The perils of legislating in the dark
2/21/2003 12:00:00 AM - Jacob Sullum
The New York Times reports that Robert Matsui was "surprised by
(the) fine print" in the McCain-Feingold campaign finance law. Matsui, the
California representative who heads the Democratic Congressional Campaign
Committee, confesses, "I didn't realize what all was in it."
Well, how could he have known? It's a complicated piece of
legislation. You didn't expect him to actually read the bill prior to voting
for it, did you?
Anyway, 60 senators and 240 representatives voted for
McCain-Feingold, a.k.a. Shays-Meehan, a.k.a. the Bipartisan Campaign Reform
Act. Surely at least some of them knew what all was in it.
Maybe not. In a story that is simultaneously hilarious and
appalling, the Times describes how members of Congress are only now
discovering, to their dismay, the requirements of the campaign finance
restrictions they enacted almost a year ago.
"We sometimes leave our audiences in a state of complete shock,"
says a lawyer who teaches the intricacies of McCain-Feingold to Democratic
legislators. His seminars elicit "a sort of slack-jawed amazement at how far
this thing reached."
A lawyer who runs similar sessions for Republicans says,
"There's an initial stage where the reaction is, 'This can't be true.' And
then there's the actual anger stage."
That's a pretty good description of the average American's
reaction upon learning that his elected representatives can't be troubled to
familiarize themselves with the laws they pass. Instead they vote for a
general idea, leaving the details to be worked out by administrative
agencies and the courts. What they produce is not really law, in the sense
of rules that people can reasonably be expected to understand and follow.
Consider the tax code. How do you feel knowing that if you pose
the same tax question to five experts, you're liable to get five different
answers? The state of the law is such that not even the most honest and
diligent filer can face an audit with confidence.
If you own or run a business, you have to guess at the meaning
of such nebulous concepts as "reasonable accommodation" for the disabled and
"hostile environments" that may constitute illegal sex discrimination. If
you're a developer, you need to keep up with the ever-changing definition of
"wetland." If you're an investor, you need to understand which conversations
can subject you to "insider trading" charges.
It's only fair that members of Congress are now experiencing
some of the fear and uncertainty they routinely impose on the rest of us.
The Times reports that "members of both parties have been startled" to learn
that McCain-Feingold violations are felonies carrying penalties of up to
five years in prison.
"My message," says Rep. Thomas Reynolds, R-N.Y., chairman of the
National Republican Congressional Committee, "is, 'Don't be the first guy to
find out if you go to jail.' " Matsui reports, "We have cautioned members:
'You have to really understand this law. And if you have any ambiguity, err
on the side of caution.' "
Under McCain-Feingold, it turns out, actions that seem trivial
and innocent -- speaking at a fund-raising event, attending a conference,
letting your name appear on an invitation -- can be construed as felonies.
Who knew? Unfortunately, that is not a rhetorical question.
Another aspect of the law that its supporters did not notice
until recently is a requirement that candidates appear at the end of their
attack ads to take responsibility for them. "I think it was a total surprise
to people who don't read C.Q. with a yellow pen," says a Democratic media
consultant. Apparently, it is unreasonable to expect members of Congress to
read a publication as far afield from their concerns as Congressional
It is richly satisfying to see the anxiety that
McCain-Feingold's backers have created among themselves. But we should not
lose sight of the fact that the law affects a lot of other people, including
the political activists whose speech it squelches.
Some of the law's supporters, including President Bush,
recognized that it was unconstitutional but figured the Supreme Court would
sort things out. Something similar happened with the anti-terrorism
legislation approved after the September 11 attacks, the final text of which
was not even available to be read by those legislators who might have been
inclined to do so.
In such cases, I'm not sure which is a worse abdication of
responsibility: voting for a law without knowing what's in it, or knowing
and voting for it anyway.