Posted by Jonathan Adler:
Read the Bill -- A Reply to Eric:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253808698
I have read Eric's defense of the expectation that legislators should
not read legislation upon which they will vote with dismay. I am
dismayed because I think has adopted a caricature of the "Read the
Bill" position, and because his post reflects an unrealistic account
of how legislatures work that is contrary to my experience of the
legislative process on Capitol Hill and after ten years of work for an
interest group in Washington, D.C. (during which I was involved in
drafting, commenting upon and analyzing legislative language with
representatives and their staff, among other things), and because it
presents an overly idealized view of the role of "experts" within our
political system.
No one denies that an effective legislative process requires a
"division of labor" or "delegation to trusted subordinates." As I've
already written below:
It is certainly appropriate for legislators to rely upon staff to
draft legislation, review legislative proposals, and serve as a
filter identifying bills that might be worthy of support, and so
on.. Indeed, legislators could not do their jobs without such
assistance. But this does not relieve legislators of reading those
pieces of legislation that seek to enact.
The question, which is relevant in private firms as well as in public
entities, is what the proper scope of such delegations should be and,
to what extent, principals need to perform certain functions for
themselves.
The fact of the matter is that most legislative staff spend relatively
little of their time reading and seeking to understand proposed
legislation, let alone the small fraction of proposed legislation that
may actually come up for a vote. They spend most of their time
drafting correspondence, committee reports, talking points, memoranda,
and the like, reading the same, as well as responding to constituent
requests, meeting with staff from other offices, communicating with
agencies, and so on. Legislative counsels also spend a decent amount
of time drafting legislation. Under what I have proposed, none of this
would change. Most legislative staff would continue to spend the vast
majority of their time the same way that they do now. Committees and
committee staff would still do the bulk of the heavy lifting on issues
within their jurisdiction.
Since the legislator is the principle, I believe the legislator must,
at the end of the time, 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 a [1]Ramseyer comparison, as is already
required in all House committee reports), meeting with more expert
staff and, in many cases, hearing from experts. Is the too much to do
for the small fraction of proposed legislation that may actually
become law -- that is, those that pass committee and have a chance of
a scheduled floor vote -- hardly.
Two final points. First, Eric writes "political institutions are
highly complex organizations that have evolved in response to needs
and pressures." This is true as a descriptive claim, but it is hardly
a justification of these political institutions. Much of what has
evolved is the result of special interest pressures, rent-seeking, and
the interests of political officials in evading accountability and
capturing rents of their own. A process in which bills can be proposed
and voted upon before anyone has had time to read them, including
legislators and their staffs, as when omnibus amendments are offered
on the floor on the eve of final passage, rarely serves the interest
of "good legislation." It primarily serves those who seek either to
push politically unpopular legislative changes or to enact targeted
favors for prized constituencies. I've seen this first hand, and
written up quite a few examples of the results. Does a "read the bill"
obligation make all of this go away? Of course not. But it would make
it harder for narrow interests to insert favors onto 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 it legislators had to have
time to read the bill, then the public would as well.
Second, I reject Eric's claim that "simple rules rarely do any good in
complex settings." I am actually quite sympathetic to the [2]opposite
view, but that's a discussion for another time. I have other things to
attend to, including a[3] lecture by former OIRA Adminsitrator Susan
Dudley this afternoon.
References
1. http://volokh.com/posts/1253756353.shtml#653406
2. http://www.amazon.com/Simple-Rules-Complex-Richard-Epstein/dp/0674808215
3. http://law.case.edu/lectures/index.asp?lec_id=203
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