A Beginner’s Guide to Legislative Drafting
By Deborah Beth Medows, Senior Attorney, Division of Legal Affairs, New York State Department of Health[*]
The ability to impact society through well-written legislation is unparalleled. As President Barack Obama stated, “A good compromise, a good piece of legislation, is like a good sentence. Or a good piece of music. Everybody can recognize it. They say, ‘Huh. It works. It makes sense.’”[1]
As a newly admitted attorney, you will need to know how to draft legislation if you choose to work as a legislative attorney. One of my earliest legal experiences occurred after I was appointed as Assistant Counsel to the New York State Legislative Bill Drafting Commission. I found myself drafting for the New York State Assembly and the New York State Senate, and advising on the constitutionality of the proposed legislation. Legislative attorneys may have different roles and state requirements can differ, so you will need to draft within the scope of your role and jurisdictional requirements. However, these are the general lessons that I gleaned from my own experiences.
1. Write simply and carefully. Legislative drafting is “a highly technical discipline, the most rigorous form of writing outside of mathematics.”[2] It functions as practical poetry for lawyers as we artfully select words to shape society. However, unlike flowery, abstract poetry, which adumbrates imagery that leaves the audience guessing as to its intended meaning, in the realm of drafting you must be deliberate, intentional, and clear with your word usage. Although poets are fond of synonyms, in drafting, consistency is key. Think about how your verbiage may be construed so as not to accidentally convey a different intention than that of the legislative sponsor. When you draft legislation, state exactly what needs to be said in the most straightforward manner possible. Do not worry about dazzling the reader with your erudite diction and impressive caliber of jargon; if you must, you can save that for some other forum, like a cocktail party. In the context of legislative drafting, brilliance is conveyed by articulating a legislative sponsor’s intent in the clearest and most concise manner possible. If you write in a confusing manner that can later be misinterpreted in application and enforcement, the ensuing issues could be the subjects of lawsuits that waste time, money, and judicial resources.
One example of careless drafting yielding potentially disastrous results involves four words in the nine‑hundred‑page Affordable Care Act that read that the law permits subsidies only where marketplaces have been “established by the state.”[3] The law’s drafters claim not to have intended this distinction, and these words have been contextualized by some, including former Senator Jeff Bingaman, as “sloppiness in the drafting.”[4] This alleged drafting error enabled opponents of the Affordable Care Act to challenge it in the Supreme Court case of King v. Burwell.[5] Plaintiffs in that case argued that the words were intended to make tax subsidies exclusively available in states that established their own health insurance marketplaces and to exclude thirty-six states with federal exchanges. This would impact the health insurance subsidies of many Americans.[6]
Another example of a drafting error was recently explored in the Huffington Post’s article on the U.S. v. Texas case. Legislators drafted “messy language” that resulted in even the United States Solicitor General confusing terms.[7] The litigation concerned twenty-six states and a policy that would allow roughly four million undocumented individuals to temporarily remain in the country. At issue was whether the federal policy would grant the affected individuals a legal immigration status, to which Texas objected. The policy would render undocumented individuals “lawfully present” for three years, but the federal government had difficulty explaining the distinction between being in the country “legally” and being “lawfully present.” The term “status” was also confusing, because it was unclear whether “deferred action” would be considered an “immigration status.” A commentator described that issue as “another example of something being simultaneously correct and nonsensical.”[8]
As both cases illustrate, a drafter’s failure to take a few minutes’ worth of caution and a lack of precision can result in litigation that even involves the Supreme Court and can affect millions of individuals.
2. Write purposefully. As Mark Twain opined, “the difference between the almost right word and the right word is really a large matter—‘tis the difference between the lightning bug and the lightning.”[9] Be aware of the connotations of the various documents that you write, because they can have major practical consequences when applied. Word choice can be critical and powerful. For example, think about how differently the words “shall” or “may” could be construed, although in a non-legislative context the contrast might not seem as critical. In the article “Shall We Abandon Shall?” Bryan A. Garner, Editor-in-Chief of Black’s Law Dictionary, explains that the word “shall is among the most heavily litigated words in the English language (with hopelessly inconsistent court holdings).”[10] He cites Justice Ruth Bader Ginsburg’s opinion that “though ‘shall’ generally means must, legal writers sometimes use, or misuse, shall to mean should, will or even may.”[11]
Never underestimate the power of words, and consider carefully every word that you put in your legislative drafts.
3. Do your research efficiently. You need at least a rudimentary understanding of the issue your legislation addresses. If you do not understand the substance of what you are drafting, that poses a challenge. Recognize that you may have many assignments to draft, so you might not have the opportunity to research as much as you would like. Understand that you may have time constraints and work as effectively and efficiently as possible within those time frames.
For example, the time frame corresponding to the deadline for the budget in New York State can be extremely busy with a flurry of legislation to draft. The New York Times profiled the frustrations associated with a last minute bill that was over six hundred pages long. As depicted by the article, the legislative cycle can produce agreements that occur during late hours. From a drafter’s perspective, all of that legislation needs to be drafted expediently but efficiently by a deadline.[12] The key is to be thorough enough to complete your work and do an excellent job, but not to research issues at such an intense level of depth that you will not have time to complete your other work. Instead, that intense level of substantive research should be conducted by the legislative sponsor’s office, and you need to focus on your task at hand: drafting. As Professor William F. Patry, a former copyright counsel to the United States House of Representatives, said, “While the mounting of legislative initiatives frequently takes a long time, sometimes spanning years, the execution can be brutally swift. Haste makes waste and mistakes . . . . most copyright legislation is passed in the very last minutes of a Congress, much like most labor deals struck right before a threatened strike, or court house [sic] steps settlements.”[13] He cites examples of legislative blunders ranging from the 1909 Copyright Act that was signed five minutes before President Theodore Roosevelt’s term expired, to federal legislation containing amended parts of a statute that no longer existed and which the Senate passed, despite knowing about the error, because of time constraints.[14]
4. Do not automatically rush to recreate the wheel. You might receive an assignment that appears mind-bogglingly difficult; we have all been there. Take a deep breath and relax. Chances are high that some other jurisdiction has faced the same issue. Examine how other states have drafted similar legislation. States obviously have different laws and different formats for legislative drafting. Yet, researching how other states have worded their legislation can serve to lend general ideas that you may not have previously considered. Be careful, however, to use those models only for that purpose; those laws are specific to their jurisdictions.
Consider the following example. Imagine that you are a bill drafter in New York State and you are tasked with drafting legislation regarding gambling. Without knowing the laws of gambling in New York, you may be strongly tempted to copy the laws of another state when drafting. However, jurisdictions vary widely with regard to gambling laws. New York State, for instance, would require a constitutional amendment to enact legislation regarding gambling, as Article I, Section 9 of the Constitution of the State of New York prohibits gambling with certain enumerated exceptions, such as a sanctioned lottery for educational funds.[15] Compare that with Nevada, which ironically, does not legally permit lotteries.[16] As the contrast between the two states’ legal systems regarding gambling and lotteries shows, you must be very careful not to inappropriately rely on the laws of other jurisdictions when drafting because their legal systems may prove inapposite. Additionally, specific terms may be different across various states’ legal systems. You may want to imbue a state official with certain powers to enforce the objectives of a bill; that person may be called a superintendent in one context or a commissioner in another context. Ensure that you are using the correct terminology in your own jurisdiction.
5. Do not be afraid to ask questions, both substantively and stylistically. Especially as a newly admitted attorney, chances are that whatever kind of assignment comes your way, your colleagues have already encountered a similar challenge in their professional experiences. Always clarify with the office sponsoring the bill if you need further guidance on issues such as the timing of the bill (including whether it should go into effect with a sunrise provision or expire with a sunset provision), or regarding the severity of a criminal penalty, which can have tremendous consequences on people’s lives.
6. Keep in mind the bigger picture and your role in the process. You may not necessarily agree with the purpose of the bill that you are drafting, but broadly speaking, it is your job to draft it if the legislator wants it drafted, while advising on the constitutionality of the proposed legislation. The people elected the legislator, not you, to represent their societal needs and interests. As a legislative attorney, you will have to take your ego out of the equation and always remember the bigger picture: you are playing a role in helping society by respecting the legislative process. Additionally, the first time that many people draft legislation, they are concerned that what they are being tasked with drafting is not currently in state law. For example, I heard of an otherwise talented drafter who began her career by protesting on her first assignment that she could not add a certain penalty to a bill regarding the penal code. The drafter stated that the law did not have that specific penalty anywhere in the entire penal code for that particular action. That is absolutely correct, because the objective in drafting legislation is to help develop future laws! Rather than worrying if something is currently in the law, drafters should instead be concerned with whether it would be constitutional.
7. Masterful legislation requires teamwork. Depending on your position, you may need to be in touch with legislators, your coworkers or fellow drafters, and the administrative assistants whose daily efforts ensure that your office runs smoothly. Working in legislative law can present time-sensitive deadlines, so you need to work together with others to achieve the best results possible.
8. Develop your drafting style. There is a certain magic to the process of being able to transform concepts into law. As you become increasingly comfortable honing your drafting skills, you will recognize that everyone has a different style of drafting. Conceivably, “if five drafters were set on the same Bill, each might emerge with a different product,” suggesting that “legislative drafting is an art rather than a precise science.”[17] Read through legislation drafted by others in order to develop a sense of what techniques work well in your own constantly developing drafting style.
Consider the example of Robert Moses, arguably the most famous bill drafter of the twentieth century, who developed his own drafting style to strongly influence the infrastructure and development of New York State. [18] Known as the “master builder,” Moses was a political scientist who utilized his powerful drafting skills to affect society. Much ink has been spilled over the controversial legacy of Robert Moses, but what is certain is that he was able to harness his legislative drafting skills to accomplish his goals, such as setting up the Jones Beach State Park Authority, the Triborough Bridge and Tunnel Authority, and unifying the five boroughs’ parks departments in New York City. The unification of the parks departments resulted in the fact that, within months, 1,700 projects were finished, including the rebuilding of the Central Park Zoo.[19] His drafting abilities allowed him to draft legislation for public authorities and affect city planning both in New York City and throughout the nation. The accomplishments that stemmed from Robert Moses’ skilled drafting were lauded at the time by the New York Times as “little short of miraculous.”[20]
9. Be patient. Drafting can be tedious and frustrating, especially as a newly admitted attorney with little or no experience. Know that you are not alone. Even the Founding Fathers took the time to master the drafting process; the Declaration of Independence went through several rough drafts.[21] Originally, Jefferson referred to the people of the colonies in a rough draft as “subjects” before replacing that term with “citizens.”[22] With one stroke of the proverbial pen, the colonists formed a “people whose allegiance was to one another, not a faraway monarch.”[23] The fact that the drafter took the time and effort to revise the work and replace a singular word shapes our very understanding of what it means to be Americans centuries later. After all, today we quote the inimitable words promising “life, liberty, and the pursuit of happiness”[24] for the immeasurable impact that this document has had upon our nation’s history. We do not think of the prior drafts over which the drafter of these words labored, because the end result is what matters most.
If Thomas Jefferson, a future President of the United States, cut his teeth drafting that language, then you are in good company as you rework your own legislative drafts. Have patience and remind yourself that not all the bills that you will draft will be passed, especially in their early forms. However, what will later pass into law might surprise you, so treat everything you draft with significance and the gravitas as if it might one day become law. Perhaps the legislation that you will draft may one day become a law that will better society for decades or centuries to come.
[*]Deborah Beth Medows is a Senior Attorney in the Division of Legal Affairs at the New York State Department of Health, where she delivered the 2015 CLE on Ethics. She has additionally served as an Associate Counsel to the Speaker of the New York State Assembly, and as an Assistant Counsel to the New York State Legislative Bill Drafting Commission. She edited a written symposium through Harvard Law School’s Journal of Law and Technology Digest, delivered various legal presentations, published a number of articles in various law journals, and serves as a mentor to law students. She can be reached at dbmedows@gmail.com. This information reflects solely the opinion of the author and does not speak for the views of any current or prior employers.
[1] Dan Amira, By President Obama’s Own Standard, This is a Bad Compromise, N.Y. Mag. (Aug. 1, 2011), http://nymag.com/daily/intelligencer/2011/08/debt_ceiling_compromise_barack_obama.html [https://perma.cc/C8L5-4TP9].
[2] Reed Dickerson, Legislative Drafting: a Challenge to the Legal Profession, 40 Ind. L.J. 635, 635 (1954). http://www.repository.law.indiana.edu/facpub/1494/ [https://perma.cc/9R95-FRJ3].
[3] Robert Pear, Four Words That Imperil Health Care Law Were All a Mistake, Writers Now Say, N.Y. Times (May 25, 2015), http://www.nytimes.com/2015/05/26/us/politics/contested-words-in-affordable-care-act-may-have-been-left-by-mistake.html?_r=0 [https://perma.cc/ZYS6-CAD6].
[4] Id.
[5] 135 S. Ct. 2480 (2015).
[6] Id.
[7] Laura Murray-Tjan, U.S. v. Texas: How the Supreme Court Got Tangled in Immigration Law, Huffington Post (May 16, 2016), http://www.huffingtonpost.com/laura-murraytjan/us-v-texas-how-the-suprem_b_9979566.html [https://perma.cc/GJ9X-ZFUE].
[8] Id.
[9] George Bainton, The Art of Authorship 87–88 (1890).
[10] Bryan Garner, Shall We Abandon Shall?, ABA J.: Bryan Garner on Words (Aug. 1, 2012), http://www.abajournal.com/magazine/article/shall_we_abandon_shall/ [https://perma.cc/KHY3-PD6Y].
[11] Id. (quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 432 n.9 (1995)).
[12] Vivian Yee & Jesse McKinley, Budget Deadline Keeps New York Legislators Up All Night, N.Y. Times (April 1, 2016), http://www.nytimes.com/2016/04/02/nyregion/budget-deadline-keeps-new-york-legislators-up-all-night.html [https://perma.cc/Z3NM-V56D].
[13] William Patry, Legislative Drafting Gaffes, The Patry Copyright Blog (Dec. 15, 2005), http://williampatry.blogspot.com/2005/12/legislative-drafting-gaffes.html [https://perma.cc/6JJZ-RB94].
[14] Id.
[15] N.Y. CONST. art. I, § 9.
[16] Sean Whaley, No Nevada Lottery Because Gaming Doesn’t Want Competition, Las Vegas Rev. J. (Jan. 12, 2016), http://www.reviewjournal.com/news/nevada/no-nevada-lottery-because-gaming-doesnt-want-competition [https://perma.cc/Q7XH-WCQA].
[17] Geoffrey Bowman, The Art of Legislative Drafting, 64 Amicus Curiae 2, 2 (2006).
[18] Paul Goldberger, Robert Moses, Master Builder, is Dead at 92, N.Y. Times (July 30, 1981), http://www.nytimes.com/learning/general/onthisday/bday/1218.html [https://perma.cc/CWS7-6E52].
[19] Id.
[20] Id.
[21] The Declaration of Independence (U.S. 1776), reprinted in The Papers of Thomas Jefferson 429 (Julian P. Boyd ed., 1950).
[22] Id.
[23] Marc Kaufman, Jefferson Changed ‘Subjects’ to ‘Citizens” in Declaration of Independence, Wash. Post (July 3, 2010) http://www.washingtonpost.com/wp-dyn/content/article/2010/07/02/AR2010070205525.html [https://perma.cc/K36N-9SNL].
[24] The Declaration of Independence para. 2 (U.S. 1776).