After eight years of fighting President Obama, congressional Republicans are hoping their fortunes have turned. With President Trump now in the White House, GOP leaders on Capitol Hill are aiming for an early record of legislative accomplishment. Vice President Pence has been telling his former congressional colleagues to “buckle up” for a busy first 100 days.
Of course, there are some cautionary signals. Trump’s team hasn’t yet offered names for 660 of the 690 presidential appointments that require Senate approval. And some Republican senators have started objecting to the plan to repeal Obamacare immediately, without a replacement at the ready.
But here’s another reason GOP leaders should be cautious. My research suggests that when laws are written quickly, they can contain mistakes that complicate policy implementation. That risk is worsened by recent cuts to the congressional office that helps members translate their ideas into laws.
How the ‘politics of haste’ creates errors in legislation
When laws are poorly written and contain errors, policies fall victim to what political scientist David Mayhew has identified as the “the politics of haste.” The term comes from the 1960s, when Lyndon Johnson and a supportive Congress hurried to pass as many bills as they could under a strong Democratic majority. The result: a raft of poorly written laws that did not always fully address the problems they intended to solve, or even created new problems of their own.
But there’s a bigger issue. Members of Congress must translate policy ideas into language clear enough to be put into practice by the states, the federal bureaucracy and the courts. Even something as seemingly trivial as formatting items as a paragraph rather than a bulleted list can make it impossible to apply a law uniformly across the country.
Take, for example, the Affordable Care Act and the Supreme Court decision in King v. Burwell. At the Supreme Court, the plaintiffs argued that the Affordable Care Act’s language about buying health insurance from “an exchange established by the State” meant that such exchanges had to established by individual states — not the federal government. The Obama administration argued that the language permitted health insurance exchanges within a state that had been established by the federal government.
The Obama administration argued that the law’s language was ambiguous due to simple drafting error; that position was backed up by testimony from current and former congressional staff members who helped write the law. According to a former Senate staffer, “at the end of the day, this should never have happened, and is a product of the rushed way a law was passed.” The Court ruled in favor of the Obama administration’s position, writing in its opinion that “the Act does not reflect the type of care and deliberation that one might expect of such significant legislation” due to “inartful drafting.”
That’s the potential downside of a poorly written law: years of upheaval in public policy, involving the courts in partisan politics, and forcing states and the federal government to spend thousands of hours and millions of dollars to litigate policy implementation.
How I tracked legislative error
To get a sense of how frequently errors occur in legislation, and what causes them, I conducted a recently published study of “star prints” compiled by the Library of Congress since the 97th Congress, which was in session during the years 1981 and 1982. Star prints are corrected editions of congressional bills and committee reports, so-called because their title pages feature small black stars. The corrections must be authorized either by the committee that originally drafted the bill or the speaker of the House. A star-printed bill or report replaces the original in its entirety, whether one word or entire pages are corrected.
Of course, counting star prints does not comprehensively measure legislative mistakes. These are only the mistakes that have been caught and corrected after a law is published (Congress can correct some of its mistakes through unanimous consent before a law is published). And yet measuring star prints is useful, because it offers a clear, consistent measure that can be traced across time, across committees, and across issues.
Even then, attribution can still be difficult. It’s not always clear at what stage of the process the error occurred. Luckily, the Library of Congress specifies where committee reports have been corrected and so I studied the sources of error on these reports; curiously, they all have come in the Senate.
Here’s what leads to higher numbers of legislative errors
I found three major factors that increase the number of star prints (and therefore give us evidence that there have been errors).
1. When the Senate changes hands, with the majority shifting from one party to another. That’s not relevant right now, as the Republicans kept control of the Senate in November.
2. When one party controls both the House and Senate. Since Republicans control both houses of Congress, risks of error are high.
3. When funding drops for either the Senate or House Legislative Counsel — the offices that help members and their staff translate their policy ideas into bill text. When money for the Legislative Counsel offices declines, the number of errors goes up.
And that’s exactly where we are right now. Congress increased funding for these two offices steadily from the late 1980s (when complete data were first available) through Obama’s first term in office. But in 2013-2014, Congress cut the two Legislative Counsel budgets by 2.6 percent in the House and almost 14 percent in the Senate. They cut the budgets a second time by another 2.7 percent in the House and 11.2 percent in the Senate. Right now funding hasn’t changed since Congress’s last budget in December 2015. Continuing resolutions enacted since have ensured that funding has not changed.
In the Senate, the office charged with helping to write bills — thus helping avoid errors in legislation — is operating with its smallest budget since 2006.
What does this all mean for the 115th Congress? Unless Republican legislation — on health care, infrastructure spending, a border wall, or any number of other priorities — is written carefully, the GOP could find its efforts to change policy slowed. Poorly written legislation can lead to legal fights or give bureaucrats more leeway in implementing laws than they might otherwise have.
As a result, Congress’s capacity to solve problems, whether through conservative or liberal solutions, may suffer.
Jonathan Lewallen is a PhD candidate at the University of Texas at Austin specializing in agenda setting and U.S. political institutions.