Lying about the law? How can you tell?

When the U.S. Senate failed to pass the Manchin/Toomey background check amendment in April of this year, President Obama complained that opponents were lying about the gun control bill.  The bill and the amendment were written in what amounts to a legal foreign language, making it impossible for citizens to know who was lying or telling the truth. Instead of accusing one side or the other of lying, maybe it's time for our legislators to trust the judgment of citizens.  Write readable bills, about which they can form their own opinion.

The Senate was acting on S. 649, which in turn was amending The National Instant Criminal Background Check System (NCIS) Improvement Amendments Act of 2007.  For example, S. 649 provided that "the NCIS Improvement Amendments Act of 2007 is amended in paragraph (1) ( c ), by striking clause (ii) and (iii) and..." 

The conversation in homes across America went something like this: "Darling, have you seen our copy of the NCIS Improvement Amendments Act of 2007?" "What, Dear?" "You know, the NCIS Act.  I need it to figure out what S. 649 means.  Can't make heads or tails of it without looking at the 2007 Act."  "Dear, how do I know where it is? You were out on the porch. Did you leave it there?"  "Never mind, Darling; I'll wait until someone tells us what it does."

S. 649, the Manchin/Toomey amendment, and all other congressional bills and amendments are written on the assumption that citizens are part-time law librarians, or on the assumption that we are content to be spoon-fed.  Both assumptions are wrong.  The failure of Congress to treat us with respect produces an environment of distrust and confusion.  They reap what they sow. 

The list of failures is a long one.  House and Senate rules direct that committee reports accompanying bills describe in detail how the bill changes existing law.  Except S. 649 came to the Senate floor without a committee report, as is often the case with controversial bills most in need of explanation.

The cryptic language referring to striking this or that in the NCIS Amendments Act is a bill-drafting style used by Congress and abandoned long ago by most state legislatures.  That drafting style is called "amendment by reference," or "cut and bite."  On its own, it is unintelligible, which is why state legislatures write bills showing enough of existing law to put the proposed changes in context.  State legislatures adopted the radical idea that a bill should be readable and understandable without the need for outside reference.

S. 649 amended or referred to the NCIS Improvement Amendments Act of 2007; the Omnibus Crime Control and Safe Streets Act of 1968; the Brady Handgun Violence Prevention Act of 1994; the Immigration and Nationality Act; the Arms Export Control Act; the International Emergency Economic Powers Act; the Foreign Narcotics Kingpin Designation Act; the Controlled Substances Import and Export Act; the Internal Revenue Code of 1986; and the Higher Education Act of 1965.

Most of federal law is found scattered in hundreds and hundreds of previously passed individual statutes, which have in turn have been previously amended.  This is the maze through which Congress wanders as it is writing new law, all the while making the labyrinth even more complicated.

There is another, easier to understand formulation of the law, called the U.S. Code, which is organized by subject matter into separate Titles.  The problem is that Congress hasn't enacted all of the Code as law, so it can't be amended and used to write new law.  The gun control provisions come under Title 18, Crimes and Criminal Procedure, which was codified as law in 1948.  But instead of always writing new law directly to Title 18, Congress sometimes wrote separate statutes.  These statutes are law, but since Congress has not written them directly to the Code, they are added to the Code as "notes," which are not law.  So even when there is a positive law Title, because Congress has screwed it up, amendments must still be written to individual statutes.

Sound confusing?  It is.  None of this is over your head.  There is no secret knowledge held only by lawyers.  It is what it appears to be: a mess.  Most members of Congress are as much in the dark as the rest of us.  They are as incapable of reading these bills as we are.  Take away their approved "talking points," and they would be struck dumb.

In so many other areas of human activity, the term "user-friendly" has come to have real meaning.  About 30 years ago, the computer world started to move from command prompts requiring knowledge of special codes and obscure symbols to the ease of point-and-click with recognizable icons.  These changes opened the door for millions of new users, bringing access to information and greatly increased individual productivity.

The difference is that the computer and software geniuses of that era were actually excited about making their world "user-friendly."  How do we make Congress understand that citizens deserve user-friendly law?

When the U.S. Senate failed to pass the Manchin/Toomey background check amendment in April of this year, President Obama complained that opponents were lying about the gun control bill.  The bill and the amendment were written in what amounts to a legal foreign language, making it impossible for citizens to know who was lying or telling the truth. Instead of accusing one side or the other of lying, maybe it's time for our legislators to trust the judgment of citizens.  Write readable bills, about which they can form their own opinion.

The Senate was acting on S. 649, which in turn was amending The National Instant Criminal Background Check System (NCIS) Improvement Amendments Act of 2007.  For example, S. 649 provided that "the NCIS Improvement Amendments Act of 2007 is amended in paragraph (1) ( c ), by striking clause (ii) and (iii) and..." 

The conversation in homes across America went something like this: "Darling, have you seen our copy of the NCIS Improvement Amendments Act of 2007?" "What, Dear?" "You know, the NCIS Act.  I need it to figure out what S. 649 means.  Can't make heads or tails of it without looking at the 2007 Act."  "Dear, how do I know where it is? You were out on the porch. Did you leave it there?"  "Never mind, Darling; I'll wait until someone tells us what it does."

S. 649, the Manchin/Toomey amendment, and all other congressional bills and amendments are written on the assumption that citizens are part-time law librarians, or on the assumption that we are content to be spoon-fed.  Both assumptions are wrong.  The failure of Congress to treat us with respect produces an environment of distrust and confusion.  They reap what they sow. 

The list of failures is a long one.  House and Senate rules direct that committee reports accompanying bills describe in detail how the bill changes existing law.  Except S. 649 came to the Senate floor without a committee report, as is often the case with controversial bills most in need of explanation.

The cryptic language referring to striking this or that in the NCIS Amendments Act is a bill-drafting style used by Congress and abandoned long ago by most state legislatures.  That drafting style is called "amendment by reference," or "cut and bite."  On its own, it is unintelligible, which is why state legislatures write bills showing enough of existing law to put the proposed changes in context.  State legislatures adopted the radical idea that a bill should be readable and understandable without the need for outside reference.

S. 649 amended or referred to the NCIS Improvement Amendments Act of 2007; the Omnibus Crime Control and Safe Streets Act of 1968; the Brady Handgun Violence Prevention Act of 1994; the Immigration and Nationality Act; the Arms Export Control Act; the International Emergency Economic Powers Act; the Foreign Narcotics Kingpin Designation Act; the Controlled Substances Import and Export Act; the Internal Revenue Code of 1986; and the Higher Education Act of 1965.

Most of federal law is found scattered in hundreds and hundreds of previously passed individual statutes, which have in turn have been previously amended.  This is the maze through which Congress wanders as it is writing new law, all the while making the labyrinth even more complicated.

There is another, easier to understand formulation of the law, called the U.S. Code, which is organized by subject matter into separate Titles.  The problem is that Congress hasn't enacted all of the Code as law, so it can't be amended and used to write new law.  The gun control provisions come under Title 18, Crimes and Criminal Procedure, which was codified as law in 1948.  But instead of always writing new law directly to Title 18, Congress sometimes wrote separate statutes.  These statutes are law, but since Congress has not written them directly to the Code, they are added to the Code as "notes," which are not law.  So even when there is a positive law Title, because Congress has screwed it up, amendments must still be written to individual statutes.

Sound confusing?  It is.  None of this is over your head.  There is no secret knowledge held only by lawyers.  It is what it appears to be: a mess.  Most members of Congress are as much in the dark as the rest of us.  They are as incapable of reading these bills as we are.  Take away their approved "talking points," and they would be struck dumb.

In so many other areas of human activity, the term "user-friendly" has come to have real meaning.  About 30 years ago, the computer world started to move from command prompts requiring knowledge of special codes and obscure symbols to the ease of point-and-click with recognizable icons.  These changes opened the door for millions of new users, bringing access to information and greatly increased individual productivity.

The difference is that the computer and software geniuses of that era were actually excited about making their world "user-friendly."  How do we make Congress understand that citizens deserve user-friendly law?

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