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I was pondering yesterday evening the advisability of a clause in a hypothetical constitution saying that, in the interest of furthering separation of powers, lawyers may not hold elected public office, on the grounds that those who practice and interpret law should not be permitted to write it.
This led to the following train of thought. Suppose one was to make certain changes in the process by which law was made ....
Here's my hypothetical idea. You keep the Senate and the House, as they now exist, but lawyers may not hold seats in either. However, you create an advisory panel to the House and Senate, staffed with professors both of law and of English language from Yale, Harvard, Cornell, Stanford et al. It would be the duty of this panel to review prospective bills from the House and Senate and verify that they do not infringe upon the Constitution, do not contain any stupid loopholes, unenforceable provisions, vague and ambiguous language, or obfuscation that makes their meaning unclear to a person without legal background, and would not unfairly benefit special interests at the expense of the public at large. Instead of members presenting bills immediately to their respective houses, members must first present their bills for review by this panel, and may not prevent them before their houses until approved by the panel. The panel has no authority to change any prospective bill passed to it, or to evaluate or comment upon the substance of a bill other than its constitutionality; only to evaluate the bills for soundness and clarity, and make recommendations to the author of the bill in the event that any part of the bill is unsound, unclear, or unconstitutional. It would also be the responsibility of the panel to suggest means by which conflicting House and Senate versions of a bill might equitably be reconciled, but once again, their power would be solely advisory; they would have no authority to make or change law.
Once the advisory panel signs off on the soundness of a bill, then the author may present it to their house and the process goes on as it does now, with the proviso that any time the bill is amended or riders added to it, it must go back to the panel for review again for soundness and clarity.
Another change I think I'd make is to add a rule such that no amendment or rider may be added to a bill that is not directly germane to the primary subject of the bill, and in any case, the principal author(s) of a bill have unconditional right of veto against any amendment or rider to their bill. This, I think, is necessary to prevent "poison pills" (deliberately unpassable riders or amendments added to a bill which cannot be defeated by ordinary means, solely in order to kill it) and vampires (riders which could never pass Congress on their own, added to a crucial bill that must be passed in order to "ride its coat-tails" through Congress).
Finally, I would eliminate the power of Congress to edit the congressional record, and likewise the power to make unrecorded voice votes. I don't think members of Congress should be allowed to alter the record of what they said or did after they did it, and I don't think they should be allowed to cast any vote that they're not willing to have on the public record as having cast. "If you didn't write it down, it never happened."
Oh yeah, one last thing: The power of unelected Federal officials and agencies to write regulation that carries the force of law should be ended. Period. No exceptions. They may write a body of proposed regulation, but then it must go to Congress, pass the review panel, and go through the whole process. Only Congress should have the power to pass it into law; the NHTSA, for instance, should never be able to make law -- only to suggest and recommend law to Congress.
So? Any thoughts, any comments? Did I miss anything major? (I'm sure I've mssed details here and there.)
Something needs to be done about Presidents making law directly via executive order, too, but that's a separate problem. Hastur on a pogo-stick, Presidential executive orders were supposed to be something a President might use once or twice in his term in case of dire emergency, not something Presidents were intended to write hundreds of every year to enact their own personal agenda without having to go through Congress. And I fully believe that every Presidential executive order, regardless of its substance, should be absolutely required to be justified to the American public, and any time the President is bypassing Congress to write an executive order, then the People should have the right and the opportunity to veto or revoke that order via referendum.
no subject
-Ogre
no subject
Well, that part is sort of inherent in the definition of the problem, unfortunately.
no subject
Oh, and fed regs are administrative; they don't carry jail time. Congress can make something a felony with the press of a button. Witness Hillary's ersatz healthcare plan.
No, leave the federal agencies alone for now. They're not getting in the way of the civillian space program, which is going to get us off this rock and maybe allow us to form our own new government and just maybe save all us weirdos' asses.
Are you calling me a weirdo, sir?
Re: Are you calling me a weirdo, sir?
Oh, and by the way ...
[My run-on-sentence-fu is strong.]
Re: Oh, and by the way ...
Trust me on this one. At least from the viewpoint of the FAA, leaving it the way it is is fine. All we need to do is get Connie Rice and Tom Ridge out of Norm Mineta's bailiwick, which we can do by firing their boss in November.
Re: Oh, and by the way ...
Thing is, right now we have ten thousand pages listing what service procedures shall be taken and what shall be checked how often and when and by whom, when in an ideal world, all we'd have is one regulation saying something to the effect of, for example: "All air carriers annd private operators shall regularly inspect all operating systems on their aircraft and maintain them in safe operating condition, shall repair or replace any part found to be worn beyond manufacturer's specifications, showing excessive wear even though within specified tolerances, or in any other way in an unsafe condition, and shall provide open public access to their records of such inspection and maintenance upon demand."
Part of what I want to do with regard to Federal regulation is to restrict the volume of regulation enough that (a) it becomes feasible for those who have to comply with it to keep track of it, and (b) so that they have to drop the obscure bureaucratic mice-nuts dotting of i's and crossing of t's that largely happens to justify people's jobs by generating a hundred pages of text for one page worth of substance, and focus on the important shit.
(And less there be any doubt, part of what I want is more public oversight of regulation, not less.)
Re: Oh, and by the way ...
Interestingly enough, the aviation industry is also taking a cue from the open source folks... Lancair, at least, has been marketing these hotrod kitplanes for years now; they've taken the money from that and put it into making a certified airplane. All their R&D has been covered by the experimental builders, so they're able to offer things like glass cockpits in light aircraft without spending a mountain of money tinkering with it with no revenue coming in.
But I digress. Point being, despite the mountains of paper that have been generated, most of the federal regulatory process isn't all that badly busted ('cept the IRS), and we have lots bigger problems than that right now. The chief one being we've managed to elect two Liars-in-Chief in a row, who between the neglect of one and the outright abuse of the other have managed to all but ruin our military cadre, not to mention sacking the Bill of Rights and the ability of the average middle-class worker to keep his head above water. Downsizing agencies, while a noble goal, is small potatoes compared to what's gonna happen if Dubya gets his way in November.
Re: Oh, and by the way ...
I don't think that the free market would keep them safe in the air. I think what WOULD keep them safe in the air is making everyone responsible for maintenance, all the way up to the top, personally criminally liable for substandard maintenance. And I don't mean slap-on-the-wrist fines on the corporation, I mean throw people in jail. Encourage people to blow the whistle on superiors who are ordering them to cut corners on maintenance, and follow the corporate ladder up until the buck stops.
If, ultimately, you make the top executives in control of the company personally liable for the consequences of sub-par maintenance, they'll see that the maintenance gets done. But in America as it stands, with corporations all but owning the government, it'll never happen.
Limited liability for financial losses due to unexpected changes in the market is one thing, but it should NEVER be allowed to shelter corporate executives from the consequences of negligence or malfeasance. This, IMHO, is why maintenance is shoddy unless it's spelled out: because there's insufficient accountability. As long as there's no personal penalty for doing so, the soulless bastards will shave bucks off to bigger the bottom line. Make the guys with the deep pockets personally liable for screwing the pooch, and show that you're serious about it, and it'll get done right.
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The problem I see with this right off the bat is that there is nothing at all which requires this panel to be non-partisan and to actually do any work. They could theoretically under your proposal just sit on everything and never approve it. The lawmakers at that point have no recourse. Now, this might be your intent, but absent the ability to actually enact law, you might as well just do away with laws entirely since people will just begin enforcing their own local interpretations. Nothing here removes the nature of humans to power-garner and power-monger. Sorry, but I'm afraid the baseness of human nature would defeat you here. The panel has no incentive to do anything ever (and in fact could use blackmail tactics -- 'if you do not write x into law (x being anything from tax cuts for english professors to making the 'advisory panel into a junta') we will never pass any of your laws ever again') and the legislature is completely hog-tied which means they'll try to do everything at a local level or by fiat.
Bleah.
Laywers vs. Politicians
It seems to me that the problem with the legislative process now isn't that the bills are written by lawyers, but that the bills are written by politicians. Motivation is often provided by a desire to get reelected or to advance one's political career. That in turn is often driven by special interest groups that can contribute money.
Regarding your proposal, how would the advisory panel be chosen, and how would you ensure that the panel itself would be free of political influences?
Re: Laywers vs. Politicians
You're absolutely right about the monetary motivation of much lawmaking. I think the long-term answer to this is to make government a duty that one may periodically be required to perform, not a career from which one can get rich, and make compensation contingent upon doing a good job. Right now, politics is a doorway to wealth and power, and as has been said, "It's not that power of itself corrupts; it's merely that it's immensely attractive to the easily corruptible." And once the corrupt gain power, the whole system goes to hell.
Selecting the panel and ensuring that it remains politically neutral is a problem. For the most part, I think scholars of Constitutional law would tend to be the most likely to adhere to it.
The point someone else raised about the Canadian system is very valid, too. Under Canadian law, the Canadian Supreme Court does not need to wait for a challenge to a law to be brought before them; they can challenge a law at any time they wish, without prior judicial notice. What I don't think this does, which the review panel would, is throttle the output of Congress and force them to concentrate on the important stuff instead of the continual stream of bullshit.