Too Many Lawyers in Congress — or Not the Right Kind? (UPDATED)

April 26, 2013 Update:

In the past few days, a number of legislators, both Republican and Democrat, have raised serious questions regarding apparent deficiencies in the Affordable Care Act. To the extent that deficiencies do in fact exist, here is one explanation, from a prior post:

The  most represented profession in the 113th Congress is law. Some 45 of 100 senators and 128 of 433 representatives are lawyers. See Dorothy Gambrell, “173 Lawyers and a Buddhist Walk Into a Capitol…,” Bloomberg Businessweek, January 14-January 20, 2013, 28. Is this a good or bad thing?

What is bad is that these lawyers don’t seem to read the draft legislation they vote on. News reports relate that the Affordable Care Act and Dodd Frank Financial Reform bills — both of staggering length — were passed before legislators had any realistic time period to review them even in a cursory fashion. More recently, the so-called fiscal cliff bill reached the floor of the House three minutes before it was voted on and passed.

What lawyer in private practice would let a client sign a contract or will he or she had not read? Which lawyer would herself  pass a contract or bill on to the client for signature if she had not read it? Yet lawyers in Congress apparently do this all the time, relying on their leadership or staff to tell them what the bill provides.

In private practice, this would be clear malpractice. In public life, it has become the norm. In former Speaker of the House Nancy Pelosi’s words, legislators have to pass the bill to find out what is in it.

So my answer is No, there are not too many lawyers in Congress. There are simply not the right kind. Good lawyers read bills and analyze them. If this were to become the new norm, lawyers could meaningfully assist in crafting coherent legislation. We might have fewer laws — but they would be better ones in my view.

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