Legislative Counsel: A tale of the bill drafter

In the California Legislature, all types of legislative measures (bills, resolutions and constitutional amendments), as well as amendments to those measures, can only be introduced or processed if they are in “Legislative Counsel form.” The primary purpose is to ensure greater consistency in California’s statutes. The nonpartisan Office of the Legislative Counsel serves as legal counsel and bill drafters to California legislators and the governor.

What is the job of these bill drafters?

These attorneys, known as deputy legislative counsels, work with myriad staffs — the lawmakers and their staffs, the committee staffs, the governor’s staff and the executive branch agencies’ staffs, among others. They also work with people who don’t work for the state but who have been authorized by a legislator to speak with a deputy legislative counsel. Once a bill or amendment request is submitted to the Office of Legislative Counsel, these respected attorneys begin drafting the bill.

The bill drafter’s job is to determine the objectives of the proposed legislation and ascertain the goals of the legislator authoring the measure.

How is that legislation prepared?

Typically, drafting a bill, a constitutional amendment, a resolution, or an amendment to one of these measures begins when a legislator contacts a drafting attorney and presents an idea for a bill or a public policy problem that a lawmaker wants to address by legislation.

Once such a request is received, the drafting attorney researches the issue and works with the legislator or staff to develop a bill draft. On occasion, a legislator may ask that the drafting attorney consult with an interested party or to prepare a measure that is based on a draft prepared by a constituent or interest group. At other times, the drafting attorney may utilize similar legislation from another state or even a model or uniform act.

Fundamentally, the bill drafter’s job is to determine the objectives of the proposed legislation and ascertain the goals of the legislator authoring the measure.

Like a lawyer in public or private practice, the legislative lawyer consults with his or her client (the legislator) about the need or goal of the document (a bill) that the attorney is preparing at the client’s request. This means the bill drafter must be familiar with the area of law targeted by the legislation and must understand the most effective way to meet the lawmaker’s intent.

The bill drafter does not consult with the client about the politics of a legislative proposal, but rather will consult with his or her client to explain existing law and possible changes to that law to accomplish the client’s goal. This includes describing possible alternative methods to achieve the goal, describing any legal obstacles (e.g., whether the proposal would violate the state or federal constitution), and procedural obstacles (e.g., whether the measure would require a super-majority vote in order to be passed by the Legislature).

Ultimately, the bill drafter will work to incorporate the lawmaker’s idea into the proper legislative format. It is not the role of the drafter to incorporate his or her own ideas. It is the legal duty of the drafter to prepare the bill, regardless of any personal views about the legislation. The legislative lawyer is impartial in his or her legal analysis and bill drafting.

In some cases, considerable research and study of the problem and area of law is required before actual legislative drafting commences.

After the consultation with the client, the bill drafter will have a thorough understanding regarding the legislator’s objective or goal with the legislative proposal. Taking into account the client’s answers to the attorney’s questions about the proposed policy, the bill drafter will outline the general structure of the bill and how it should be drafted.

For example, which of California’s 29 codes will this measure amend or add to or repeal? Sometimes, the legislative lawyer will have additional discussions to resolve any policy questions or to address specific issues that arise in the language being drafted that may not have been anticipated in the initial instructions.

Prior to commencing the bill drafting, the legislative lawyer will research ways to craft the best possible measure. This research often includes reviewing existing state statutes and regulations, any comparable laws in other states or at the federal level, as well as review of model or uniform laws, such as those promoted by the Uniform State Law Commission. After this research is conducted, the bill drafter will be able to visualize how the bill should be constructed and how the law changes or additions will work if the measure is enacted.

This work is benefitted by the legislative lawyer’s understanding of federal, state and local governments, their processes, and judicial decisions, as well as the area of law with which the attorney works (e.g., labor and employment, health and safety). The attorneys who work for the Office of Legislative Counsel work in certain subject areas so that they develop an expertise in the statutes and regulations and court decisions relevant to those areas of law. And, they have in-depth experience in drafting laws in those subject areas.

Will the bill, if adopted, accomplish its intended purpose? Does the bill’s title express the subject properly?

As one might imagine, in some cases, considerable research and study of the problem and area of law is required before actual legislative drafting commences. Once this research concludes, then the attorney will develop his or her plan for organizing and arranging the proposed content of the legislative measure. Clarity is a key drafting goal, and clear drafting begins with clarity of thought and construction. There is order and a logical sequence of legislation and that occurs first with an outline having been made.

After outlining the proposed legislation, sometimes a number of drafts of a proposed bill are made by the legislative lawyer in order to ensure accuracy of the legislator’s intent. The bill drafter will consult with colleagues, receive feedback on his or her draft measure, and review a checklist to ensure the best possible measure is presented to the client legislator.

Some of the questions that the bill drafter may consider include: Will the bill, if adopted, accomplish its intended purpose? Does the bill’s title express the subject properly? Is the bill in the proper form? Are cross-references to other sections within the bill or existing statutes correct? Are provisions of the proposed bill properly integrated with existing statutes in California’s Codes? Is the bill language free of ambiguity or conflict? Is the language understandable to those who will be bound by the law or by those who will be required to implement the law?

During some crunch times of the annual legislative session, a deputy legislative counsel will have to do all of these tasks in less than a day. In the end, the work of the bill drafter is to prepare legislative measures that will best accomplish the stated goals of the drafter’s client – the legislative or executive branch official whose ideas must be put into legislative language and ultimately California’s Constitution or codes.
—
Editor’s Note: Chris Micheli, an attorney and adjunct professor at McGeorge School of Law,  is a founder of the Sacramento lobbying firm Aprea & Micheli.