How to achieve a finished piece of legislation

Here’s a presentation I made to Leadership NC at their government session in Raleigh on November 6, 2008. I was on a panel with North Carolina Supreme Court Clerk Christie Cameron, and Franklin Freeman, Governor Easley’s legislative liason.

WHAT IT TAKES

TO ACHIEVE A FINISHED PIECE OF LEGISLATION

Gerry Cohen, Director of Bill Drafting, North Carolina General Assembly

Presentation to Leadership NC November 6, 2008

Most civics classes focus on how a bill becomes a law. Just as important is how an idea becomes a bill. During the 2007-2008 legislative session, 4,993 bills and resolutions were filed, and 884 (17% of the total) became law.  That wasn’t the whole iceberg, legislative staff received 5,693 bill drafting requests from members. That volume of requests has been steadily rising, from 3,401 in 2001-2002, to 3,533 in 2003-2004, up a staggering amount to 5,367 in 2005-2006 and then up to this past’s session’s total.

The Bill Drafting Division which I direct has 14 professional drafters. Legislators may present their bill-drafting requests to this office in person, by telephone, by FAX, by interoffice mail, the US Postal Service, or by email.  If the legislator knows which drafter he wishes to talk with, he may call for that person.  Otherwise, the secretary will refer the legislator to the drafter who specializes in the field affected by the requested draft. Drafting requests and bills drafted are confidential within the Bill Drafting Division Office until the sponsoring legislator releases them.

Over time, the way members communicate with staff has changed dramatically. While I don’t have any statistical breakdown, I’d say we get over half our requests by email, and half the remainder with a hard copy sent interoffice mail or via the Postal Service.  E-mail is preferred by members because many of their bill drafting requests come from constituent requests, of which the serious ones tend to come via email now.  The member often forwards along the email with specific instructions. Sometimes the requester (especially if a professional lobbyist or trade group) has even taken a shot at drafting the bill and includes it as a MsWord, WordPerfect, or .pdf attachment which can be pasted into the initial draft as a starting point.

5,693 requests that were winnowed down to 4,993 bills, what happened to the missing 700 requests? In many cases, a member may abandon a request during the drafting process or get a completed draft and never file it.  Perhaps the member is talked out of the request, discovers that another member has the same idea, or decides it is futile.

The initial request that comes in the door may be just a fleeting idea, an issue paper, an article from from the popular press or an academic journal, a constituent inquiry, a request from a lobbyist on behalf of a client, or perhaps just the idea that propelled the member to run for office. It might even be a bill from another state or something from a “suggested state legislation” book issued by a partisan interest group or from legal scholars. Or, heaven forbid Franklin, something from the Governor’s office! Many requests also come from local governments, as North Carolina has granted cities and counties only limited home rule.

The drafter will take the request, after hopefully first determining from the member if outside sources can be consulted in the drafting. Remember, not only the content of the request but even its existence is confidential under a specific attorney-client exemption to the Public Records Act.  The staffer may have drafted the same request from in previous sessions (which may be public) or may have a similar confidential request from the current session.

The request is examined for potential conflict with the US Constitution, or more likely in the case of a local bill, conflict with a section of the State Constitution that bans 20 or more types of local bills. Federal statutes or regulations and even international treaties can be relevant.  The member is notified of any such potential problems.

The staff member may wind up exchanging multiple drafts with the sponsor, or one version may suffice. Some requests may take just a few minutes to draft, some may require weeks or months.  Some may be one side of a page, others hundreds of pages.

Once completed, the staff member may have the satisfaction of seeing work product enacted into law, but remember that legislative drafters under North Carolina’s staff model do not attempt to influence policies. We may make suggestions to members to improve legislation or to point out pitfalls, but ultimately the responsibility remains with the members and ultimately the entire legislative branch.