Who writes our law?

Today’s question comes from Gwen who asks:

Who actually writes the bills that the members of congress sponsor and vote for?

This is no simple question and the answer involves many different sorts of people. To get the facts straight, I turned to an ex-staffer, Marci Harris, who just recently worked on the health care legislation in Rep. Pete Stark’s office and had the following to say. (If you want the short answer, there’s a summary at the end.)

Ideas for Bills

There are lots of little bills pending at any time before both the House and Senate, and the ideas behind these small bills come from many sources.  Lots of bills start as news clippings: a Member may read a newspaper article and come in the next morning and tell his staffer to draft a bill to address the issue. And it’s not hard to imagine the origins of bills that would require or .  Others originate from a constituent letter about a particularly compelling issue, or a request from a professional advocate representing a trade association, union, nonprofit, or corporation.

Turning to Staff Lawyers

When a staffer is drafting the bill (either at the Member’s direction, or to pull something together to propose to the Member), they will send a request to the House or Senate’s Office of Legislative Counsel (OLC or “Leg Counsel”) and be assigned a lawyer to work with on turning the idea into legislative language. One of the best analogies I have heard for the who and how of writing laws is a comparison to computer programming.  Lots of people may have an idea of what would be a good software application, but only someone who knows the language of the code can actually write the app in a way that works and can be executed.  So, going with the analogy, the “programmers” in Congress are the lawyers in the OLC, who are completely professional, absolutely unpartian, are around longer than most Members of Congress, and could be making bazillions in the private sector.

OLC’s lawyers turn plain language such as “insurers should not be able to drop you when you are sick” into an amendment to Section X, subsection Y, subpart Z to the Social Security Act, with conforming amendments in the Public Health Services Act, etc. and on and on.  OLC works with all members, regardless of party.   The assignment of a lawyer to a particular issue is based on their specialty – i.e. there are specialists in the IRS Code, specialists in the Social Security Act, etc.  (and “specialist” means they have probably actually drafted significant parts of those laws).

Here’s a , who heads up the health care team for the House’s OLC. He was writing the health care bill then, and he wrote the one that was just signed into law today (with help from other lawyers in House and Senate OLCs).

Reviewing the Draft

Once the staffer has a draft, he or she will probably vet it with trusted experts and organizations that have an interest in the issue.  It is always true that those actually affected by the legislation will troubleshoot its potential positive and adverse effects better than one staffer.  Sometimes those suggestions, especially by professional advocates (i.e. lobbyists), are offered in the form of legislative language or line edits to proposed language.

After the bill has been vetted and the Member agrees to introduce it, a printed copy is signed by the Member and delivered down to the “Hopper” on the House Floor (or similarly for the Senate).  Usually that just means an intern hands it to the clerk minding the door to the Floor, and they get it to the Hopper — in a much less dramatic fashion Legally Blonde II would have you believe.  It is then processed and given a number.

Big Bills and the Christmas Tree

These little bills frequently never come to a vote on their own, but they are important.  Through the co-sponsorship process, and by building support for these small bills through constituent input and endorsements by organizations or businesses, supporters of these bills demonstrate to Leadership that the idea has merit and should be considered for inclusion in a larger package.  Those larger packages are the bills that have nicknames and get all the attention – The Health Care Bill, The Climate Change Bill, The Stimulus Package.  In fact, staffers often refer to the end-of-the year spending bill as a “Christmas Tree” with lots of “ornaments” in the form of these smaller bills with large contingencies of support attached to make the bill more attractive.

The chairmen and subcommittee chairmen of committees of jurisdiction lead the process of drafting the large bills.  Usually for a large bill, the committee will dedicate days or weeks or months of hearings to gathering information about the topic, to hear different perspectives and to educate the members and staff. During these hearings, Members will raise concerns or express interest in certain policies, both to make their views public and to indicate to the chairman and staff what they would like to see in a bill.  Before drafting begins, there will likely be many meetings among staff and Members to discuss priorities, and attempt to reach consensus on an approach, within the committee, or at least within the majority members of the committee.

The staff then works on a format based on the input from committee members, directed by the Chairman.  Often this will include “picking up” smaller bills that have been introduced by committee members and including them in the legislation.  OLC then turns this format into legislative language and the vetting process goes forward. The draft language will likely go through many iterations, with many edits.  Edits to the document are done by OLC, usually only at the direction of the committee staffer that is in charge of that particular section.  When the bill is ready, it is treated just like the smaller bills, it is printed, signed, delivered to the Hopper, and given a number.

Summary

So here’s a summary of what Marci wrote: If you want to know who actually puts pen to paper, it’s nonpartisan staff lawyers who work for Congress who know the exiting law they are affecting inside out. They do that under the direction of office staff for Members of Congress and congressional committees, who vet the bill with outside experts and advocates. Sometimes those advocates (i.e. lobbyists) propose changes in the form of legislative language. But did they write the bill? Probably not.

29 Comments

  1. First of all, thank you for sharing this information. It is really interesting how the members of Congress have staffers that make drafts of bills for them and then have an OLC lawyer come and translate the draft into legal terms. I always thought that the member wrote the bill themselves but I am shocked to find out how many people actually get involved with writing the bills.

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  2. I think that writing a law is just as long as writing a paper when you were in High School. You would have to start with ideas, then the rough draft, then the final copy. I think that many people contribute into making things into laws.

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  3. I couldn’t finish this article because it was so naive and off-point. Since 9/11, corporations write legislation and hand those scripts to Congress with bags of money. The bills are rarely debated, sometimes not even disclosed (Obama HealthCare) as Nancy Pelosi said “You’ll get to see what’s in the bill after we pass it”, and legislation is generally NOT in the public interest by any interpretation. Legislation is now written by world banks, CFR backroom committees, military industries, big pharma and big agriculture in roughly that order. Congress are puppets to this process.

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  4. Currently I am in college working on my graduate degree in criminal justice and then on to my law degree. I want to know once I have pass the bar and become an attorney can I use my knowledge to begin writing bills for introduction. I see so many laws that needs a change how do I go about proposing such a change.

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    1. Bills can only be introduced by a Member of Congress. Anyone can actually do the writing, but generally that’s a matter between the Member of Congress and the Congressional staff lawyers.

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  5. I hope every Taxpayer and voter reads this article. I have forwarded this link to the hundreds of addressees in my Adress Book. I hope all of you will do the same.

    1) None of these people dreaming up ideas is elected; nor have most ever held a non-government job. Many of them do not even vote in their elected bosses district or State! If the Members of Congress are looking for ideas; they should try listening to their constituents! Perhaps they have heard about that little war that started with “Taxation without Representation”? Having some staffer from Harvard or Yale, born and raised to work in Washington, DC isn;t many Citizens idea of Representation!

    This will never change until the American Voters stop voting Party Lines or going along with teh incumbant hoping to benefit from senority.

    Change is built into our Constitutionally perscribed form of government. When an Incumbant compaigns on the strength of “knowing the system”. They are simply admitting to knowing the corruption. At this point in our history our Government is the single most dangerous enemy of this country. The power to correct this corruption still remains in the hands of the voters! DON’T vote for a single incumbant or previous office holder for 12 years. That’s all it will take to clean out the government, bring about a real balance budget, make meaningful Health Care and Monetary Reforms… The current administration and Congress will never even make a serious attempt. Toss them all out, before it’s too late.

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  6. My respect to Josh Tauberer, the man behind this site. I admire your effort to bring such matters to the public, allowing that everybody could understand more about what (and how) is done by your government.

    Unfortunely, the comment above from Jerry Day, is becoming more and more close to reality.

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  7. First of all I’d like to thank Josh for sharing such kind of helpful and informative resources that helps people understanding the entire law making process. Law making process is not tailored overnight.It’s a long and smooth process for a law to be granted by the maximum members of Parliament. Lots of people concerning this and their efforts belong to the process.The first thing is a draft, gradually being converted as bill and finally into a law. People need to be aware about the fact how law makers do their work for the sake of their countrymen.

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  8. Years ago I worked in Washington, DC for a lobbying group and often members of Congress would send us their proposed legislation to mark up and comment on so that groups like mine would lend support for these politicians. Don’t think staffers do it alone.

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  9. There are special interest groups who specialize in writing legislation and distributing it to federal and state legislators for conversion into law. These are either specific amendments to pending legislation or, in some case, whole bills.

    One such group is ALEC (American Legislative Exchange Council) which brags about writing “model legislation” that promotes their ideological viewpoint.They write: “The centerpiece of Task Force projects is ALEC model legislation. ALEC is the only state legislative organization that adopts policies and creates model legislation for its members to use in their states. To date, ALEC has nearly 1,000 pieces of model legislation.”

    There is no published list of who is a member of ALEC, or which legislators subscribe to ALEC, or what legislation ALEC produces or how actual legislation matches up to ALEC’s model legislation.

    While ALEC operates at the state level, there are other “think tanks” that operate at the federal level.

    It is widely reported that PhRMA (Pharmaceutical Research and Manufacturers of America) directly wrote large portions of the legislation that became Medicare Part D (prescription drug coverage).

    I appreciate this article’s attempt to explain how it should be done. In fact, substantive legislation is initiated, and in many cases written, by very large, very well funded, very well organized special interest groups.

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  10. This article is Fantastic, it touches the tip of the iceberg, on the realities of our American Government. The original author claims over and over that Legislative staff are non-partisan, and that they write the bills.
    The comments are from savvy citizens who know better.
    Version 1 should be archived for all to see and Version 2 should be written with no effort to hide the truth. Remember, it’s called “Open-Government”

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  11. Walter–if you want to make a substantive change to the impact of these bills, pretty much the only group in America forbidden to do so is lawyers on the OLC. Write to your congressman, lead an organization, or run for Congress. Or just vote.

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  12. Thanks Josh. I understand the OLC skill-set & responsibility to apply the legal code as directed by Congress members. (& you & Marci do amazing work). Perhaps, we could explore how Legislation is sponsored to favor just a few; subsidies, no-bid contracts, monopolies, secret campaign contributions. Such favorable Laws require bias.

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  13. I have travelled to Washington on occasion to assist clients who seek some sort of support from their government. None of us are lobbyists, but we do prepare “informational booklets” that include suggested wording for various bills. Staffers are typically short on time and overworked. Often they are not from the Congressional district for which they work. Sometimes they’ve never been to the district and know very little about local concerns. If they support our position, they often use our language in a bill. Washington is filled with advocacy groups like ours. Some are all business (like us) while others have themes and dress in goofy outfits. It’s kind of like an ideological circus.

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  14. Our concern should be about these so-called professional, non-partisian lawyers and how they vote in their home district. I would bet that the group over time has developed into mostly hard-core leftists but I do hope not. Synical, yes but, what else can we expect when a majority of the people in this country want a balanced budget and we cannot get it done. Am I wrong or just synical? Or a crazy old man that has worked daylight to dark my whole life with nothing more than a loving family that means the world to me and a Country I would die for!!!

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    1. Victor: The lawyers do nothing but what the Members of Congress ask them to do. The lawyers don’t make policy, they just turn policy into legalese. Both sides use the same lawyers. If there was any belief in Congress that the lawyers were not working in a nonpartisan way, I am sure they would quickly get fired.

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  15. I’ll take your word for it but in the last sixty years that I have been a regular voter I am amazed at what has happened to this country as a result of many things but perhaps he most amazing to me is how only about ten percent of elligable voters feel our Country is important enough to vote in every election. We do need, more than ever, every eligible voter to vote in the up coming elections. Thank you again for your blog

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  16. In the past 10+ years I have become active in the political scene in my small town (small compared to Brooklyn, NY which is only one component of NYC).

    Jerry Day is so on target. The is a huge number of Bills written each session which die, sometimes a long, slow death and other times a quick death due to the expiration The Bills in the category are to con a voter into believing the Legislator cares a whit about her/him.

    The very sad truth is Money talks, Big Money Speaks the Loudest.

    This is the group who actually dictate what gets enacted, who runs for office and much about the running of government often unseen.

    The group at the lowest end of the socio-economic

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  17. (cont’d)
    ladder are the great number of people who vote but are not informed. They are the people who buy a dream. They believe any smooth talker. Frequently have no access to C-Span etal, because they cannot afford cable TV.

    They cannot because of time and or Finances to travel to the seat of government.

    We need a (bloodless) revolution to make significant changes to revamp our Government.

    We need term limits and that no bill goes unaddressed. No dying in the hopper.

    As far as I am concerned those elected who serve officials long terms are on the government dole and receive too much dole money.

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  18. Thank you Josh. Articles such as this keep us well informed and aware. Legislation cannot be an easy job. One cannot please everyone all of the time. But we must applaud the bold daring of the elected officials who take actions. Actions that hopefully will resolve problems, but often doesn’t. But without the risk taken a stagnation will never allow for improvement.

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  19. Thanks for the information – this is very helpful. Even if the system does often get waylaid by money or well-connected advocacy groups, it’s nice to see how the process works. I think Churchill said “Democracy is the worst form of government, except for all those other forms that have been tried from time to time.”

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  20. I would much prefer two restrictions on legislation. (1) There should be a page limit on legislation. Break it sown into sensible parts to pass as separate bills. (2) There should be a requirement that the small bills that get attached to larger bills should be germane to the large bill.

    Next I would like to see a requirement that bills actually be written in plain English, not legislative gubbly-gook.

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  21. This is important information for all citizens and engaged participants in this democracy. People need to realize that they themselves can initiate bills if they are passionate enough about the issue. Sometimes the mere effort is as valuable as the outcome.

    My concern is that special interest groups that have donated to/bribed elected officials write these bills to favor their industries and have their pols push it through.

    We the people must be more vigilant about our monitoring of this process and calling out “bills that have been paid for.”

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  22. “But did they [lobbyists] write the bill? Probably not.” Maybe literally the lobbyists didn’t directly put words to paper, but they did instill the ideas for how those words are to be constructed via a Congressperson. According to this article, OLC are word pushers, impartial scripter’s building words to follow Congress’s blueprints. Who produced the blueprint should be the focus; the driver of the car is the one responsible not the car.

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  23. Wow, this article is way off the mark. Outside attorneys who work for lobbyists draft the bills and present them to legislators to introduce.

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  24. I agree with Susan Leeper: Bills should be written in plain English. they also should be concise. I’m a physician who for 14 years sat on my hospital’s Institutional Review Board (IRB). This is the group that assures human reasearch is conducted in an ethical manner. One of our most important taks was ensuring that consents for research were concise and understandable by the average person. One criterion we used – even though much of the reasearch proposed was often very complex – was that the consents had to be written at a eigth grade level i.e in plain understandable English – NOT medical gooblydegook!! This was indeed a challenge to us doctors who are used to speaking in jargon. But guess what? It can be done. The exact same standards should apply to legistlation and the lawyers in the OLC. To paraphrase Madison: A democracy will be in trouble when its laws are so voluminous that they can not be read or so complex that they can not be understood.

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