Irrational expectations

Sandy Levinson

A common criticism of members of Congress, one I'm embarrassed to say I've made myself at times over the years, is that many members vote for bills they haven't read in full and/or cannot explain when someone at a "town meeting" asks about Section 547(d)(3) of a many-hundred page bill. I have come to the conclusion that any such expectation is irrational.

Begin with the fact that many bills are inevitably long and complex, just because we live in an incredibly complex society. The "Harper's Index" in the current issue notes that the recent financial bill was 848 pages long, whereas the original bills creating Social Security and the Federal Trade Commission were, respectively, 29 and 8 pages. Charles Seife has just published a book called Proofiness: The Dark Arts of Mathematical Deception, of which this is a perfect example. One immediately would like to know how many additional pages of relevant federal statutes have been passed since the 1935 passage of the Social Security Act and the 1913 (I believe) passage of the Federal Trade Commission Act, not to mention, on the principle of (more-or-less) comparing apples with apples, the total number of pages of legislation devoted to banking and securities since 1934. The relevant question is obviously how complex should a bill be that is regulating the financial services industry or, as in the case of the 2000 page health-care bill, attempting to get a grip on an industry that involves roughly 15% of the entire economy and is threatening to bankrupt us all (or simply leave millions dying in the streets) unless badly needed changes take place. Sad to say, we don't live in a simple world, and attempts to confront that world, whether in a pre-marital agreement between two mega-rich celebrities or an attempt by Congress to respond to what John Marshall called "the various crises of human affairs" may well take more than 29 pages.

So now we move to the second point, which is the expectation that every member of Congress read all of the legislation he/she is asked to vote for. I don't know exactly how many bills come before Congress in a typical session and the length of each bill. In any case, one can ask if it's realistic to expect Represenatives and Senators to read, say, 10,000 pages of legislation/session, along with, say, holding hearings, "debating" on the floor, and returning to their home districts every weekend in order to have town meetings with constituents who will otherwise condumn them as out-of-touch-elitists. (I make no mention, of course, of the time spent by members of Congress raising funds for their next campaigns.) But even if one imagines a mythic member of Congress who devotedly reads (along with the full Congressional Record, of course, and every written submission to any and all committees on which he/she serves) every page of legislation, the next question is whether we can remotely expect every member of Congress to have a genuine understanding of every piece of complex legislation. Perhaps if every member were a polymath like Benjamin Franklin or Thomas Jefferson, the answer is yes, but I suspect that even Franklin and Jefferson would have a hard time getting up to speed on each and every question that faces a modern legislature. (Does one expect, incidentally, the President--i.e., any President--to read every page of legislation he/she signs--or vetoes--and to be able to discuss the most arcane details if asked about them by a "gotcha" reporter at a news conference?)

Among other things, this is why from a very early time, Congress created committees, and the purpose of a committee, in a well-functioning legislature, is to assure the creation of relative experts who will be able to understand proposals and to vet them. The rest of the House or Senate can then vote for or against the legislation largely on the basis of the trustworthiness, built up over the years, of supporters and opponents of the legislation. To expect anything else is irrational. (One of the reasons people hire lawyers or accountants, after all, is to receive from them trustworthy interpretations of legislation and regulations that are justifiably deemed "technical," i.e., requiring the mediation of a trained professional truly to understand.)

As I was listening, while attending a panel on the filibuster at the recent American Political Science Association convention in D.C., to someone from the Heritage Foundation lacing into members of Congress who didn't read all the legislation they voted on, the analogy occurred to me of the appointments and promotion process at any university, where the key question is to assess the work done by a candidate either for hiring or even more seriously for promotion to tenure. It is certianly the case that we ought to expect everyone on the candidate's tenure committee to read all of the work he/she has written and to be able to offer a reliable assessments of its quality to the rest of the faculty. That, after all, is what committees are for, and one expects "due diligence" from their members. But does one really expect even the rest of the faculty to read all of the material? It's not only that they would quickly find that there is no time to do their own work, whether research or preparation for teaching; it's also the case that one would be asking, say, specialists in American history to offer a professional evaluation of the work done by someone whose specialty is Chinese history. (For sports-analogy buffs, it's like expecting Roger Angell suddenly to start covering professional football or fencing for the New Yorker because, after all, all sports are just the same.) But let's even grant that members of the history department should read the work of their colleagues, prior to promotion. and let's assume that the department, after receiving, say, a strong recommendation to promote, agrees, whether unanimously or even by a lop-sided vote. Do we expect the Dean of the School of Liberal Arts or Sciences to read the entire file and to make a genuinely informed evaluation of the work? Perhaps we do expect the Dean to ask for outside letters to make sure that the promotion isn't based simply on a friends-and-neightbors principle. We might refer to this as a further form of "hearings," but there's still the problem of how, exactly, the Dean would truly be able to decide whether those who like the work or dislike it have the better argument. (Some universities finesse this by requiring basically that there be no negative evaluations from outsiders, which obviously has real ramifications for anyone taking controversial positions or using innovative methodologies.) But let's assume the Dean signs off on the recommendation, and it now goes to the Provost. Does anyone in the entire universe expect the Provost (or the university president) to read all the books, on physics, ancient Near Eastern languages, econometrics, modal logic, and synthetic genetics, for starters, before signing off on the deciison? To use a word I am prone to overuse, any such expectation would be insane. (This is one of the reasons that Adam Smith defended the merits of division of labor.)

I have come to the conclusion that it is equally insane to expect everyone to read all of the legislation, at least if one can assume that the committee system is operating reasonably. My argument does not extend, say, to bills introduced in the waning moments of a legislative session or under conditions of panic (think of the PATRIOT bill in this context), where the usual process of hearings and vetting is foregone. I am more than happy to condemn legislators who vote for legislation that, in effect, no one has read. But that's not the case with either the medical care or the financial services acts, both of which were the product of extensive hearings and vetting. There are, of course, lots of imperfections in both bills, but they are the result of the defects of the American political system, not the failure of some representative or senator to read the bill.
Posted 7:01 PM by Sandy Levinson [link]