Last week, Martha Stewart (search) was convicted of lying to federal investigators about a crime with which she was never charged. Most analysts agree that prosecutors never charged Stewart with the crime of insider trading because it’s a law too complicated for most jurors to understand.
Putting your personal opinion of Stewart aside for a moment, the case prompts larger questions about the laws and regulations that govern our land: If jurors can’t understand a law well enough to determine if someone broke it, just how do lawmakers expect citizens to understand it enough to obey it? Do we really want to live in a country where good-intentioned people are required to pay high-priced attorneys to tell them whether or not they’re breaking the law?
America has too many laws, and the laws we do have are tedious, overly complex and sometimes not only impossible to understand, but impossible to comply with. Our elected officials pass laws in fits of whimsy, responding to the latest scare headlines, demands from interest groups or data from polling firms. Reason, freedom or constitutional authority rarely enter into the debate.
The federal tax code (search) today covers 17,000 pages and requires over 700 different forms. The IRS estimates Americans spend 5.1 billion hours annually merely preparing their taxes. The Tax Foundation estimates that those wasted hours drain some $194 billion annually from the U.S. economy. All of that comes before Joe Taxpayer forks over his first dime.
The federal criminal code is just as bad. Thomas Jefferson wrote that the U.S. Constitution gave Congress the power to criminally punish “treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes whatsoever.” Yet the federal criminal code today spans some 1,400 pages, and that’s just the “pocket edition.”
The Federal Registry (search), which records all of the regulations the federal government imposes on businesses (all of which carry the force of law), now exceeds 75,000 pages. The Office of Management and Budget estimates that merely complying with these regulations — that is, paying lawyers to keep educated on them, interpret them and implement them — costs U.S. business another $500 to $600 billion per year.
When someone, such as Martha Stewart, is accused of a federal crime, businesses then are forced to comply with subpoenas and demands from lawyers for information — all on their own dime. When the IRS goes on a fishing expedition for tax evasion, for example, it can require banks and businesses to file through millions, even billions of checks, forms, documents and e-mail to comply with an information request. The same is true for the EPA, the Department of Labor or the Department of Energy. The federal criminal code, the tax code and the Federal Registry grow thicker every year, thrusting those costs ever skyward.
More disturbing than the cost of compliance, however, is the way federal officials can manipulate the confusing maze of federal laws, codes and regulations to score political points, make examples of certain people, settle scores, extort favors, or, in the case of regulation, punish disfavored corporations and industries. There are far too many federal laws — and people who break them — for our U.S. attorneys to enforce them with any sort of consistency. That means our federal laws are very selectively enforced, which makes the federal court system ripe for abuse.
It’s even worse with regulation. With the EPA, for example, it’s often impossible for corporations in some industries to abide by one environmental regulation without violating another. That’s fertile ground for corruption, particularly when the same body is charged with making, enforcing and adjudicating the law.
Since President Bush and Congress seem to be in a Constitution-amending mood these days, they might consider two amendments that could remedy the situation. The first would “sunset” every law passed by Congress in five years, therefore requiring Congress to specifically reauthorize those laws every five years. The amendment would contain language explicitly compelling Congress to reauthorize one law at a time — no “omnibus” bill where laws were reauthorized in batches. Such an amendment would not only force Congress to re-evaluate anachronistic laws and outdated legislation, it would also occupy more of Congress’ time — leaving it less time to pass new laws.
My second amendment would end the so-called “delegation doctrine,” (search) the process by which Congress grants its constitutionally mandated lawmaking ability to federal agencies like the EPA. The amendment would require Congress to debate and vote on every single regulation listed on those 75,000 pages in the Federal Registry. Again, such an amendment would not only subject the federal regulatory scheme to some much-needed public debate, but the sheer amount of time it would take Congress to pass all of those regulations would result in fewer regulations.
Of course, neither of these amendments has much chance of ever passing. Both would not only strip Congress of a good deal of power, they’d make it a heck of a lot more difficult to be a congressman.
Consider, for example, the position Congress found itself in last year after passing the Bipartisan Campaign Reform Act (search), that Rube Goldberg-ian hunk of legislation that was supposed to flush the corruption out of politics:
Although Congress generally exempts itself from most of the laws it passes, this law applies specifically to Congress. The same congressmen who voted for the bill were now required to abide by it. Faced themselves with the burden of complying with the complex, inches-thick laws they pass for others, both parties were forced to hold education sessions with specialty lawyers explaining to them what they could and couldn’t do under the new law. A lawyer who taught the Democrats told The New York Times that his seminars elicited “a sort of slack-jawed amazement at how far this thing reached.” A lawyer who taught the Republicans said: “There's an initial stage where the reaction is, 'This can't be true.' And then there's the actual anger stage." Democratic Rep. Henry Matsui, who championed the bill, told the Times, “I didn’t realize all that was in it.”
That’s how much careful consideration Congress gave a bill it passed that applied to itself. Now imagine how little thought and care goes into bills it passes that apply to everyone else.
The answer, of course, is none.
If we merely required every congressman to actually understand a new law before voting for it, that would be a pretty good start.
Radley Balko is a freelance writer and publishes a Weblog at TheAgitator.com.