In a lawmaking utopia, legislators might read and understand every piece of legislation before voting on it. And in this place, the most grandiose to the most banal of statutes would receive thorough consideration by each chamber and undergo inspection down to the last detail. How splendid and orderly such a place would be.
Don't be silly. Legislatures don't pretend to operate this way, and never have. Contemporary congresses are composed of diverse individuals containing equally diverse interests and specializations. The legislative process is messy, disjointed, highly complex, and difficult to navigate. Bills undergo a variety of procedural hurdles and get amended on a number of occasions, changing significantly from one step to the next and from one house to the other. My recent article in the Penn Statim ("Don't Be Silly: Lawmakers 'Rarely' Read Legislation and Oftentimes Don't Understand it . . . But That's Okay") explains why expecting legislators to read and understand legislation, especially in Congress, is simply impractical.
One of the biggest complaints about the Patient Protection and Affordable Care Act (Obamacare) was its length. This led various media outlets to question whether lawmakers should actually read the whole statute before voting on it, and some even proposed making this an institutional norm in Congress. Indeed, it wasn't just the media that was interested in this topic: Academics debated the merits and demerits of reading bill text, and it even led one scholar to propose "a read-the-bill rule for Congress," in which legislators should refrain from voting or vote "no" if they had not read the full text of the proposal. The read-the-bill rule stems from the oath legislators take when attaining office. However, it should be noted that the reading of legislation is not mentioned in the Constitution, the House or Senate Rules, or even in the House and Senate manuals that explain in detail the business of the chambers -- and for good reason.
To investigate whether the reading and understanding of legislation is valued and, further, is even possible in contemporary lawmaking, I examined three legislatures that produce varying outputs: Congress, the Westminster Parliament, and the Scottish Parliament. Congress by far produces the most public laws (at least a couple of hundred per session, but usually more), followed by Westminster (20 to 50 public laws per year) and then the Scottish Parliament (10 to 20 public laws per pear). In order to gain insider perspectives, I interviewed lawmakers, staffers, bill drafters, government officials, and parliamentary journalists in each location. Ultimately I found that no matter the size of the legislature, lawmakers usually do not have time to read and understand legislation before they vote on it, and this was not a significant cause for concern. Lawmakers attain their voting cues from a variety of places (i.e. colleagues, staff, political parties, special interest groups, constituents, etc.), significantly minimizing the need to read and understand legislation before voting on it.
In regard to reading legislation, one congressional lawmaker unabashedly told me that "[m]ost legislators rarely read the entirety of a bill." Other interviewees focused on staff expertise, noting they would be aware of most legislation, and would communicate this information to the legislator. The results from Westminster and the Scottish Parliament were strikingly similar, if not more combative, regarding this issue. Responses from Westminster lawmakers ranged from "certainly not" to "of course not" to "not conceivably," and one legislator "def[ied] anyone to read all the bills." Views from the Scottish Parliament were similar, as lawmakers believed this notion was an "absolut[e]" impossibility. One journalist put the situation in perspective, noting that "if someone sits . . . [and] wades through every single word of a published bill, that would almost be beyond the call of duty."
Given that reading all legislation appears impractical even in less prolific legislatures, I then questioned lawmakers' general understanding of bills before voting on them. Congressional interviewees were divided, as some claimed to have a good understanding of most bills, while others noted that probably staff members have a better understanding. Scottish lawmakers came out the best on this issue, championing legislator interest and their robust committee system. This seems understandable, given the size and output of the Scottish legislature. This was not the case at Westminster, as half of the interviewees noted that they "usually" do not understand legislation and others noted that they only understand it "sometimes." Yet again, however, this was not a cause for concern. One undaunted member of the House of Lords mentioned a piece of legislation and declared, "I have no understanding of any of those areas of public policy. It would be a travesty, in terms of the use of my time, for me to read that."
These perspectives from various lawmaking institutions make it difficult to see how a focus on the reading and understanding of legislation is anything more than populist rhetoric. In fact, an interesting thing happened when all the raucous debate over reading and understanding the Affordable Care Act lent way to discussing many of its actual provisions: Both sides found many of them beneficial. Yet these consolations were hardly present during the legislative debate, and remained stifled in the wake of the latest government shutdown. Sometimes it's difficult to see how such peripheral issues, such as a focus on the reading and understanding of legislation, can impact our understanding of particular issues. But these peripheral issues matter, sometimes significantly. As the Washington Post's Greg Sargent stresses (linked to above), "Republicans support Obama's health reforms -- as long as his name isn't on them."
Implementing a read-the-bill norm in Congress would likely lead to poorer quality legislation. Legislative specialization is a key institutional element that affects the quality of a legislature's laws. The knowledge one possesses about a field of law or public policy (e.g. national security law, business law, etc.) is beneficial to others. These interests "should be cultivated, not generalized into oblivion." Asking lawmakers to read each and every piece of legislation would ultimately make them lesser lawmakers, and produce poorer quality laws. Moreover, focusing attention on the rhetorical aspects of reading and understanding legislation diverts attention from the substantive aspects of statutes, which we should never lose sight of.
A full version of this piece originally appeared on the Penn State Law Review Penn Statim, at http://www.pennstatelawreview.org/category/penn-statim/.