Trust-Me Laws

December 17, 1990|By Virginia I. Postrel

LOS ANGELES — Los Angeles. THE DEBATE over a proposed law is usually simple. One side wants to ban smoking in restaurants. The other side doesn't. One side wants a higher sales tax. The other side doesn't. One side thinks a bill is good. The other side thinks it's bad.

Sometimes, however, the debate gets more complicated. The bill itself -- what it says, what it would mean -- becomes the issue. Its language is vague, or complicated, or both. In such cases, the debate changes from a discussion of issues to a competition for trust.

The bill's supporters argue both that it will right tremendous wrongs and that it will have little or no effect. Opponents, by contrast, construe its language in the broadest possible way and argue that it will have sweeping results but won't solve the problem. Proponents accuse opponents of exaggeration; opponents accuse proponents of hiding their intentions. Each side says the other is not to be trusted.

Take the Civil Rights Act of 1990. The bill itself was extremely technical, focusing on burdens of proof and other rules of litigation. It didn't say, ''employers shall adopt hiring quotas for racial minorities'' or ''racial quotas are prohibited.'' Such clarity could never get out of committee. As a result, the debate over the bill often sounded like a couple of bratty kids arguing: ''It is a quota bill.'' ''Is not.'' ''Is so.'' ''Is not.'' ''Is so.''

Not surprisingly, such vague bills are often crafted by people who can make a very intimidating claim to represent absolute virtue. ''Trust us,'' the proponents say, ''we're the good guys. You know that.''

That's why most such bills fall into two good-guy categories: civil-rights laws and environmental statutes. Slap one of those labels on a bill and it gets awfully hard to oppose in public.

The Americans with Disabilities Act is a particularly egregious example of vague legislation backed by peer pressure worthy of a junior-high clique. To question the act -- even to ask for specifics -- was to declare oneself an insensitive boor.

The act requires employers to make ''reasonable accommodation'' for disabled employees. But it does not define ''reasonable.'' Under the act, I could, for instance, file an extremely credible suit against the Reason Foundation, my employer, demanding that it pay for my contact lenses, or at least glasses. I cannot do my job if I cannot see, and I cannot see without corrective lenses. Such lenses are inexpensive; I can afford them. But if I can afford them, can't my employer as well? Doesn't their very cheapness make them a ''reasonable accommodation''?

I won't bring such a suit. But someone else eventually will. It will be only one of thousands of suits encouraged by the law's sweep and vagueness. Such litigation is the necessary byproduct of irresponsibly drafted, feel-good laws. Congress and the president get to declare that they've done good. Somebody else gets to decide what the law really means.

Then there are bills that aren't vague but are so complicated that not even their backers understand them. They ask not only the public but the legislators themselves to substitute trust for judgment.

The 1990 Clean Air Act is 1,110 pages long. It was passed by people who haven't the smoggiest idea what it means. Reports the National Journal, ''The legislation, with it often esoteric standards -- for 'maximum achievable control technology,' for example -- is so far-reaching and filled with scientific jargon that even the most knowledgeable members [of Congress] were forced to rely on the few congressional aides who understood its details and its potential effect; on many occasions, a few senior lawmakers watched as aides crafted the language.''

Sure, the Congress can say it passed a law to clean the air. But executive-branch regulators must now spend months crafting rules to implement this massive law. Then private attorneys will spend years of billable hours to interpret and litigate those regulations. The actual cost of pollution-control equipment will be only a fraction of the total bill.

And that, it seems, is exactly how legislators want things. Leave the tough decisions to the bureaucrats and judges -- they don't have to face re-election, or Ted Koppel.

Cowardice is one reason for ''trust me'' laws, but it isn't the only one. Passing a vague law can prove a very effective way to enact an otherwise unpopular agenda. That's why you won't find narrow interpretations actually written into law.

Understanding this, opponents equate the law with a worst-case interpretation. Proponents respond by denouncing exaggeration and scare tactics. They may point to previous dire predictions that didn't come true.

If the bill passes, the two sides switch arguments. The bill's former proponents argue for the broadest construction possible -- ''it is a quota bill.'' The opponents argue for a narrow reading -- ''is not.'' Ultimately, the courts make the law.

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