Required Reading

February 1, 2012

A while back, there was a movement afoot to require Members of Congress to certify that they had read a bill prior to it being voted upon, stemming from concern that Members sometimes did not know what was in legislation that they were passing. There are lots of reasons to think such a requirement would be silly, but from my perch, the one that comes to mind first is that legislation is often written in very technical and referential language. This is one of the reasons that bills in Congress are usually required to have committee reports attached to them — so that Members and the public can have a plain-language explanation of the contents of the legislation.

There’s is a good reason that the bills themselves iare not drafted in plain language: bills must be precise and consistent. Both the House and the Senate have Offices of the Legislative Counsel, which work with Members and Committees to draft legislation. Members or staff can come to Leg Counsel with plainly written ideas for laws, and Leg Counsel will work with them to translate their ideas into precise legislative language, or to help them determine which aspects of existing law need to be revised in order to accomplish with the bill what they intend.

At any rate, I thought it might be useful to read through a very short bill today, to illustrate how complicated it can be to understand a bill if all you have is the legislative text itself. Below is the full text of H.R. 3835, which was debated in the House this afternoon under suspension of the rules, and is expected to pass when voted upon (the record vote was postponed by the Chair under rule XX, clause 8). The bill would extend the current pay freeze for federal employees for an additional year, as well as extend the pay freeze for Members of Congress. Give the bill a read through, and then I’ll go through it with annotations below (I’ve removed the title, sponsor, session, and referral information from the bill).

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Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. EXTENSION OF PAY LIMITATION.

    (a) In General- Section 147 of the Continuing Appropriations Act, 2011 (Public Law 111-242; 5 U.S.C. 5303 note), as added by section 1(a) of the Continuing Appropriations and Surface Transportation Extensions Act, 2011 (Public Law 111-322; 124 Stat. 3518), is amended–
      (1) in subsection (b)(1), by striking `December 31, 2012′ and inserting `December 31, 2013′; and
      (2) in subsection (c), by striking `December 31, 2012′ and inserting `December 31, 2013′.
    (b) Application to Legislative Branch-
      (1) MEMBERS OF CONGRESS- The extension of the pay limit for Federal employees through December 31, 2013, as established pursuant to the amendments made by subsection (a), shall apply to Members of Congress in accordance with section 601(a) of the Legislative Reorganization Act of 1946 (2 U.S.C. 31).
      (2) OTHER LEGISLATIVE BRANCH EMPLOYEES-
        (A) LIMIT IN PAY- Notwithstanding any other provision of law, no cost of living adjustment required by statute with respect to a legislative branch employee which (but for this subparagraph) would otherwise take effect during the period beginning on the date of enactment of this Act and ending on December 31, 2013, shall be made.
        (B) DEFINITION- In this paragraph, the term `legislative branch employee’ means–
            (i) an employee of the Federal Government whose pay is disbursed by the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives; and
          (ii) an employee of any office of the legislative branch who is not described in clause (i)

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Ok. That’s not so bad. The whole thing is just 245 words. Let’s go through it section by section. The first few line are the title and enacting clause:

 To extend the pay limitation for Members of Congress and Federal employees.
 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

This portion reports the title of the bill, and then adds the enacting clause, which is required by Title 1, section 101 of the U.S. Code. Neither are themselves part of the legislation or any resulting law. After the enacting clause, the text of the bill begins:

SECTION 1. EXTENSION OF PAY LIMITATION.

(a) In General- Section 147 of the Continuing Appropriations Act, 2011 (Public Law 111-242; 5 U.S.C. 5303 note), as added by section 1(a) of the Continuing Appropriations and Surface Transportation Extensions Act, 2011 (Public Law 111-322; 124 Stat. 3518), is amended–

(1) in subsection (b)(1), by striking `December 31, 2012′ and inserting `December 31, 2013′; and

(2) in subsection (c), by striking `December 31, 2012′ and inserting `December 31, 2013′.

And here we have run into the first problem of legislative drafting: our bill is achieving its objectives by altering existing legislation, which itself has already been altered. The Continuing Appropriations and Surface Transportation Extensions Act, 2011 added a Section 147 to the Continuing Appropriations Act, 2011, and we are now amending that added section. (As a side note, “Public Laws” are just sequential numbering of enacted legislation, so “Public Law 111-242″ was the 242nd piece of legislation enacted by the 111th Congress; citations such as XXX Stat. XXX are references to the Statutes At Large, the official legal and permanent evidence of all the laws enacted during a session of Congress (see 1 U.S.C. 112); citations such as X U.S.C. XXX are references to the U.S. Code, which is a consolidation and codification of the general and permanent laws, organized by topic and updated to reflect amendments. Only some of the U.S. Code is “positive law,” however. More on that later).

And so we need to reference other law in order to understand the plain text of the bill. Here’s the referenced section 147 from P.L. 111-242, as added by P.L. 111-322:

Sec. 147. (a) For the purposes of this section–

(1) the term `employee’–

(A) means an employee as defined in section 2105 of title 5, United States Code; and

(B) includes an individual to whom subsection (b), (c), or (f) of such section 2105 pertains (whether or not such individual satisfies subparagraph (A));

(2) the term `senior executive’ means–

(A) a member of the Senior Executive Service under subchapter VIII of chapter 53 of title 5, United States Code;

(B) a member of the FBI-DEA Senior Executive Service under subchapter III of chapter 31 of title 5, United States Code;

(C) a member of the Senior Foreign Service under chapter 4 of title I of the Foreign Service Act of 1980 (22 U.S.C. 3961 and following); and

(D) a member of any similar senior executive service in an Executive agency;

(3) the term `senior-level employee’ means an employee who holds a position in an Executive agency and who is covered by section 5376 of title 5, United States Code, or any similar authority; and

(4) the term `Executive agency’ has the meaning given such term by section 105 of title 5, United States Code.

(b)(1) Notwithstanding any other provision of law, except as provided in subsection (e), no statutory pay adjustment which (but for this subsection) would otherwise take effect during the period beginning on January 1, 2011, and ending on December 31, 2012, shall be made.

(2) For purposes of this subsection, the term `statutory pay adjustment’ means–

(A) an adjustment required under section 5303, 5304, 5304a, 5318, or 5343(a) of title 5, United States Code; and

(B) any similar adjustment, required by statute, with respect to employees in an Executive agency.

(c) Notwithstanding any other provision of law, except as provided in subsection (e), during the period beginning on January 1, 2011, and ending on December 31, 2012, no senior executive or senior-level employee may receive an increase in his or her rate of basic pay absent a change of position that results in a substantial increase in responsibility, or a promotion.

(d) The President may issue guidance that Executive agencies shall apply in the implementation of this section.

(e) The Non-Foreign Area Retirement Equity Assurance Act of 2009 (5 U.S.C. 5304 note) shall be applied using the appropriate locality-based comparability payments established by the President as the applicable comparability payments in section 1914(2) and (3) of such Act.

And now you can probably see the rabbit hole into which we are descending. The referenced law is itself full of references to other laws! We won’t go any further down the unraveling; instead I’ll simply explain Sec. 147 to you: certain federal employees, as defined in various sections of the U.S. Code (5 USC 2105; subchapter VIII of chapter 53 of title 5subchapter III of chapter 31 of title 5; 22 U.S.C. 3961; and section 5376 of title 5) cannot receive an adjustment in pay during calendar year 2011 or 2012 under the standard annual adjustment system of Title 5 of the code, or any similar statutory adjustment in the Executive Branch agencies. Nor can senior-level employees receive an increase in their basic rate absent a promotion.

And so the bill we are currently working with — which specifies that the relevant end dates of the freeze will be changed from December 31, 2012 to December 31, 2013, simply extends the freeze for an additional calendar year. Ok, on to the next section:

(b) Application to Legislative Branch-

(1) MEMBERS OF CONGRESS- The extension of the pay limit for Federal employees through December 31, 2013, as established pursuant to the amendments made by subsection (a), shall apply to Members of Congress in accordance with section 601(a) of the Legislative Reorganization Act of 1946 (2 U.S.C. 31).

On its face, this subsection seems to simply say that Members of Congress will also not get a pay increase in 2013. But what’s that reference to section 601(a) of the LRA of 1946 and 2 USC 31? It’s a pointer to the section of the Code that says, in reference to the formula for adjusting Member pay:

In no event shall the percentage adjustment taking effect under subparagraph (A) in any calendar year (before rounding), in any rate of pay, exceed the percentage adjustment taking effect in such calendar year under section 5303 of title 5 in the rates of pay under the General Schedule.

In other words, the current bill’s application of the pay freeze to Members is more or less a fig leaf; current law already requires that any increase in Member pay be less than the increase in pay for federal employees. Therefore, the extension of the freeze in subsection 1 automatically extends the freeze on Member pay, regardless of whether subsection B is included. There’s nothing wrong with restating the Member pay freeze, but it is not necessary. (For my previous writing on Member pay, see here.)

As a sidebar, here’s a good question? Why do bills and laws sometimes reference old laws, and sometimes reference the U.S. Code? The answer is that the old laws are legal proof of existing law, but the U.S. Code — which is a compilation and rearrangement of the laws to ease finding and allow for amendments — is not always legal proof of law. Starting in 1926, Congress began enacting whole titles of the Code as “positive law” and repealing the underlying statutes. But only some of the Code has been enacted into positive law. In those cases, bills can directly amend the Code; the Code is law. But for areas that the Code is not yet positive law (such as Title 2), bills must reference the actually Acts, and Code citations are merely for reference.

Alright, onto the next portion of subsection (b):

(2) OTHER LEGISLATIVE BRANCH EMPLOYEES-

(A) LIMIT IN PAY- Notwithstanding any other provision of law, no cost of living adjustment required by statute with respect to a legislative branch employee which (but for this subparagraph) would otherwise take effect during the period beginning on the date of enactment of this Act and ending on December 31, 2013, shall be made.

(B) DEFINITION- In this paragraph, the term `legislative branch employee’ means–

(i) an employee of the Federal Government whose pay is disbursed by the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives; and

(ii) an employee of any office of the legislative branch who is not described in clause (i)

This section is, presumably, trying to make sure that the pay freeze extends to the legislative branch. There are many provisions of the U.S Code that deal with the Executive Branch as distinct from the Legislative Branch. Whether the definition of employee under Title 5 falls into this category is debatable; this may be another fig leaf to reiterate that the proposed law is also being applied to congressional employees. But it also may be relevant; there may be employees in the legislative branch who are not covered by the definition of employee under Title 5 (although it doesn’t look that way to me).

Now, the current bill at hand came up today under suspension of the rules, so it was never reported out of committee, and therefore does not have a committee report. If it did have one, the explanation of the bill would likely say something like this:

“Section 1 of the bill would extend the current freeze on federal employee pay adjustments through 2013. The current freeze is set to expire at the end of 2012. It would also specifically apply the freeze to Members of Congress and employees of the Legislative Branch.”

And that is one of the reason why the House requires Committee reports to describe the provisions of reported bills, and more or less all you need to know as to why we don’t require Members to read the actual text of the bill (or certify that they have done so) prior to voting on legislation.

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