We often are confronted with the idea of legislation being written and tracked online through new tools, whether it’s Clay Shirky’s recent TED talk, or a long, long list of experiments and pilot projects (including Sunlight’s PublicMarkup.org and Rep. Issa’s MADISON) designed to give citizens a new view and voice in the production of legislation.

Proponents of applying version control systems to law have a powerful vision: a bill or law, with its history laid bare and its sections precisely broken out, and real names attached prominently to each one. Why shouldn’t we able to have that? And since version control systems are helpful to the point of absolute necessity in any collaborative software effort, why wouldn’t Congress employ such an approach?

When people first happen upon this idea, their reaction tends to fall into two camps, which I’ll refer to as triumphalist and dismissive.

The Triumphalist Reaction

First, on the triumphalist reaction — this viewpoint suggests that lawyers just need to act more like coders, and that inserting some common-sense management tools that are commonplace in the technology world will transform how our politics works.

Unfortunately, there are a few points that this vision of transformation overlooks.

Most overly positive prognoses of legislative version control overlook some important details about Congress. The legislative process is itself a version control system, even if it’s one that doesn’t do as much as we’d like it to. Principals submit duly attributed bills and amendments to a system that controls how they are considered, all attempting to make minor alterations to a canonical code. I’d suggest that most US Code snippets have far more documentation and history that can be attached to them than most contributions to github — a history of legislation, amendments, hearings, floor speeches, testimony, votes, conference committees, etc, all go into even tiny changes of how the law functions.

Now, anyone saying that Congress should adopt better version control systems thinks that this complex disclosure system is insufficient.  Sunlight would obviously agree, and engages more on that front than probably any other NGO.

Congress as it exists now provides a reasonably reliable public electronic view of the official legislative steps. (With a few notable exceptions like amendments being introduced in the Senate.) What we’re all after, of course, exists largely below this official, public level.  We want to see lobbyist influence, and any inappropriate tampering, and we want to create a system that elevates substance, rewards merit, and generally improves how representation works. To get to a level below what’s already official, however, you face a choice: you either force new specific things to be public through new requirements (Rules could require drafts of amendments become official documents, or a committee chair could hold a long hearing and sit at a laptop and make changes), or you attempt to encourage the use of collaboration systems, like many pilot projects have in the past.  For our part, Sunlight is encouraging both approaches, and also actively trying to build meaningful views of legislation that make both authorship and influence more visible — obviously important goals.

If the triumphalist reaction overstates the value of simple technical attribution and versioning management systems, the dismissive reaction ignores it altogether.

The Dismissive Reaction

Suggesting that public tools, or even digital tools, can improve representation is often met with condescension. DC culture places naivete as a greater sin than corruption, and suggesting that bills get written online often gets put in the same mental bucket as “direct democracy” and “referenda on everything.”

The dismissive reaction is far worse than the triumphalist one. To dismiss new tools for legislative cooperation is to forget that every good thing about Congress that we enjoy comes from constant struggle and confrontation. Having a legislature in the first place comes from centuries of Kings’ power being degraded into an empowered class of nobles, and we shouldn’t take that for granted. When we fight over whether committee votes are public, whether bills are online, whether campaign finances are disclosed, and whether the supercommittee was an undemocratic failure, that’s not just reformer idealism, but the front line of defining how our representative institutions function. This fight didn’t start in the last decade, as Shirky’s talk could imply, but has raged for centuries. The last decade has just reinvigorated it, and given us new tools, inspiration, and new expectations.

Even if politics rule democratic governments, political power still has to flow through the shape of our institutions and democratic norms. The shape of the halls of power affect how its wielded, and no forces should have more clout in a democracy than public attention and the rule of law.

So in new tools for managing and analyzing legislation we have the potential to bring public scrutiny and creativity to the legislative process — new accountability and new generative capacity both. Of course our politics doesn’t shrink away in horror from a few blog posts.

Except when it does. If corporate interests understand enough about political power to spend hundreds of millions of dollars rearranging a few words, the public should care enough to move legislative processes into the open, where they’re tilted a little more in our favor.

Public, online tools make public consensus a little more politically valuable, and make it harder to legislate in bad faith.  Our digital lives are already strengthening democratic and cultural norms about openness, and one way or another, those norms and efficiencies are going to get applied to the legislative process. We should make sure that they (as I wrote above) elevate substance, reward merit, and improve representation.

We are going to increasingly see bills drafted and reviewed through public, online interactions, where anyone can point out a deficiency, suggest an edit, or spot check a politician’s claims. Whether and how public drafting gets accepted into the drafting systems inside Congress (where expert drafters use private tools to draft new laws), clout and expertise can grow outside that system, and affect it regardless of its ability to adapt.

Sunlight’s Path

The Sunlight Foundation’s approach can probably be described as qualified triumphalism. We’re deeply engaged in Congress releasing more information about bills, the legislative process, and the influence that surrounds it, since these are the necessary parts of a version control system. We’re shaping the kinds of version control analysis tools that Congress creates, and insofar as this is all attainable by getting laws to be natively written in a public system, then we’re all for it. Since that’s a long way off, we’re also applying those systems to Congress from the outside, supporting and building tools like Scout, GovTrack, OpenCongress and a number of related sites and services to make legislation as visible and meaningful to the layperson as possible. We’re hoping to supplant commercial publishing with public interest publishing of legislation and influence data, to build a more even playing field for government information, and also to change how it works.

Version control, as an idea applied to legislating, means seeing what changes, and who changes it. It means accountability forced very precisely into the processes of representation, and it means gaining a new ability for substantive contributions and oversight from a broadly empowered public. Those goals, ultimately, should be the same goals of the legislature itself — strong policy, accountable representation, and an empowered public.