Friday, December 18, 2009
One of the dirty little legislative secrets previously known only inside the Beltway, but now known everywhere thanks to proposed health care legislation, is that many members of Congress rarely read the text of the bills they vote on.
A fundamental legal principle is that for every wrong there should be a remedy. In this case of a wrong to taxpayers, there may be two.
The only duty U.S. senators and representatives have under the U.S. Constitution is to pass bills to carry out the legitimate functions of the national government. A member of Congress who fails to read bills before voting on them is akin to a lawyer who goes to court without first doing legal research or an accountant who doesn't read financial statements before certifying their accuracy. These omissions are not only grounds for firing the lawyer or accountant for violating a core duty, they are also grounds for malpractice actions against them for damages.
Members of Congress can, of course, be "fired" by not re-electing them. But that's not sufficient punishment for total dereliction of the only duty they have.
The equivalent of a malpractice cause of action for public officials is malfeasance in office, also known as official misconduct. Former Illinois Gov. Rod Blagojevich was ousted from office on these grounds. Such a case evidently has never been brought against a federal official, which may be because Congress seems to have given itself and other federal officials immunity from such cases.
There are two other possibilities, though.
One is breach of contract suits. When sworn in to public office, members of Congress take the solemn oath to "well and faithfully discharge the duties of the office on which I am about to enter." This is clearly a contract. In return for this promise, the legislator receives a federal salary, an office and staff, and other perquisites of public office. A persuasive case could be made that a failure to carry out the only duty of office they have-read the bill-breaches this contract.
The second possibility is a civil action under the Racketeering Influenced and Corrupt Organizations Act (RICO). Private plaintiffs can bring a RICO action if there are two instances of an offense such as fraud, which includes a public official's failure to provide "honest services" to constituents.
The "honest services" provision is controversial because it is vague, and the U.S. Supreme Court will take up several cases this term considering its constitutionality. We should hope the Court will invalidate it. But lower courts have held it applies to some breaches of duty, so until the Supreme Court rules otherwise, the provision could be the centerpiece of a good-faith lawsuit against members of Congress who fail to read legislation.
Congress is now deliberating over two health care bills: the House bill is 1,990 pages, the Senate bill 2,074 pages. Intended to regulate one-sixth of the national economy, these bills are too important not to be read by those who vote on them.
It may well be that lawsuits against members of Congress for breach of contract or breach of duty would fail. But it would be satisfying to watch those in dereliction sweat until final judgment-which could take years. And it might just bring about the desired result: They could start reading the bills on which they vote.
- Maureen Martin (firstname.lastname@example.org), an attorey, is senior fellow for legal affairs at The Heartland Institute.