Legal Commentary

End legislative malpractice by amending the Constitution

By Beldar

From University of Tennessee constitutional law professor Glenn Reynolds, aka InstaPundit, an item with which I fiercely agree:

DAVID POST: Should Lawmakers, Um, Read the Laws They?re Voting On?

Sounds like something you?d ask in a third-grade civics class. But an odd editorial in today?s Washington Post, takes to task ?a group of well-meaning professional activists ? and, so far, over nearly 60,000 online petitioners? who have demanded that members of Congress sign a pledge ?never to vote on any bill unless they have read every word of it.? While the activists ?have a point,? the Post concedes, their ?proposal would bring government to a standstill.?

That?s not a bug, it?s a feature ....

Every time I deal with a federal statute in the context of giving legal advice to a client ? which is an utterly basic function of being a lawyer ? I have to actually read and then understand the statute. My failure to do so would be malpractice per se ? something absolutely indefensible, something never excusable under any circumstances. As soon as I admitted or it was otherwise proven that I didn?t read and understand the statute, the only question in a malpractice case would be the size of the damage award against me.

But if that?s an utterly basic function of being a lawyer who merely advises private clients on how the law may or may not apply, shouldn?t it be an even more basic function of a law-maker, a legislator, who creates the laws that apply to an entire country?

By no means am I saying that all legislators therefore must be lawyers. (They certainly already have staff lawyers to help them if they need or want such help.) But if an educated layman, with careful and close study, still can?t parse through the language of a bill and figure out what it does, and how it does what it does, then that says something awful and disqualifying about the legislator, the bill, or both.

A simple pledge, though, would be about as credible and enforceable as Obama?s promises that health care reform won?t add a single dime to the budget ? which is to say, a cruel and illusory farce capable of taking in only the most simpleminded and naïve.

Accordingly: I would genuinely support a Constitutional amendment which required every Congressman and Senator, upon casting every vote, to swear under penalty of perjury ? with existing perjury criminal penalties, PLUS instant disqualification from office ? that he or she had read every word of everything he or she voted upon. Not just a summary (although they could read summaries too, if they chose) or a recommendation (again, fine as a supplement, but not as a replacement). Enforcement to be by a mechanism where 10% of either chamber?s members could indict and prosecute any member of either chamber for an alleged violation, trial to be held within 30 days on national TV, finder of fact to be a jury of 51 randomly selected voters (one from each state plus the District of Columbia), conviction and expulsion (without appeal) to be based on a simple majority vote.

For a bullet-proof defense, every legislator only needs a video camera to record him and an over-the-shoulder view of the text he's reading and the pages he's turning, perhaps with the notes he's taking too.  He can post the videos on C-SPAN or YouTube.

Note well: This is, and should be, a completely non-partisan "good government" issue. But I'm relatively sure which party's politicians would bitch and moan the loudest and fight the hardest.

Full post as published by BeldarBlog on September 23, 2009 (boomark / email).