The Hard Truth of Writing Laws: Writing Laws Demands Technical and Legal Skills That Are Extremely Difficult to Learn While Juggling All the Other Demands Lawmakers Face

By Hamilton, Lee | State Legislatures, February 2006 | Go to article overview

The Hard Truth of Writing Laws: Writing Laws Demands Technical and Legal Skills That Are Extremely Difficult to Learn While Juggling All the Other Demands Lawmakers Face


Hamilton, Lee, State Legislatures


When Congress hurriedly passed its first multi-billion dollar relief bill in the wake of Hurricane Katrina, only a handful of legislators were actually present. The measure was written by a few people, almost certainly not members of Congress themselves, and then passed by "unanimous consent." Most of our elected representatives were not even in Washington.

Knowing this, you might be tempted to think of it as yet one more example of how little input the rank and file enjoy on Capitol Hill these days. My own thoughts, however, run in a different direction: I'm impressed that they got it done so quickly.

NOT AS SIMPLE AS WE THINK

If you're like most people, you probably imagine that when your representative has an idea for a new law, he or she sits down, writes it up--maybe using some legalese here or there--and sends it off for consideration.

If only it were that easy. In truth, drafting legislation is an immensely complex task with which most members of Congress--I hope this won't shock you--feel uncomfortable. This is because it demands technical and legal skills that are extremely difficult to learn while juggling all the other demands that members face.

To begin with, the entire bill must relate to the appropriate section of the U.S. Code. Then, since it almost always affects existing law in some way, it must address the particulars of each law it will change, which means that every addition, change or deletion in existing law must be spelled out in detail. And all this must be done in specific language with legislative terms of art that have evolved over the past two centuries of American law-making. So entire offices in the House and Senate are filled with highly expert legislative drafters. It's no surprise that legislative aides who are adept at bill-writing are highly prized on Capitol Hill, or that mistakes creep into hastily drafted legislation and produce consequences that no one intended.

NOW FOR THE HARD PART

Yet the technical aspects of writing legislation are only the beginning of the challenges it presents. Congress is not like an operating room, or a "clean room" at a semiconductor plant, where all outside influences are shut out. If anything, it's just the opposite. It feels sometimes like a seething cauldron of egos, home-state concerns, grand designs, political strategies, and elbow-jabbing interests. …

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