Why Bills Are Long

Conservatives have been grousing about the length of the health-reform bills for months. As I see it, there are only two charitable ways of interpreting this critique.¹ Either (A) you could think the bill is so long that there must be something nefarious hidden in there somewhere, or (B) you could think that more legislative language equals more government (and more government is always bad). There’s not much to say about (A), except that the GOP has had months to read the bills and find secret Bolshevik plots, and that GOP legislators sat on all five of the congressional committees that contributed to the legislation. And (B) is, I think, misguided—even if you buy into its ideological premises. That is, even if you are a small-government conservative, the length of legislation is simply irrelevant to any conclusion about its merit.

It is true that both the Democratic health bills are long. According to numbers from Donny Shaw at OpenCongress, both bills are about 100 times longer than average. But several bills from the last decade were of comparable length, and five of the ten longest were written by Republicans.

Christopher Beam provides some historical perspective:

Over the last several decades, the number of bills passed by Congress has declined: In 1948, Congress passed 906 bills. In 2006, it passed only 482. At the same time, the total number of pages of legislation has gone up from slightly more than 2,000 pages in 1948 to more than 7,000 pages in 2006. (The average bill length increased over the same period from 2.5 pages to 15.2 pages.)

Bills are getting longer because they’re getting harder to pass. Increased partisanship over the years has meant that the minority party is willing to do anything it can to block legislation—adding amendments, filibustering, or otherwise stalling the lawmaking process. As a result, the majority party feels the need to pack as much meat into a bill as it can—otherwise, the provisions might never get through. Another factor is that the federal government keeps expanding. Federal spending was about $2.7 trillion in 2007. That’s up from $92 billion 50 years ago. And as new legislation is introduced, past laws need to be updated. The result: more pages.

So why is legislation so long? Ezra Klein writes, “Legislation is written for lawyers, not for people.” (Ouch!) I wouldn’t put it quite that way, but I agree that it is the technical style of legislative language (and page formatting) that makes bills so long. There are the huge margins; triple-spaced lines; nested, block-indented subsections, paragraphs, subparagraphs. There’s inoperative language: titles, subtitles. And there’s the dense Legalese, cross-referencing, and instructions for codification.

But I would add a few thoughts to Ezra’s observations. One thing that makes legislative language so cumbersome is that it must be (or attempt to be) exhaustively explicit. You can’t “just say” what you want to say in a statute as you would in ordinary circumstances. You have to define the operative concepts and terms. And you have to hedge—in a refined, structural sort of way. A lot. Think how much harder it is to say what you want to say if you are constantly trying to head off potential arguments against your point. And not just the arguments of the person you’re talking to—but any possible argument that anyone could conceivably raise against you based on any semantic nuance, syntactic ambiguity, or substantive inconsistency with anything you’ve ever said at any time in your life. Sound hopeless? It is. But that’s what drafting statutes is all about.

1. There are of course less charitable ways to interpret this line of critique from the GOP. As anti-intellectual demagoguery, for example.