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Why Reading the Health Bill Is a Waste of Time

07 Nov 2009
Posted by Bruce Bartlett

The 1,990-page length of the health reform bill is once again bringing forth demands that members of Congress be required to read the legislation before voting on it. While a seemingly reasonable demand, it is, in fact, a waste of time.

The reason becomes obvious the moment one actually reads legislative language. Here is a section I pulled at random from the health bill:

           (a) AMENDMENTS TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974.--

                    (1) REDUCTION IN LOOK-BACK PERIOD.-Section 701(a)(1) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 181(a)(1)) is amended by striking ''6-month period'' and inserting ''30-day period''.

                    (2) REDUCTION IN PERMITTED PREEXISTING CONDITION LIMITATION PERIOD.-Section 701(a)(2) of such Act (29 U.S.C. 1181(a)(2)) is amended by striking ''12 months'' and inserting ''3 months'', and by striking ''18 months'' and inserting ''9 months''.

                    (3) SUNSET OF INTERIM LIMITATION.-Section 701 of such Act (29 U.S.C. 1181) is amended by adding at the end the following new subsection:

          ''(h) TERMINATION.-This section shall cease to apply to any group health plan as of the date that such plan becomes subject to the requirements of section 211 of the (relating to prohibiting preexisting condition exclusions).''.

What is immediately obvious is that none of this language makes the slightest bit of sense without reference to the underlying law that is being amended. To begin to comprehend what this language seeks to accomplish one would need to have a copy of ERISA as well. Then one would have to see what exactly these additional words do to change whatever section of law is being amended.

But this is just the beginning because many terms like "preexisting condition" have a precise legal definition that may be spelled out in some other law or changed in some other part of the legislation. Moreover, that definition may have been clarified in some way by government regulations or court cases that are not even referenced but may be critical to understanding precisely what the new legislation actually accomplishes.

For these reasons, reading an actual bill is a completely useless exercise for the vast majority of members of Congress and staff. They rely heavily on committee reports that are supposed to accompany all bills coming up for a floor vote. These reports are written by committee staff and are required to faithfully reflect the bill's intent. They may contain important details, clarifications, data, citations to hearings, and supporting materials, such as a section-by-section analysis, that allow the legislation to be intelligible to non-lawyers and other non-experts.

In addition, both Republicans and Democrats in Congress have organizations that review all bills coming up for a vote, summarize them and offer political perspectives. Here, for example, is the House Republican Conference report on the health bill. If one's party holds the White House, a member may find the Statement of Administration Policy to be important in understanding a bill and how to vote on it. Here is the SAP on the health bill. The Congressional Budget Office's analysis may also be important. Here is its report on the health bill.

Finally, on important bills a member's office is flooded with analyses by trade groups, think tanks, and vast numbers of lobbyists. In many cases they employ very high-powered lawyers who go through legislation with a fine-tooth comb and are more than happy to make their expertise available for free to any congressional staffer seeking guidance.

Unfortunately, even on important bills a lot of critical materials will be unavailable at the time of the vote. I could not find a committee report on the current version of the health bill. But in practice, most members pay little attention to such things anyway. In each party there are go-to members who specialize in particular issue areas--health, taxes, banking, energy, agriculture, whatever. In most cases, they are members of the committees with primary jurisdiction and more often than not are the chairman or ranking minority member. It is what these people say is in a bill that really matters for most members.

Also, most members learn quickly from experience that there are certain members who share their point of view and can be trusted. If one of them says support such-and-such bill or amendment, they know they will have the votes of some number of other members. The leadership knows who these people are and party whips will work with them to make sure that certain interests are protected. A bill's managers may arrange to have statements inserted in the Congressional Record or engage in a colloquy on the floor that become an important part of the legislative history. Courts and the agencies tasked with implementing public laws rely on such things to determine congressional intent.

The point is this discussion is to show that actually reading a bill is not going to tell the average congressman or senator anything useful about it. Making it some sort of requirement for enactment simply wastes time that would be better spent absorbing summaries and analyses that tell members what the legislation is supposed to do.

I get it. But.

The point is this discussion is to show that actually reading a bill is not going to tell the average congressman or senator anything useful about it.

I understand this. But.

When the fellow who votes on the bill comes back and claims (plausibly enough) he has no idea about sub-clause A or it's disastrous unintended affect on the widget industry ... it's infuriating.

If you're gonna vote 'aye' on legislation you need to be able to know what you're voting for. To be simplistic, if there was a gotcha clause in the agreement I signed to mortgage my house, I could not wiggle out of it by claiming it was dense with legalese and I depended on experts to figure it out. I'd be on the hook.

But one person (as you demonstrated) can't be expected to read the legislation they vote on.

I submit that if your average legislator can't or won't read the entire bill and understand what he's voting on, then something is broken with the process.


Contracts

When did you ever actually read a contract? Never, right? You depended on your lawyer to tell you what it said and trusted his judgment when he told you to sign it. Legislation is the same thing. It doesn't mean that the legislative process is broken any more than it means the contract system is.

Do you suppose the people who

Do you suppose the people who write the contract never read the contract that they write? Wouldn't you suppose that the people who write the laws read what they have written? Or is it that the law makers are not actually making the laws, but the laws are actually made by special interest groups?


When did you ever actually

When did you ever actually read a contract? Never, right?

I am not foolish - if a lawyer was involved, I depended on his advice. But.

I have read every contract I have signed.


Using this analogy, who is

Using this analogy, who is the lawyer?


Actually, the analogy fits

The analogy works better than you think it does. There is a "lawyer" in this case, and it is the Office of Legal Counsel (not to mention the in-house lawyers on the staff of all the committees). They, not the reps and sens, work out the precise legal language. The policy ideas may come from the legislators, but translating those into the language of existing statutes and legal precedents depends on the professional expertise of trained legislative lawyers. Just like with your contracts.


Then what are they voting for?

Seems to me that the above thread stands for the proposition that lawmakers shouldn't have to read entire bills, they should just have to read executive summaries provided by their staffs, the Office of Legal Counsel, etc.

If that's the case, then the legislators aren't actually voting for the BILLS, they're voting for the SUMMARIES. If the summary lacks a discussion of something that's contained in the bill itself, then they haven't actually agreed to it.

In which case, courts shouldn't really look to the STATUTES to determine what the will of Congress was. They should look at the summaries of the statutes -- you know, what the MCs actually read -- to determine what the law actually is.


Perhaps one way to deal with

Perhaps one way to deal with the problem of "clause A" is that courts should give greater weight to the plain language version of the bill when a dispute arises. After all, the plain language version is(hopefully) actually read and reflects the intent of Congress, whereas the actual legislative language is just the technical stuff that no one pays attention to except the lawyers and beauracrats.

Seems to me that any clause that the majority of Congress isn't aware of is not legally binding and courts could establish a useful precedent by ruling such hidden clauses to be null and void if there is a reasonable assumption that Congress didn't know of its existence.


Health Bill, legalize, process, etc...

"I submit that if your average legislator can't or won't read the entire bill and understand what he's voting on, then something is broken with the process."

What I believe is broken is the the process of rushing through legislation without knowing the ramifications of the legislation.


Know-nothings attack specialization of labor

The people who advocate legislators read the bills expose themselves as know-nothings or overly-zealous ideologues acting covertly. The common thread I've noticed is that none of them have any experience administrating large organizations or even a basic understanding of management theory.

I've used the analogy that CEOs and even VP's of Engineering of large OEMs do not read the technical specs of products. What a waste of time that would be. Specialization of labor is an economic feature, not a bug. We need more of an executive perspective from each Congress-person, not more lawyering.

The ideologues who maintain their position even after someone like me has educated them continue to advocate for the bills to be read simply because they want less government and believe bringing its work to a crawl somehow serves the public interest. DownsizeDC is a good example of an organization who appears to be dominated by both examples.


Wow, what a pompous gas

Wow, what a pompous gas bag.

No one expects every Congressweasel to read every single word (see Bruce's example above) but we do not expect staffers to do most of the thinking and most of the real work.

If legislation is too long and too complicated to be read by the MCs then it is too long and complicated to be passed.

I do not vote for government by staffers.

Managing an OEM has very little to do with being a member of Congress. And apparently the leaders of the Detroit auto companies were not reading much at all, at least nothing to keep them connected to reality.


Congress critters aren't elected on IQ

"If legislation is too long and too complicated to be read by the MCs then it is too long and complicated to be passed."

If we had to ensure that every MC read and understood every bill then it would all have to be dumbed down to a third or fourth grade level for my rep. She can't even get basic US history right:

http://minnesotaindependent.com/33661/bachmann-hoot-smalle

The stories about her idiocy from her days in the state legislature are legendary -- real gut-twister howlers.

Don't MCs to have a basic literacy in economics or business practices or tax law or history. There is no required intelligence or literacy test to run for public office in this country. They must use staffers/advisors and outside experts to translate on a variety of topics.


The problem is not the

The problem is not the specialization of labor, but that longer and confusing legislation is used as a tool to remove popular incite into the legislative process and undermines accountability to our elected officials. It also leads to legal creep and can result in a deliberalizing or inefficient situations. Excessive regulation on commerce increases the cost of doing business, or can lead to rent seeking. Excessive legalize also makes it incredibly likely that the populace will be held guilty of a law they don't understand and can face fines or jail because of this. The increasing complexity of our legal code and system is not a good thing, and should be avoided where possible. Finally it expands the scope and size of governance in our lives.

As such, bills should be trimmed to their minimums where possible, and efforts should be made to make difficult bills accessible to the people. Futher, Congress should distribute these bills earlier in the process, and in some popular open-source format, throw it into a torrent and spread it on the net. Technologically capable people can develop software and social networks to convert these difficult bills into something we can easily understand and navigate. This is the 21st century! There's no excuse for these barbaric practices unless they don't want us to be involved.


Isn't it ironic...

The same people screaming about activist judges apparently want shorter, less detail intensive bills. When you aren't specific in the legislation, it gives the judicial system an awful lot of wiggle room to interpret things in ways Congress might not have intended.


The better analogy

The better analogy (rather than comparing legislation to consumer contracts) is to compare legislation to computer software coding. The vast majority of Americans don't understand how Microsoft Word is programmed, but they understand how it works and can follow what the program does using the program manual. It's the same thing with legislation. To extend the analogy further, legislators trust that "bugs" like the bonuses for AIG executives that came with TARP won't be included with the "program."

When mistakes like that happen, or negative unintended consequences, you'll usually see Congress draft a "technical corrections" bill. This is done frequently with bills of the size and scope of the health care legislation and is typical for authorizing bills, like the yearly Defense Authorization or any of the transportation authorization bills.


Your analogy has a major bug

Your analogy has a major bug in it. Simply put, coding is the manipulation of inert bytes whereas legislation is the manipulation of human behavior. Legislation is largely "programmed" by special interest subject experts, which is something the vast majority of Americans understand. They also understand that when all is said and done it works in mysterious ways for the benefit of the special interests. I would say only analogy that can be made between programming and legislation is garbage in, garbage out.


Oh, and...

On the topic of special interests influencing legislation... If you don't think every organization has special interests that influence projects going on (software or otherwise) then you've never worked in a big business... Multiple stakeholders influencing and compromising on the requirements for a software project is the NORM, not the exception. It led to a whole family of new software development processes called "agile" to handle the constantly shifting requirements. If C-SPAN covered the progress meetings of a large software project in an enterprise, you'd be surprised how similar the processes are.


Legislative source code

Well, I've been architecting and coding software for over a decade, and clearly you have not. The original metaphor is apt, but not well worded. We (should) want the MC's working at the spec level... i.e. WHAT the bill (or software) does, not at the implementation level (i.e. the legislative language or programming language). They are better represented by the product managers and project managers of software than the coders... The coders (like me) would represent the congressional staffers, lawyers, etc. who take the intent and turn it into legislation.

Steve Jobs was never a real technical guy... He wasn't down in the code bit-twiddling, but he DAMN sure knows what he wants the products to do, and that's what his technical teams build for him. THAT's the level the MCs should be on, not reading the legislative source code.


Plain Language

I agree with much of what you say. However, there's a problem. We citizen can be jailed or fined for violating laws that the Congress itself acknowledges are incomprehensible to the average citizen without three lawyers and an accountant. The IRS is infamous for punishing people for unwittingly violating tax law based on the IRS's own advice!

I do wonder if Heinlein had a point when he advocated for a "Plain English Amendment" to the Constitution that requires laws to be comprehensible to the people expected to obey them. I realize we want the law to be specific. But it's going beyond the point of reason.


Bill vs Statute

Citizens are not jailed for violating the verbiage of the enacting statute. They're jailed for violating the United States Code - "the codification by subject matter of the general and permanent laws of the United States."

The Code is generally pretty clear (at least for lawyers), or becomes clear very quickly via appellate decisions.


This discussion is

This discussion is hilarious.

The consensus among the know-nothings is that if a bill is long, or diffcult to understand, then it is worthless. Of course, this is silly.

Our health care system is complicated. We have intentionally made it complicated. We could make it simple, by adopting the British NHS model (egad! socialized medicine) or a Canadian style Meidcaid for all (single payer), but have chosen not to. Hence, a complicated law.

The laws are written by folks who do nothing but draft legislation. They take the plain language given to them by the legislators and translate it to legal language that will make the law clear to lawyers, judges, and future generations. As anyone who has ever written a complex series of instructions knows, ensuring that the instructions are sufficiently precise is the devil in the details. The legalese in which the bills are written are to ensure that future legislatures will be able to make precise additions or subtractions to the law.

This language looks Byzantine and incomprehensible to a layperson (including a Congressman), but makes perfect sense to someone versed in legislative drafting. I mean, c'mon crackpots, the corollary is an engineering blueprint or mathmatics equation. The nerdy draftsperson isn't there to sneak in some death panel or something.

It is apparently a relevation to some that complex ideas require more thorough explication.


And your problem is with government

Bob, your problem isn't with how legislation is drafted, but that legislation is drafted at all. Yes, government makes laws to direct behavior of individuals and businesses. If you have a problem with that, then your problem is with government in general.

The reason legislation benefits "special interests" is because the American people have collectively -- through every individual's personal desire for what they want the government to work on -- decided that they want it that way. Even anti-government activists have special interest groups which feed big government through lobbying. Each special interest has its constituents. There are thousands of lobbyists working on legislation because millions of Americans command them to do so.


Similar to California voter initiatives

It seems to me this is exactly how voter initiatives work in California. Even though the Secretary of State mails the complete text of each proposition to every voter, I imagine that nearly *everyone*--even very informed, careful voters--don't actually read all the language of every proposition. You read the analysis provided by the state; you read the arguments FOR and AGAINST; you consult voter guides in line with your beliefs (be it newspapers, political parties, or SIGs) ... and then you vote.


Good article

This was a very good article. Legislation is written with the intent of very dense and precise legalese for a compelling set of reasons. It's written so that bureaucrats (and I'm not using that in a pejorative sense) and regulators can implement the law, and so that judges and justices can interpret it.

Contrary to popular belief creating legislation is not an easy task, and the "Read the Bill" cacophony is just that ... noise. No legislator, on the right or left, develops a position on a bill by reading it, pondering it, and coming up with an opinion. If that's what the public expects I can only say good luck on that, and have fun making noise at the Tea Party.


Both And

An entire industry, then, exists to do what our representatives should be able to do for themselves: read and analyze. You just made the case for smaller government.

We are paying the people who represent us to do a job. That job entails understanding the legislation upon which they are voting. If they don't understand it, they can't vote to represent the best interests of their constituents.

I would suggest that each representative should do both/and: read the bill and consider the summaries and analyses. They may need to employ lawyers to help them. If they are lawyers, they may be able to do it all themselves, including referencing other bills.

Citizens are correct to insist that their representatives do the jobs for which they are paid. If citizens must be noisy to get the attention of their representatives, okay; that's why we have a First Amendment right to free speech. Citizens, be cacophonous!




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