Robert Gellman | @Info.Policy: 72-hour rule could foster a web of deceit

Robert Gellman

A coalition trying to curb the passage of legislation without effective public notice is pushing to have Congress post each bill on the Web for 72 hours before it can be brought up for debate on the floor. (The details can be found at

In an ideal world, 72 hours' notice would be great. With everyone online and so many bloggers to spread the word, people could read bills and react. If a member of Congress salted a bill with a juicy piece of pork or a terrible bit of policy, an alert would go out on the Net. If enough people objected, the Hill could be overwhelmed with opposition.

Retail democracy, enhanced by the Net, sounds lovely. Unfortunately, it just isn't practical. Here are some reasons.

First, many bills are already available for 72 hours or more. Nobody reads them. Let me be more precise. Lobbyists of all stripes, including agencies, look after their own interests. So do some watchdogs. However, the chance of getting public attention to detailed legislative matters is small.

For every bridge in Alaska that dies from a public furor, hundreds of other items pass unnoticed. To paraphrase Joseph Stalin, one useless bridge is a front-page story. A thousand useless bridges is a statistic. At its best, a 72-hour rule might focus attention on a few issues each session. Most of the legislative crude would flow uninterrupted. Pork tends to be hidden in committee reports anyway, and is not visible in bills.

Today's grassroots campaigns tend to be ginned up by lobbyists. A true grassroots response happens rarely and usually only when a highly motivated group spread throughout the country feels seriously threatened by a legislative proposal. A few outraged bloggers are not likely to be effective.

Second, before a bill comes to the floor, the text is often corrected, massaged and changed for a variety of reasons, not all of them sinister. Often, these last-minute technical fixes, improvements and compromises come in the form of an amendment by the floor manager. You wouldn't see what is really happening because it could all be hidden in that amendment.

Want the 72-hour rule to apply to amendments as well as bills? Amendments can be further amended so then everything would have to wait for six or nine days and not just three. There could be so many options floating around that it would be impossible to know which proposals are real and which are not.

If you avoid this problem by applying the 72-hour rule only to the main bill, then the leadership could avoid the intent by publishing dummy bills with no content. The substance would come in an unpublished floor amendment. This type of tactic has been used at times to squelch amendments. I would explain how, but my editor refused to give me five more pages to explain parliamentary procedure and amendment trees. However, rule changes to help the Net read bills meaningfully could undermine minority rights drastically.

Third, much of the power of the congressional leadership comes from deciding what to vote on and when. If you think that either party would give up any of this power, then I have a bridge in Alaska to sell you.

I would be more sympathetic to the 72-hour idea if the Net community showed that it was capable of digesting legislation and responding rapidly in a constructive way. I see precious little evidence of that. Where were the music downloaders when Congress strengthened the hand of copyright owners?

Want legislative change? The ancient Locrians reportedly had a rule that the proposer of a law had to present it in the assembly with a noose around his neck. If the proposal was voted down, he was immediately hanged. Now there's another reform that isn't going to happen either.

Robert Gellman is a Washington privacy and information policy consultant. E-mail him at [email protected].


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