Karin Ciano, BridgeTower Media Newswires
Attentive readers of my previous column will have noted my offer to buy a coffee for anyone who spotted a passive-voice sentence in a certain federal indictment. I am grateful for everyone’s responses and pleased to share that three readers have earned a coffee (congratulations — you know who you are).
The rest of you may already know that sentence “voices” come in two flavors, active and passive.
In an active-voice sentence, the subject of the sentence acts. In a passive-voice sentence, the subject of the sentence is acted upon. As with many grammar rules, it’s easy to say, tougher to spot, and sometimes really challenging to practice. For example:
Active: My neighbor sued the newspaper.
Passive: The newspaper was sued by my neighbor.
Easy-peasy. But what about other verb tenses? It works here too.
Active: Russian spies are hacking into American computers.
Passive: American computers are being hacked into by Russian spies.
See that? The active-voice sentences are shorter (always a plus) and their subjects are people (neighbor, spies) instead of things (newspaper, computers). Most readers prefer active-voice sentences, possibly because they sequence information in a way that makes it simpler to absorb quickly as narrative (subject/ verb/object equals who does what to whom).
So far so good; now let’s use lawyer-speak. Here are three clips from another recent, slightly-less-snappy but still-newsworthy federal indictment:
To ensure the integrity, accountability, and transparency of federal elections, Congress enacted a series of laws governing campaign fundraising and spending.
Among other things, these laws strictly regulate the use of funds donated to candidates for federal office, and require public disclosure of the use of those funds.
Campaign funds raised by candidates and Members of Congress are largely restricted to supporting the candidate’s election (or re-election) efforts and duties in office.
The longer the sentence, the more effort needed, but once we’ve rinsed out the goop the structure becomes visible. The first sentence is presented in the active voice (“Congress enacted …laws”). The last is in the passive voice (“funds…are…restricted”).
What’s going on with that middle sentence? Well, although the subject of the sentence is a thing (laws) not a person, it’s still in the active voice. The writer could have said, “funds are regulated,” but instead chose “laws…regulate…and require.” They’re laws…Active voice.
Imagine: Statutes command. Courts direct. Language instructs. Ordinances compel. No concept is too abstract to be made active, at least when the writers (us) are willing to take a chance on imagining what it would look like if the abstract were to act.
That’s not to say that all verbs are created equal. For example, consider:
United States citizens have a right to choose their political representatives through free and fair elections.
Active, yes (“citizens have a right”). Lively? No. The fault lies in the verb “have,” which doesn’t get very far out of its chair. Fortunately, the grammar fix is simpler than the electoral one:
United States citizens choose their political representatives through free and fair elections.
Or consider this active-voice sleep aid:
The FEC is an independent regulatory agency of the United States whose purpose is to enforce campaign finance laws in United States federal elections.
The problem is not the voice but the verbs. Because “being” verbs (forms of the verb “to be”) often cluster in passive-voice sentences, it’s easy to assume correlation is causation, but that’s a mistake. Here, the FEC is not being acted upon; it just is. And it’s not very active (yet—we’ll see it spring into action soon). Can the sentence be revived? Let’s see:
The FEC, an independent regulatory agency, enforces campaign finance laws in United States federal elections.
That sentence won’t be running a marathon anytime soon, but at least we got it off the couch. Meanwhile, the subjects of the FEC’s investigation (a California congressman and his wife) “spent … Campaign funds” on this and that, over and over (and over), in one short active-voice sentence after another. There is no doubt about who is doing 200 paragraphs of what to whom.
If the active voice can do all that, why would anyone opt for the passive voice? Well, the passive voice has a limited role to play: it maintains the focus on what is being acted upon when that’s what matters most. Sometimes the effect is to obscure who’s done the acting (“mistakes were made”). Yet it can also be used to shepherd the reader through a complex paragraph by presenting old information before new, as in our sentences above:
…Congress enacted a series of laws governing campaign fundraising and spending. Among other things, these laws strictly regulate the use of funds donated to candidates for federal office…Campaign funds raised by candidates and Members of Congress are largely restricted to supporting the candidate’s election (or re-election) efforts and duties in office.
Congress enacted laws. Laws regulate funds. Funds are restricted. What’s the next subject? If you guessed the restrictions, you’d be right.
The writer could have made the final sentence’s subject Congress, or laws, but that choice would have been repetitive and would have pointed backward to the context, not forward onto the money trail. The decision to make the subject of the last sentence “funds” avoids repetition and leads the reader’s attention down a funnel from the broad context (election law) to the pinpoint topic of the investigation (how campaign funds can be used). Could the writer have chosen an active-voice sentence instead? Probably (how about candidates may use campaign funds to support their election efforts, or campaign funds may support only election efforts). But I’m not sure it would be a significant improvement, because it doesn’t draw the reader’s attention to the whole point of the paragraph—the restrictions on what can and can’t be done with the money.
Sometimes, readers need to shift our attention from who’s doing what to what’s being done. Used sparingly, passive-voice sentences make effective bridges and transitions between active-voice sentences. And that’s why the passive voice will always find a place in my legal writing.
