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  • Guest Blogger: LSU Law Professor John Baker on Congress’ Reading Problem

    Just the other day, Senator Richard Durbin (D-IL) objected to Senator Tom Coburn’s (R-OK) move to force the reading of Bernie Sander’s (I–VT) 767-page amendment (thankfully defeated) to create a single-payer, Medicare-for-all health care system. Republicans plan to force a reading of the final (as yet un-released) Reid health care legislation currently being debated in the Senate, a move Democrats will assuredly try to block.

    When ordinary Americans sign their tax forms and thereby fund the federal government, they declare under penalties of perjury that they have read the document. Shouldn’t members of Congress at least have to read the bills they vote for to spend our money? On November 20, the Senate had a vote on cloture – the definitive vote on the health care bill– only 3 days after the bill was unveiled. Senators could not possibly have read the bill. Once again the Senate is preparing to vote on a new version of the bill the contents of which are being with-held from many, if not most, senators. In all likelihood, senators will soon be asked once again to vote on a bill that they will not have time to read. The process has shocked many Americans. Shocked Americans, however, are simply seeing the routine practice of Congress: voting, without reading. Frustrated, what can ordinary Americans do? States could define the crime of malfeasance in office to include the failure of a legislator – federal or state – to vote for legislation without reading it.

    Members of both houses are obligated by oath to support the Constitution and to “well and faithfully discharge the duties of the office.” To comply with their oaths, all members of Congress should read at least those bills on which they vote favorably—those that change the status quo. The Senate, in particular, cannot fulfill its constitutional purpose of blocking or improving bad legislation through deliberation and debate, if its members do not read legislation. As the Constitution’s framers understood it would, the House often passes legislation without much reflection. The House, with all members elected every two years, cannot be expected to take a long-term view of national policy. The Senate, on the other hand, is designed for deliberation and debate without which wise, long-term policy is most unlikely.

    Simply getting members of Congress to read bills would accomplish a great deal. To begin with, bills would have to be shorter and fewer. Congress simply could not enact all the legislation it does if members actually read the bills. Not only would reading slow down the process, but it would strengthen the hand of the President. Congress likes large legislative acts because its members can hide so many provisions therein and make it very difficult for the President to exercise his constitutional responsibility to veto bad legislation. Such a simple reform would reinvigorate separation of powers and give some protection to federalism.

    Changing congressional behavior requires a powerful incentive or disincentive. The 17th Amendment, for example, eliminated the main incentive for senators being solicitous of their state legislatures. Elected officials respond to those who control their re-election. State legislatures no longer elect senators. Senators respond instead to national interests that supply funding for state-wide popular election campaigns. That change disrupted the constitutional equilibrium in which the state and federal governments checked each other. Getting members of Congress to read legislation should be tied to restoring some leverage to states against the federal government.

    Without needing a constitutional amendment, states could define the crime of malfeasance in office to include voting for legislation without reading it. The Constitution’s “speech and debate clause” protects members of Congress by providing that “for any speech or debate in either house, they shall not be questioned in any other place.” Neither the original meaning nor intent of that language protects the very antithesis of representative self-government, namely voting for a bill without reading it. Members of Congress are not immune from criminal indictment, but only “privileged from arrest”—except in cases of treason, felony, and breach of the peace — during and going to and from sessions of their respective houses.

    It will be objected that criminalizing voting without reading legislation would put too much power in the hands of local, political prosecutors. This proposal, however, leaves much to the states. A state might, for example, limit the power by confining it to one statewide official, drawing from a statewide pool of jurors, and providing other protections. Being “political,” however, is precisely the proposal’s purpose. Members of Congress should be subject to state governmental pressures, as senators once were. For present purposes, it suffices to suggest that states can react in a responsible way to the popular frustration with the systemic irresponsibility of an oligarchic Congress. Unlike term limits, the threat of state criminal malfeasance prosecutions accords with the framers view that liberty requires that state power directly check federal power.

    John S. Baker, Jr. Ph.D., is the Dale E. Bennett Professor of Law at Louisiana State University. His views do not necessarily reflect the views of the Heritage Foundation.

    Posted in First Principles [slideshow_deploy]

    12 Responses to Guest Blogger: LSU Law Professor John Baker on Congress’ Reading Problem

    1. Mike Harrison, Fayet says:

      I agree with the "the crime of malfeasance in office to include voting for legislation without reading it.". Voting for a bill with Ignorance of a bill is equivalent to knowingly writing a bad check.

    2. John B. San Diego says:

      Greetings Professor Baker,

      What a timely discourse and good read, you have my admiration and full attention. America is at the crossroads Professor Sir as you are well aware of, thank-you sir and not to forget Heritage Staff thank-you ALL!

      Below I will post a message sent to C-SPAN and Forwarded to leader Boehner the weekend of Jul11, 2009fwd to Min LdrJul13, 2009. Tile:

      "FW: Should the Rich pay for Healthcare through a Sur-Tax / Read this Congressman Boehner"

      Shortly after I sent the fwd message to Congressman Boehner, Senator Durbin came to the Senate floor after Sen. Reid and Sen. McConnell morning business and disputed the so-called email from California said to be circulating the Capital Building.

      I was proud drawing fire from Sen. Durbin!

      I don't want to beat my own drum but the debate changed that week with regard to Healthcare Reform. Let me know if you think this is good…here to be…

      Should the Rich pay for Healthcare through a Sur-Tax

      Greetings CSPAN: Saturday. July 11, 2009

      When I first heard of this proposal from Chainman Rangel I was not surprised. Second thing to enter my thoughts was a slogan “To each according To Their Need; from each according To Their Abilities” Karl Marx. Lawmakers and The American people must think long and deliberately concerning the way we intend to transform Our Great Nation, the goals we seek to achieve maybe be noble indeed; however the unintended consequences could be drastic and irreversible! To get into the details my opinion of Charlie Rangels’ definition of the rich is way off base, he and his majority leadership propose to overtax the Physicians to pay for the very care them as a group provide! .Also what happens when you taxed the rich to the point even they can no longer bear the burden, do you simply shutdown the healthcare program and tell everyone to go home? Finally the entire government, every member, should be mandated to accept whatever program is set-up for the American people in Congress and signed by the President!

      The matters I have mentioned above are legitimate concerns and worthy of full and unrestricted public debate, so as to give the American people the opportunity to contact Congressional Members to provide the opinions of the constituencies. Once the full process is done, then and only then should the vote be called completed and designated ready for the President’s signature.

      John in San Diego, California

      PS I couldn’t get through on the phone Saturday and couldn’t let this go.

      Read it On Air if you want!

      PSS wasn’t Congressman Rangel involved in some type of tax inquiry?

    3. Restore Federalism says:

      Another great reason to repeal the 17th Amendment. Thanks for the great article.

      http://www.restorefederalism.org

    4. Roger Hileman, Iowa says:

      I agree. Legislators should understand their legislation enough that they aren't afraid to post it on the Internet before the vote. They shouldn't vote for a bill that they haven't fully read and grasped. A group in California is currently creating a movement to hold our public officials accountable:

      http://www.HonorInOffice.org

      Check it out.

    5. Freedom of Speech, T says:

      Since when were members of congress or any administration supposed to get a pass on their behavior?

      The politicians will tell you that's the way of politics. I say B/S. It needs to change and they need to face the same penalties the American people do, oftentimes, for things far less severe.

      Between the rampant abuse of revenues and the failure for politicians to police themselves, it is no wonder most Americans look at these loons with contempt.

    6. James T. Sparks, Old says:

      An Amendment should be in place to require the Legislation to be read before debate, out loud on the floor with citizens able to view on network.

      Kindest Regard,

      James Sparks

    7. Beverly Martin Fulto says:

      Congressman Blaine Luetkemeyer, my representative whom I greatly respect, was interviewed by Gary Noland on The Eagle 93.9 concerning requiring the reading of a bill before signing. Congressman Luetkemeyer thought such legislation would unrealistically slow down government. I would suggest that first, government needs to slow down the spending of my money and ruination of my children's future, and second, signing a bill without reading it is similar to driving a car blindfolded – you might be going in the right direction but I sure don't want to be in that car with you. Not one of those Senators and Representatives who signed the latest spending bills without reading, much less understanding and debating the content, not one of those people would enter into a contract without reading the fine print – never mind the obvious large print. I find this practice to be incomprehensible and formula for economic collapse.

    8. Brian, Mt. Pleasant, says:

      Simple test: If certain Senators and Representatives do not want to read a law that affects us all before they sign it; I have a couple documents/contracts I would like to present to them to sign….of course without reading them.

      Truly “Common Sense” has been lost by too many in Washington.

      Thank you Heritage Foundation for all you do.

    9. Connie, Ruckersville says:

      There is no question that every bill should be read before voted on. I agree with the person who said, "out loud on the floor with citizens able to view on network." Also, there should be no mandate placed on the American people that their representatives are not willing to place on themselves.

    10. Dexter, San Francisc says:

      I am in total agreement.

      An oligarchic Congress is the death of liberty in America, the Constitution does not allow it and the peopple do not want it — we do not need to overthrow the government, but must use any force necessary for Congress et al to obey the very laws that also give it some clearly limited authority. The people are the authority after all, we must throw those individuals that deny their oath out of office (if needed, by means of a stout rope). We certainly need to look at this every day Congress is in session.

    11. Alumnus, LA says:

      Hey, Professor!

      Ever hear of the Supremacy Clause???

      Just asking.

    12. Paul Terry Stone, Su says:

      Very good. This is the first article I've read concerning actually reading the bill and the states authority to prosecute for failure to do this. I also believe that state legislators can better recognize campaigning toward the middle when the candidate is not likely to govern that way and better select Presidents and Senators than the public as a result.

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