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Cowardice is one reason for “trust me” laws, but it isn’t the only one. Passing a vague law can prove a very effective way to enact an otherwise unpopular agenda. That’s why you won’t find narrow interpretations actually written into law.
Understanding this, opponents equate a vague bill with a worst-case interpretation. Proponents respond by denouncing exaggeration and scare tactics. They may point to previous dire predictions that didn’t come true.
If the bill passes, the two sides switch arguments. The bill’s former proponents argue for the broadest construction possible-“it is a quota bill.” The opponents argue for a narrow reading-“is not.” U1timately, the courts make the law.
At first glance, the “trust me” strategy sounds brilliant: Write a vague or complicated bill that can be interpreted in a sweeping way. Tie it to a righteous cause. Equate doubting the bill with doubting the cause. Woo swing votes by arguing for a narrow reading. Get the bill passed. Then maneuver the regulations and courts to enact the broadest possible interpretation. Problem is, this doesn’t always work.
Cases in point: the 1990 Civil Rights Act, California’s Big Green environmental initiative, and the grandmama of them all, the Equal Rights Amendment. To beat a vague bill, there first have to be people to challenge the bill’s underlying agenda, to say the bill is not what it seems. They do not have to convince legislators or the public; they merely have to arouse doubt. Few people actually accepted Phyllis Schlafly’s contention that the ERA would require unisex bathrooms. But that hypothetical did raise doubts that the ERA was as innocuous as its backers claimed. And since the amendment’s most strident supporters did endorse sweeping changes in American society, extreme scenarios did seem possible if not likely.
Second, someone with political power has to be willing to oppose the seemingly unassailable. Supermajority requirements help. Legislators in conservative states could block the ERA. Republican senators could sustain Bush’s Civil Rights Act veto.
In the case of a ballot initiative, summoning political courage is even easier. The ballot is secret. No one need know that you voted against the Sierra Club and in favor of the evil chemical companies. Big Green’s surprise 2-to-I defeat suggests that some Californians lied to preelection pollsters.
It would be great if courts started to throw out vague laws. But the system is somewhat self-correcting. By refusing to say what they mean and forcing citizens to spend years in court, trust-me laws generate contempt for lawmakers. Ultimately, they erode the public trust that makes their passage possible.