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

Posted By John Baker On December 18, 2009 @ 10:58 am In First Principles | Comments Disabled

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.


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