Rushing Bills into Law Is a Recipe for Disaster

The hidden danger of the Republican healthcare bill is that it might end up being sloppy.

Jun 28 2017, 11:25am

Photo by Andrew Harrer/Getty

At some point in the distant future, robots will finally take over the world and impose some much-needed order on it. But until that day comes we will continue to be ruled by upright apes who, inevitably, will fuck things up.

This month, New Hampshire legislators accidentally voted in favor of a bill whose language, taken literally, would allow pregnant women to kill whomever they please. A couple of years ago, an Irish court ruled that the country's lawmakers had cut some corners while passing drug legislation—as a result, a bunch of drugs, including ecstasy, meth, and "Jeff," were legal for 48 party-packed hours. After the Affordable Care Act was passed, a dispute over the phrase "established by the state" led to a legal challenge from conservatives that went to the Supreme Court and nearly derailed Barack Obama's signature piece of legislation.

The language used to draft laws needs to be precise, but legislators are not necessarily precise people. Even though lawyers are the ones actually writing the text—which is largely incomprehensible to laymen—errors slip through. Some can be fixed quickly by "technical corrections" before a bill becomes law; others, like in the case of the ACA, remain troublesome for much longer.

According to Jonathan Lewallen, an assistant professor in political science at the University of Tampa who has studied the topic, errors are more likely to crop up in bills when they are written quickly and when one party controls both houses of Congress. That's something to keep an eye on as Republicans in the House and Senate attempt to pass ACA repeal as quickly as possible—along with the intended bad effects could come unintended consequences.

Though Republicans delayed a Senate vote on the bill, party leaders clearly want to hash out some compromises to get 50 out of 52 GOP senators onboard ASAP, just as happened when the House passed its version. In other words, if a bill passes it will still be rushed and unilateral. Through email, I asked Lewallen why we should worry about that.

VICE: How do drafting errors generally make it into laws? And why are they more common at times when one party has full control of Congress?
Jonathan Lewallen: Drafting errors usually make their way into laws because no one caught them in time. Bills are generally written by a combination of legislators and staff with occasional input from interest groups, and Congress also has offices within the House and Senate called legislative counsels that help the members translate their policy ideas into the kind of legal language required for bills and laws. So there are a lot of different people providing input into how a bill should be written, and sometimes what they want the bill to say (or not say) changes day to day, and not everyone is looking over every part of the bill to make sure everything is error-free.

A political scientist named David Mayhew wrote a book in the early 1990s looking at whether divided government leads to fewer significant laws. He actually found that there wasn't much difference between divided and united government on that score, so he suggested some other ways that divided and unified government might matter. One of those was what he called a "politics of haste" during periods of one-party control of Congress and the White House, where the majority party tries to get as much done as they can before the next election. I think that "politics of haste" helps explain why we see more legislative error when one party is in control of Congress: They're trying to get a lot done, so they're less careful.

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Should we worry about drafting errors with this healthcare bill? Are there any specific areas where you think errors are likely?
I think we absolutely should expect some drafting errors in the AHCA (or I guess the Senate is calling it BCRA now). I don't know of any specific parts of the law where errors would be more or less likely at this time, but I would suspect perhaps not in the really high-profile, high-salience sections, as those probably were vetted more thoroughly. Most of the examples of error I found when I did my research was stuff like formatting something as a paragraph rather than a list, which changes the structure of a sentence, which then changes who or what is eligible for something; or even something like putting a decimal in the wrong place, which then changes how much land is involved in a transfer.

Is there an example of a worst-case scenario when it comes to errors in healthcare legislation?
Well, the question is, "Worst case for whom?" Today, there are a few different scenarios that would be worst case for different groups. If an error in the law leads to part of the law getting overturned, that's worst-case scenario for Republicans. If an error in the law leads to different courts in different parts of the country interpreting the law differently, that's something close to a worst-case scenario for insurance companies and states providing insurance. If an error in the law leads to someone not being eligible for coverage or benefits who should have been eligible, that's obviously a worst-case scenario for the person who could have received those benefits. Not all of those scenarios get resolved by the Supreme Court.

Democrats have been calling for a more deliberate process and more debate on this bill. Does a longer or more bipartisan process mean that errors are less likely?
I think so. Having a bipartisan process, even beyond whatever intrinsic benefits you think it brings, means that you have more sets of eyes reading through the proposed bill and making sure that the language works for everyone. As I said above, having more people giving input on a bill can lead to more confusion, but that's where having some order placed on the process helps—usually by having the committees do it. When you don't have committee hearings on the bill, you have fewer people in Congress who know what the bill does and what it's supposed to do, and so fewer people who can tell their colleagues what they're voting for.

Especially with a really lengthy bill like this, most of the senators voting on it will only have received a short summary from their staff or likely from someone else's staff, and congressional staff themselves are facing more constraints on their time today, so they may not catch everything. Party leaders' jobs today involve making sure that the bills they put on the floor pass, not necessarily that they're error-free. So without more deliberation on the bill, members will really only end up hearing what the party leaders think they need to hear to get them to vote a certain way.

Do you have any advice for Congress about what they could do to avoid legislative drafting errors?
The one fundamental answer for how Congress can avoid errors in writing legislation is to increase its own capacity. Over the last few decades, both chambers, and both parties, in Congress have de-emphasized the committee system and their policy staffs. More staff today is concentrated in the party leadership offices and in the members' state and district offices, rather than in their DC offices. That means fewer DC staff are able to dig into these bills and make sure they're doing what they're supposed to be doing. Congress also has decreased funding for those legislative counsel offices I mentioned earlier. The job of those offices is precisely to write legislation for members of Congress, and in my research, I find that errors go up when funding for the legislative counsels goes down. Congress thus could help itself make fewer mistakes by shifting its resources back to those groups they already have who help them avoid mistakes.

This interview has been condensed and lightly edited for length.

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