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.