“I love these members, they get up and say, ‘Read the bill,’” said Rep. John Conyers. “What good is reading the bill if it’s a thousand pages and you don’t have two days and two lawyers to find out what it means after you read the bill?”

That's an elected member of Congress explaining why lawmakers shouldn't bother themselves with reading bills. It's just too gosh-darned difficult. And who's ever heard of lawyers working in congressional offices? Not me, no way.

Seriously, as a representative of a district, congressmen should know what they are voting on and, if they need help, they employ people who can help them read the bills and inform their decision-making process on behalf of their constituents.

Rep. Conyers appears to have disdain for this notion. It makes me wonder about two things. When the Democrats won back control of Congress in 2006 their proposed ethics reform package included a Read the Bill section. The committee with jurisdiction over the reform process was headed by Conyers. Did his disregard for bill reading leave this section on the cutting room floor? Also, this video from Michael Moore's "Fahrenheit 9/11" has a completely different context now: Go to ReadTheBill.org and tell your congressman that you don't agree with Rep. Conyers. Tell them that they should support a 72 hour rule for placing all bills online.

After one week of markups on the health care reform bill, we are already seeing that pressure on Congress does bear fruit. Unlike the cap and trade bill negotiations, all three committees held open markups, streamed online with some, but not all, documents disclosed to the public. While nothing we have seen is ideal -- leaving aside the Energy & Commerce Committee markups, which I'll get to momentarily -- the movement is towards greater disclosure at the committee level, where input can be most important. The Education & Labor Committee's tweeting of votes on amendments and the availability of two discussion drafts from different committees allows the public with greater knowledge of the bill's ever changing status. Overall, we are seeing earlier attempts at transparency in the legislative process.

The Energy & Commerce Committee, led by Henry Waxman, should come out for special praise. This committee is providing greater access during the bill formulation process than any other. The committee web site contains streaming video of the markups, archived video of past markups, a discussion draft for proposed changes to the bill, PDFs of every amendment and vote information on each amendment. The committee is also holding markups over a four day period, rather than holding one or two days of markups, allowing the public a greater ability to have a voice in the process. This isn't a one-off for Energy & Commerce either. During their markup of cap and trade legislation, the committee posted all amendments to the web site along with votes. The other committees with jurisdiction over the cap and trade bill didn't even hold hearings. Other committees should look to Energy & Commerce as a great example in committee transparency.

The one committee left to look out for is the Senate Finance Committee. As noted earlier, Senate Finance Chair Max Baucus plans to announce his plans for health care reform this week. Senate Finance is considered the crucial broker on any health care bill and should be watched with a close eye. (We've taken it upon ourselves to look at committee member connections to lobbyists.) The same transparency that we ask of the relevant House committees should be asked of the Senate Finance Committee.

Right now, Congress isn't where we want them to be, but we are seeing progress. Bills are still being rushed through Congress and committees do not disclose nearly enough information to allow citizens to have a meaningful impact on the sausage-making in Congress. That being said, the pressure that you are putting on Congress to read their bills and provide full disclosure of legislative material to the public is having a real impact. Keep the pressure up at ReadTheBill.org and demand real transparency along the full legislative path of each and every bill.

This is a quick update on what the committees in the House have done with the health care bill since the tri-committee markups began. Both the Education & Labor Committee and the Ways & Means Committee passed the bill out of committee, while the Energy & Commerce Committee continues to hold hearings.

Education & Labor Democrats tweeted all votes on amendments, but the web site did not carry actual text of amendments or descriptions. The Education & Labor Committee also does not address how they changed the bill through the mark-up process and there is no chairman's amendment.

Ways & Means didn't release any votes on amendments. The site does carry a chairman's amendment, in the nature of a substitute, to the bill, along with a summary description (you can see all documents here). So, at least we have a draft of what Ways & Means is looking to change when the chairmen reconcile their different versions.

Energy & Commerce is still holding markups sessions, but that hasn't stopped chair Henry Waxman from posting a chairman's amendment and a few other documents, including a number of amendments, to the committee web site.

While the process isn't ideal, I think we're seeing the committees make some real headway in releasing more information in a timely fashion, particularly considering the speed with which these markups occurred.

In case you needed the short version of the full history of Congress and Read the Bill, please read below. Just to fit this into a blog post, I'm starting in 1965 and not 1789. I thought that after the rushed cap and trade vote and the upcoming health care reform vote it would be important to provide some background on Congress' habit of not reading bills:

In the mid-1960s, a movement was afoot among young, liberal members of Congress to reform the way the legislative branch operated. Opacity and centralized power were their enemies. Openness and diffusion of power were the solutions. In a 1965 report issued by the Joint Committee on the Organization of Congress, one such area where openness was ascribed as a means to diffuse power was the time allowed to study bills prior to consideration:

A bill that cannot survive a 3-day scrutiny of its provisions is a bill that should not be enacted. Proper consideration must be given to important legislation, even in the closing days of a session. The world's most powerful legislature cannot in good conscience deprive its membership of a brief study of a committee report prior to final action.

Prior to the issuance of this report, Congress had mandated a 1-day layover for bills in the Legislative Reorganization Act of 1946. Soon Congress would pass a new reogranization bill. The Legislative Reorganization Act of 1970 contained a provision requiring a 3-day (calendar day, not legislative day) layover for all bills and committee reports prior to a bill being considered.

This change was made within the House and Senate rules, which are maleable, shifting guidelines, not strict laws of the land. The rule did not require any type of majority to waive the 3-day layover requirement and soon the rule would be waived repeatedly to pass large pieces of legislation that the majority wanted passed in a hurry. By the late-1980s, a new practice emerged in Congress: the combination appropriations bill, then derisively known as omnibus appropriations bills. These bills, which have become a more regular feature of Congress in recent years, could measure in length of thousands of pages, taking a staff days or weeks to read, parse and understand. Few of these bills were given adequate time for neither reading, parsing nor understanding. And if wisdom comes from understanding, then Congress was left none the wiser.

For most of the omnibus bills passed, the 3-day layover rule was waived. Back then, newspapers and trade magazines actually noted the waiving of this rule. Today, it goes without mention.

As the seasons turned from the decade of glitz and greed to grunge and gangsta rap, the political winds in Congress shifted in favor from the majority Democrats to the minority Republicans. Republicans, smelling blood, took up the ethics mantle as a cudgel against a Democratic House that had become stale, abusive of House rules and riddled with corruption scandals. One such abuse of House rules to be used against the majority was the consistent waiver of the 3-day layover rule. Bills were passed with no time to read them.

In 1992, Rep. Harris Falwell called for a 2/3rds majority vote to waive the 3-day layover rule. This would later become a central piece of the Read the Bill legislation currently offered by Rep. Brian Baird in the 110th Congress. The other central piece of Baird's Read the Bill legislation could not have been introduced in 1992 as the platform for distribution had yet to be created.

In 1993, the World Wide Web opened the Internet to the wider public and the Mosaic browser quickly followed to allow for much greater interface capabilities through the various nodes of the Net. Congressional lawmakers quickly began moving operations online. In 1995, the new Republican majority launched the legislative search web site, THOMAS.

Despite increasing the ability of the public to receive bills and bill information over the Internet, the Republican majority continued to waive the 3-day layover rule just as they had complained the Democrats did. During this period, many rushed pieces of legislation were the result of Speaker Gingrich's failed efforts to shut down the government. In the wake of the public rejection of his move to refuse funding for government operations, the House was forced to quickly rush large appropriations bills through the chamber to begin funding again.

But the 3-day layover waivers did not stop at crises akin to the government shutdown. Over the course of the 12 year Republican reign in the House, bills became bigger and were passed faster. By the last few years of House Republican rule, under Majority Leader Tom DeLay, the rushing of bills became a fiasco.

In 2006, Rep. Brian Baird introduced legislation that would require, like Rep. Falwell's 1992 proposal, a 2/3rds vote on waiving the 3-day layover rule and the public distribution of all legislation for 72 hours prior to consideration. These two ideas married both the diffusion of power within Congress presented by 1960s reformers with the diffusion of power to the people provided for by the connectivity of the populace through the Internet. The Democrats rallied to Baird's proposal, including it as part of an ethics platform, just as the Republicans had in 1994. But, history has a way of repeating itself.

After sweeping back into power after 12 years, House Democrats passed a massive ethics reform bill. They failed to include Baird's Read the Bill legislation in the reform package. To this day, the 3-day layover rule is waived with regularity and bills are rushed through Congress.

While it's easy to fault the current Congress for process abuses like the waiving of the 3-day layover rule, it should always be remembered that this is a process that has been born of institutional abuse over time. Like drug addicts, it's hard to stop abusing once you've started. (Or rather, like Pringles: once you pop, you just can't stop.) The efforts at diffusion of power through allowing lawmakers more time to study legislation had largely fallen by the wayside as Speakers, starting in the 1980s, sought to reconsolidate power that reformers in the 1960s and 1970s had spread around Congress.

While the reformers of that era sought to create more independence and spread more power among individual members of Congress, the Read the Bill legislation -- along with the many other transparency provisions supported here -- are aimed at diffusing power to the people writ large (that's you I'm talking about). Thanks to the Internet we can distribute that power back to us by getting the information we need to hold elected officials, and sometimes ourselves, to account. Transparency provides knowledge and knowledge is power.

After passing the cap and trade bill in rush, we are beginning to see what was included in the last hours prior to the vote. According to the Washington Times, the final 300 page amendment to the 1,200 page bill appears to have been filled with sweeteners for wavering congressmen.

The Washington Times reported on the actual contents of the cap and trade manager's amendment -- those 300 pages that dropped at the last second -- and found a sweetener for one lawmaker likely aimed at enticing her to vote for the bill. The bill contained a nearly unintelligable section creating a federally authorized power administration with $3.5 billion in funds to distribute to renewable energy and development projects in Ohio. The power administration was championed by Rep. Marcy Kaptur and its last minute inclusion likely helped obtain her vote and other wavering lawmakers from Ohio.

We have little idea how many sweeteners were added into the 300 page manager's amendment and it is very difficult to determine due to the obscure language used in the amendment. Take, for example, the language of the Kaptur power administration:

SEC. 199. DEVELOPMENT CORPORATION FOR RENEWABLE POWER BORROWING AUTHORITY. (a) DETERMINATION.—No later than 6 months after the date of enactment of this Act, the Secretary of Energy, in coordination with the Secretary of Commerce, shall— (1) determine any geographic area within the contiguous United States that lacks a Federal power marketing agency; (2) develop a plan or criteria for the geographic areas identified in paragraph (1) regarding invest- ment in renewable energy and associated infrastruc- ture within an area identified in paragraph (1); and (3) identify any Federal agency within an area in paragraph (1) that has, or could develop, the abil- ity to facilitate the investment in paragraph (2). (b) REPORT.—The Secretary of Energy, in coordina- tion with the Secretary of Commerce, shall provide the de- terminations made under subsection (a) to the Committee on Energy and Commerce of the House of Representa- tives. (c) ESTABLISHMENT.—Based upon the determina- tions made pursuant to subsection (a), the Secretary of Energy, in coordination with the Secretary of Commerce, shall recommend to the Committee on Energy and Com- merce of the House of Representatives the establishment of any new Federal lending authority, including authoriza- tion of additional lending authority for existing Federal agencies, not to exceed $3,500,000,000 per geographic area identified in subsection (a)(1). (d) AUTHORIZATION.—$25,000,000 is authorized to be appropriated for fiscal year 2010 to carry out the provi- sions of this section.

Now for those looking to see how the last minute changes affect voting behavior, this kind of language isn't helpful at all. There are even more obscure sections of the bill that could contain vote-getting sweeteners. Not that I'm advocating for plain language bills or anything (laws are written in legal language for a reason), but the language in this amendment is particularly -- and likely intentionally -- obtuse.

Of course, one of the biggest problems is that we were given under 24 hours to read these 300 pages of obscure language. So, we are brought reporting after the bill is passed teasing out the actual contents, which appear to include vote-attracting sweeteners. No one could have realistically known what was in the bill, and inserted for whom, before the vote took place.

If you want to see if you can find these sweeteners, please have at it. I spent a good amount of time reading the bill last week (what a concept) and wouldn't mind some help pulling out the choice sections that were inserted to gain specific votes. Here's the pdf. Let me know what you find in the comments. And don't forget to tell your congressman to Read the Bill in the future.

After yesterday's discussion about discussion drafts, the Senate Health, Education, Labor & Pensions released a draft of their version of the public option -- but only the Politico received a leaked version. This would be one of those things that should just be directly posted to the Committee web site. It would help the public understand the ongoing legislative process and provide context to the eventual bill that we hope would be read by lawmakers.

On Friday, the House of Representatives passed the cap and trade bill after an incredibly messy process left little time for congressmen and the public to digest the final version of the bill. I think that process taught us a lot about how Congress mangles procedure, but also, in some ways, how Congress is trying to be more transparent, but not quite getting it right.

Looking back at what happened with cap and trade, we see that Congress, inexplicably, released a new version of the bill on a Monday evening before a Friday vote, with an explanation that this would not be the final version. This bill, the printed version, did not have a bill number written into the header, instead it look like this: H.R. ____.

This what we'd call a discussion draft, and it's something that we've been seeing Congress release a lot more lately -- likely due to pressure to make their operations more transparent. The managers of the cap and trade bill could have easily not released this discussion draft and dropped the whole new bill on Thursday or Friday. Instead, they released part of the bill on Monday and then 300 more pages on Thursday night. It's great that Congress is releasing discussion drafts. They increase the ability of the public to peek inside to internal debates as they occur and hopefully have a say in the process. However, the time to publish discussion drafts is not the week a bill is being voted on, it's when the bill is still being formed in a location with necessary transparency rules, like a committee hearing.

So this brings up an important point: when is the best time to read the bill? In many respects there needs to be a rule requiring bills to be posted online 72 hours prior to consideration for lawmakers and the public to know what is in the bill. But that isn't the best period for citizen engagement in the legislative process outside of telling your congressman to vote "yea" or "nay". The real sausage making happens in committees and we are seeing efforts by committees to release discussion drafts and versions of bills that they are working on. This is where discussion drafts are useful -- not in final moments before consideration occurs.

Let's run down areas in the legislative process where citizen engagement can have an impact and what Congress ought to be doing to increase transparency and provide a window for engagement:

1) Committee process - Where the real work gets done. Release of discussion drafts, manager's statements, chairman's mark would allow for much greater engagement by citizens in the process and would help other lawmakers and their staff familiarize themselves with the process that created legislation.

2) Prior to consideration - Pass a 72 hour rule so that all bills must be made publicly available online for 72 hours before consideration. While there is less chance for direct input by citizens this allows for organization in favor or in opposition of both the bill and proposed amendments to the bill. This also provides time for lawmakers and their staff to read the bill.

3) Post passage - This would be the area covered by President Obama's five day bill posting pledge. I don't think there is too much value here as the President likely already knows whether he will sign or veto a given piece of legislation. More transparency theater than anything else.

The next big debate in Congress will be around health care. Hopefully, Congress doesn't only provide adequate time prior to consideration for the public to read the bill, but also continues to make efforts to provide drafts to the public during the committee process.

Today is the day that the House plans to vote on the cap and trade bill that has mysteriously changed this week. Last night, the bill changed again. We are now looking at an additional 300-pages that will be considered as amending H.R. 2998, the replacement bill of origins unknown. This is what the House Rules Committee tells us:

[I]n lieu of the amendment recommended by the Committee on Energy and Commerce now printed in the bill, an amendment in the nature of a substitute consisting of the text of H.R. 2998, modified by the amendment printed in part A of the report of the Committee on Rules accompanying this resolution, shall be considered as adopted.

This means that H.R. 2998, which will be considered as an amendment in the form of a substitute, will include an additional 300 pages approved by the Rules Committee that will not be voted on. Let me see if I can run this down quickly and succinctly:

1. The original bill, H.R. 2454, approximately 1,000 pages, was reported out of the Energy & Commerce Committee.
2. It was replaced this week by H.R. 2998, 1,201 pages, which will be voted on as an amendment in the form of a substitute.
3. The Rules Committee, last night, released a committee report that includes a 300-page amendment to H.R. 2998. This 300-page amendment, the Waxman amendment (#121), is considered as adopted upon an affirmative vote for H.R. 2998, the amendment in the form of the substitute.

This means that we are looking at 300 extra pages added to the bill overnight. Stay tuned for more and go to ReadTheBill.org to tell your congressman that we need time to read the bills.

The pace for the cap and trade bill continues apace. Today, the House Rules Committee posted to their web site the bill number, H.R. 2998, for the draft of unknown origin that has become a point of much debate over the past few days. This bill, H.R. 2998, is set to replace H.R. 2454, the bill previously reported out of committee. As I wrote two days ago, we have little idea as to the negotiations that transformed the approximately 1,000 page H.R. 2454 into the 1,200 page H.R. 2998. If nothing else it reminded me of South Park's underpants gnomes (for an image that might help explain the image below, see here). And thus I present this image that represents, to the best of our knowledge, how this bill grew overnight:

Phase 1: Report H.R. 2454 out of committee

Phase 2: ?

Phase 3: Replace H.R. 2454 with H.R. 2998

The House Rules Committee is currently deciding which of the 224 amendments proposed will be allowed a vote on the floor of the House. That could take a while. In the mean time we'll all twiddle our thumbs and try to figure out what process led to this compromise bill.

Or you can go to ReadTheBill.org and tell Congress that they shouldn't let this happen again. Tell them to support H. Res. 554 and require bills to be posted online for at least 72 hours prior to consideration.