July 1, 2012

Congressional Incompetence

Why Capitol Hill does such a lousy job writing laws.

The text in the chapter called “The Legislative Process” seems almost quaint these days. “Congressional procedures,” it says, are “fashioned to assure orderly consideration of legislative proposals.” A neat flow chart illustrates “How a Bill Becomes Law,” festooned with finely drawn boxes, arrows, lines and helpful explanatory passages. Like this: “Once both chambers have passed related bills, [a] conference of members from both houses meets to work out differences” before the “compromise bill approved by both houses is sent to the president.” All this from the 1991 edition of How Congress Works, published by the authoritative Congressional Quarterly.

What a difference two decades can make.

The legislative process is hardly smooth anymore, at least on anything above routine matters. As a result, there is an increasing chorus of complaints about major legislation enacted into law containing errors and inconsistencies.

Lawmakers confess, all too often, they don't know what's in the bills they are voting on, but they approve them anyway.

To be sure, these are not new complaints and confessions. But the vituperative gridlock that has paralyzed the legislative process is the result of a harshly polarized Capitol that continues to drive out moderates and those who would presume to try to reach compromise solutions to nagging national politicians. “I do find it frustrating,” U.S. Sen. Olympia Snowe (R-Maine) declared in February as she announced her departure from the Senate after 18 years, “that an atmosphere of polarization and 'my way or the highway' ideologies has become pervasive in campaigns and in our governing institutions.”

By all accounts, the biggest problem isn't in the laws that aren't passed. After all, with a system of two legislative houses and a presidential veto, the Constitution was intentionally written to make it pretty hard to enact new measures. “It is very easy to defeat a bill in Congress,” John F. Kennedy, who served in both the U.S. House of Representatives and the Senate, once said. “It is much more difficult to pass one.”

Instead, more specific complaints today are about the laws that are passed. And this goes beyond the loud and obvious disagreements about the policies that they enshrine. After all, there's almost always going to be a difference of opinion about whether a given law should have been passed at all. The broad-brush objection is vividly on display in the ongoing debates over the massive new national health care law and the equally voluminous Dodd-Frank legislation aimed at regulating the financial services industries, both passed more than two years ago. Well beyond the overall policies of these laws, in too many cases, the issue is whether the laws carry out what the majorities that voted them really intended, without creating new problems.

Beyond Policy, Just Poor Writing

“Writing laws is a very tough job,” says former Indiana congressman Lee Hamilton. “Much of the law written is deliberately vague, because you can't do it any other way.” Hamilton should know. Until he retired in 1999, Hamilton served in the House for 34 years as a Democrat from Indiana, holding a string of party and committee leadership positions. Since then, he's written books about Congress and runs the Center on Congress at Indiana University in Bloomington.

“It's a much more difficult environment today, I think,” says Hamilton. “The pressures are much greater.” He is one of many who think the quality of draftsman- ship has declined over the years. Draftsmanship, meaning the ability to fashion a bill's language to reflect the wishes of legislators and not contradict itself after, say, amendments are added.

Both chambers have highly skilled professional staffs to do this, and they continue to be highly skilled. But they work for lawmakers who don't operate quite like Congressional Quarterly said they once did.

Hamilton explains: Major bills used to be far shorter and more focused, meaning it was easier for lawmakers to know their contents. “Now there's a trend toward omnibus bills,” Hamilton says. Take, for example, monsters like the 848-page Dodd-Frank Wall Street Reform and Consumer Protection Act revising financial regulation (and containing a completely unrelated “conflict minerals” provision concerning warlord mining in Africa). Or the 2,700-page Patient Protection and Affordable Care Act, also known by its critics as “Obamacare.” It seems hard to believe now, but in 1956 one of the most important pieces of legislation ever passed—the Federal-Aid Highway Act of 1956, creating the Interstate highway system—was only 29 pages long. That worked out to just one page for every 1,500 miles ultimately built.

Hamilton worries that lengthy bills lead “to people not knowing what is in the bill” and that budget bills that used to be broken out by topic are now lumped together.

Legislative kinks used to be worked out in thoughtful committee meetings with all sides present, where errors of a technical nature could be pointed out and corrected. “Now it's often backroom stuff,” Hamilton says. “The bills are put together at 2 or 3 a.m. The process bypasses committees. The pressure under deadline leads to sloppy draftsmanship. You can't do good solid work. It's not accountable and not transparent. It's a plague on both houses.”

Tax Bill Craziness

Tax bills are particularly prone to these kinds of problems. One recent example was the winter kerfuffle over the most recent extension for the payroll tax cut, which lowered employees' Social Security payroll tax from 6.2% to 4.2%. The reduction itself got caught up in presidential- election politics.

To save the tax break, legislative leaders initially agreed on a two-month expansion pending further review. But at the last minute, the Senate, controlled by Democrats, inserted a provision that limited the amount of wages subject to the lower rate to one-sixth of the maximum yearly salary subject to Social Security withholding, $110,100 for 2012. The very reasonable idea was to stop the highly paid, who might make the full $110,100 in just two months, from getting full advantage of the cut in the event it only lasted through February.

But this would have required private employers and payroll processing companies to reprogram their computers almost immediately—a nearly impossible task. In other words, the Senate version was asking something that couldn't be done. The business community screamed. Meanwhile, caught by surprise, the Republican-controlled House immediately accused Senate leaders of making life harder for workers (which wasn't true).

“The lack of time was a problem,” says William F. Sweetnam Jr., a Washington tax lawyer and lobbyist for a group of payroll processors that includes ADP, Paychex, Intuit and Fidelity Employer Services Co. Eventually, saner heads prevailed, and in February the payroll tax was extended for the rest of 2012.

John Buckley, who now teaches tax law at Georgetown, spent 20 years working for the House of Representatives helping write the language in tax bills, often pulling all-nighters against deadlines. “You're up all night, you can get mistakes,” he recalls. “There are extraordinary time pressures.”

What Happened to Those Conferences?

Buckley said that there long had been a “sharp disconnect” between the formal legislative process and the way things actually work, but it's gotten worse. One reason, he says, is the rise of an “informal conference process,” which results in fewer formal committee sessions. “In the past, they used conferences more,” he said. “So a lot of negotiation was in the light of day.” He agrees with Hamilton, too, that the sheer size of bills creates problems in passing accurate legislation.

Mark Luscombe, principal federal tax analyst for CCH, a private tax-information service in Riverwoods, Illinois, and a veteran Capitol Hill observer, thinks one cause of poor legislative output is the turnover among members of Congress that has pushed more senior members out the door. “Historically, you had members who took great pride in the Internal Revenue Code,” Luscombe said.

One such person cited by many was Wilbur Mills, a Democrat from Arkansas who served in the House for 38 years, heading the tax-writing Ways and Means Committee for 17 years through 1975. He took pride in personally pouring over the text of tax bills. (His career ended after he was caught in 1974 with stripper Fanne Foxe, a.k.a. the “Argentine Firecracker,” who tried to avoid identification when their vehicle was stopped for suspected drunk driving by jumping into Washington's Tidal Basin.) Mills' peccadillos aside, it is safe to say, there isn't a senator or representative around today who can match his tax code expertise, or conscientious reading of new tax laws.

During oral arguments in March on the constitutionality of the Obama health care law, U.S. Supreme Court Associate Justice Antonin Scalia expressed mock surprise— at least it seemed like he was kidding—at the notion that he was expected to actually read the law he was judging. “What happened to the Eighth Amendment?” he said citing the Constitution's prohibition of “cruel and unusual punishment,” as giggles swelled throughout the ornate Supreme Court hearing room. “You really want us to go through these 2,700 pages? And do you really expect the court to do so? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?”

Scalia was criticized for his comments, with some even suggesting he came across as a slacker. Yet it appears he was describing precisely the level of detail possessed by members of Congress when they passed the law in the first place. No less an authority than Nancy Pelosi (D-California), the former House speaker, announced during a speech in 2010, “We have to pass the bill so that you can find out what is in it away from the fog of the controversy.”

Complicated tax and budget bills signed into law are often followed by what is called “technical correction” legislation fixing the errors that should have been caught in the first place. In some sessions, Congress has had to pass more than a dozen bills to fix previous-session glitches. Most of the corrections are misspellings and bad punctuation. Plus simply stupid stuff. In 2009, a provision in a spending bill funding many agencies included a provision allowing passengers on Amtrak to bring guns on board so long as the weapons are locked in boxes. But in the last-minute rush, the language was somehow altered to specify that gun-toting “passengers” had to be put in a box along with the heat they were packing.

President Obama actually signed the legislation, making it the law of the land. (It eventually was changed.)

A year earlier, President George W. Bush vetoed a farm bill passed by both houses that somehow was missing 34 pages. The omission was discovered only when the bill was sent back to Congress and lawmakers prepared to vote on overriding the veto. But how do you override something that doesn't completely exist? Congress re-passed the bill—with all the pages—and later overrode a second Bush veto.

'Now No One Is Happy'

One Washington lobbyist, who asked not to be identified, said that much of the legislative difficulty is simply that the issues have so much more riding on them now. “In older days, the problems were smaller, and they could be worked out,” this observer says. “Now, no one is happy. The political dynamic is that if something gets written about or word gets out, it starts a firestorm. So things get done secretly to get something done.”

Which means the committee process may get short- circuited. Consider this passage from that 1991 edition of How Congress Works: “Committees are the infrastructure of Congress. They are where the bulk of legislative work is done—where expertise resides … where most legislative proposals are written or refined, where many necessary compromises are made, where the public can make its views known.”

Clearly, things have changed a bit.

Some of this, as already noted, is not new. It is a well- known principle of legislation in the United States that some bills can pass only if certain key points are left unresolved for the time being. This is often accomplished by delegating rule-making authority to some government agency or department, which will make a decision down the road.

This also can be done through the deliberate inclusion of vague language, often to quash controversy among an oft-hysteric media. That often means resolution of the issue is in effect being delegated to the courts to interpret the statute.

The Furor Over Conflict Minerals

Another category of dubious legislation is laws that can't or won't be enforced. A recent example, and one particularly affecting the metals industry, concerns congressional efforts to regulate so-called “conflict minerals.” These are valuable substances like cassiterite, wolframite and coltan that are mined under conditions of human rights abuses and armed conflicts in the Congo and then used in consumer electronics like iPhones.

In 2009, Sam Brownback, the former Republican senator from Kansas (he's now the governor), and U.S. Sen. Dick Durbin, the Illinois Democrat, introduced a bill that would have required end-use companies to verify and disclose their sources of these substances in particular detail. The idea was to choke off sources of revenue fueling the conflict. The bill went nowhere. But Brownback and Durbin saw their chance with the mammoth Dodd-Frank bill. They added what became Section 1502 with language similar to the earlier bill. (Unlike House rules that require all amendments to be germane to the topic of the bill, the Senate has no such restriction.) Dodd-Frank passed both houses of Congress and was signed into law by President Obama in July 2010.

Industry professionals said the law was unenforceable because there was no legitimate way to definitely track the source of these metals—and in any event it's far from the only source of revenue funding the war- lords. Perhaps because of that, the language Brownback and Durbin crafted delegated to the U.S. Securities and Exchange Commission (SEC) the duty to issue regulations under which the law would be administered. The law set a deadline of April 2011.

We're now well into 2012, and the SEC has yet to issue final regulations. One reason is the difficulty of writing the rules in any meaningful way. The provisions that Congress passed are highly technical and subject to interpretation. Another reason is the huge number of comments the agency has received from manufacturers and metals merchants who are hoping for permissive rules, and human rights activists who say it's already taken too much time. Manufacturers claim it could cost up to $16 billion to comply, although the SEC estimates the costs would be only a fraction of that amount.

With the SEC talking about phase-in periods, it's possible that any issued final regulations wouldn't fully take effect for years. So much for effective legislation. What then might be done about all this legislative chaos? In his 2010 book, A Better Congress: Change The Rules, Change the Results – A Modest Proposal, Joseph Gibson, a Republican lobbyist who used to serve on the House staff as a lawyer, calls for one simple change: use of plain English rather than mind-numbing jargon. “If bills were drafted in clearer language, perhaps more members would read and understand them,” he wrote. “If the bills then became law, the public might understand them, as well.”

Such a requirement might also force shorter, single topic bills, which would also enhance understanding. Given the current congressional climate, which does not exactly promote deliberate and thoughtful study, that would be a start. But a plain-English requirement also would make it a lot harder for representatives in Congress to excuse why they voted for poorly written, half-baked or ill-conceived legislation. For that reason alone, it's probably wistful thinking.

William P. Barrett is a veteran journalist for national publications. He can be reached at wmpb@aol.com.