Monday, August 5, 2013

The Most Productive U.S. Congress Ever

It's my birthday today. Maybe that's what makes me optimistic, despite evidence of a catastrophic climate change singularity, politicians and pundits still fiddling with Wiener while the planet burns, an immigration debate where rebuilding the Berlin wall on our border takes precedence over rebuilding our economy. Maybe that's why I refuse to believe, along with the elite liberal media, that today's Congress will be the least productive in history.

Hammurabi's Code, Prologue
I'll make a prediction: today's Congress will be looked back on as the most productive. The one that set the foundations for how legislatures work in a digital age. The way I see it, political gridlock may allow this to happen. When the crew can't agree on a direction to turn the ship, it may be time to repair the ship itself. And this is what I mean:

For more than 200 3700 years, laws have been written on paper [and in stone], in an excruciatingly slow, inefficient process in stuffy rooms that admit little sunshine. Two major facts about the drafting process make things worse: cut and bite amendments (replacing text of a prior law without giving any context), and non-positive law[**].  +Grant Vergottini 's blogpost on the readability of laws deals with the first issue quite nicely. I have discussed the difference between positive and non-positive law here before. Most of the law in the United States today is non-positive, meaning that  understanding any one clause requires gathering many, sometimes dozens, of laws and amendments enacted across decades. Fixing this requires action from Congress to pass legal compilations that are prepared by the Law Revision Counsel. It should be a straightforward, non-partisan process. And despite doubters, I think this Congress can move this agenda in a way no other has done.

Last week, House leadership announced that the U.S. Code will be available in bulk, for the first time, in well-structured XML. (Disclosure: this was our baby) This is the first plank in a Republican platform of transparency. The next big one is the DATA Act, quietly making its way through Congress due to a stellar multifaceted coalition. And I think that, deep down, the Republicans championing these reforms know that Democrats (even President Obama, whose birthday was yesterday) agree with them on this transparency and technology agenda. When the legislation gets passed, and the public starts to realize what good has happened with little fanfare in Washington, the only thing left to do will be to fight over the credit.

Is this picture too rosy? Let me dream a bit-- it's my birthday.
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** For the legal philosophy ninjas reading this (you know who you are), I am referring to positive law in the context of U.S. positive law codification. This is not the same as positive law in legal philosophy. "Huh?" you say. Don't ask me, ask the folks at the House Law Revision Counsel.  They explain it better than I ever could, here.