A View into Incomprehensible Legislation

The complexity of Bills in the House and Senate discourages transparency and create an environment where complexity is encouraged as a method for denying Americans an opportunity to know what their leaders are doing.

Obviously, few in Congress would acknowledge they are deliberately denying constituents an opportunity to know what’s in the legislation being enacted, but knowingly or not, that is what’s happening.

When Congresswoman Pelosi said members had to pass the 1,990-page Affordable Care Act in order to know what was in it, she was absolutely right … but shouldn’t have been.

When the Waxman-Markey, Cap & Trade Bill was being debated, I copied all 1,700 pages of the Bill and attempted to read it so as to be able to argue intelligently against it.

The first few pages of the Waxman-Markey Bill are simple enough, essentially itemizing the various sections.

The Waxman-Markey Bill contained many disastrous provisions, detrimental to the United States, and harmful to nearly every American, but describing those proposals is not the intent of this article.

Instead, this article will describe the lack of transparency in any Bill that’s more than a few hundred pages long.

The fun begins on page 10 of the Waxman-Markey Bill, partially shown here.

Page 10 (partial) of the Waxman - Markey, cap & trade Bill.
Page 10 (partial) of the Waxman – Markey, cap and trade Bill.

First, note that Sec 101 refers to another Act, so it’s necessary to go to that Act to understand what this proposed Bill will actually do.

Next the new SEC 610 of the existing Act, has 16 pages of definitions that get increasingly complex. And, within some of these definitions there are references to more existing Acts.

For example, under (a) 18, H, it reads, without the identifying line numbers:

  1. “Marine and hydrokinetic renewable energy, as that term is defined in section 632 of the Energy Independence and Security Act of 2007 (42 U.S.C. 17211).”

Within the first 26 pages of this 1,700-page Bill, there is enough complexity to deter anyone from reading the Bill, let alone understanding it.

There’s also language such as:

“as set forth in subsection (d), except as otherwise provided in subsection (g).”

Interestingly there are many places where there are statements without definition, leaving it up to someone to interpret the language. For example on page 38 there is a reference to:

“electricity savings achieved as a result of market transformation efforts;”

But, nowhere is “market transformation efforts” defined.

There are circular references to various sections of this Bill, and also with references such as: “described in section 786(b)(1)(A)(ii) and (b)(1)(A)(iv)(II).”

Within the first 150 pages of the Bill there are at least 50 references to other Acts or sections of the U.S. Code. This means that, every time there is a reference to another Act or section of the U.S. Code, it’s necessary to set aside this Bill, locate the Act in question and the referenced Section in that Act, in order to read how this Bill affects the other referenced Act, or visa versa.

Drafting Bills in this manner has been going on for a long time, but enacting Bills of over 1,000 pages hasn’t been routine.

Some try to legitimize the length of Bills by comparing the number of words in a Bill with some unrelated text. For example: Harry Potter and the Order of the Phoenix has 257,000 words, while the Affordable Care Act has 234,812.

A book can be read sequentially, while a Bill has references that require constantly interrupting a chain of thought and researching the referenced Act or U.S. Code. The Affordable Care Act had approximately 1,000 references that had to be located and then read separately.

No one could possibly have known what was included in the Waxman-Markey Bill.

I read the Bill and some of the references, but it was beyond my ken to understand the entire Bill or all its complexities. It was clear, however, that the Bill would dramatically and negatively affect everyone in United States.

But the problem doesn’t end when the Bill is passed and signed into law … it merely shifts the burden elsewhere.

Every government Department and Agency will probably need to read the new law to determine how it affects them.

Waxman-Markey also stipulated that the Administrator of the EPA and various “Secretary(s)”, e.g., Secretary of the Navy, is, or are, empowered to write the regulations for implementing the law.

It’s no wonder, for example, that the nearly 2,000-page Affordable Care Act has resulted in over 15,000 pages of new regulations.

It’s impossible for the average person to have any genuine understanding of what any Bill contains or how proposed legislation will affect them.

One word of caution: The government posts what it says is the content of an act on a government web site, for example, the Affordable Care Act.

In fact, the government’s Internet posting is a summary, prepared by the Department in question, of its interpretation of what the Act means, together with an outline of the act, but NOT the actual text1.

The government’s Internet posting can be misleading2.

While it’s not possible, in a brief article, to go beyond describing the complexities of proposed legislation, it can be said unequivocally that no Bill, or portion of a Bill, should be passed until it has been read, at least, by the staff of every member of Congress.

Fortunately the Waxman-Markey, Cap & Trade Bill, wasn’t passed.

 

Note:

  1. For those who are interested, here is a link to a copy of the Affordable Care Act. http://housedocs.house.gov/rules/health/111_ahcaa.pdf
  2. Government posting at http://www.healthcare.gov/law/full/index.html  The government’s posting, in this case, adheres to party policy.

 

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0 thoughts on “A View into Incomprehensible Legislation

  1. Well said, Donn! Rendering legislation sufficiently unintelligible to the masses fulfills Orwell’s nightmare prognostication, thus empowering judges (the judicial branch ultimately interprets statutes) and special interests and legal advocacy groups ultimately the power to define our “democratic choices” for us.

    I’m grappling with the same gobbledygook with proposed Georgia legislation that sure looks like it’s designed to grant monopoly status to one big solar farm interest. But I can’t say for sure (and I’ve been a lawyer for 30 years) because the writing is so obtuse, and I believe it is deliberately so to thwart scrutiny, thus participatory democracy.

    Such political chicanery is even worse at the state level because in many states like (mine) Georgia, there is no “legislative history” for a judge to consult. At least the Congressional Record typically contains some legislative history for most major pieces of legislation.

    Anyway, you’ve nicely illuminated a core theme: Double-speak delivers democracy to special interests and breeds corrupt government. Jefferson’s cleansing revolution concept never seemed so apt.

  2. Thanks.
    I believe it’s a real problem, but, unfortunately, I don’t have a solution. I’m not a lawyer, but would hope some organization, like Heritage Foundation, would look into the problem.

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