Monday, May 19, 2014

An Easy Act to Follow: the DATA Act and Low Hanging Legislation List II

People who think government should do less and people who think government should do more can agree on this: government should do better. Even a polarized Congress can unanimously agree on certain measures to improve government work. As discussed in my last post, the DATA Act's unanimous passage gives fresh evidence that this is possible. It also highlights the masterful non-partisan work of the DATA Transparency Coalition and it’s founder, Hudson Hollister.

There are two bills now in the Judiciary Committee that should, in principle, be even easier to pass than the DATA Act. These are the ultimate "low hanging legislation": H.R. 1067 and H.R. 1068 are both "positive law codification" bills, prepared by the Law Revision Counsel (LRC), a non-partisan office of the House of Representatives whose job is to maintain the United States Code and to prepare bills such as these. [Disclosure: I work with the author of these bills, Rob Sukol, and many of the other great folks at the Law Revision Counsel on the House Modernization Project.] These two bills do not change the substance of the law, but they update the United States Code to make the law cleaner and better organized. Both bills have been passed twice by the House and have gone to the Senate Judiciary Committee, where they have died, apparently from neglect.

H.R. 1067 amends title 36, United States Code. It is a short, technical bill that inserts a useful table of contents at the beginning of title 36 and corrects several typographical errors in the law.

H.R. 1068 is the more intricate of the two. The bill gathers provisions relating to the National Park System and restates these provisions as a new positive law title of the United States Code, Title 54. It was sponsored by Rep. Bob Goodlatte of Virginia (R) and co-sponsored by Rep. John Conyers, Jr. of Michigan (D). Title 54 would replace nearly 70 existing laws covering laws about national parks, starting 1901. Many of these laws are currently scattered throughout (non-positive) Title 16 of the United States Code.

If you care about public policy (like actually protecting National Parks), H.R. 1068 does not do anything. But in this Congress, that's actually a good thing. The bill does not change the meaning or impact of the law at all. But it does carry out a clean-up job of epic proportions. And that clean-up is noticeable each time a lawyer wants to refer to national park law.

For example, section 208 of the National Historic Preservation Act Amendments of 1980 is currently classified at  16 U.S.C. 469c–2, while section 401 is at 16 U.S.C. 470a–1. The correspondence between references to the named act and references to the U.S. Code can't be calculated with any formula. It is also unclear, a priori, how sections of the original National Historic Preservation Act of 1966  relate to sections of the NHPA Amendments or to the U.S. Code (for example: section 2 of NHPA -> 16 U.S.C. 470-1).

Another layer of confusion and redundancy is introduced by parallel citations. Depending on the context, it may be necessary to include parallel references to (1) the popular name reference (e.g. National Historic Preservation Act), (2) the Public Law which enacted it (e.g. Pub. L. 89-665), (3) the page in the Statutes at Large publication where it is published (80 Stat. 915), as well as (4) the section of the U.S. Code where the section is classified (16 U.S.C. 470 et seq.).

After enactment of Title 54, only the U.S. Code reference will be needed. Indeed, H.R. 1068 goes through the U.S. Code and through previously enacted laws to clean up references:
Section 105(l) of Public Law 99–239 (known as the Compact of
Free Association Amendments Act of 2003) (48 U.S.C. 1905(l)) is
amended by striking ‘‘the National Historic Preservation Act (80 Stat. 915; 16 U.S.C. 470–470t)’’ and substituting ‘‘division A of subtitle III
of title 54, United States Code’’
I have previously referred to positive law codification as one of two important steps in Operation Clean Desk, to improve how Congress drafts laws. With these two bills, Congress has a chance to do a great deal by doing very little at all. Which, I think is the perfect example of Low Hanging Legislation. I hope that I can report before long that these bills have been passed and signed into law.