President Obama signed the 2014 farm bill this February. News media described the bill as “hideously complex,” as “sprawling legislation,” and my favorite, as a “legislative grotesquerie.”
The House and Senate Agriculture Committees described the same bill as one that “boosts a major sector of the U.S. economy… creates jobs… reduces the deficit,” and contains “the most significant reform in decades.”
How can a citizen evaluate those two extremes: a grotesque bill or a model of reform?
During Senate floor debate on the farm bill, Senator Pat Robertson (R-KS) said, “I just had a colleague come in to visit with me this morning. He said: I looked at this farm bill and I couldn't figure it out. It is so complex I don't know how anybody can figure it out.”
If Members of Congress can’t figure it out, what chance do the rest of us have?
Improving our chances (and theirs) begins with changing how these billsare written, making them easier to read.
Congressional bill writers use a style called “cut and bite.” The new bill cuts something from a previously enacted statute and inserts something else. Here is an example, from the farm bill:
“Section 156(a) of the Federal Agriculture Improvement and Reform Act of 1996 (7 U.S.C. 7272(a)) isamended—(A) by inserting ‘‘and’’ at the end of paragraph (3); (B) in paragraph (4), by striking ‘‘the 2011 crop year; and’’ and inserting ‘‘each of the 2011 through 2018 crop years.’’; and (C) by striking paragraph (5).”
Members of Congress have long realized this bill language is unintelligible. Former Senator Kent Conrad (D-ND) said, “To most people, legislative language is gobbledy-gook." Senator Tom Carper (D-DE) said, “I don’t expect to actually read the legislative language because reading the legislative language is among the more confusing things I’ve ever read in my life.”
Legislative language is confusing because amendments are made to previously enacted statutes, which have been amended by other statutes and all of that is done in the cut and bite format, as opposed to showing the new language in the context of existing law.
The U.S. Code
Bills would be easier to understand if new language directly amended an up-to-date compilation of all federal law so that the reader could easily see how the bill would change existing law.
There is such a compilation, called the U.S. Code. But, because Congress failed to put its stamp of approval on the entire ode, it is treated as a useful tool for finding the law, but not as something that, for the most part, can be amended directly.
It is difficult to understand that the best organized presentation of the law is not law for the purposes of writing new law. On the chance I am not the only one who had trouble grasping this concept, I offer an illustration, using something more familiar.
Someone, let’s call him Sam Johnson, has decided to write a dictionary. On random pieces of paper Sam writes definitions of words. At the end of each year he collects up all these pieces of paper and throws them in a file. 2005 Definitions, 2006 Definitions, 2007 Definitions, and so on. Sam’s friend, Noah, tells him he has a great idea. “Sam, why don’t I take all of your definitions and organize them alphabetically, all in one place, in a book? When I have finished, you can throw away all those files and scraps of paper.” “Well, Noah,” Sam says, “You might make a mistake. So I am going to keep my files, but feel free to go ahead and make your book.”
Noah does and it is a big success. When anyone wants a definition, they use his book. But Sam is still writing new definitions, and sometimes changing one’s he’s written earlier. Since he has never given Noah’s book his official stamp of approval, he goes back to his files and those random bits of paper every time he decides to change a definition. To avoid writing out a complete new definition each time, Sam developed a shorthand way of making changes. For example on a new piece of paper he writes: “Paper scrap #20 in the 2006 file is amended by adding the word “small,” before the word “domesticated.” The new scrap of paper is numbered #7 and put in the 2013 file. And a year later, Sam decides he needs to make another change, which he writes out as: “Paper scrap #20 in the 2006 file, as amended by paper scrap #7 in the 2013 file, is amended by adding the word “furry” after the word “small.”
So, the definition of “cat” which started out as “a domesticated carnivore” has become “a small, furry domesticated carnivore.” That is easy to find in Noah’s book and would have been so easy to change by simply editing the book directly. But Sam refuses, and has now lost his mind pouring over a giant collection of files and countless scraps of paper.
And that is what Congress does. Noah’s book is the U.S. Code with the law organized, not alphabetically, but by subject matter into 50 titles. The scraps of paper are the individual statutes, filed by year; and the strange shorthand language is what Congress uses in writing bills to amend previously enacted statutes.
What the Experts Are Doing
There are a few people in Congress who do understand and worry about this problem -- the congressional staff who write the bills and maintain the U.S. Code.
The bill writers are the staff of the House and Senate Legislative Counsel. Last year, House Legislative Counsel Sandra Strokoff testified on her office budget before the Legislative Branch Appropriations Subcommittee. She said, “Bills and amendments continue to be lengthy and complex… the complexity of federal law continues to increase.”
To deal with this complexity, Strokoff explained that her office is using special software to prepare “electronic compilations of up-to-date versions of the most frequently amended Public Laws” and is making these compilations available to the entire House. She explained that these compilations “represent the only current version of approximately two-thirds of all Federal law, and is, therefore essential to understanding and drafting all bills amending existing law.” [A compilation takes the original statute and incorporates all the amendments that have been enacted since to create a text of that law as it currently stands.]
But there already is something that provides an organized compilation of all federal law: the U.S. Code.
Immediately following Strokoff, Ralph Seep, House Law Revision Counsel, testified in support of his budget. Seep explained that his office had the entire U.S. Code available on a web site; was making improvements with full browse and search capabilities; and, planned additional enhancements such as hyperlinking the Code to individual pages of the United States Statutes at Large.
Unfortunately, most of what Mr. Seep has on his web site is not law, in its formulation as the Code. Because the editorial compilation has not been enacted by Congress, it is a not a law that Congress can use to amend directly. Mr. Seep and his predecessors have been pushing Congress to finish the job by enacting titles of the Code as law, one title at a time. This had been going on for 67 years, a process called positive law codification. Currently there are 26 positive law titles and 24 non-positive law titles. So, about half done after 67 years? No, because the non-positive law titles contain a greater proportion of the law.
Converging on a Solution
To deal with the increasing complexity of drafting bills, the House counsel’s office is making compilations of public law more widely available within the House via the Counsel’s web site and is working on related software improvements. At the same time, the Law Revision Counsel has improved public access to the compilation of all federal law, the U.S. Code, and continues its push to have all titles enacted as positive law.
Inevitably those two paths should, and I believe will converge to improve the writing, reading, understanding, and adjudication of the law.
The simplest way to get to there would be to enact the entire U.S. Code, all at once. That was the intended plan back in the 1920s, thwarted by the U.S. Senate. Nervous nellies will raise countless objections, as they did then. But the benefit would far outweigh problems that arise, all of which are fixable.
An alternative would be to speed up the title by title positive law codification, but Congress suffers from attention deficit disorder when it comes to the care and maintenance of its own product.
Another possibility is the development of a parallel track, a growing compilation of public laws coupled with the public availability of the software now used internally by the congressional bill drafting offices to produce reports showing how bills change existing laws.
One way or the other, the next logical step takes us where we need to go: the text of a bill is displayed within the full context of existing law on a computer screen or a tablet, with access available everywhere via the Web. The bill text is shown as it would fit in existing law, color coded to show the language that it amends, deletes or adds to existing law.
Different versions of the bill, over time, or between the House and the Senate can be compared on screen showing in full how they treat existing law, where they are the same and where they are different. Ditto for amendments or complete substitutes offered at the last minute.
Understanding what Congress is about to do or has done, would no longer be a top down process with the priests of government explaining to the congregation the meaning of the text.
Not everyone will bother to educate themselves on every bill. But out of 317 million people, on any given bill there will be 1,000 citizens or 10,000 citizens who, from practical experience, know more about a particular part of the bill and the law it amends than do the relatively few directly involved in passing it. That is a powerful resource currently shut out by legislative grotesquerie.