Cheap shots have been taken at the Affordable Care Act—Obamacare—on the ground that most of the Congress that voted for it never read it. The shot is true. What makes it cheap is ignorance.
Cheap shots were taken within my tribal government at former Principal Chief Chad Smith because, working on a law drafting project for the tribe as a young lawyer, he started with a photocopy of the Oklahoma law on the same subject. As best I can tell without asking Smith directly, the shot is true but, again, what makes it cheap is ignorance.
People who serve in legislative bodies—federal, state, tribal—seldom read what they vote on and virtually never write the bills they drop into the legislative sausage machine.
What, pray tell, would be the point of a legislative floor debate when no amendments are offered? OK, there are cases, such as treaty ratification, where all that is on the table is an up or down vote, but it’s most often the case that a legislator who is perturbed by some oversight or down side in a bill can make the problem go away with a minor change.
Like all process, amendments are subject to abuse. The Affordable Care Act was loaded up with Republican amendments in the Senate to attract Republican votes, but the Republican votes were an illusion. GOP opposition to the bill was about opposition to any national health care plan and anything that might make Barack Obama look like a real president. Those objections cannot be cured by amendment.
Then there’s “chubbing,” the practice of attaching something to the bill that is so obnoxious that even the original sponsor will vote nay. A famous example is dropping “sex” into the list of prohibited grounds for discrimination in the Civil Rights Act of 1964. This was thought to be absurd. If it passed, women could be firefighters or police officers. Men could be flight attendants. Nobody would allow that to become law, right?
In that case, chubbing backfired.
Most people honking about Congress not reading what they vote on have never read a bill, and would be hard put to translate:
(a) In General- A group health plan and a health insurance issuer offering group or individual health insurance coverage may not impose any preexisting condition exclusion with respect to such plan or coverage.’; and
(B) by transferring such section (as amended by subparagraph (A)) so as to appear after the section 2703 added by paragraph (4);?(3)(A) in section 2702 (42 U.S.C. 300gg-1)–
(i) by striking the section heading and all that follows through subsection (a);?(ii) in subsection (b)–
(I) by striking ‘health insurance issuer offering health insurance coverage in connection with a group health plan’ each place that such appears and inserting ‘health insurance issuer offering group or individual health insurance coverage’; and?(II) in paragraph (2)(A)–
(aa) by inserting ‘or individual’ after ‘employer’; and?(bb) by inserting ‘or individual health coverage, as the case may be’ before the semicolon; and
(iii) in subsection (e)–
(I) by striking ‘(a)(1)(F)’ and inserting ‘(a)(6)’;?(II) by striking ‘2701’ and inserting ‘2704’; and?(III) by striking ‘2721(a)’ and inserting ‘2735(a)’; and
(B) by transferring such section (as amended by subparagraph (A)) to appear after section 2705(a) as added by paragraph (4); and
(4) by inserting after the subpart heading (as added by paragraph (1)) the following:
What you see above is an actual snippet of the Affordable Care Act, Obamacare, the Great Unread.
Legislatures normally have platoons of young lawyers who work as drafters for the entire body. The legislators put their raw ideas into a hopper and it’s the job of the permanent employees to find where the ideas should go and how they should be expressed so as not to conflict with what’s already there. In Washington, these folks work for the Office of Legislative Counsel. In Texas, they work for the Texas Legislative Council.
A tribal government that is very small or very new to legislating may not have such a bureaucracy. The BIA is sometimes an outside resource, which has value when you allow for the BIA having its own agenda. The National Conference of State Legislatures has a State-Tribal Institute that has value for topics that overlap with state governments when you allow for the states having their own agenda. The Native American Rights Fund and the National Congress of American Indians have brains available to be picked.
No legislator has to go into a room alone and create a law from scratch, and it’s a serious question whether laws should be born that way even if it were commonly possible. When a tribe makes laws, it would be foolish to pay no attention at all to the organization and common language usage in the state where the tribal legal system must function. This emphatically does not mean tribes should follow state law, but they should deviate from state law with purpose. The choice the state makes is not always appropriate for the tribe, but a tribe making a different choice should base it on something more important than confusing non-Indian lawyers.
This is why beating up the young Chad Smith at that time for starting with Oklahoma law is a cheap shot. Should he start with Alaska law or Navajo Nation law? Why start with a blank page when lots of smart people have been thinking about the same issues? Who is going to use this law, anyway? Mostly tribal advocates and lawyers first licensed in Oklahoma.
There is one huge difference in tribal laws that has to be kept in mind. All state laws, with the exception of Louisiana, are written with the backdrop—as computer nerds say, the “default setting”—of English Common Law. Tribal laws are not. They are written with the backdrop of tribal traditional law and, colonial propaganda to the contrary, we all had traditional law.
Tribal officials, particularly judges, have a duty to make decisions consistent with tribal traditions or say why not. This is why we should not have non-tribal people doing this work unless there is simply no tribal person available to do it. It’s not about the jobs; it’s about understanding and accounting for tribal traditions.
We all know we don’t want crooks representing us, but the facts on the ground in a floor debate should illustrate why reputation is everything. Early in his career, it was said of Rep. Lloyd Doggett (D-TX) “he’s so honest you could shoot craps with him on the telephone.” That reputation matters in a floor debate when you drop an amendment on the table and you must take up the microphone and explain to people not on your political side what your amendment does and why. They are not going to read it.
Because there is no time to read it and because it’s not written in plain English anyway, the person standing at the microphone has to be honest enough to shoot craps with him on the telephone because that’s a pretty good description of the process. Otherwise, anything he proposes is voted down based on his general political orientation.
Not all laws come out of the regular bureaucracy. Some lobbyists are lawyers, and those who are not employ lawyers, and lobbyists are happy to take on as much of a legislator’s work as they are allowed. All of this description about elected representatives and the bureaucrats who serve them is backdrop to the matter of lobbyists going beyond giving out information and actually writing laws.
There’s an 800-pound gorilla in that cage that claims it’s not a lobbyist, and he is known as the American Legislative Exchange Council (ALEC). ALEC is an organization that brings together big corporations, the outfits that Mitt Romney reminded us and the Supreme Court instructs us are “persons” with state legislators. ALEC gives legislators the gift of ready-made laws that privilege corporate persons over human persons. Because ALEC only works this agenda in state legislatures, I need to explain why Indians should care, and that’s another column.
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.