The origins of legislation.

AuthorSitaraman, Ganesh
PositionAbstract through II. The Origins of Legislative Intent C. Outsider-Based Drafting 2. Private-Executive Authorship, p. 79-106

ABSTRACT

Although legislation is at the center of legal debates on statutory interpretation, administrative law, and delegation, little is known about how legislation is actually drafted. If scholars pay any attention to Congress at all, they tend to focus on what happens after legislation is introduced, ignoring how the draft came to exist in the first place. In other words, they focus on the legislative process, not the drafting process. The result is that our account of Congress, the legislative process, and the administrative state is impoverished, and debates in statutory interpretation and administrative law are incomplete. This Article seeks to demystify important elements of the legislative drafting process. Descriptively, it provides a comprehensive typology of the origins of legislative drafts, outlining the many ways in which drafts emerge. At times, the descriptive insights are surprising: for example, when a committee drafts legislation in a bipartisan manner, it sometimes uses a "legislative notice-and-comment" process, sharing a draft publicly prior to its introduction so that stakeholders can review the draft and comment. At other times, the descriptive insights add substantial complexity to our accounts. For example, the executive often drafts legislation. This creates a principal-agent drafting problem between Congress and the Executive parallel to the principal-agent problem that emerges with delegation, but operating prior to a legislative enactment. The Article goes on to explain why members of Congress pursue different drafting processes and to explore the consequences of variety in legislative drafting for theories of statutory interpretation, for identifying reliable sources of legislative history, and for arguments about congressional delegation and judicial deference to agencies.

ABSTRACT INTRODUCTION I. DRAFTERS AND DECISIONMAKERS II. THE ORIGINS OF LEGISLATIVE DRAFTS A. Legislator-Based, Drafting 1. Sole Authorship 2. Legislative Partnerships 3. Legislative Gangs B. Committee-Based Drafting 1. Partisan Committee Drafting 2. Bipartisan Committee Drafting 3. Bipartisan, Bicameral Drafting 4. Reauthorizations 5. Multicommittee Drafting C. Outsider-Based Drafting 1. Executive Branch Authorship 2. Private-Executive Authorship 3. Private Authorship D. A Note on Technical Assistance III. THE CHOICE OF DRAFTING PROCESS A. The Purpose of the Bill B. Legislative Politics C. Sound Policymaking D. Efficiency E. The Nature of the Issue F. Idiosyncratic Influences G. The Politics of Technical Assistance and the Principal-Agent Drafting Problem IV. LEGISLATIVE DRAFTING AND LEGAL DEBATES A. Revisiting Theories of Statutory Interpretation B. The Sources and Use of Legislative History C. The Executive Role in Drafting the Laws 1. Delegation and the Principal-Agent Problem 2. Agency Statutory Interpretation 3. Judicial Review and Deference Doctrines CONCLUSION INTRODUCTION

Legislation is the central feature of the modern American legal system. More than common law rules or constitutional doctrines, legislation shapes, governs, and dominates virtually every aspect of modern life. Laws permit military operations and intelligence gathering. Tax, monetary, and financial rules keep the economy running. Legislation authorizes regulations that promote safe workplaces, protect children from choking on toys, and help ensure clean air and clean water. For administrative agencies, judges, and legal scholars who are interested in otir "Republic of Statutes," (1) perhaps the central issue is determining the meaning of the legislation that Congress has enacted. To that end, courts and commentators have engaged in extensive and unending debates on theories and practices of statutory interpretation, the sources and role of legislative history, and the practices of legislative delegation and judicial deference to agencies.

Despite the importance of legislation to the functioning of the legal system, the actual workings of the legislative process are little known and much maligned. Scholars routinely treat the legislative process with disbelief, (2) if not with outright contempt. (3) One leading scholar has described the legislative process as "'opaque,' 'awkward,' 'complex,' 'cumbersome,' 'highly intricate,' 'strategic,' 'arbitrary,' 'nonsubstantive,' and 'tortuous.'" (4) Perhaps because they see Congress as crass, unprincipled, and chaotic, (5) scholars and judges have not focused their attention on learning more about congressional procedures and operations. (6) Instead, some argue that judicial interpretation of statutes should focus on simple, administrable rules because courts' institutional capacity is far too limited to understand the workings of Congress, (7) or because these rules act as important coordinating devices. (8) Others argue that canons of interpretation, even when based on "fictions" about the legislative process, can be justified because courts have a duty to ensure that the law is coherent. (9) Still others argue that the goal should be to force Congress to draft legislation more clearly. (10) These approaches are particularly surprising because few legal scholars or practitioners, if any, would argue that judicial procedures and practices are simply too complicated and that lawyers should abandon their attempts to understand them altogether. (11)

The central problem is that the legislative process remains seriously understudied and severely undertheorized. (12) This may be because law school education rarely focuses much on legislation, (13) or because few in the legal academy or on the bench have worked in the legislature. (14) Whatever the reason, among legal academics, there has been comparatively little written on the inner workings of Congress. (15) In recent years, some scholars have begun to dig deeper into legislative practices and procedures. A few have discussed the constitutional links to congressional procedure. (16) Others have identified rules of congressional procedure and practice that bear directly on statutory interpretation. (17) And in path-breaking articles, Professors Nourse, Schacter, Bressman, and Gluck have conducted empirical research on legislative drafting. (18) These writings are notable because their findings demonstrate not only the flaws of existing scholarship that relies on an idealized image of the legislative process, but also the richness and variety of legislative actions. As Gluck and Bressman conclude,

The foundational scholarship of federal legislation has, for the most part, been based on a generic and stylized account of statutory drafting--an understandable focus for a field that is still in its relative infancy. However, there is great variety that exists across drafters, types of statutes, the reasons why and ways in which Congress delegates, and countless other aspects of the drafting process. A mature theoretical account will have to contend with that variety or else come up with better justifications for ignoring it. (19) In this context, it is unsurprising that the origins of legislative drafts are understudied. Despite courts often referring to the "legislator" as the drafter of legislation, (20) the standard "Schoolhouse Rock!" model of how a bill becomes a law is undoubtedly wrong. (21) From interviews with congressional staff, scholars have found that "there is no uniform process of legislative drafting followed in all cases." (22) The standard scholarly account of legislation recognizes variety in the origins of legislation, but does little more than simply assert that legislative drafts can originate with members of Congress, the executive branch, interest groups, lobbyists, constituents, industry, academics, and local governments. (23) Recent research has tried to identify the relative weight of these sources of legislative drafts, based on the perceptions of congressional staff: 25% of first drafts come from the White House and agencies and 34% from outside groups and policy experts. (24) Some accounts note that bills can be drafted not just by different persons, but in different locations, such as the floor of the House or Senate, or in conference committee. (25) Only a few scholars have attempted to develop more systematic typologies of legislative drafting. Professors Bressman and Gluck argue that there are three basic bill types: omnibus legislation, appropriations, and ordinary bills. (26) Professors Nourse and Schacter have argued for four different drafting processes: the extended drafting process (through committee structures), consensus drafting (which includes multiple legislators and their staffs), drafting on the floor, and drafting in conference. (27) Both sets of scholars agree that the differences in legislative drafting processes could have significant implications for statutory interpretation. (28)

This Article seeks to demystify important elements of the legislative drafting process in the United States Congress. It provides a comprehensive typology of the origins of legislative drafts, explains the factors members of Congress and their staffs consider in deciding which drafting pathway to take, and explores the implications of the origins of legislation on legal debates related to statutory interpretation. The Article proceeds in four Parts. Part I addresses common misunderstandings and confusion about the different actors within Congress. It provides an overview of the structure of legislator-staff relationships and describes the roles that members of Congress (MCs), personal staff, committee staff, and legislative counsel play. Emerging from this description is the reality that MCs are best characterized not as drafters, but as decisionmakers.

Part II provides a comprehensive typology of the origins of legislative drafts. It identifies eleven different categories of the sources of legislative drafts. The typology first distinguishes between (1) drafts by legislators and their staffs, (2) drafts...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT