Friday, October 26, 2012

Language and the Law

This is text from a section of the Patient Protection and Affordable Care Act (PPACA), referred to in the media as Obamacare. Specifically, this section outlines the individual mandate which requires that (almost) everyone in the United States have health insurance. This bill became law in 2010, and is published as a statute, but I found the full text at The site provided not only the full text of the PPACA, but also an overview of the entire 955-page law. Rather than evaluating the law in its entirety, I have chosen just to look at only the hotly-debated individual mandate.  This is Chapter 46, Section 5000a on page 143 of the original text.

This text functions in a few different activity systems, but formally, it functions as legal code in the American Legal System. Lawmakers are the subjects of this system, but many other communities operate in it as well. Specifically, all of the lawmakers who voted in favor of this legislation were not Republicans, but Democrats and Independents, so there is a division in the subjects. These subjects divide the labor of constructing laws, and bureaucrats must enforce the law. Other communities include judges who must interpret the law. Constituents are also crucial communities to this Activity System and encompass both businesses and citizens. The norms of the system demand that constituents obey the law or will be penalized. The ultimate outcome of the system, in this case, was to pass American Health Care reform. Mediating artifacts that affect this system are numerous but include the legal text itself, medical institutions, medical professionals, insurance companies, medical infrastructure, and money. On the legal side, government buildings (such as the Capitol and White House) are involved in the system. Media who relay the outcome of Health Care Reform act as a community, but the Media infrastructure also acts as a mediating artifact.

Language acts within the activity system to portray a message and accomplish tasks. Within the American legal system, the PPACA has been highly scrutinized and remains a focal point of the 2012 presidential election. Politics aside, I argue that one reason it remains so controversial is for the lack of understanding among members of the American Legal System activity system. Though lawmakers, lawyers, and people with access to legal counsel may understand the change, many have a hard time understanding what the law means. A recent poll confirms lack of understanding about the PPACA:
Reuters/Ipsos polling reveals a remarkably high level of approval for nearly all the provisions of the act, often in the 80% range, even though respondents oppose the legislation, commonly known as "Obamacare," by 55 to 45. (Debenedetti)
Specifically, the individual mandate garners about as much confusion:
The requirement that all citizens obtain healthcare coverage was opposed by 59% of respondents…Yet more than 53% of respondents strongly agreed that all Americans have a right to healthcare. A substantial 75% support subsidies to help the poor pay for health insurance, and 64% are in favor of expanding Medicaid to families with incomes under $36,000. (Debenedetti)
Because of competing interests within the activity system, this text fails to reach some communities. Understanding this legislation becomes a privilege only to those who have the resources to understand it. For democracy to function, we need the people to understand how laws affect them. Whether or not this is good policy, the confusion around it has led to its scrutiny. But why was there not a push to explain such a difficult text? The answer is politics. First, it may not be in the best interest of politicians for people to completely understand a piece of the reform without a strong knowledge of its entirety. Secondly, there were enough votes to pass the PPACA into law on party lines—it did not require any more public support.
By evaluating the text, we get a better idea of who may and may not understand it. Here’s a short excerpt:
Any applicable individual for any month if the applicable individual’s required contribution (determined on an annual basis) for coverage for the month exceeds 8 percent of such individual’s household income for the taxable year described in section 1412(b)(1)(B) of the Patient Protection and Affordable Care Act. For purposes of applying this subparagraph, the taxpayer’s household income shall be increased by any exclusion from gross income for any portion of the required contribution made through a salary reduction arrangement.
Here is a translation of the same information from the Washington Post:
4. When the individual mandate is fully phased-in, those who can afford coverage — which is defined as insurance costing less than 8 percent of their annual income — but choose to forgo it will have to pay either $695 or 2.5 percent of the annual income, whichever is greater.
In plain English, this difficult legal jargon is easier to understand. The website where I found the original PPACA text provided some clarification of the law, but also functions within its own bureaucratic activity system. Though I will not fully evaluate this system, it is important to understand that its job is to portray the legislation in a positive light—thus, it does not provide very much information about controversial pieces of the law. The site almost entirely skips over the individual mandate. Translating the law effectively for the public then becomes the media’s job. This excerpt from the Washington Post provides a great explanation of the individual mandate, but we need to consider that not every media evaluation is this thorough. The media has its own interests as well. To create viewership, it would make more sense for the media to portray the law as controversial. In an age where we report politics like we report football, entertainment, not information, has become the focus of 24-hour infotainment. Media has an interest in covering the law, but not in its entirety.

Should we leave it to the general public to translate this law for themselves? We could, but this could also prove challenging. The law’s average grade level score is 11.9. To comprehend this piece of writing, based on the formula alone, someone would have to be almost finished with high school and be reading at grade level. This is not a far stretch, but it is fairly difficult when we consider that only half of Americans read at the 7th grade level, or that the average congress person speaks at 10th grade level (according to the Flesch-Kincaid grade level, which evaluates this text at a 12.7 grade level) (NPR). Additionally, each sentence contains an astounding average of 22.9 characters. The text is also littered with legal jargon and references to other sections and statutes that makes it very difficult, I would argue even above a 12th grade level, to comprehend. Here is an example of a sentence from the text:
IN GENERAL.—The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to failures described in subsection (b)(1) shall be equal to the lesser of—the sum of the monthly penalty amounts determined under paragraph (2) for months in the taxable year during which 1 or more such failures occurred, or an amount equal to the national average premium for qualified health plans which have a bronze level of coverage, provide coverage for the applicable family size involved, and are offered through Exchanges for plan years beginning in the calendar year with or within which the taxable year ends.
Not only is this a hard read, but this paragraph is only one sentence. Note that none of the clauses could stand alone. Additionally, I have highlighted some of the high grade level sentence combining strategies that make it possible to have a paragraph-long sentence.

Relative clauses—in this case, each relative clause is joined with “which” and I have bolded the words that link the relative clauses. 
Noun substitutes—each italicized phrase could be replaced simply with “it,” “this,” or “that.”

When we understand that this sentence is constructed of relative clauses, we recognize that if a reader doesn’t understand the first clause, it is nearly impossible to include the relative clause that build of the first clause’s thought.

Another property that makes this text difficult to understand it that it is a prime example of what Richard Lanham calls the official style. Lamham himself even says the official style is derived from the language of bureaucracy. Lanham describes the official style as “iterative; it wants to include, iterate, every possible case.” A law is a prime example of this, and when it gets bogged down in hypotheticals and details, it becomes hard to understand. Beyond the iterative qualities of this text, it also contains other elements of the official style that make comprehending it tough. I will examine just this sentence which opens the section:
REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.—An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.
This text is both distant and passive. It could (and does) apply to any individual. When writers document situations in the official style, it often sounds like this, even though the writing is not meant to apply to everyone. The text is also repetitive, but in a slightly different way, to remain all-encompassing. Instead of saying “everyone and their child,” it says “the individual, and any dependent of the individual who is an applicable individual.” For as painstakingly clear as the text is, it is so broad that it is hard to even visualize this situation. The law, as Lanham states, is the epitome of the official style.
Yet, there is justification for why this text must be so complicated. It would be easy to say, “Every American must have health insurance,” in fact, that is what many interpret the individual mandate to mean. Rather, this chart shows that some will still not be insured, even with the enactment of the law:
(Kline, Washington Post)
This chart is a visual example of why we can’t be simple in language when writing laws. There are obvious reasons for why laws are so complex, all-encompassing, and difficult to comprehend. Yet, when the text of a law is the only artifact which exists to help consumers understand it, key actors in the activity system are neglected. Lawyer, judges, and lawmakers understand the text. Most insurance companies that will be affected by the law also have legal counsel. But what about small businesses and individuals who need to understand how the law affects them? They are left to either get their information from the media (which may have different outcomes and motives), or to receive it from this difficult text.

Why aren't there more resources for the public to understand? The simple act of passing a law only requires certain actors. The public elect their officials, but the public doesn’t get a direct vote on the law’s passage. Elected lawmakers vote to pass laws. In this situation, where the law could be passed on a party-line vote, it took little public persuasion to make the bill a law. Not because the law was bad public policy, but because it was not marketed in a way the electorate could understand, there will be ramifications. It’s hard for the public to support a text they do not understand, and that is one reason the PPACA has becomes such a focal part of the 2012 presidential election. Even though the law was passed without a very thorough public education campaign, the electorate will cast ballots this November to elect the people who vote on laws. When the public re-enters the activity system, this time with a role that directly affects the system’s outcomes, we will be able to better understand how their lack of understanding of this text shapes the outcomes of the system. 

By Karin

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