Congress Is Still Unfit to Govern
“In politics, stupidity is not a handicap,” Napoleon is reputed to have said more than two centuries ago. Boundless ignorance is also not a handicap, as Congress demonstrated last December by approving a 5593-page bill without reading it. Plenty of activists and editorial pages howled over the sloppy procedures propelling $2.3 trillion in new federal spending.
James Madison warned in the Federalist Papers in 1788 that “it will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” Madison referred to the peril of excessive legislation; he may have never imagined that Congress would routinely enact thousand-page blockbusters without reading the text. But that is now standard procedure in Washington.
On the night of the day before Thanksgiving 1991, the House of Representatives approved a 1400-page highway bill — even though almost no member of the House had seen the bill and only one copy was available in the House chamber. Sen. David Boren (D-Okla.) observed at the time that congressional “bills are five times longer on the average than they were just as recently as 1970, with a far greater tendency to micromanage every area of government.” Conservatives were outraged, and a Republican Leadership Task Force proclaimed in 1993, “A bill that cannot survive a three-day scrutiny of its provisions is a bill that should not be enacted.”
When Bill Clinton railroaded a 972-page crime bill into law in 1994, Republicans saw the legislation only a few hours before the vote. That was irrelevant because Clinton proclaimed that it was “the will of God” that Congress speedily pass the bill. Clinton’s bill created dozens of new criminal offenses and opened a $10 billion subsidy spigot for local and state prison building that sent America’s incarceration rate skyrocketing in the late 1990s and early 2000s.
Republicans captured control of Congress in the 1994 elections. But that did not deter House Speaker Newt Gingrich and Clinton from jamming a 4000-page, 40-pound agreement down Congress’s throat in 1998. No one had a chance to read the bill before voting. Legendary “King of Pork” Sen. Robert Byrd (D-W.Va.) declared, “Only God knows what’s in this monstrosity.”
Shortly after the 9/11 attacks, the George W. Bush administration strong-armed the 342-page USA PATRIOT Act through Congress. Rep. Ron Paul (R-Tex.) complained that “the bill wasn’t printed before the vote.” Rep. John Conyers (D-Mich.), the top Democrat on the Judiciary Committee, declared, “We are now debating at this hour of night, with only two copies of the bill that we are being asked to vote on available to Members on this side of the aisle.” Rep. John Dingell (D-Mich.), the longest-serving member of the House, said the process was “denigrating basic constitutional rights, and I find it to have been done in a sneaky, dishonest fashion.” Regardless of the legislative travesty, Bush and Barack Obama routinely invoked Congress’s passage of the PATRIOT Act to justify their anti-terrorism policies.
During the George W. Bush era, legislative ignorance became a point of patriotic pride. Shortly before the 2006 congressional elections, Congress rushed to rubber-stamp a Bush administration barbaric interrogation wish-list part of the Military Commissions Act. The Boston Globe reported that “because of the Bush administration’s restrictive policy on sharing classified information with Congress, very few of the people engaged in the debate will know what they’re talking about.” Fewer than 50 members of Congress knew what actual interrogation methods were being debated, according to the Globe. Sen. Jeff Sessions (R-Ala.), Trump’s first attorney general, boasted, “I don’t know what the CIA has been doing, nor should I know.” Retroactively legalizing torture, as the bill did, was a non-issue on Capitol Hill. Legal analyst Dahlia Lithwick declared, “We’ve reached a defining moment in our democracy when our elected officials are celebrating their own blind ignorance as a means of keeping the rest of us blindly ignorant as well.”
After the Democrats captured control of Congress in the 2006 elections, several members, including Sen. Barack Obama, endorsed requiring that any legislative proposal be available and online for at least 72 hours before Congress voted on it. But that provision was not included in the Honest Leadership and Open Government Act of 2007, which Politico hailed as “sweeping ethics reform legislation.” Nine years later, Politico derided that same law as “the lobbying reform that enriched Congress,” noting that it “created an entire class of professional influencers who operate in the shadows, out of the public eye and unaccountable.”
The Obama administration’s 2700-page Affordable Care Act was another unread Pandora’s box. The bill was almost 400,000 words long; within four years, the Obama administration would issue more than 10 million words of regulations to enforce it. This time Conyers scoffed at members of Congress who “get up and say, ‘Read the bill.’ What good is reading the bill if it’s a thousand pages and you don’t have two days and two lawyers to find out what it means after you read the bill?” Sen. Tom Carper (D-Del.) later explained, “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.” But not nearly as confusing as the blizzard of new mandates that private companies were forced to obey.
The law sparked widespread outrage, spurring many congressmen to cancel all public meetings with their constituents that summer. At a Montana forum in August 2010, a retired nurse asked Sen. Max Baucus (D-Mont.), who boasted that he wrote much of the Affordable Care Act, whether he read the health-care bill before it was passed. Baucus replied, “I don’t think you want me to waste my time to read every page of the health-care bill. You know why? It’s statutory language. We hire experts.”
In the 2010 congressional elections, Republicans campaigned on a “Pledge to America” to “ensure that bills are debated and discussed in the public square by publishing the text online for at least three days before coming up for a vote in the House of Representatives.” Republicans captured control of the House but that didn’t stop Republican congressional leaders a few months later from cutting a deal with Obama and rushing a 459-page budget deal through Congress, leaving members time neither to read nor to digest it before approving it.
Three years later, in December 2014, Congress enacted a 1200-page, $560 billion National Defense Authorization Act that was available to members only 36 hours prior to their vote. When asked whether members of Congress had read the bill, Rep. Jim Moran (D-Va.) replied, “Of course not. Are you kidding?” Moran explained that he felt no obligation to read the text because “I trust the leadership.” Later that month, members of Congress heaved all their unfinished work into a 15-pound lump of paper which no one had time to comprehend before approving. The 1603-page blockbuster was a continuing resolution omnibus bill that was nicknamed “Cromnibus.” House Speaker John Boehner scoffed at concerns about the process: “Understand, all these provisions in the bill have been worked out in a bicameral, bipartisan fashion or else they wouldn’t be in the bill.” And never before in American history have problems resulted from the closed-door deals on Capitol Hill.
As I wrote for USA Today in 2014 (“Government by Cromnibus — Blind, Deaf, and Dumb”), “Ignorance of the law is an excuse only for the congressmen who voted for the law.” There have been plenty of “scale-buster” pieces of legislation enacted without having been read since then, usually accompanied by sporadic media whining about the process. Most politicians’ love of power will always exceed their intellectual curiosity.
“You can lead a man to Congress but you can’t make him think,” quipped Milton Berle in 1956. Or read. According to a 1977 survey of House members by the House Administration Committee, the average congressman spends only 11 minutes a day reading at work. That survey result was so embarrassing that it has not been repeated since then. Congress has its own legislative research agencies as well as instant access to more than 4000 reports regularly produced by other federal agencies. But former ten-term congressman Cliff Stearns (R-Fla.) admitted that “a lot of the reports that have been mandated from these federal agencies are so overwhelming that I didn’t generally look at them.” Rather than reading the reports, one longtime congressional staffer told the Washington Post in 2014 that “we used them as doorstops.”
Legislative ignorance is treacherous in part because there is no Hippocratic Oath — “first, do no harm” — on Capitol Hill. Because politicians won an election, they often act entitled to dictate rules on anything and everything under the sun. The hefty omnibus bill that Congress passed late last year contains a blizzard of laws, penalties, and handouts that will take months to decipher. The media will be exposing horror stories from the bill long after congressional leaders finish their victory lap.
Congress would not be passing massive unread bills without a blind faith that government compulsion is inherently superior to what individual persons can do for themselves in daily life. Politicians assume their clueless decrees are better than decisions citizens make for themselves after gathering the best information they can find. Political action per se is presumptively redemptive for humanity — as exemplified by one congressman’s appeal to vote for the 2014 omnibus bill without reading it: “Hold your nose and make this a better world.”
But Congress in its routine operations is more slapdash than the vast majority of Americans in their daily lives. How many citizens routinely sign thousand-page contracts without reading them? Would anyone hire a lawyer who admitted he failed to examine settlement agreements he approved? Such an admission would spur a lawsuit for malpractice. But congressmen have legal immunity for anything they do on the floor of the House and Senate.
There is no prudent reason to expect fundamental change on Capitol Hill. Congress has always been fairly irresponsible, but the damage is vastly greater now. Instead of being a meddlesome distant uncle who ruins a family reunion once a year, Congress is a daily taskmaster with the authority to intervene in almost every aspect of Americans’ lives. Since we cannot expect members of Congress to behave more wisely or responsibly in the future, how much power should they possess over other Americans? Fantasizing about reforms that could create wiser legislators simply paves the way to bigger boondoggles down the road.
Reprinted with permission from Future of Freedom Foundation.