A read-the-bill rule for Congress.

• Author: Volokh, Hanah Metchis

1. Introduction

   On June 26, 2009, the House of Representatives passed the American Clean Energy and Security Act of 2009, (1) better known as the Waxman-Markey cap-and-trade bill, by a vote of 219 to 212. (2) As the closeness of the vote shows, the bill was highly controversial. Nearly as controversial as the substance was the form in which the bill was brought to a vote. On the evening of Monday, June 22, 2009, Democratic leaders replaced the 1,000-page text of the bill that had emerged from the House Energy and commerce committee with a different 1,200-page text that included new measures designed to help the bill pass. (3) Still worried about whether the bill had enough votes, the Democratic leaders added another 300 pages of amendments at 3 a.m. on Friday, just before the debate and vote. (4) Last-minute amendments, even long ones, are not uncommon in Congress. But shockingly, even by the time the vote occurred, there was no complete copy of the Waxman-Markey bill in existence anywhere. One commentator explained the situation:

   When Waxman-Markey finally hit the floor, there was no actual bill. Not one single copy of the full legislation that would, hours later, be subject to a final vote was available to members of the House. The text made available to some members of Congress still had "placeholders"--blank provisions to be filled in by subsequent language--including one for the regulation of climate derivatives. The last-minute amendments, too, had yet to be incorporated. Even the House Clerk's office lacked a complete copy of the legislation, and was forced to place a copy of the 1,200-page draft side by side with the 300-page amendments. (5) Without a copy of the bill to examine, how could the Representatives understand what they were voting on? All they had to go on were assurances --from party leaders, from lobbyists for interest groups who had negotiated the bill and amendments, and from staffers who had been frantically reading the parts of the legislation that were available. Even if a Representative had managed to read through all 1,500 pages of text and amendments during the single day before the vote, there would not have been time to even begin to understand the implications of the proposed law and its interaction with statutes already on the books. In the words of Representative John Conyers who does not himself favor reading the text of bills but understands what such an effort would entail--"What good is reading the bill if it's a thousand pages and you don't have two days and two lawyers to find out what it means after you read the bill?" (6)

   In the wake of the Waxman-Markey vote and other recent instances of rushed legislation, a grass-roots Read the Bill movement emerged. (7) Critics of proposed legislation, particularly of the health care reform bill passed in 2010,8 have rallied around a call for Members of Congress to literally read each entire bill before voting on it. At least three different online petitions urged legislators to do just that, (9) and the idea repeatedly appears in blogs and op-eds, as well as at Senators' and Representatives' town hall meetings with constituents. (10) The idea even made its way into the Republican Party's "Pledge to America" in the 2010 midterm elections, (11) and when Republicans gained control of the House of Representatives after those elections, they amended the House Rules to require that a bill be available to Members of Congress and to the public for three days before the House can hold a vote on it. (12)

   Rushed legislation is not a partisan problem. Many of the examples given by proponents of the Read the Bill movement portray Democrats engaging in bad behavior while Republicans decry it, (13) but this is simply a function of the fact that the Democrats have recently controlled both houses of Congress and as a result have set the agenda and moved bills forward. Republicans have been equally guilty of using rush tactics when in power. (14) The PATRIOT Act, for example, was passed by a Republican-controlled Congress in an extremely rushed format, just six weeks after the September 11 attacks. (15) The time frame probably did not allow a full reading by Members of Congress, (16) and public debate about the wisdom of the PATRIOT Act's provisions continued long after the bill was enacted. (17)

   Nor is providing enough time to read the bill a partisan idea. During Barack Obama's campaign for President, he made a pledge, which he called Sunlight Before Signing: (18)"Too often bills are rushed through Congress and to the president before the public has the opportunity to review them. As President, Obama will not sign any non-emergency bill without giving the American public an opportunity to review and comment on the White House website for five days." (19) The Read the Bill movement focuses on giving Members of Congress time to read the bill before voting, whereas Sunlight Before Signing imposes a waiting period between congressional passage and the President signing the bill into law. (20) The ideas are not identical, but are related. Both would provide participants in the legislative process, along with ordinary Americans, an opportunity to examine the actual text of a bill before it becomes law.

   The issue of sufficient time to read a bill is a procedural one, based in political theory and good governance concepts, (21) not in party politics, though legislators and others can seize on it to score political points. This Article attempts to move beyond the partisan political aspects of the current debate and discuss the deeper principles behind it. The fundamental concern is that leaders in Congress sometimes rush big, important bills through the legislative process without providing an opportunity for all Members to properly review the bill and consider its effects and implications. (22)

   In this Article, I argue that a Read the Bill norm, coupled with a norm of writing bills in readable and understandable language, could improve the legislative process. Lawmaking is the most primary, fundamental part of a legislator's job. Congress is the governmental body that writes laws that everyone else in the nation must follow. (23) Members of Congress need to take that responsibility seriously if the United States is to be governed by reasonable, effective laws. (24)

   This Article's focus on advocating constitutional and prudential rules for Congress to follow may seem unusual to some readers. Legal scholars have historically neglected Congress as an institution. (25) Despite hundreds of years of developing theories about jurisprudence--the way judges should behave--little attention has been given to theories of legisprudence--the way legislators should behave. (26) This Article fits within a nascent legisprudence literature that has begun to spring up among scholars such as Jeremy Waldron and Adrian Vermeule. (27) I do not attempt to provide a grand theory of legisprudence, but rather to explore the merits of legislators reading bills as a particular principle that could fit within a variety of legisprudential theories.

   In Part II, I explain the importance of legislators thoroughly understanding a bill from both a policy and a legal standpoint. I argue that reading the bill is crucial to performing their duty as responsible lawmakers. Part III turns to questions of how to put a Read the Bill rule into practice. My proposal is to implement it as a norm, not a statutory requirement. This Part also sketches the beginnings of a practical proposal for what a legislator should read and understand at each stage of the legislative process, including committee votes, floor amendments, the floor vote, and the final vote after conference committee, and proposes some drafting reforms that could make it easier for legislators to read and understand bills. In Part IV, I consider whether the duty to read the text also applies to the President before he signs a bill into law. I conclude that the constitutional evidence for a presidential duty to read the bill is much weaker than for a congressional duty.

2. THE IMPORTANCE OF READING THE BILL

   1. Making Policy vs. Making Law

      Requiring legislators to read the text of a bill before voting on it would focus their attention on the lawmaking aspect of their jobs, (28) which is now almost ignored in favor of policymaking and other aspects. (29) Reading a bill may not be necessary to an understanding of the policy motivating a proposed law, but it is necessary to understand what the proposed law is and what effects it will have in the real world. A responsible legislator must learn both.

      Reading the bill, alone, usually will not provide legislators with a sophisticated understanding of the bill and the policy it implements. Anyone who has read the text of a bill knows how mind-numbingly boring it is. A bill lays out a list of rules, one after another, without context or explanation of why they are important. It may include a findings section to provide some background on the problems the bill attempts to solve. Usually this background material is very general, and it is placed in an introductory section rather than intermingled with the rules. This format makes sense from the perspective of what a statute is meant to do in the real world, once it is enacted. A private individual or corporation wanting to take a particular action needs to know whether that action is prohibited or regulated. A statute is a set of rules to follow, and wordy explanations would only get in the way. A long discussion of purposes and expected applications could be useful in later interpretation, but it could just as easily lead to more confusion. This effect can be seen when judges look for explanations in legislative history, (30) but the confusion would be much the same if wordy explanations were enacted directly into law.

      While these conventions of bill drafting are useful for later interpreters, they do not make the law easy to analyze...