Quantity of legislation hurts quality

Regular readers of this column know that I generally give politicians credit for intentionally doing whatever evil they do, rather than ascribing their actions to stupidity or carelessness. Here's a case where I come down on the other side of that question.

According to a January 9, 2006 article on the CNET News.com web site, it is now illegal to transmit anything anonymously on the internet that is intended to "annoy" someone. The bill is H.R. 3402, entitled "Violence Against Women and Department of Justice Reauthorization Act of 2005." It was signed into law on January 5 by President Bush.

Think for a moment about why the Framers of our Constitution included protection for freedom of speech and the press in the First Amendment. Was it because there is a danger that the government might ban the practice of saying "good morning" or "have a nice day?" Probably not. It's obvious that they feared attempts to punish speech that might annoy someone. In fact, we might even condense these protected rights into a single "right to annoy." Clearly the anti-annoying provision in the bill is unconstitutional.

The CNET article claims that this provision was "slipped... into an unrelated, must-pass bill to fund the Department of Justice." Given the title of the bill, that's not quite fair. The annoyance language is obviously related to the "violence against women" part of the bill. It was inserted into an existing law prohibiting nasty telephone calls, among other things. The new language merely adds anonymous internet communications as one of the ways in which it is illegal to annoy someone.

According to CNET, here is the text of the law as amended by the bill: "Whoever...utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet... without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person...who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both."

This language means that it is now illegal to post intentionally annoying messages via email, usenet, blogs or any of the other frequently anonymous communication mechanisms of the internet. Of course, threats or harassment ought to be illegal, but even "abuse" is ridiculous in this context.

Let's say that your email address is abc-123@yahoo.net. It would not be easy to deduce your identity from that address. You send me a message saying "You're a jerk and your columns ought to be flushed down the toilet" without signing your name. Believe me, I get messages infinitely worse than this. Should that be illegal? No; but now it apparently is, and you could be fined $50,000 and sent to federal prison for two years.

I don't believe that Congress intended this extreme result. If the members thought that this was in the bill, it wouldn't have passed the House by a voice vote or the Senate unanimously. It appears that the offending language is the result of sloppy drafting of the bill, along with careless review by 535 congressmen and one president.

It should not be hard to fix this problem. Congress can take a closer look at the language and pass an amendment. Meanwhile, President Bush can decline to enforce the faulty part of the law. Hopefully that is how it will be handled.

But fiascos of this kind reveal deeper problems with the way our legislative process is conducted. First, why was a law about violence against women combined with a justice department funding bill? These are two topics that should be treated separately. Combining topics like this makes the whole more cumbersome, increasing the likelihood that faulty drafting will go undetected. It also has the usually intended effect of pressuring representatives and senators to accept the bad with the good and pass laws that they don't really support.

Worse, it seems that the quantity of legislation that Congress generates every year is hurting its quality. In many cases, members don't even have time to read the bills before voting, much less carefully study the language. It's no wonder that provisions added carelessly or maliciously escape everyone's notice until they have been signed into law.

Compounding this workload problem is the arcane lawyer-speak found in most bills. If bills were written in plain English, the time required for a legislator to read and understand them would be cut drastically. It would also make the bills accessible to the public so we would know how to advise our representatives. At the very least, when a bill amends existing language, it should include before and after versions of the full text of the section being amended. As it stands now, many bills (including the one we're talking about here) simply give instructions on how to change the text of one or more existing laws. Anyone who wants to read the law as amended has to jump around the US code to see what the actual effect of the law will be.

I think the House and Senate need new rules regulating the drafting of bills. Each bill should cover one topic. The language of the bill should be plain English written at a high school graduate comprehension level. Where a bill references existing law, the reference should be quoted along with the new language. Every member who votes on the bill should have to sign an affirmation that he has read and understood the entire bill before voting.

If any of this slows down the legislative process, so much the better. That would tend to control the quantity of new law, thus improving its quality.