The debate over a proposed law is usually simple. One side wants to ban smoking in restaurants. The other side doesn’t. One side wants a higher sales tax. The other side doesn’t. One side thinks a bill is good. The other side thinks it’s bad.
Sometimes, however, the debate gets more complicated. The bill itself-what it says, what it would mean-becomes the issue. Its language is vague, or complicated, or both. In such cases, the debate changes from a discussion of issues to a competition for trust.
The bill’s supporters argue both that it will iright tremendous wrongs and that it will have little or no effect. Opponents, by contrast, construe its language in the broadest possible way and argue that it will have sweeping results but won’t solve the problem. Proponents accuse opponents of exaggeration; opponents accuse proponents of hiding their intentions. Each side says the other is not to be trusted.
Talk the Civil Rights Act of 1990. The bill itself was extremely technical, focusing on burdens of proof and other rules of litigation. It didn’t say, “Employers shall adopt hiring quotas or racial minorities” or “Racial quotas are prohibited.” Such clarity could never get out of committee.
As a result, the debate over the bill often sounded like a couple of bratty kids arguing: “It is a quota bill.” “Is not.” “Is SO.’’ “Is not.” “Is so.”
Not surprisingly, such vague bills are often crafted by people who can make a very intimidating claim to represent absolute virtue. “Trust us,” the proponents say, “we’re the good guys. You know that.”
That’s why most such bills fall into two good-guy categories: civil rights laws and environmental statutes. Slap one of those labels on a bill and it gets awfully hard to oppose in public.
The Americans with Disabilities Act is a particularly egregious example of vague legislation backed by peer pressure worthy of a junior-high clique. To question the ADA-even to ask for specifics-was to declare oneself an insensitive boor.
The ADA requires employers to make “reasonable accommodation” for disabled employees. But it does not define “reasonable.” Under the ADA, I could, for instance, file an extremely credible suit against the Reason Foundation, demanding that it pay for my contact lenses, or at least glasses. I cannot do my job if I cannot see, and I cannot see without corrective lenses. Such lenses are inexpensive; I can afford them. But if I can afford them, can’t my employer as well? Doesn’t their very cheapness make them a “reasonable accommodation”?
I won’t bring such a suit. But someone else eventually will. It will be only one of thousands of suits encouraged by the law’s sweep and vagueness. Such litigation is the necessary byproduct of irresponsibly drafted, feel-good laws.
Congress and the president get to declare that they’ve done good. Somebody else gets to decide what the law really means.
Then there are bills that aren’t vague but are so complicated that not even their backers understand them. They ask not only the public but the legislators themselves to substitute trust for judgment.
The 1990Clean Air Act is 1,l10 pages long. It was passed by people who haven’t the smoggiest idea what it means. Reports National Journal, “The legislation, with its often esoteric standards for maximum achievable control technology,’ for example-is so far-reaching and filled with scientific jargon that even the most knowledgeable Members were forced to rely on the few congressional aides who understood its details and its potential effect; on many occasions, a few senior lawmakers watched as aides crafted the language.”
Sure, Congress can say it passed a law to clean the air. But executive-branch regulators must now spend months crafting rules to implement this massive law. Then private attorneys will spend years of billable hours to interpret and litigate those regulations. The actual cost of pollution-control equipment will be only a fraction of the total bill.
And that, it seems, is exactly how legislators want things. Leave the tough decisions to the bureaucrats and judges they don’t have to face reelection, or Ted Koppel.
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.