Legal Commentary

At the Volokh blog, the conspirators have been having a very interesting conversation about whether legislators should be obliged to read the full text of every piece of legislation on which they vote.  I won't provide all the links; you can surf on over and check it out.

A couple of comments.  First, asking in an extended and thoughtful fashion whether legislators should read the full text of the bill is different from simply shouting "Read the bill!" or waving copies of a bill in the air.  One is conversation and dialogue; the other is political theater and sloganeering.  The slogan "read the bill" has often been wielded against people who have actually read the bill (as if there were only one) by people who have not, and it often signifies, not that the shouters think their opponents haven't read the bill, but either that they disagree with some provision of the bill (about which they themselves may be in error) or that they can't believe anyone who actually read the bill could possibly disagree with them.  They would not be satisfied if their opponents read the bill and still supported it -- I am reminded of the Onion story in which God answers the prayers of a dying boy with a simple "No" -- so the nature and heat of the dispute can't be about reading the bill as such.  The conspirators who have argued for reading the bill are not making the equivalent of a "Read the bill!" assertion, and good for them.

Second, it is not sure what can be meant by an obligation to read the bill.  Surely it would be unenforceable as a legal obligation, except by some highly unlikely disciplinary mechanism within Congress itself.  (Would there be pop quizzes?)  That does not make it meaningless.  Much of what legislators are supposed to do, under their constitutional oaths, falls under the heading of moral obligation, or of a mixed moral/political obligation that is practically unenforceable.  That doesn't mean it has no weight or that we can't or shouldn't argue about it.  It does mean that we should recognize the debate for what it is and not treat it as anything other than a politically enforceable matter.  And it is one that should, of course, be applied even-handedly.  If reading the bill is the moral good people are interested in, then perhaps they should go to town halls with the text of some bill of which they overwhelmingly approve, and which their representative supported, and ask whether he or she read that bill, instead of focusing only on the legislation they disagree with.  

Third, I think one can have this debate in good faith or not.  If you support the "read the bill" obligation only because you think it would make lawmaking slower and more difficult and retard the pace of legislation, I don't think that's a valid reason in and of itself to support reading the bill as an obligation.  I'm not saying that wanting less legislation, as an absolute matter, isn't a valid desire, although I don't share it (as an absolute obligation; I'm not saying I want more or less legislation).  But in this case, "read the bill" would only be a means to an end, not an end in itself.  Whether or not you support reading the bill shouldn't only be about whether you want more or less legislation.  I am mindful of some of the positions Justice Scalia has taken, on matters such as standing and separation of powers.  If made in good faith, they are either right or wrong; if they are only about finding ways to slow the pace of legislation that might be more likely to be liberal than conservative, they are on more unsteady footing.  

Finally, and more positively, I haven't bothered linking to all the posts because I think Eric Posner has it quite right in his post on the subject.  Here's his opening salvo; go to his post for the rest.

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.