As an introduction, let's consider the symbolic world of the popular political television series The Good Fight, which has a clever way of staying up-to-date with current political events without claiming to be news. The show brutally deals with corruption issues in American society while maintaining a generally liberal point of view and promoting openness in government. In Season 4, efforts to obtain justice become blocked by references to a mysterious law (or something) known as "memo 618." The question in that story becomes "What is memo 618" but of course it's a metaphor and occurs in a fictional world where Hillary Clinton defeated Donald Trump.

The point of memo 618 is that unclear and insider references to laws permit the concealment of government abuse and corruption. Moreover, when the law is obscured using arcane references, the people lose the ability to exercise the voting rights to change the government that created it.

As a real-life example, consider the headline "Schumer and Senate Democrats may have found a loophole to stop Mitch McConnell." That story, citing a Politco reports, claims Schumer may have found a loophole, saying:

It’s all but certain that Biden will likely get two reconciliation bills passed this year, but Schumer has other plans with the possibility of a third this year. Schumer’s office says that Section 304 has never been used before.

The above statement is difficult to disprove, primarily because it's nearly impossible to decode such a reference in isolation, but it refers to section 304 of the Congressional Budget Act of 1974, now 47 years in the past. That section reads:

At any time after the concurrent resolution on the budget for a fiscal year has been agreed to pursuant to section 301, and before the end of such fiscal year, the two Houses may adopt a concurrent resolution on the budget which revises or reaffirms the concurrent resolution on the budget for such fiscal year most recently agreed to.

The law is hardly obscure; it is a standard part of the Budget process. But the intent of section 304 has been codified as 2 U.S. Code § 635 - Permissible revisions of concurrent resolutions on the budget. The only significant changes to the the U.S. Code section are to other section references, saying:

At any time after the concurrent resolution on the budget for a fiscal year has been agreed to pursuant to section 632 of this title, and before the end of such fiscal year, the two Houses may adopt a concurrent resolution on the budget which revises or reaffirms the concurrent resolution on the budget for such fiscal year most recently agreed to.

The U.S. Code serves as a standard way to reference the law in a compact form, and the U.S. Code includes references to the legislative history (like the 1974 act.)

Are these arcane references to decades-old legislation really appropriate, given the fact that many/most updates to federal law are made via the codification process? Are politicians instead seeking to obscure the law and conceal its abuse when raising spending?

The Hill subsequently reported what the Senate Parliamentarian wrote of the tactics Schumer's staff have proposed:

That kind of chaos was not at all what was intended with auto-discharge. Rather, the purpose of auto-discharge is to provide an incentive for committee compliance with the law and to provide a remedy when compliance with and through the mandatory processes of the [Congressional Budget Act] have not been met

It seems that the actual reason for Schumer's staff seeking to invoke this provision was NOT to remedy past non-compliance with the documented process but to advance another political agenda. But this only becomes clear when looking at the complete legal budget process.

The entire federal budget process is captured as a cohesive whole in 2 U.S. Code Chapter 17A - CONGRESSIONAL BUDGET AND FISCAL OPERATIONS, including the rule on permissible revisions of concurrent resolutions on the budget. What's more, by referencing the code, any subsequent amendments are immediately apparent.

Why codification makes sense

The United States Code is prepared and published by the Office of the Law Revision Counsel (“OLRC”) of the U.S. House of Representatives according to 2 U.S.C. 285b. It is regularly updated by that office so that references to the code do not get stale as the law evolves.

Under 1 U.S.C. 204, any matter set forth in a main edition of the Code establishes the law prima facie (i.e. it is accepted as correct until proved otherwise). So-called "private laws" are not included, because the United States Code contains only the general and permanent laws, but such public laws, of concern to the citizenry, belong there (under the instructions of the legislature.)

Congress's overall purpose of these provisions, under 1 U.S.C 201, is to avoid duplication and waste and provide for curtailment of the number of copies of laws published. The intent here is not to leave the public in the dark but the give them a single logical place to find statutes that might impact them. Thus, its use is a crucial part of implementing the public right to open access to the law.

  • @divibisan, I've added an explanation of the U.S. Code (with references) to answer your question. As noted in another question, the parliamentarian's rulings are "private" and not meant for direct public consumption. (politics.stackexchange.com/questions/69065/…). No, section 304 does not refer to a Senate rule. Sep 30 at 16:57
  • @Fizz, your proported reason for closing the question was "Update the question so it can be answered with facts and citation". That might be a reason for downvoting an answer, but there are clearly enough citations in the question that it could be answered with citations. Sep 30 at 17:05
  • Can we rephrase the question to ask: what are the advantages of referring to a bill by references other than US. Code citations? That way it's a more objective question and it fits with the current answer.
    – JJJ
    Sep 30 at 19:39
  • @JJJ, let's see... I've invested substantial time in describing the specific example I've cited. I'm not so much interested in theoretical advantages as specific justification for that example, where the insiders conclusion about "section 304" has gone against the political majority arguing it. Sep 30 at 20:28
  • A citation of the US Code can become out of date if some future bill amends the code. You would have to include the date to make it specific to the current version of the code.
    – Barmar
    Sep 30 at 20:31

The U.S. Code is the final, rubber-meets the road version of a given bill, yes. But the U.S. Code itself is a living document, the result of the effects of legislation.

A bill, which becomes part of the U.S. Code at the end of its lifecycle, is the actual act of the legislature. (Hence "Congressional Budget Act of 1974.")

It's not terrible surprising that a member of the legislature refers to the concrete action that 'they' (taken here to mean the body) took. For one thing, it's the part of the process most proximal to their own lived experience and they can speak to it - especially to its intentions - with greater authority. Meanwhile the USC itself is the demesne of lawyers and other practitioners of the arcana of law.

I have no evidence to cite, but I suspect that more of the general public understands the body of U.S. Law to be a collection of bills rather than the edits those bills have made to the USC and it's sibling, the Code of Federal Regulations (CFR).

  • 1
    When you say "their own lived experience", the story seems to break down about a 70-year old piece of legislation. When you read actual legislation that updates existing law, the legislature often refers to the code in requiring updates to it. Sep 30 at 16:04
  • 1
    @Burt_Harris Institutional knowledge is a thing, and a very large number of legislators are quite old and have enjoyed long tenures in the role. Moreover, they help freshman learn the traditions/history of the institution and that includes the stories of bills past. Is it efficient? No. Is it human? Yeah. Sep 30 at 16:07
  • I'll provide the citation of uscode.house.gov/about_classification.xhtml Sep 30 at 16:07
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    @Burt_Harris You miss my point: A given legislator doesn't need to have even been alive to know the thing as the "Budget Act of 1974." All they need is to have talked to someone who talked to someone .... etc. ... who was part of the legislature when it passed. Hell, even at the scholarship level - from my own work in energy policy - we talk about PURPA, RCRA, The Clean Air Act, etc. These all have codifications in USC and CFR, but they're not referred to in that way. It's simply the cultural norm to focus on the Acts, rather than the laws. Efficient? No. Human? Yes. Sep 30 at 16:16
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    @Burt_Harris When human beings tell stories, "prima facie" isn't part of the calculus. I'm sorry you don't like that this happens, but what you're up against is storytelling not legal argument. The media, even debate on the floor of a legislative body, aren't a courtroom. Sep 30 at 17:18

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