The origins of legislation.

AuthorSitaraman, Ganesh
PositionII. The Origins of Legislative Intent C. Outsider-Based Drafting 3. Private Authorship through Conclusion, with footnotes, p. 106-133
  1. Private Authorship

    Legislative drafts can also emerge from private authors--interest groups, industry, academics, individual policy experts, or bodies of experts like the Administrative Conference or the American Law Institute. In these cases, the draft is passed through to an MC's office, and the MC adopts the draft as her own. The practice is frequent, though examples tend not to be public because MCs do not want to concede they let interest groups draft their legislation. Still, there are some examples: Citigroup has been reported to be the author of the Swaps Regulatory Improvement Act, (149) and Harvard Law Professor Jeannie Suk has been reported to have helped author the Innovative Design Protection and Privacy Prevention Act, legislation based on an article she published. (150)

    1. A Note on Technical Assistance

      Regardless of which path a first draft of legislation takes, MCs and

      staff can--and frequently do--get technical help in drafting, editing, and revising legislative drafts. Technical drafting assistance can come from a variety of sources, including academics and interest groups, but the two central sources are legislative counsel and the executive branch. Until recently, legislative counsel's role has gone almost completely unnoticed. (151) Recall that legislative counsel consists of professional drafters of legislation, organized within each chamber of Congress and by subject matter. (152) Legislative counsel can be asked to draft entire legislation based on simple policy goals, it can be asked to take a draft written through any of the processes described in Part II and edit or revise the draft using their technical expertise, or it can be ignored altogether. (153)

      The second source of technical help is the executive branch, through what is referred to as "technical assistance" (or "TA" in legislative parlance). Technical assistance refers to help from the executive branch on specific (hence technical) policy or drafting issues. For example, the head of an office at the FDA can tell congressional staff how existing provisions are being interpreted, how a suggested draft would change that interpretation, what the policy consequences would be, and how resource-intense a new policy would be for the agency. Technical assistance can also extend to the agency drafting, editing, or commenting on legislative language. It is important to note that the White House and OMB might not always pre-clear technical assistance; contacts between agency officials and congressional staff can be extensive without rising to the level of importance or formality that leads to White House or OMB involvement. For example, seemingly innocuous background like data on the number and frequency of inspections of an industry and the cost of each inspection might radically influence congressional staffs thinking about the policy choices in a draft piece of legislation.

      The practice of providing technical assistance is pervasive. In his survey of agency rule-drafters, Christopher Walker reports that 78% of drafters said their agency "always" or "often" provides technical assistance during the legislative drafting process--with another 15% believing that their agency "sometimes" does so. (154) Despite its importance in the drafting process, technical assistance has hitherto only been mentioned in passing in legal scholarship--and even then, infrequently. (155)

      Congressional staff rely on executive branch technical assistance for a variety of reasons. Executive branch departments and agencies have considerable expertise in their fields. Policymakers and lawyers at departments and agencies have a comparative institutional advantage vis-a-vis congressional staff--and interest groups and academic or policy experts. They are better positioned to understand the interpretive challenges in a statutory draft, the practical challenges likely to be faced in implementing a statute, the relationship between the agency's different statutory mandates, and the agency's existing financial and personnel resources and the resources necessary for new legislative mandates. Each of these factors is critical to successful statutory implementation, and by virtue of the fact that they implement statutes in a particular field--and are closer to the street-level bureaucrats (156) doing the implementation--the executive branch's institutional competence in drafting is significant.

      Perhaps the most immediate implication of the availability and use of technical drafting help is that professionals with policy or drafting expertise are often involved in writing legislation. In the case of legislative counsel, it is unclear how much of an impact this has. One recent study, for example, found that legislative counsel members "had no greater knowledge of most of the [substantive] canons [of interpretation] than the [non-Legislative Counsel]" committee staff. (157) At the same time, however, Legislative Counsel are generally considered to have substantial expertise and institutional memory when it comes to specific technical drafting practices, such as identifying necessary cross-references, linkages to other statutes in the same subject-area, and language usage across a statute or multiple statutes. (158) With respect to technical assistance, the implications are more interesting. The fact that the executive branch--the very departments and agencies that are tasked with implementing and interpreting the legislation--is helping write that legislation is contrary to the conventional principal-agent models of congressional-executive relations. The consequences of this fact are explored at greater length in Part IV.

      1. THE CHOICE OF DRAFTING PROCESS

      With so many different approaches to the drafting process, the question invariably is why a member of Congress chooses a particular drafting strategy. The answer depends on a variety of factors, and these factors can cut in different directions. For example, an important, complex piece of legislation might be urgently necessary in a crisis. The desire for speed suggests less extensive drafting processes, but the need for sound policy and the complexity of the issue suggest more extensive processes. As a result, there is no mechanical formula in making these choices, but it is still possible to identify the most important factors. This Part outlines the factors that influence the decision of which drafting process to adopt.

    2. The Purpose of the Bill

      Not all bills are drafted with the purpose of enactment into law. Often, members of Congress know the likelihood of enactment is low, but they still want to draft a bill for political, personal, or policy reasons. These reasons, independent of probability of enactment, can influence the choice of drafting process. Politically, a member of Congress might want to pass a "message bill," a bill that makes a political statement--sends a message--even if it has little chance of enactment. (159) Message bills might burnish the MC's credentials with an ideological faction or significant group of supporters, be useful during an election year as a sword or shield against opponents, or might just put a political stake in the ground to pull the public conversation in their direction. As a drafting matter, message bills might frequently be partisan or sole-authored, and they are less likely to involve executive authorship or technical assistance. Members also often draft legislation to address constituent needs or preferences. Thus, one frequently sees draft bills introduced by two or more members from the same state. (160) Bills driven by constituent needs are most likely to be sole-authored or legislative partnerships (partisan or bipartisan), with MCs participating based on the constituency whose needs are at issue. In addition, members introduce bills to satisfy interest groups. When interest group preferences motivate MCs, private authorship by the interest group itself may be likely.

      Members of Congress have personal goals in drafting legislation as well. Members often care about specific issues because of a personal connection, passion, or area of expertise. (161) More strategically, MCs sometimes have a personal goal of adopting an issue as their own and being identified as the leader on the issue in their chamber. (162) As a result, MCs might introduce legislation on a topic to signal to others that the topic is theirs--and as a matter of comity, members in the same chamber, of the same party, will likely defer to their colleague. These personal goals all cut in the direction of sole authorship in drafting.

      Finally, members can have policy goals--independent of enactment--in drafting bills. Sometimes a draft bill is designed to build foundation for future legislation--in other words, it serves as an on-the-shelf draft that is a starting point for a future bill that might actually have the chance of passing. Depending on the salience and ripeness of the issue, different drafting processes might be preferable. On an important issue that is ripe, a more extensive committee process might be favorable. On an obscure issue, sole or partnership drafting will be more likely. In addition, MCs can use legislation as a part of oversight. Draft legislation can act as a focal point to push an agency to revise its policies. The bill places the agency on notice that a member of Congress feels strongly about a topic. In these cases, the drafts are likely to be sole-authored, part of a legislative partnership, or privately authored.

    3. Legislative Politics

      The insider politics of Congress are another factor in choosing a drafting process. A full accounting of factors here is impossible, given the constantly shifting political context within Congress, but there are some overarching consistent features. Foremost is the question of whether a bipartisan process will make the bill more likely to get the support necessary for passage. In the Senate, bipartisan drafting...

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