Justifying a 72 Hour Rule


(this message is from a post I sent to the Open House Project google group, part of an exchange you can read here.)

The name “readthebill” does seem like an exhortation– Sit! Stay! Roll over! Readthebill!…

But, I think it would be a mistake to conflate the 72 Hour Rule with “members reading bills”, for a few reasons.

First, there’s a big difference between recommending that Members do anything (nearly impossible task) and making it possible that they or their staff do it.  Obscurantism shouldn’t be arrived at through rapid legislative maneuvering, or by contrived complexity, as Clay and Chris note.

Now, that isn’t to say that Members and staff are going to start reading all bills.  I actually think it’s important that a Members can vote ignorantly if they’d like to; you can’t mandate competence to a legislative body that’s supposed to be independent.

Indeed, the current Rules of the House provide that each bill is read three times, in Rule XVI, 8:

8. Bills and joint resolutions are subject to readings as follows: (a)…in full when…first considered. (b)…when the bill…is read for amendment in a committee of the Whole House… (c)…a third reading precedes passage…

This requirement is routinely dispensed with without objection — objection to dispensing with the readings is even used as a dilatory tactic.  This is just as well, because a clerk reading legislative language to an empty floor doesn’t really add much.

Finally, I’d like to raise the public component to the 72 hour rule.

Posting legislation online 72 hours before votes is about more than member and staff consideration.  This is yet another case where the needs of congressional staff and public citizens overlap (a point Rob Pierson makes constantly).  “Representing” a district shouldn’t be a metaphor, it should be more of a gerund.  When a member “represents”, they shouldn’t just represent in the same way a roadsign represents an upcoming turn.  Representation necessarily involves interaction.

Maybe I’m wandering back into the world of saying what members should do, so let me walk that back a bit.  If legislation isn’t posted online before consideration, then an interactive style of representation is impossible.  Constituents are necessarily shut out of that aspect of the legislative process without some lag between posting a final version and its floor consideration.

Our conception of public involvement in legislation suffers from a weird mythology, where stories like Mr. Smith goes to Washington or the ladybug story, where some exceptional circumstances lead to (gasp!) the impossible puncturing of the legislative bubble, proving that we can all make a difference if we just try.

I’m as susceptible to public involvement glurge as much as the next person (I think the ladybug story is excellent), but this narrative about miraculous public engagement overshadows what’s really going on: the public has an immense and largely untapped capacity to engage in the substance of legislation.  Policy already flows out of lobbyists, legislative support agencies, “urgent issues” sometimes fomented by the popular media, trade groups, and scientific research.  These communities, to various degrees, have developed institutional pathways leading from need to legislative action.

The 72 hour rule is about making it possible for the dispersed expertise, whether well connected to the instituions of Congress or not, to react to legislation before floor consideration, and to allow representatives to more fully represent, insofar as they’re moved to.