Most Americans think their elected representatives in Congress deliberate and debate the costs and benefits of a bill before voting it into law.
Unfortunately, most members don't even read the laws they pass. Neither do their staffs. Instead, they more often than not rely on summaries prepared by the bill's authors, or by interest groups whose judgment they trust.
Rep. Brian Baird, D-Wash., wrote a remarkable op-ed in the Washington Post last weekend titled "We Need to Read the Bills."
By "we," Baird meant "Congress;" by "bills," he meant the laws Congress passes every day and expects you and me to follow.
The op-ed is remarkable in that while its thesis — "Congressman says Congress should read bills before voting on them" — sounds like something from The Onion, it is completely serious, exposing a notable disconnect between what most of America thinks goes on in Washington and what actually happens.
Baird's op-ed was in response to a particularly embarrassing episode, in which someone inserted a provision into the recently passed omnibus spending bill which would have allowed for the staffs of the Republican finance committee chairmen to examine any individual American's income tax returns.
The language understandably provoked outrage from privacy and civil liberties advocates. The funny thing was, after the bill passed and that language became law, no one in the Republican party — not Senate Majority Leader Bill Frist, not the bill's sponsors, not the finance committee chairman — seemed to know how the language got there.
A cynic might say that the Republican leadership tried to sneak into law language that would enable them to snoop into the finances of their political enemies, and that they're only feigning ignorance because they've been caught. But I'm not sure the less ominous explanation — that not a single Republican in the U.S. Senate actually read the bill all the way through — is any less embarrassing.
As Baird points out, the four most important bills from the last Congress — which totaled over 2,900 pages and spent over $1 trillion of taxpayer money — were only available to members 48 hours prior to voting. That's pretty much par for the course in Congress. Baird goes so far as to write that "[t]here is now an inverse relationship between the importance of legislation and the amount of time members have to study it before voting."
The Patriot Act, for example, weighs in at 340 pages — svelte by federal legislation standards. Yet the Senate was given just three days to read the bill before voting on it (and approving it 98-1). And just two days after the Sept. 11 attacks, Sen. Orrin Hatch found a pending appropriations bill due for a vote, and tacked on a slew of amendments that served as a kind of precursor to the Patriot Act — again, giving the Senate no time to actually read and contemplate them.
Campaign finance provides another example. After passing much-celebrated campaign finance reform last year, lawmakers on Capitol Hill were forced to call in legal experts to advise them on how to abide by the Byzantine set of rules they'd just passed. One of the bill's leading Democrat supporters told the New York Times, "I didn't realize all that was in it."
Of course, Congress' lessons on compliance were paid for by U.S. taxpayers. Anyone who wants to run against an incumbent congressman will need to educate himself on his own dime.
The gusto with which Congress passes laws also does significant damage to civil liberties. Author Gene Healy writes in the introduction to the new book, Go Directly to Jail: The Criminalization of Almost Everything, that in 1998, the American Bar Association assembled a task force charged with compiling a complete list of federal crimes. The panel concluded that a complete list was nearly impossible to assemble, given that the approximately 4,000 federal laws were interwoven between regulatory law, judge-made law, and the 27,000 pages of the US. Code.
"[Even] teams of legal researchers — let alone ordinary citizens — cannot reliably ascertain what federal law prohibits," Healy writes.
Healy notes that this morass of indecipherable federal law means we could all essentially be criminals because we don't know what's legal and what isn't. That's particularly true of business owners. Healy quotes Harvard law professor William Stuntz, who warns that we're "coming ever closer to a world in which the law on the books makes everyone a felon, and in which prosecutors and police both define the law on the street and decide who has violated it."
There are many approaches for simplifying the federal code, but this problem of Congress failing to read the laws or the amendments they pass — or of sneaking new language into pending legislation at the last minute — requires reform of its own.
Reason's Julian Sanchez and blogger Joshua Micah Marshall have offered what seems to be a reasonable suggestion: Congress should require a set amount of time to lapse (I say a month) between the time a piece of legislation is voted on and the time it becomes law. Congress would then be required to take a second vote. That lapsed time would enable interested parties, journalists, bloggers, and Congressional staffers to comb these bills for last-minute shenanigans.
At the very least, we should demand that our elected officials at least read the laws they expect us to abide by before they vote on them.
Radley Balko maintains a Weblog at: www.TheAgitator.com.