Monday, January 30, 2012

Make Change Consistent: Legislative Recommendation #2

In preparation for the U.S. House conference on data and transparency, I'm making four basic recommendations that, together, would create a framework for a more efficient electronic representation of U.S. Federal statutes.

The attention from the House on data transparency, combined with current partisan gridlock on issues of policy, make this a perfect time to "reboot" Federal legislation for the 21th Century.  The reboot comes in two mutually reinforcing parts. The first is the subject of this blogpost: make change to existing law in a consistent manner. The second is to push ahead with codification of existing law, so that future legislation can be built on a cleaner, more consistent and accessible platform. That is the topic of my next post.

Current legislation is riddled by language that describes the changes that should be made to the law.  Take as an example, the Health Care Reform Act (HR 1692) which I've also referred to in my Quora answer:
Section 1848(d) of the Social Security Act (42 U.S.C. 1395w–4(d)) is amended—
(1) in paragraph (10), in the heading, by striking ‘‘PORTION’’
and inserting ‘‘JANUARY THROUGH MAY ’’; and
(2) by adding at the end the following new paragraph...
Instead of this word-by-word description of the edits, a wholesale replacement should be made, preferably at the section level, changing the old section for the new one.  In California, for example, this is done with language like this-- "Section [53395.1] of the [Government Code] is amended to read:"

If you are co-authoring a memo, Congress's writing approach is the equivalent of describing edits to your co-author in the text of an email ("In sentence three, take out the first two words...").  What I am recommending, and what California does, essentially, is redlining.  Make changes in a consistent way, and replace entire sections with any amendment.

I understand, and have heard many of the reasons why this kind of change is not easy.  Tradition, and bureaucratic inertia plays a large part in how Congressional language is currently crafted.  Writing by committee is already difficult.  Imagine the challenge of writing by various committees, hundreds of members, two chambers with, to put it mildly, some disagreements in priorities.

There are many reasons to think, however, that this technical change to the drafting form will be welcomed on Capitol Hill. It will provide more clarity, not only for the public, but for Congressional offices themselves, about what impacts a bill would have on existing law. The "replacement" method of legislative drafting would ultimately be easier for each Congressional office to participate in.  And there are models to follow: California's legislature, not known for its easygoing legislative process is, by and large, able to make its changes using this method.

A major technical challenge to adopting this method at the Federal level is that many of our statutes, are "free floating".  Either they stand apart from the U.S. Code, and exist only in the "Statutes at Large", or they have been incorporated into a Title of the U.S. Code, but that Title, as an organized volume, has not been passed into law, in the process known as positive law codification.  Congress then, cannot technically refer to the existing text as "section 501 of Title 26", because Title 26 is not "positive law".

Instead, Congress refers to the original Acts which passed and which are being modified (e.g. the "Internal Revenue Code of 1986" or the "Patient Protection and Affordable Care Act"), and may include a parallel citation to the Code Title.  These Acts, in turn, make their amendments to prior Acts, some of which have been codified and some of which haven't. This has lead to a significant tangled backlog of legislation, which just makes the current system more difficult to change.  And that is why this change goes hand-in-hand with positive law codification, the subject of my next post.