There Ought to Be a Law: A Step-by-Step Analysis of How an Idea Becomes Law
Williams, R. Scott, Marks, Barry S., Business Credit
Every coffee shop and kitchen across America has its share of pundits who have uttered the phrase, "There ought to be a law . . ." The first step that any legislation requires prior to enactment or even consideration is the formation of an idea. Ideas for legislation arise in many different ways. Ideas can come from specific problems, scholarly articles, brainstorming sessions, and can even be creatures of statute itself. For example, as part of the Bankruptcy Code, 11 U.S.C. Section 104 requires the Judicial Conference of the United States to transmit recommendations every six years for the timely adjustment of dollar figures established under the Code.
Further, ideas for legislation often are not original, but renewed efforts to address issues which have been before Congress in the past. An example of such an idea is the ever-present tension built into the Bankruptcy Code regarding the treatment of leases, specifically the recently enacted legislation regarding the use of airport gates and how airport gate leases are treated under the Bankruptcy Code. The problem arose during the pendency of the TWA airlines chapter 11 bankruptcy proceeding. TWA's primary hub is the St. Louis airport, where it became apparent that other airlines wanted to use airport gates which were under-utilized due to the TWA bankruptcy.
The airport authorities contacted their national organization and congressional members, seeking ways to cope with the problem. Calls and letters from constituents highlighted the problem--that the bankruptcy process was preventing them from fully utilizing their gates. Those calls and letters were important enough for the Congressional staff to take an active interest in addressing the problem, illustrating the second step: generating sufficient interest for either Congressional staff or a member of Congress to pay attention to an idea. Great Idea, But Where Do We Go From Here?
Any lobbyist will tell you that the key to advancing an idea is grass roots support. An axiom often repeated around Capitol Hill is that if at least eight people write to a member of Congress about a particular issue, then that member will find the issue important enough to take a position either in favor or opposed. Whatever truth there may be in the "rule of eight" theory, the underlying lesson is inescapable--members of Congress do listen to their constituents. More often than not, regardless of party or ideology, a member of Congress will be in favor of an idea that will help his or her district or state.
In most cases, much of the work on a particular piece of legislation is done by a member of the Congressional staff. While Congress is in session, it is not uncommon for a member of the Senate to receive between 1500 to 4000 calls and letters in one week. Members closely watch their mail to learn the sentiments of those in their home state on a particular issue.
The whole purpose behind calls, letters, and even professional lobbyists is for a particular idea to gain the attention of either a legislator or a staff person (who could take that question to the legislator). The lobbyists who walk the halls of Congress are a much maligned group. Although paid to advance the interests of their clients, very few are able to survive in Washington for long if the word gets around that they are untrustworthy. Further, it is typically the lobbyist's job not only to get a commitment to support an idea, but then to see that the idea is properly drafted into legislative language, explained to all interested parties, considered in a timely fashion, and generally pushed through Congress.
The kind of work lobbyists do varies. Lobbyists may be lawyers or other professionals who work on a contractual basis. Such contracts often last for one session of Congress (two years). Often, lobbyists are hired by individual companies and trade associations. In seeking to push a particular idea or concern, it is not always necessary to work through a "hired-gun" or contract lobbyist. …