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Making transparency into a reality

There's been a lot of confusion this year over the difference between "things that fall under the category of government transparency" and "things that make government more transparent." For instance: Forcing the Senate clerk to read thousands of pages aloud does not make the government more transparent. Having C-SPAN film negotiations over the health bill may be a good idea, but it just means there will be a public event called "negotiations over the health bill," not a real window into the negotiation process.

But there are things that actually make the government more transparent. Posting the text of bills and amendments online is a start, for instance, The problem is that it only helps a small community of trained elites. Legislative text is impossible to read. But the next step forward is obvious, and Jon Walker writes it up this morning (alongside arguments to increase congressional staff and abolish the filibuster, both of which would also be good ideas):

The Senate Finance Committee has a tradition of writing every bill in understandable, plain English, then converting it to legislative language right before the committee vote. Every committee in Congress should copy this tradition by having every bill published in a plain language and legislative language version without in discrepancy in meaning. (Full disclosure: I believe Ezra Klein was the first person I heard suggest this idea, and I think it is fabulous.)

Democrats have made a point of publishing bills 72 hours before the vote, but what good is there in making a bill public if only one in every hundred thousand Americans can understand it. Having a plain language version of the bill would help greatly expand the pool of people who understand pending legislation. It would benefit congressional members not on the specific committee, journalists, and regular Americans who might care passionately about a subject. It could also help quickly stop nonsense rumors like “death panels.”

Big companies with high paid lobbyists already understand complex legislative language in a bill, having a copy of the bill written in plain English would put journalists and grassroots activists on a slightly more even footing. No law is needed to make this reform. Nancy Pelosi or Harry Reid could effectively implement it tomorrow, and I would like to see it made part of a promise for even greater transparency in the 112th Congress.

I doubt I'm the first to have this idea, but it's still a good idea. To see the difference, compare the plain-English version (pdf) of Max Baucus's health-care bill to the legislative text (also pdf). Also notice that the page-count quadruples, or worse.

I don't begrudge anyone the right to use transparency as a partisan cudgel. There's no more bipartisan tradition than accusing the other party of secrecy and demanding all manner of disclosure and openness that you would never expect of yourself. But that shouldn't distract us from making the change that would lead to actual transparency and understanding of the legislative process.

By Ezra Klein  |  January 7, 2010; 12:15 PM ET
Categories:  Congress  
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What are we supposed to do with the millions of lawyers whose job it is to make a meal out of the arcane language of legislation? To say nothing of having courts interpreting legislation in all manner of ways. This is a blatant attempt to subvert the normal, creaky, bureaucratic workings of government!!

Posted by: zeppelin003 | January 7, 2010 12:31 PM | Report abuse

Another great example of transparency would be posting the details of the stimulus payout online. I thought Joe Biden really missed an opportunity to point out that this could be the future of good government when he went on the daily show to defend why money had been sent to congressional districts that don't exist. By posting the payouts online, you let the people weed through the details and point out inefficiencies, mistakes, and corruption. It might make for a "Government is bad: Stimulus money going to districts that don't exist" in the short term, but provides a lean good government in the long term.

Posted by: murtha11 | January 7, 2010 12:34 PM | Report abuse

Another idea that some states adopt:

Publish a 'legislative summary' that contains all of the major legislative provisions. Perhaps CBO should do this, since they look at the text carefully. Or the committee staff (majority).

The news does a terrible job of saying what's in a bill. The talking fingers and heads tend to make the summary about 3-5 points and don't deal well with the controversial provisions (particularly the cost thereof).

People will read and refer to less than 15 pages or so, but very few will read 100 pp or more, and you can't sneeze in less than 100 pp.

Posted by: JimPortlandOR | January 7, 2010 1:13 PM | Report abuse

"It could also help quickly stop nonsense rumors like “death panels.”"

I do think this is a good idea, but let's not oversell it with naive wishful thinking. The availability of information does nothing to stop nonsense rumors because they don't begin as simple good faith misinterpretations. They're tactical propaganda strikes conducted by a well-organized opposition. Those who believed that death panels were in the bill are not the type of people who are likely to double-check their facts, to put it nicely.

Posted by: BigTunaTim | January 7, 2010 1:19 PM | Report abuse

I wonder how the Republicans would spin this sort of change in a negative light....?

Posted by: zosima | January 7, 2010 1:31 PM | Report abuse

We wrote an article on a similar topic- why requiring legislators to read bills (in legislative text form) is a bad idea (because they are so difficult for most people to understand) and proposed an agency be created or tasked with summarizing all bills prior to votes in plain English by a non-partisan staff.


Posted by: thefourthbranchcom | January 7, 2010 2:22 PM | Report abuse

I am all for making bills more understandable. However, I’m not sure it is such an easy thing to implement. Part of the reason bills are so complicated to begin with is because of issues arising from judicial and administrative interpretation. If the plain language version is going to be subject to judicial oversight, then lawyers will need to craft it and it won’t be understandable. Perhaps it would be possible to put it provisions saying the plain language version is a non-enforceable summary and not the basis of judicial interpretation (in the same way that titles of sections in bills are not a basis for interpretation).

Even if this problem were circumvented, I think it could be quite burdensome to produce a well crafted plain language version of a bill. Bills generally are very self-referential (see section 5.5d, except for exclusions in 1.25b), a few paragraphs might be the only really relevant part in a 20 page section, and without a good roadmap, the bill can be very hard to understand. Professors, law students, and text book companies spend lots of time and money trying to create succinct and clear explanations of bills—I’m not confident Senator staff could do so without trouble.

Right now, even after bills are enacted, a readable version of the bill is never produced. I think it would be more important to start that practice first. The vast majority of citizens, journalists, bloggers, etc. don’t really have a good way to figure out what is in say the stimulus bill or any other piece of legislation.

(Of course, if plain English versions are already being produced, maybe the best solution is for staffers to begin unofficially leaking those versions. Then the Senate is not bound by the document and doesn’t need to be so careful in its crafting, but people actually interested in finding out what is in the bill would have an avenue to do so).

In any case, I don’t think plain language would solve the problem of “death panels.” Complex legislation even in plain English can be manipulated and misconstrued. Beyond that, I don’t think even matters if a section in the bill is referenced with allegations of death panels. These days, lies don’t even need to be cloaked in the truth.

Posted by: Levijohn | January 7, 2010 3:31 PM | Report abuse

Not sure how they do it in other states, but in TX we have a bill analysis dept within the legislative council. Bill analyses are required for a bill to be considered (just like a fiscal note). On the house side, at least, bill analyses are summary style, plain language like you're talking about, not section-by-section analyses that are just as complicated as the bill itself.

This seems like a better option than staffers writing it out (I'm assuming that's who writes up senate finance bills?), since the legislative council is writing the bills already.

Posted by: redberrie | January 7, 2010 3:52 PM | Report abuse

Agree with those who've said that plain English bills or summaries of bills will not deter purposeful lies and propagandists.

But on this front, at least it would give those who try to refute the lies another tool to use, a quick and easy reference to a comprehensible, public document (cite page and paragraph, please) for the few who actually might have an interest in the facts.

Posted by: onewing1 | January 7, 2010 4:22 PM | Report abuse

Plain language is a good idea. I will suggest more things:

a. Move away from the current page formatting. The multiple indents waste space (and trees, if documents are printed) and make bills difficult to read.

b. Change the paragraph numbering scheme to something that is more common and less unwieldy. I have worked as a Federal contractor for over 22 years, and paragraph numbering in typical specifications, reference works, and almost any other document available is easier to read and understand than what's used in a typical legal document. This may be a challenge, considering the large body of law that already exists; however, that's no reason to leave in place something that is deliberately difficult to use. If the numbering can't be corrected, at least make it easier to use by setting standards to identify items directly by their number and keep from having to spell out thinks like "paragraph", "subparagraph", "clause", etc. Put a group of professional commercial writers and editors to work on the problem (Washington Post, are you listening here??? Opportunity may be knocking...)

c. Don't just say, 'In Public Law xxx, paragraph 2, subparagraph 19, line 4, change "is" to "is not"'. Provide the actual before-and-after text so folks can see what's being changed.

d. Make electronic versions fully searchable. If Public Law xxx is being changed as part of this, provide a link to the law so folks don't have to find it. If a reader clicks on a footnote reference, he should be taken to the footnote. In all cases the reader should be able to return to where he was beforehand by using the "back" button on his browser.

I am aware that the legal community may balk at some of this. I would gently but firmly suggest to them that the current system does not support its intended users (who are not the attorneys who make or interpret the laws, but the citizenry at large who have committed to being bound by the laws) as well as it should, and that it's time for the current system to be revised. I would also point out that tradition is only a starting point for behavior, and not an endpoint.

Posted by: dsmaples | January 8, 2010 7:26 AM | Report abuse

A noble sentiment, but it would be easy to circumvent any such reforms. Plus, the easier it is to access a given piece of legislative information, the less hard most citizens are likely to work to get it. Bottom line: The less the government tries to do, the less need there is to make its actions comprehensible to the general public.

Posted by: AClem | January 9, 2010 6:41 PM | Report abuse

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