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Should legislators read bills?

I have read with dismay David and Jonathan's arguments that all legislators should read all bills before voting. The argument fits a genre of populist rhetoric that claims that problems of governance can be solved with simple, common-sense rules, denying that political institutions are highly complex organizations that have evolved in response to needs and pressures, and that simple-sounding rules rarely do any good in complex settings. Here, we should keep in mind that the ultimate function of the legislature is to produce good law; that determining whether a particular law is good or bad is such a complex and subtle task that all legislatures have found it necessary to divide labor, form committees, hire staff, expect particular legislators to become experts and leaders in particular domains, and, indeed, delegate many functions to unelected expert regulators. This means that, for virtually any law, only a handful of people can possibly have a sophisticated understanding of the bill in question. It's not a matter of reading the bill or not; it's a matter of knowing about the problems that the bill hopes to solve. You can read the Bankruptcy Code from start to finish and even if you have an IQ of 200, you won't understand it unless you also know how courts interpret the Code, how businesses respond to it, how state governments work around it, how regulators like the IRS use it, how it affects the incentives of individuals and firms, the meaning of moral hazard, something about risk aversion, how credit markets work, and on and on. I would say a half hour conversation with a credible expert would be vastly more useful than reading the Code, and if you say the legislators should talk to the expert and read the Code, you need also to believe that reading the Code will add to understanding and the legislator has nothing better to do with his time (for example, consult another expert with a different background, or consult an expert about another bill). I don't believe that in any sophisticated private firm operating in a market one would ever see serious discussion along these lines: delegation to trusted subordinates is the essence of organization in complex settings, and people are evaluated on the basis of outcomes (profits, in the case of firms; the quality of the legislation they voted for, in the case of legislators), not on their conformity with simple-minded rules of behavior.

Bill Sommerfeld (www):
this argument is beating up a strawman. the actual proposal currently before congress, H. Res 224, merely requires a 72-hour waiting period during which the text of the bill and the conference reports (showing the result of applying edits in the bill to the law) are available for any interested party to read.
9.24.2009 11:19am
Bill Sommerfeld (www):
excuse me. H. Res 554.
9.24.2009 11:21am
Steve:
this argument is beating up a strawman.

It's not a "strawman" if two other bloggers at this site have made the argument.

You may think the real issue is whether H.R. 224 should be passed, but that's not what anyone else has been talking about.

I think "strawman" has become redefined to mean "you're answering someone else's argument instead of mine."
9.24.2009 11:22am
anon252 (mail):
Having laws that are so complex that one needs teams of lawyers to understand them is certainly in lawyers' interest, but it disserves the public interest. Any business that needs to comply with such laws needs to hire that team of lawyers, which means that a huge inherent advantage is given to the largest players, for whom these legal costs will be a small fraction of their gross. Pity the poor entrepreneur, however. Not to mention the opportunities for rent-seeking, corruption, political manipulation, and the like provided by obscure provisions of complex laws. Sure, some areas of law are so complex that this may be unavoidable. But if your Congressman can't understand a bill, 90% of the time it shouldn't become law.
9.24.2009 11:23am
Sara:

all legislatures have found it necessary to divide labor, form committees, hire staff, expect particular legislators to become experts and leaders in particular domains, and, indeed, delegate many functions to unelected expert regulators.


I would add: and party apparatus.
9.24.2009 11:24am
dave h:
For myself, the basic ideas are:
1. Bills should be written so as to be understandable.
2. The entire body of law should be simple enough to be understandable.
3. Congressman should have sufficient time to understand a bill before voting on it.

If a congressman only has time to read a summary, the bill is written in such a way to be only readable by an expert, and it is impossible to put the bill into the context of surrounding law, then I think something has gone wrong. This doesn't mean a congressman can't ask for expert advice, and can't have summaries and explanations to refer to. It just means that they shouldn't be writing laws so complex and so quickly that not only can the citizens charged with following them not keep up, but the congressman themselves can't even keep up.
9.24.2009 11:28am
Brian Garst (www):
Turning this into a question of the merits of delegation completely misses the entire point of this debate because it ignores the context from which it arose. No one got pissed because Congressman X relied on Staffer Y to help him understand a piece of legislation. We're pissed because legislation was amended and passed in such a time frame that no one, representative or staff, could possibly have digested it in time.

I don't understand why some here so normally sensible, particular Orin, insist on waging this jihad against against common sense. Know what you are voting on before you vote. How hard is that?
9.24.2009 11:30am
Kevin!:
Posner uses the U.S. Bankruptcy Code specifically because it's highly complex and intricate, and is also the world leader in insolvency and reorganization procedures. But sitting down and READING the Code without expert guidance would be a waste of time as well as highly frustrating.

I appreciate the "this is beating up on a straw man" comment. Yes, it is! And yet, the silly straw man argument is the one people are actually making! Kerr and Posner would probably even agree (or not care) about a 72-hour waiting period requirement.
9.24.2009 11:34am
psennett (mail):

I would say a half hour conversation with a credible expert would be vastly more useful than reading the Code, and if you say the legislators should talk to the expert and read the Code, you need also to believe that reading the Code will add to understanding and the legislator has nothing better to do with his time (for example, consult another expert with a different background, or consult an expert about another bill).

The problem with the "half hour conversation with a credible expert" is that a subject matter expert may have no expertise in the legislative, legal and other arenas. Look at the unintended (being generous) consequences of any number of pieces of legislative twaddle, for instance the Consumer Product Safety Improvement Act (CPSIA), which can be read to ban anything containing lead (like ATVS and old children's books), in the interest of protecting kids from lead-based paints on Chinese toys.
9.24.2009 11:35am
Joshua Macy:
Does Professor Posner think that lawyers and judges ought to be likewise exempt from reading the statutes before giving advice, litigating, and ruling on them? What about professors writing law review articles? The fact that an institution is highly complex doesn't require that the rules governing its behavior be highly complex. I don't know which would dismay me more, the thought that people creating the laws we're supposed to live by are held to a lower standard of care than ordinary practitioners, or the thought that we oughtn't require that of anyone and we should resign ourselves to be governed by laws that are quite literally incomprehensible.
9.24.2009 11:37am
David Schwartz (mail):
Brian Garst: Steve's response to Bill Sommerfeld addresses your point. There really are people who advocate that representatives be required to read every word of ever bill they vote on and this argument is addressed to them.
9.24.2009 11:37am
ShelbyC:

I don't believe that in any sophisticated private firm operating in a market one would ever see serious discussion along these lines: delegation to trusted subordinates is the essence of organization in complex settings, and people are evaluated on the basis of outcomes (profits, in the case of firms; the quality of the legislation they voted for, in the case of legislators), not on their conformity with simple-minded rules of behavior.


You see discussions on the correct level of delegation all the time in the private sector, people get told they're delegating too much, or too little. There are tasks my boss wants me to handle personally because he doesn't trust the outcome to someone I delegate it to, there are other tasks I'm expected to delegate.

There's a reason congresscritters say things like, "I believe that this bill will help the American people because it's a good bill", instead of "I believe that whatever's in this bill will help the American people, because I trust the team of special interests and staffers that wrote it." That's because people expect their legislators to read and understand the bills they vote on. If congressfolk want to re-align that expectation, they should start using the latter construction.

Anyway, I'd like to see the people that think it's OK for bills to be incomprehensibile because people will figure out what they mean reconsile that idea with the recent debate over whether or not certain bills contained Death Panels that were going to kill our parents.
9.24.2009 11:38am
Pyrrhus (mail) (www):
To say that laws result in response to "pressures" may be true. It does not follow that they respond to "needs".
9.24.2009 11:38am
Brian Garst (www):

There really are people who advocate that representatives be required to read every word of ever bill they vote on and this argument is addressed to them.

I realize that, but focusing on that as if it's the point, as opposed to a by-product of the objection that Congressmen are not understanding what they are passing, does a disservice to the debate.

I think we all know this issue wouldn't have flared up if Congress hadn't passed cap-and-trade without obviously lacking an understanding of what they were voting on. It was the lack of understanding that led many to decry the lack of reading. Yes, it's short-hand populist rhetoric, but addressing the former will satisfy most objections to the latter.
9.24.2009 11:42am
John (mail):
I think "reading" the bill is a euphemism for understanding what's in it. I am quite certain that virtually no congressman knew even most of what was in the stimulus bill, and I am also quite certain that most had not the slightest idea. That's the crime--we all know they were ordered to vote for the thing and obeyed, and that's what rankles voters.
9.24.2009 11:42am
CJColucci:
One point I don't think has been made in reference to the much pitied, poor, put-upon citizen who has to follow laws too complex for legislators to read. Most of us have no reason to know or care about most laws. How many people not involved in commercial fishing have any reason to care about the complex laws governing commercial fisheries? How many individuals have to worry about 90% of the provisions of the tax code? How many of us have any reason at all to concern ourselves with the patent laws, the laws pertaining to agriculture, mining, navigation and shipping, or energy production? How many of us will ever be in a position to violate the antitrust or securities laws? People with a special need to know about particular laws will know who they are and can, and will, and should, hire experts and learn what they need to know, while ignoring a vast body of law having nothing to do with them. Legislators pass laws on all subjects.
9.24.2009 11:43am
Melancton Smith:
Professor Posner,
My interest in the "read the bill" movement is solely about creating accountability. In my profession, I have to review code and documents and when I mark them 'reviewed' it means that I have read them. When I mark them 'authorized' it means I approve of them.

I can obviously just click 'reviewed' without actually reviewing, but I don't because doing so holds me accountable for having actually read the document.

I believe a law requiring they read the bill prior to voting on it removes from them the ability to cast off accountability for a bad vote by simply saying they didn't have time to read it or all of it. See Patriot Act and Porkulus.
9.24.2009 11:43am
MCM (mail):
Anyway, I'd like to see the people that think it's OK for bills to be incomprehensibile because people will figure out what they mean reconsile that idea with the recent debate over whether or not certain bills contained Death Panels that were going to kill our parents.


I can reconcile them: both topics are the talking points of despicable demagogues. There were never death panels that were going to kill your parents in any bill, and expecting that legislators personally read bills in their entirety before voting is naive at best.
9.24.2009 11:43am
Paul Horwitz (mail):
I have posted on Prawfsblawg in support of Eric's entirely reasonable (in my view) position. Orin and Eric are not waging war on common sense; they are arguing that a full common-sense examination of this question demands a full consideration of the context, including a comparison of the costs and benefits of reading every jot and tittle of every piece of legislation as against making intelligent use of the panoply of devices, including staff, CRS reports, committee reports, outside experts, and so on that exist precisely to aid the legislative process, along with a consideration of the marginal benefits of reading the bill as compared to the costs of spending time doing this and not doing something else, such as meeting with experts or talking with constituents. The argument for reading the bill, which I do not disdain even if I disagree with it, is in the final analysis more of a moral argument than a common-sense argument. That is absolutely fine, but we ought to be clear about this.

One comment in response to Brian Garst, which I also make at Prawfs. The "context" in which this issue arose is not simply that complex legislation was passed swiftly. That happens all the time and doesn't always or necessarily arouse anger. The full context is that this happened with a bill with which many people disagreed, or -- not having read the bill themselves -- believed they disagreed with. I still think there are arguments to be made for reading the bill, although I do not agree with them. But if this principle is adopted and applied whole-heartedly by its adherents, then instead of spending all their time and energy on TARP or the health care legislation (which has not been passed yet), they ought to troop to town meetings with the text of legislation they actually agree with, and which their representative supported, and ask whether he or she has read that bill. We should not confuse "read the bill" as a general principle with mere substantive disagreement over particular bills, which -- it is quite clear -- is part of the larger subtext of the current popular sentiment on this question.
9.24.2009 11:46am
Jon Roland (mail) (www):
The essential point is that government interventions in our lives and businesses have resulted in an intolerable and unmanageable situation, resulting not just from too many statutes that are too complex and difficult to understand, but also from similarly obscure and complex regulations, administrative findings, and court decisions. These in turn result in unmanageable policies within private organizations, reduce productivity and innovation, endanger economic and social stability, and transfer too much power to lawyers.

The public is reacting to this predicament, and demanding simplifications. Not just at the margins, but profound and meaningful.

The argument that reducing the complexity of legislation will just increase the burden of administration and judicial action is missing the point. The people are demanding less of all of that. The Market may not be able to solve all problems, but our efforts at management through governmental interventions has gotten out of hand and needs to be severely reined in. The system no longer meets the needs of human beings with human limitations.

Members of Congress need to get the message: You aren't mainly there to adopt new programs, but to comply with the Constitution, and right now the priority needs to be to repeal much of the legislation that has been enacted since about 1886. Let's sunset everything and reset.
9.24.2009 11:46am
Brian Garst (www):

I can reconcile them: both topics are the talking points of despicable demagogues. There were never death panels that were going to kill your parents in any bill, and expecting that legislators personally read bills in their entirety before voting is naive at best.


Or you could conclude something useful: incomprehensible bills advanced deliberately in an opaque manner give rise to uninformed public debate. That uncertainty is a breeding ground for fear. Congressmen who advance incomprehensible legislation are at least in part responsible for that reaction.
9.24.2009 11:49am
Sara:

Anyway, I'd like to see the people that think it's OK for bills to be incomprehensibile because people will figure out what they mean reconsile that idea with the recent debate over whether or not certain bills contained Death Panels that were going to kill our parents.


If there were such provisions, than doesn't that mean that someone read them and rasied questions or didn't read them and raised questions, anyway. Either way, the question was raised, with or without reading the bill.
9.24.2009 11:49am
Brubaker:
So lawmakers cannot express their intent in legislation without relying on experts to construct bills in language uninterpretable to all but the experts?

I see a Monty Python sketch here, maybe in which a bill bans not buying alcohol on days other than Sunday.
9.24.2009 11:50am
Wince and Nod (mail) (www):
I believe that we should endeavor to produce laws that can be known, understood and willingly followed by the people to whom they apply. Call it 'ergonomic law'. If I must have an expert to explain it to me, I cannot follow it. Who could have 5000 experts trail around after them every second explaining how to follow the law?

Reading the words of good, competent, expert lawyers make me worry that the rule of law is a horrible thing, as arbitrary and unknowable as any tyrant, where the only thing that keeps me from jail due to some unknown felony conduct is lack of time by the police and the unknowable discretion of the prosecutor.

Perhaps you could argue that having too much law and too complex law is unconstitutionally vague, since, as a practical matter, it is.

Yours,
Tom DeGisi, aka Wince
9.24.2009 11:52am
MCM (mail):
Or you could conclude something useful: incomprehensible bills advanced deliberately in an opaque manner give rise to uninformed public debate. That uncertainty is a breeding ground for fear. Congressmen who advance incomprehensible legislation are at least in part responsible for that reaction.


I like how you say complex legislation can "give rise" to something. Nice use of the passive voice to obscure deliberation mischaracterizations by Sarah Palin et al. to stir up fear and mistrust.

Complex legislation is nothing new, though our current generation of demagogues is.
9.24.2009 11:53am
Brian Garst (www):

We should not confuse "read the bill" as a general principle with mere substantive disagreement over particular bills, which -- it is quite clear -- is part of the larger subtext of the current popular sentiment on this question.


No, we shouldn't, but that doesn't at all address the merits of the argument. Personally, I think you describe the context unfairly, that the objection had more to do with a general distrust of government than opposition to merits of particular legislation. But it doesn't really matter, because the arguments can be, and ought to be, judged on their own merits. You can't honestly dismiss them simply because they are levied by people with substance disagreements to those in power.

And the merits aren't all that difficult. Yes, it's a bit stringent to require Congressmen read every word themselves, but most people who say that would likely be satisfied with Congress simply understanding the legislation via any means at their disposal (staff, CRS, etc.) But they can't do that when they introduce 300 pages at 2 AM then vote on them that afternoon, now can they?
9.24.2009 11:53am
LN (mail):
Posner is 100% right. There seems to be this idea that the complexity of our laws is driven by lawyers making a power grab or legislators looking to avoid accountability. But laws are complicated because our society is complicated. It's disheartening to read faux-populist "all our laws should fit into a 100-page book" nonsense on a blog run by law professors.

Meanwhile if we are primarily interested in holding our legislators accountable for the laws they pass, perhaps we should implement "elections" that allow the populace to remove lawmakers from office. If shareholders want to hold a CEO accountable, do they create a mandatory process by which he reviews every single contract that his company enters into, or do they simply not accept his excuses when things don't go well?
9.24.2009 11:55am
Brian Garst (www):

I like how you say complex legislation can "give rise" to something. Nice use of the passive voice to obscure deliberation mischaracterizations by Sarah Palin et al. to stir up fear and mistrust.


I'm not obscuring anything. I responded within the scope of the debate. It's not necessary for me to condemn stupid rhetoric about death panels in a discussion about reading legislation. Time and place.
9.24.2009 11:56am
Matt B. (mail):
You're right -- reading a 1,000 page bill probably isn't going to give the reader a great idea of what it is actually doing, simply due to the complexity. But the benefit is that they would actually start writing shorter, simpler bills. No bill needs to be 1,000+ pages.
9.24.2009 11:56am
Paul Horwitz (mail):
Just a couple of friendly responses to Melancton Smith -- and the many other code-writers who have commented on earlier posts. An interest in creating accountability is entirely acceptable. But, like anything else, it has to be considered in context. A requirement that legislative language be publicly available for a period of time before being passed -- something neither Eric nor Orin have spoken against -- is one means of ensuring accountability. Imposing some kind of enforceable obligation that legislators read every word of legislation, apart from being impossible as a practical matter, is a costlier measure. And we have to ask whether the marginal benefits of doing so outweigh the costs -- particularly in light of the fact that there is already a mechanism for ensuring accountability on these matters: the ability to vote legislators out of office on a regular and recurring basis.

On the broader point that Smith and others have made, that they are responsible for reading every line of code and don't see why everyone else shouldn't be, I respect the necessary diligence involved in their jobs. But it is a function of *their* jobs. I don't expect code-writers to read every line of every program they read and use rather than write, or to read every line of all of their colleagues' codes; in some cases their job may require them to do so, and in others they may end up relying on conversations with their colleagues or even on how well a given program works. I do not expect them to work on matters outside their purview: I don't expect them to also know every line of their company's accounting books or how many toilet paper rolls are being used in the bathrooms in their office building. I also do not expect the CEO of McDonald's to know how to flip a burger or kill a cow or perform many other functions, though I would hold her accountable if she did not know enough about the business, or did not have competent enough employees, to ensure that it ran smoothly. Legislators, as it turns out, and aside from populist anger about them, do work very hard, and are politically accountable. The question is whether they work hard enough on the things we want them to work on, whether there are some aspects of their jobs on which it makes sense for them to work with others, and so on. We can productively argue about this, and I'm not taking a stand here. But the code analogy is, I think, not as helpful as some here have supposed.
9.24.2009 11:57am
extractor:
I understand the argument that reading the whole bill may not get you much. But do opponents of this measure at least concede that congressional process is broken when it includes 300-page amendments dropped in at the wee morning hour to be voted on the same day? How about voting on a bill when full text has not been made available? This is what constituents are angry about and this is what this obviously populist call seeks to prevent. And how Orin and you jumped up in indignation against an attempt to do something against this corrupt status quo.

Oh, and how opponents conveniently ignored an account of a legislator who actually DID read the bills - posted right on the same blog.


... that political institutions are highly complex organizations that have evolved in response to needs and pressures

And by now this particular organization we're talking about (US Congress) evolved into something so incomprehensible and self-serving. Maybe some simplification should be forced on it for its own good, which will be for the good of the country.
9.24.2009 11:57am
Brian Garst (www):
It's not at all surprising to see lawyers defending a system that feathers their nest. I'll conclude with this populist quote from the demagogic James Madison:


It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.
9.24.2009 12:00pm
MCM (mail):
No bill needs to be 1,000+ pages.


Written a lot of legislation, have you? I'm glad to know that the world contains no problems, nor could it contain any problems, that might be complex enough as to require a 1000 page bill.

I'm not obscuring anything. I responded within the scope of the debate. It's not necessary for me to condemn stupid rhetoric about death panels in a discussion about reading legislation. Time and place.


I think you missed the part of the debate where ShelbyC was implying that if Sarah Palin hadn't read the health care bill for us, we wouldn't have found out that there were death panels in it, and then our legislators would have accidentally enacted death panels without meaning to.
9.24.2009 12:04pm
yankee (mail):
I understand the argument that reading the whole bill may not get you much. But do opponents of this measure at least concede that congressional process is broken when it includes 300-page amendments dropped in at the wee morning hour to be voted on the same day? How about voting on a bill when full text has not been made available? This is what constituents are angry about and this is what this obviously populist call seeks to prevent. And how Orin and you jumped up in indignation against an attempt to do something against this corrupt status quo.

I agree that the procedural rules involved here need to be improved, but that is not the view being criticized. A bunch of people (including multiple bloggers on this very blog) have argued that legislators should not vote on (or just for?) a bill unless they've read it in full. That is a much stronger position than thinking the text of bills should be available for 72 hours etc.
9.24.2009 12:09pm
PatHMV (mail) (www):
How about propose a solution to our current problems them, something that relies on something other than Connecticut voters kicking out Chris Dodd for inserting language that authorized AIG bonuses, then denying any knowledge of the bonuses and claiming not to have known what his own amendment did?

Kerr, and now Posner, keep complaining about the critics, while acknowledging (at least Kerr does) that there's a problem, setting up straw-men, all without providing any alternative solutions to what has clearly become a serious problem.

I'm not aware of anybody arguing for "read the bill" provisions who wants to eliminate the Congressional staff or prohibit them from providing summaries and analyses of the bill to explore their complex effects. That, too, would be a requirement for good government. But reading the bill is often important, too. If the CEO of the private corporation NEVER looks at the underlying data, then he's entirely at the mercy of the underlings responsible for feeding him his data. I suspect that Jeff Bezos knows A LOT about the detailed operations of Amazon, not just glosses gleamed from high-level summaries. That of course doesn't mean he reads every word of every contract (or whatever), but it does mean that he conducts a real inquiry, himself, into the effects of those contracts, and when it's a major contract, I'm betting he reads at least some key portions of the contract himself. I sure would, if I were a CEO, and the bosses and clients I've worked for generally do read my actual briefs and draft contracts before agreeing to them.
9.24.2009 12:10pm
Brian Garst (www):

I think you missed the part of the debate where ShelbyC was implying that if Sarah Palin hadn't read the health care bill for us, we wouldn't have found out that there were death panels in it, and then our legislators would have accidentally enacted death panels without meaning to.

I didn't see that implication at all. Nothing in ShelbyC's statement to me suggested sympathy with the idea that there actually were "Death Panels." I got quite the opposite impression, in fact.

But I could be wrong and will let ShelbyC clarify if he/he cares to.
9.24.2009 12:11pm
Bob from Ohio (mail):
Excellent Madison quote.

And people wonder why James Madison was adopted as the symbol of a conservative legal group.

Put limits on the length of bills. Put limits on number of topics in a single bill. Require simple declarative sentences. Require a strike through or similar system so there can be a comparison made of any changes to existing law.
9.24.2009 12:12pm
Brian Garst (www):
That should be "he/she."
9.24.2009 12:13pm
PatHMV (mail) (www):
how is it that debate even on a relatively sane and intelligent board like this has devolved into arguing against extreme positions?

Why can't people who agree there's a problem, but think that "read every word of every bill" is not helpful, argue back with something like: "well, that's a bit extreme, but what about this to get at the same problem?" It's as if Posner and Kerr decided that the "read-the-billers" won't even consider any compromises, and are out just to attack, not try to solve clear problems.
9.24.2009 12:13pm
Laura(southernxyl) (mail) (www):
I like that Madison quote.

Let me provide a little context to help explain, from my perspective the sudden interest in our legislators knowing what it is they're voting on.


On the campaign trail, Clinton has said again and again that she cast her vote based on the best available intelligence. But Gerth and Van Natta show that, according to all evidence, Hillary did not actually read the "best available intelligence" on the war before the invasion -- the full, 90-page classified version of the National Intelligence Estimate -- even though Sen. Bob Graham, then chairman of the Intelligence Committee, had, according to the book, "implored his colleagues to do so before casting such a monumental vote." (After reading the full report, Graham voted against the war.)



.Her Way: Hillary's Iraq Problem and Why It's Not Going Away

and


DEMOCRAT Nancy Pelosi, the most powerful person in the US Congress, and a critic of Bush administration interrogation techniques such as waterboarding, knew about the practice in 2003 and said nothing.

The Speaker in the US House of Representatives made the admission yesterday in an extraordinary press conference as she fought to maintain her credibility among the Democratic base.

Appearing tense and flustered on the podium as she rifled through her notes, Ms Pelosi is in the firing line after offering several versions of events in the past few weeks about CIA briefings on interrogation policies in 2002 and 2003.

...

She charged yesterday that the CIA was lying over what it was doing with detainees caught after 9/11.

But she admitted for the first time that she learnt the CIA was employing harsh interrogation techniques such as waterboarding - which simulates drowning - in February 2003. She said a staffer alerted her to the contents of CIA briefings to other top politicians.


Nancy Pelosi was aware of CIA torture

Speaking for myself, I'm tired of these people excusing what they did or didn't do based on their not knowing enough to make a decision. Either they didn't read the material they were given, or they lie about what they knew.

The deer-in-the-headlights response to specific questions about the health care reform bill just sealed the deal.

I'm ready for some accountability. If these people can't be troubled to figure out what the hell it is they are doing, and stand by their decisions without making stupid excuses, then they need to find other employment.
9.24.2009 12:14pm
Esquivel102 (mail):
MCM,

I certainly have not written any legislation myself, but I feel completely confident from reading about such bills that I would agree that no bill needs to be 1000 pages or more. I'm guessing you've written the same amount I have, so I'm curious as to why you think that would be necessary. Bills get to be that long because so many unrelated and tangentially related things are added through our political process. There is absolutely no question that we would be better off by limiting the scope of such bills to their original intent.

The points against requiring each congress person to read a bill do make sense. I like the idea of each legislator reading each bill, but it's true that it might not always be practical or helpful given the complexity of the legislation we often see. But then, those who are for congress people not being fully aware of what they're voting on usually fail to take the next logical step. If you're in congress and can't understand the bill that you're voting on... ready?... DON'T VOTE FOR IT. Using guns to make people do things that even you don't understand in inexcusable. If you need a team of lawyers to give you any sense of what's going on, don't roll the dice. It really is that simple.
9.24.2009 12:14pm
Off Kilter (mail):
LN: "But laws are complicated because our society is complicated."

This doesn't follow at all. It is much LESS complicated to obtain food today than 200 years ago. Today you just go to the grocery store and buy it. Very simple. 200 years ago you needed to know how to grow it. Much more complicated.

Richard Epstein's "Simple Rules for a Complex World" is an entire book devoted to the fallacy LN makes above.
9.24.2009 12:16pm
MCM (mail):
I didn't see that implication at all. Nothing in ShelbyC's statement to me suggested sympathy with the idea that there actually were "Death Panels." I got quite the opposite impression, in fact.

But I could be wrong and will let ShelbyC clarify if he/he cares to.


Even if ShelbyC didn't personally believe that there were death panels, others did, and the point is the same: demagogues can use complex legislation to arouse fear in people. This is not a problem with complex legislation, this is a problem with demagoguery.

And again, regardless of whether ShelbyC personally believed in death panels in the health care bill, death panels is a case in point in the debate, which is I assume why ShelbyC raised the issue of death panels in the first place, and thus it is well within the "scope of the debate".
9.24.2009 12:16pm
dirc:
If the purpose of laws is to provide a clear and predictable framework for society, that purpose is undermined by the need to consult experts to interpret the law.

If the purpose of laws is to provide rent-seeking opportunities for a selected members of society, that purpose is well served by the current system.

There will probably never be a day when no part of the law requires interpretation by anybody in society. The concern is that laws that affect so many people are understood by so few.
9.24.2009 12:16pm
ShelbyC:

But I could be wrong and will let ShelbyC clarify if he/he cares to.


MCM's comment tripped my sarcasm/snark detector, but just in case: I was pointing out to folks who think it's OK for bills to be incomprehensible because we have experts to tell us what they mean that we just got to listen to a debate among "experts" about wheter or not the bills contained death panels.
9.24.2009 12:18pm
MCM (mail):
This doesn't follow at all. It is much LESS complicated to obtain food today than 200 years ago. Today you just go to the grocery store and buy it. Very simple. 200 years ago you needed to know how to grow it. Much more complicated.


What incredible naivete. Because the food just sprung into existence, ex nihilo, in the supermarket? Wow. Just. Wow.
9.24.2009 12:22pm
Off Kilter (mail):
I sometimes think lawyers completely lose sight of how often laws destroy people's lives. Good, decent hard-working people who jobs, relationships, and entire lives are ruined; totally peaceful and harmless people put in prison for years, because an obscure poorly understood law is violated. Often they even had legal counsel tell them it was all right; the legal counsel, whose time was paid for, does not go to jail for the bad advice.

1000 page laws/regulations are passed. No one knows what they voted for. But the result for the citizen is not a note in the mail: "Sorry; you violated the law. Please start over and try again." It is the destruction of people's lives. The fact this is defended is morally reprehensible.
9.24.2009 12:22pm
Bob from Ohio (mail):

I'm glad to know that the world contains no problems, nor could it contain any problems, that might be complex enough as to require a 1000 page bill.


The world has no problems that a 1000+ page bill will actually solve.

The bills are long not because they deal with complex problems but all sorts of unrelated topics are covered in one bill. Bills dealing with topic A are amended to add topics b to z as well.
9.24.2009 12:23pm
Sara:
Off Kilter: Could you give examples, so we know what your referring to?
9.24.2009 12:25pm
MCM (mail):
The world has no problems that a 1000+ page bill will actually solve.


Well, that solves that problem. Debate over.
9.24.2009 12:26pm
Brian Garst (www):

demagogues can use complex legislation to arouse fear in people. This is not a problem with complex legislation, this is a problem with demagoguery.


The underlying cause being sick is the virus or bacteria that I catch, but that doesn't mean it makes sense for me to deliberate ignore ways in which I might have compromised my own immune system.

We're not just talking about complex legislation. We're talking about complex legislation that was deliberately advanced in an opaque manner, and the inner-workings of which were deliberately kept dark in an attempt to avoid public debate. That strategy backfired.

Yes, any legislation can be demagogued, but that doesn't change the fact that incomprehensible legislation advanced with little sunlight makes demagoguery far more likely to succeed, and therefore a much greater problem. AS sensible person can acknowledge that the underlying problem with demagoguery is demagoguery, and still actually seek to ensure that there is less of it by making sure that legislation is understood through an open and honest process in which the primary actors actually bother themselves with the details of their own agenda.
9.24.2009 12:26pm
Curt Fischer:
This series of posts has been remarkably interesting. Before reading I think I was more in the Post/Adler camp, but Posner and Kerr have made a compelling case that RTFB arguments are unrealistic in today's legislative environment.

Commenters to Prof. Kerr's post raised the point that the RTFB folks have a larger goal in mind: a simpler government, with less complex institutions that average folks can understand. Suppose you're a small business owner, running, say, a construction contracting firm. The economic downturn has hit your business hard.


You can read the Bankruptcy Code from start to finish and even if you have an IQ of 200, you won't understand it unless you also know how courts interpret the Code, how businesses respond to it, how state governments work around it, how regulators like the IRS use it, how it affects the incentives of individuals and firms, the meaning of moral hazard, something about risk aversion, how credit markets work, and on and on.


A situation like this probably works against you. You don't have time to become an expert on bankruptcy law, and yet, this is the law that is supposed to serve you and your business in current economic times.

Obviously, many larger firms with specialized apparatuses for exploiting the nuances of bankruptcy law probably regard the complexity as a great boon, providing them with flexibility.

But how do we know what level of complexity is ideal? Should laws be designed to serve large, complex organizations or ordinary, unspecialized citizens? That, I think, is the question which animates this debate. Corporatist/technocratic sentiments are pitted against independent/libertarian sentiments. Maybe whether legislators read all the bills they write is a bad front to fight this battle, but it's an interesting battle nonetheless. I probably lean a little bit toward the independent/libertarian side of the fight, but I can't say I have strong reasons for doing so.


political institutions are highly complex organizations that have evolved in response to needs and pressures, and that simple-sounding rules rarely do any good in complex settings.


In short, I agree that complex political institutions are necessary to govern complex settings. But what's the evidence that highly complex settings are better than simpler ones?
9.24.2009 12:26pm
CDU (mail) (www):
It is much LESS complicated to obtain food today than 200 years ago. Today you just go to the grocery store and buy it. Very simple. 200 years ago you needed to know how to grow it. Much more complicated.


This is like arguing that it's less complicated for me to solve math problems using a scientific calculator than to do it using pencil and paper. Sure, it's less complicated for me, because all of the complexity has been offloaded on to other people. The entire system, on the other hand, is far more complicated. The amount of science and engineering knowledge required to make the microprocessor that runs the calculator is enormously more complex than solving the problem by hand. Similarly, the vast system of farms, food processors, fertilizer and pesticide manufactures, transportation networks, and financial markets required so that you can just go to the grocery store and buy packaged food is vastly more complicated than growing food in a backyard garden was two centuries ago.
9.24.2009 12:26pm
MCM (mail):
We're not just talking about complex legislation. We're talking about complex legislation that was deliberately advanced in an opaque manner, and the inner-workings of which were deliberately kept dark in an attempt to avoid public debate. That strategy backfired.


I think this is an important source of disagreement.

If you think your legislators are intentionally trying to keep you in the dark, you might as well move to the hills and start stockpiling guns and canned food. If you think the people in charge are already doing that, it's already over.

If you can't even assume good faith on the part of your elected officials, you already quit democracy.
9.24.2009 12:30pm
Pon Raul's Son Pand Raul:
I remember when the name Posner didn't make me think Poser and Sellout.
9.24.2009 12:30pm
ShelbyC:

Even if ShelbyC didn't personally believe that there were death panels, others did, and the point is the same: demagogues can use complex legislation to arouse fear in people. This is not a problem with complex legislation, this is a problem with demagoguery.


Well, we don't know if she's a demagogue without reading the bill. And if we can't figure out if she's a demagogue by looking at the bill because the bill is too complex, that's a problem with the legislation.
9.24.2009 12:31pm
Jon Roland (mail) (www):
Raising the argument about "death panels" was a rhetorical device, not about explicit provisions of legislation, but the likely eventual consequences of how they would be implemented in practice. In that sense there are already "death panels" throughout the administrative systems that have been set up to decide whether to provide or pay for some medical treatment, with shortened life the likely result of not doing so. The objection is to setting up even more such decision bodies, especially if they acquire the status of being the exclusive last word on whether get treatment. People want alternatives if they are denied treatment by one provider.
9.24.2009 12:35pm
MCM (mail):
Well, we don't know if she's a demagogue without reading the bill. And if we can't figure out if she's a demagogue by looking at the bill because the bill is too complex, that's a problem with the legislation.


But that's just it. Many, many people were able to look at the bill and realize that everything she was saying was hogwash. People who wanted to believe the government was going to create death panels to kill grandma believed that, regardless of the content of the bill.

The actual content of the bill was unimportant! People who wanted to believe Sarah Palin believed Sarah Palin. This is why I have to disagree with Briant Garst: demagogues will say anything they want to scare people.
9.24.2009 12:35pm
Sara:
Curt Fisher: Your discussion of the Bankrcy. Code and small business is interesting because aren't there simplified rules for small businesses - makng the overall code longer.
9.24.2009 12:35pm
MCM (mail):
The underlying cause being sick is the virus or bacteria that I catch, but that doesn't mean it makes sense for me to deliberate ignore ways in which I might have compromised my own immune system.


And so we should get rid of FEMA. Because as Glenn Beck said, we can't know that FEMA isn't building concentration camps.
9.24.2009 12:36pm
LN (mail):
PatHMV:

1. The extreme positions being argued against aren't strawmen; they come up again and again in the comment threads.

2. Let's focus on the real problem here, the lack of accountability for members of Congress. This extends well beyond "reading the bills." Complexity in general makes it harder to hold politicians accountable. In fact, that's one reason we have partisanship -- a handful of divisive issues are highlighted and the presumption is that if you simply know if a politician is a Democrat or a Republican, you know where they stand on a broad range of issues. But it's entirely possible that the highlighted partisan issues (abortion, taxes, Iraq war) are misleading or often irrelevant. In fact I strongly suspect that Democratic politicians often screw the poor, and that Republican politicians often increase government spending. But complexity makes it harder for voters to hold these politicians accountable for the details of what they actually do; voters can only track the high-level storyline ("Bush said no new taxes, he lied!").

My point? These accountability problems are deep. But the "read the bill" movement seems to rely on bogus populist thinking ("why do we need lawyers to write laws?") and I don't see how it solves the problem (in the Chris Dodd example, "read the bill" is equivalent to "not accepting anyone's excuses for the outcome" -- OK great, now so what?)

3. But honestly, I don't think this is really about accountability anyway. It's about the fact that there are two political factions in this country, and that each has a base that is freaked out by the prospect of the other faction's leadership being in charge. With the Democrats in charge, it just doesn't feel right. Hence "OMG Obama is a Kenyan" and "OMG they don't even read the bill."
9.24.2009 12:43pm
LN (mail):
Today you just go to the grocery store and buy it. Very simple.

This was already addressed above, but you're the one committing a fallacy, not me. Life is simpler for the person eating the food, but on a societal level life is much much more complicated. Getting the food to the grocery store involves so many people and organizations that it boggles the mind.
9.24.2009 12:48pm
ShelbyC:

But that's just it. Many, many people were able to look at the bill and realize that everything she was saying was hogwash.


I disagree. I think most people figured what she was saying was hogwash without looking at the bill. You can't rely on that to work every time, though. I still can't figure out if the bill the Orin posted has death panels.
9.24.2009 12:49pm
PlugInMonster:
To Prof Posner - do you like that it's easier to install more big government programs? Because that seems to be the gist of your post!
9.24.2009 12:49pm
Laura(southernxyl) (mail) (www):

But honestly, I don't think this is really about accountability anyway. It's about the fact that there are two political factions in this country, and that each has a base that is freaked out by the prospect of the other faction's leadership being in charge.


That may be the case for a lot of people. I don't know. For myself, when Obama does something that sets my teeth on edge, I tell myself that he is our elected president and it's his turn. I have to trust my fellow Americans to some extent. We more than just about any other country get the government we deserve. No, my concern here is definitely about accountability and about the possibility of real damage being done to people because of stuff getting slipped into these bills, accidentally or on purpose, and nobody paying attention.

I can disagree with the Democrats' view of the proper role of government and still believe that they have the country's best interest at heart. But I really, really want our leadership on either side of the aisle to pay attention to what they're doing.
9.24.2009 12:51pm
Laura(southernxyl) (mail) (www):
"I still can't figure out if the bill the Orin posted has death panels."

Ha!
9.24.2009 12:52pm
Bob from Ohio (mail):

Well, that solves that problem. Debate over.


Well, [intentionally deleted to comply with blog civility rules], name one problem that has been solved by a 1000 page bill.

Why don't you also list all the legislation you've written so we can examine your actual expertise.
9.24.2009 12:53pm
Wince and Nod (mail) (www):
If you think your legislators are intentionally trying to keep you in the dark, you might as well move to the hills and start stockpiling guns and canned food. If you think the people in charge are already doing that, it's already over.

If you can't even assume good faith on the part of your elected officials, you already quit democracy.


This is either stunningly naive, or more likely a badly mistaken resort to hyperbole. It's as if you have never heard of corrupt legislators. If we can assume so much good faith on the part of our elected officials, than no elections are needed. The Founding Fathers were burdened with a realistic view. They did not assume good faith on the part of our elected officials. They assumed bad faith, which is why they built in the safety features of our Republic.

Yours,
Tom DeGisi, aka Wince
9.24.2009 12:53pm
Off Kilter (mail):
Sara asks for examples of my point. IANAL, but I need only go back to Orin's post yesterday on the actual text of Computer Crime legislation, and JeredS's comment:

"As John Thacker observed, detaching the original (a)(5)(B) from (a)(5)(A) is not mere housekeeping because they were connected by "and". The conduct under (a)(5)(A) was simply not a federal crime at all unless it caused an effect listed under (a)(5)(B).

Mostly, conduct that is now an offense under (a)(5) but was not a crime before this law is now a misdemeanor. However, if an individual has a conviction under this section, subsequent (a)(5) offenses are felonies, even if they would not have been a crime before this law. Also, the new condition under (c)(4)(A)(i)(VI) would allow minor incidents that technically affect 10 or more protected computers to become felonies."

Now, this is just one example. It shows a change of apparent minimal importance that likely no one voting on it knew about or paid attention to. But I assume from Jered's description that not knowing about that change could turn a legal activity into a felony, thereby destroying someone's life.

It's my guess such things are abundant in current legislation.
9.24.2009 12:53pm
PlugInMonster:
Sarah Palin really did blow it on the "Death panels" thing. After all private insurance has the same concept, so it defeated her entire point. Besides, my generation(young 30-somethings) want limitations on end of life care for geezers so they won't cost us so much. I want more death panels!
9.24.2009 12:54pm
ShelbyC:

People who wanted to believe Sarah Palin believed Sarah Palin. This is why I have to disagree with Briant Garst: demagogues will say anything they want to scare people.


But they're all demagogues. How do I know which demogogue to believe,
if the bill is incomprehensible.


If you think your legislators are intentionally trying to keep you in the dark, you might as well move to the hills and start stockpiling guns and canned food. If you think the people in charge are already doing that, it's already over.

If you can't even assume good faith on the part of your elected officials, you already quit democracy.


Wow. So legislators never try to do things in a way that avoids public debate? I should just assmue good faith, because a legislator would never do anything without making sure it everybody knew what they were doing and had a chance to weigh in? That's the arguement you're making?
9.24.2009 12:58pm
Fub:
[Eric Posner wrote, September 24, 2009 at 11:14am:
This means that, for virtually any law, only a handful of people can possibly have a sophisticated understanding of the bill in question. It's not a matter of reading the bill or not; it's a matter of knowing about the problems that the bill hopes to solve.
Off Kilter wrote at 9.24.2009 12:22pm:
I sometimes think lawyers completely lose sight of how often laws destroy people's lives. ...

1000 page laws/regulations are passed. No one knows what they voted for. But the result for the citizen is not a note in the mail: "Sorry; you violated the law. Please start over and try again." It is the destruction of people's lives. The fact this is defended is morally reprehensible.
I think these two facts are the source of the debate over whether legislators should be responsible for understanding the statutes they vote on.

If legislators have no responsibility to read their bills (or at least have thorough understanding of them through expert assistance), then ordinary citizens should have a similar exemption from responsibility when they are accused of violating laws that are at best obscure by their complexity.

If legislators are allowed to pass a law they don't understand fully, then ignorance of that same law should be a complete defense to any criminal or civil action by government accusing a citizen of violating that law.

Otherwise, there will exist secret laws which, by dint of their complexity, can only be "understood" by government prosecutors.
9.24.2009 1:00pm
Sara:
I don't think the founders assumed bad faith, they, probably, assumed falibility and imperfect information but not bad faith. If they assumed bad faith, they would not have come to any agreement.
9.24.2009 1:03pm
LN (mail):
<i>They assumed bad faith, which is why they built in the safety features of our Republic.
</i>

Did they require lawmakers to Read the Bill?
Or were they content to hold elections every few years?
9.24.2009 1:03pm
Tim J.:
Many, many people were able to look at the bill and realize that everything she was saying was hogwash. People who wanted to believe the government was going to create death panels to kill grandma believed that, regardless of the content of the bill.


Here's what actually happened. Palin used the rhetorical term "death panels" (she even included the quotes), and then she cited specific parts of the bill she found troubling. Legislators looked at the provisions she mentioned, concluded that they could be "misinterpreted or misimplemented," and dropped them from the bill. So it's kind of like what you said, except for being the exact opposite. (I've included links for those naive enough to want to look at the original sources instead of just taking me at my word.)

I can see how you might think otherwise, though. Probably instead of reading for yourself, you relied on the reports of "experts" on what transpired. I'd even wager that all those experts come from the same tiny sliver of the political. A rather good demonstration of the dangers of relying on experts to tell you what to think, instead of investigating for yourself.
9.24.2009 1:09pm
MLS:
Should legislators read bills?

The mere fact this question is even being asked is quite troubling. Who here seriously believes that ordinary citizens hew to the view that it is perfectly acceptable for their elected representatives to vote for or against legislation without actually reading and understanding the legislation? I daresay such citizens are in the clear minority, most likely comprising elected public officials.
9.24.2009 1:42pm
Careless:

If you think your legislators are intentionally trying to keep you in the dark, you might as well move to the hills and start stockpiling guns and canned food. If you think the people in charge are already doing that, it's already over.

If you can't even assume good faith on the part of your elected officials, you already quit democracy.

Other people have already commented, so I'll just *snicker*
9.24.2009 1:50pm
Steve P. (mail):
Excellent post, Professor Posner.
9.24.2009 2:25pm
Russ (mail):
The folks who write and enact laws should read them first?!?! Oh the insanity!

Next we'll expect teachers to actually understand the subject they teach or judges to understand the laws they apply.

America's rule of law is great - America's rule of lawyers is not. It's the people, through their elected representatives, who create the laws, not the lawyers. To expect our lawmakers to understand the laws they expect the rest of us to follow seems to be the least we should expect of them.
9.24.2009 2:39pm
Harry Eagar (mail):
Brian Garst sez: 'We're pissed because legislation was amended and passed in such a time frame that no one, representative or staff, could possibly have digested it in time'

I wish you had been around and pissed and influential during the M&A madness back in the '80s, when tens, maybe hundreds of thousands of working people lost their jobs under similar circumstances.

But I don't recall any libertarian voices being raised about the recklessness of it at the time.
9.24.2009 2:46pm
silvermine (mail) (www):
Harry -- sorry, but I was in elementary school. Should we continue bad and stupid things because it's tradition?
9.24.2009 2:52pm
Mike McDougal:

we should keep in mind that the ultimate function of the legislature is to produce good law

Incomprehensible law can never be considered good.
9.24.2009 3:50pm
Hugh:
I think that reading the bill is not a substitute for a legislator knowing about every provision in the bill. It is a disgrace when a bill becomes law and then we find out about provisions that no one seemed to be aware of.
9.24.2009 5:01pm
Deoxy (mail):

This means that, for virtually any law, only a handful of people can possibly have a sophisticated understanding of the bill in question.


And yet, people are supposed to follow not only that one law, but ALL OF THEM. Your view of law is completely ridiculous.

If I can't understand the law, how in the bloody hell am I supposed to follow it? The law needs to be easy enough to read and understand that anyone who is not officially mentally deficient (IQ of 80, I think it is?) needs to be able to read and understand it in a very reasonable amount of time.

Otherwise, you are trying to enforce rules on people not that they don't know, but that they CAN'T. If that's not unreasonable, I don't know what could be.
9.24.2009 5:40pm
Harry Eagar (mail):
silvermine, jes' sayin' some people get in a sweat when they see gummint doing stuff that seems to be OK when they do it themselves.
9.24.2009 8:13pm

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