Drafting Legislative Proposals

The drafting of legislative proposals is something of an art in itself, one requiring considerable skill, knowledge, and experience. Any member of the Senate or House of Representatives can draft bills, and these legislators' staffs are usually instrumental in drafting legislation, often with assistance from the Legislative Counsel's Office in the Senate or House of Representatives. Information about how the Legislative Counsel's Office for the House and the Senate works can be seen at http://legcoun.house.gov/public.htm and http://slc.senate.gov/index.htm, respectively.

Sandra Strokoff, senior counsel in the Office ofthe Legislative Counsel, U.S. House of Representatives, describes the work of the attorneys who work in the counsel's office as follows (Strokoff 2005):

Frequently, on the floor of the House of Representatives, one will hear a Member refer to another as the "author" of a bill who has "carefully crafted" the language of the proposed legislation. Statements like these make me smile, because if the Members are the authors, then I and my colleagues in the Office of the Legislative Counsel of the House of Representatives are the ghost writers.

The Office of the Legislative Counsel, created by statute originally in 1918, is currently composed of30-plus attorneys who generally toil in anonymity, at least as far as those outside the legislative process are concerned. Attorneys are charged with taking the idea of any Member or committee of the House of Representatives requesting the services of the Office and transforming it into legislative language or, as one of my clients used to say, "the magic words." We participate in all stages of the legislative process, be it preparing a bill for introduction, drafting amendments, participating in any conference of the two Houses of Congress to resolve differences between the two versions of the bill, or incorporating changes in the bill at each stage for publication and ultimately for presentation to the President. Frequently, we draft while debate is going on—both during committee consideration and on the House Floor, and may be asked to explain the meaning or effect of legislative language.

When bills are drafted in the executive branch, the services of trained legislative counsels are typically involved. These legislative counsels work in several executive branch departments, and their work includes the drafting of bills to be forwarded to Congress. Similarly, proposed legislation that arises in the private sector, typically from interest groups, is drafted by people with expertise in this intricate task.

On occasion, as was the case in the drafting the Clinton health reform proposal in 1993, legislation drafting is undertaken as a public/private partnership (Hacker 1996, 1997). In late 1993, after many months of feverish drafting by a team including some of the nation's foremost health policy experts, President Clinton presented his proposal for legislation that would fundamentally reform the American healthcare system. The document, 1,431 pages in length, outlined the president's vision of the way in which health services should be provided and financed in the United States. The proposal was in the form of a comprehensive draft of a bill (to be called the Health Security Act) that could be enacted into law. However, the proposal faced a long and difficult path of legislation development to possible enactment. Hacker and Skocpol (1997, 315-16) note that "President Clinton sought to enact comprehensive federal rules that would, in theory, simultaneously control medical costs and ensure universal insurance coverage. The bold Health Security initiative was meant to give everyone what they wanted, delicately balancing competing ideas and claimants, deftly maneuvering between major factions in Congress, and helping to revive the political prospects of the Democratic Party in the process." However, the bill failed miserably (Skocpol 1996; Johnson and Broder 1996).

The failure of this legislative proposal to make it successfully through the remaining steps to enactment into law has been characterized as a matter in which "the bold gambit of comprehensive reform had once again succumbed to the power of antagonistic stakeholders, a public paralyzed by the fears of disrupting what it already had, and the challenge of coalition building engendered by the highly decentralized character of American government" (Peterson 1997, 291).

No matter who drafts legislation, however, because only members of Congress can officially sponsor proposed legislation, the legislative sponsors are ultimately responsible for the language in their bills. Commonly, a bill will have multiple sponsors and may have many cosponsors. Once ideas for solving problems through policy are drafted in legislative language, they are ready for the next step, introduction for formal consideration by Congress. Although the Health Security proposal drafted by the Clinton administration was not enacted into law, it did make it through the next step in the intricate dance of legislation development, formal introduction.

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Responses

  • NORA
    Can congress revive a draft through legislation?
    7 years ago
  • Edilio
    Who drafts legislation?
    10 months ago
  • piera
    Did the health security act make it through the legislation development steps?
    5 months ago

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