In the General Assembly, only individual legislators and legislative committees can introduce new legislation. However, ideas for new laws or for amendments to existing laws can come from many difference sources: legislators themselves, their constituents, interest groups, other branches of government (e.g., the governor and agencies within the executive branch; the judicial branch).
But who actually drafts the legislation, rules and regulations that ultimately become law in our state? And should we care? I think we should.
If a legislator or legislative committee wants to move forward with a proposal for new legislation, the actual drafting of the legislation is usually–but not always–performed by the Legislative Commissioners’ Office (LCO). As the LCO explains:
Many requests for legislation are made informally—a letter, a phone call or a meeting with a legislator addressing a problem or an idea. To have the idea written up more formally and started in the legislative process, the legislator will generally turn to the Legislative Commissioners’ Office (more commonly referred to as LCO), the General Assembly’s nonpartisan legal counsel. All official legislation is drafted by and processed through LCO.
Although all formal legislation is ultimately drafted by and processed through the LCO, the LCO often has some help. The person or organization pressing for the legislation may prepare his, her or its own draft of the law, often with the assistance of individuals outside of the General Assembly who have experience with legislative drafting. Sometimes a bill is initially drafted entirely by an outside person or group, shared with the legislator who agrees to support the bill, then shared with the LCO, which may make only technical changes.
There is nothing necessarily sinister or improper about a person or entity outside of the General Assembly doing the principal drafting for proposed legislation, as long as the proposal then goes through the normal legislative process of public hearings, debates, committee and floor votes, etc. The First Amendment guarantees every person, including professional lobbyists, the right to “petition the Government for a redress of grievances.” That guarantee includes the right to do more than just talk to legislators. Without a doubt, it also includes the right to submit draft legislation. But the public also has a compelling interest in knowing when someone outside of the General Assembly, particularly a paid lobbyist, actually drafts the proposed legislation. I am not sure that the general public appreciates just how often that occurs.
Why should the public care when an outside person or organization literally drafts proposed legislation? Back in 2013, a number of media organizations reported about a congressional bill that the House financial services committee had approved, which would have gutted a key provision of the 2010 Dodd-Frank financial reform act. Mother Jones magazine wrote:
On Friday, the New York Times reported on the front page that Citigroup drafted most of a House bill that would allow banks to engage in risky trades backed by a potential taxpayer-funded bailout. The Times notes that “Citigroup’s recommendations were reflected in more than 70 lines of the House committee’s 85-line bill.” Special-interest lobbyists often play a role in writing legislation on the Hill, but such sausage-making is rarely revealed to the public. In this instance, members of Congress and a band of lobbyists have been caught red-handed, and Mother Jones has obtained the Citigroup draft that is practically identical to the House bill. As you can see in the side-by-side comparison below, the lobbyists for Citigroup really earned their pay on this job.
Surely the public was entitled to know that Citigroup was the principal drafter of a bill intended to improve the bank’s profitability by undermining Dodd-Frank. The discovery of that simple fact should not have required the efforts of investigative journalists.
I’m sure I am not alone in believing that the public should know facts like those described above. The public should know when Congress or the General Assembly is effectively “outsourcing” its policy expertise to a third-party. See “When Lobbyists Literally Write The Bill.” Again, there is nothing necessarily improper about this process; it should just be transparent. The public should know not only when powerful personal or corporate interests are supporting particular legislation, but also whether those interests played a hand in actually drafting it. Such knowledge can go a long way towards helping the public understand the true purpose and objective of particular legislation, which is often written in arcane and obscure legalese.
What steps can be taken to increase transparency in this aspect of the lobbying/legislative process? I offer two proposals.
First, existing state law requires lobbyists to register with the Office of State Ethics and file various disclosures. Most of those disclosures are financial in nature, but lobbyists must also disclose “with reasonable particularity, [the] areas of legislative or administrative action on which the registrant expects to lobby, including the names of executive agencies and quasi-public agencies and, where applicable, solicitations for state contracts and procurements.” Conn. Gen. Stat. § 1-95(b). Some states, however, require more specific disclosures about the subject matter of lobbying. For example, New York requires lobbyists to disclose, in bimonthly reports, the specific bills, issues, or agency actions on which they lobbied.
I propose going one step further than New York; lobbyists should also be required to disclose whether they made a material contribution to the specific language of any bill or regulation on which they lobbied. If a lobbyist submits draft language to a legislator or government agency, in writing or verbally, and if a material portion of that language becomes part of a bill or proposed regulation, those facts should be disclosed.
Second, when the LCO prepares a formal bill for a legislator or a committee, if a lobbyist made a material contribution to the specific language of the bill, that fact, including the identity of the lobbyist’s client, should be noted on the bill itself.