough lawyers submit
enough briefs suggesting the same language for judicial rules, that
language is likely to be adopted.
Another important area is administrative regulations. Agencies submit
proposed regulations for public comment, and if enough members of the
public object, they may withdraw proposed regulations, or greatly modify
them to respond to objections. But what works best is for people not
just to object to the language of regulations, but to propose
alternative language, especially if enough people propose the same language.
In the field of rule drafting don't expect most lawyers to be experts.
Most lawyers aren't even that good at drafting contracts, and drafting
legislation, regulations, or judicial rules requires more advanced
skills that it takes most people years to acquire. Even staffers in the
Congressional Research Service aren't that good at it.
Speaking of contracts, consider how often you are presented with
contracts written by others and asked to sign, on a take it or leave it
basis. Read all such contracts carefully. Don't assume they have been
subjected to thorough scrutiny to protect the interests of people like
you. If you find language that seems against your best interests, it
probably is. Strike that language out before signing it, or propose
alternative language.
What is most difficult is to draft things in a way that wisely intervene
in what are highly complex systems, with many feedback loops that make
them incomprehensible even to the best experts. Intervene the wrong way
and you get hundreds or even thousands of unintended bad consequences.
You can take it as a general rule that if it is simple, obvious, and
direct it is probably a bad idea. All the simple solutions are already
in use. The measures that might actually improve things are almost
certainly going to be subtle, complex, indirect, and not at all obvious.
That also means they will be difficult if not impossible for most people
to understand, and may be impossible to sell. The way most successful
reforms get done is that the one person who understands them sells
people on trusting him. Most people relate to personalities more than to
ideas.
Most people who supported ratifying the U.S. Constitution didn't support
it because they understood it. They supported it mainly because George
Washington did, and they trusted him. They also expected him to be the
first president, and figured that with him in that position, if any
problems arose he would take the lead in fixing them.
So read the Draft Amendments. Study them. Learn why they are written
that way, and not another way. You may thus acquire the skills you will
need to get anything useful done.
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