On demand 1h 34s Intermediate

Who's Afraid of the Big Bad Bill? A Glimpse Inside the World of Legislative Drafting

Start your free 7-day trial
* Claim credit(s) for one free course during your 7-day trial.

Who's Afraid of the Big Bad Bill? A Glimpse Inside the World of Legislative Drafting

Many (if not most) people, including lawyers and law students, find reading and working with Federal statutes intimidating. In this course, you will learn from a person responsible for drafting many of the bills that became Federal law, what legislative drafting is, how Federal laws tend to be structured, how to parse through often confusing amendatory language, and how to craft a simple bill. This course will include a guided exercise using a hypothetical request for a bill involving none other than Little Red Riding Hood.

Transcript

- Welcome to this course entitled, "Who's Afraid of the Big Bad Bill?" "A Glimpse Inside the World of Legislative Drafting." I'm your instructor for this course, My name is Michelle Vanek. I am counsel at the Office of the Legislative Counsel for the United States House of Representatives. Accordingly, our discussion today will be with respect to legislative drafting at the federal level in the United States with a focus on the House of Representatives. You may or may not be aware, but there are drafting services in most of the states and indeed around the world. But again, for purposes of our discussion today, we'll be limiting ourselves to the federal level in the United States and the House of Representatives. That said, I'd like to discuss a little bit of the history and background of our office. Our office was begun a little over 100 years ago by a man by the name of Middleton Beaman. He was a Columbia law professor and a Library of Congress law librarian. He had recently spent some time in England during the First World War, had heard tale of the parliamentary drafting service there, and decided that would be a good idea to import into the United States. He offered his services to the Congress, which at the time was in need of drafting, especially the Ways and Means Committee, which was tasked with drafting income tax legislation. After about two years, the committee was so happy with Middleton Beaman's work that they officially established the office in the Revenue Act of 1918. Now that we've talked a little bit about the history of our office, I'd like to discuss for a moment the drafter's role in the legislative process. Attorneys in our office are charged consistent with our enabling statute, which is Title five of the Legislative Reorganization Act of 1970, you can find that in the US Code at 2 U.S.C. 281 et seq, with advising and preparing legislation in many forms primarily bills and resolutions for House leadership, House committees, and of course the Members. We primarily interact with their staff, which is why I put that in parentheses. Each attorney in our office is highly trained, we are all licensed and barred in any state in the union. We are charged with preparing drafts at each stage of the legislative process from introduction to amendments for committee consideration or on the floor all the way through conference. For those of you unfamiliar with the conference process, it can be informal or formal. A formal process occurs pretty much every year for the Defense Bill, and every four or five for the Farm Bill, and that essentially involves appointing contraries, the House and Senate staff hammering out an agreement with respect to each provision of the resulting bill. That resulting bill, once they've agreed to incorporate House provisions, Senate provisions, with edits probably on both sides, that then becomes the final bill that gets enacted by each chamber or passed by each chamber and then is sent to the President for final enactment. The informal process is a bit similar. There are no contraries, it's just staff passing drafts back and forth. And then once they've reached an agreement, either the House will pass it first or the Senate, and then the other chamber will pass the same legislation and then it'll go to the President for their signature. We do have a prioritization scheme for prioritizing requests that we receive. We primarily base that upon the stage of consideration on the theory that the closer something is to becoming law, the more important it is for us to focus on it. You can find the prioritization scheme in Section 503 at that Legislative Reorganization Act of 1970. I've included a link to our compilation. And as a side note, the Senate has its own enabling statute and there's split up a bit in Section 1303 of the Revenue Act of 1918 and Sections 105 and 106. I'd like to look a little bit more closely at two provisions in our enabling statute. The first is Section 502, which specifies the purpose and policy of the office. There are three provisions that I wanted to point to. The first is that we are charged primarily with providing a clear, faithful, and coherent expression of legislative policies. That is really our guiding principle for pretty much all that we do. The second thing I wanted to point out is that we have to maintain impartiality with respect to issues of legislative policy, that means that we're strictly nonpartisan. It also means that we do not take a stand or advocate for the adoption or rejection of any particular policy. That can be challenging at times 'cause our clients often want us to opine on things and it's just not within our statutory charter to do that. So I could never answer the question, which policy do you think is best? For example. The last thing I wanted to point out here is that we have to maintain attorney-client privilege with respect to all our communications with our clients. So that may mean in the case of say lobbyists prepared text that has been shopped to three different offices. Clients A, B, and C, all come to me separately wanting the same language. Now, through our conversations, I would not be able to disclose to client A, B, or C, that I know of the existence of the request from any of the other Members. I can cross my fingers and hope that one of them introduces their bill first, so I can point to that 'cause then once it's public I'm allowed to discuss it. But until that point I would have to feign ignorance with the other clients. So that's a bit of a unique relationship that we have in that in order to protect confidentiality with respect to all. We have to be less than forthright with some. The other section I wanted to discuss was that prioritization scheme that I mentioned, that's in Section 503 of that Legislative Reorganization Act of 1970. And as you can see it consists of five paragraphs, the first of which specifies, as I mentioned, that conference is very high on the list 'cause that is the closest thing to enactment. The second is with respect to committee work. We usually attend the markups when they meet and we advise our clients when they get questions, we prepare the underlying bills, any amendments, et cetera, and the committee reports once the markup concludes. The third one, I personally think it's a bit dated. We haven't been required to be on the floor that much, certainly not since COVID. I can count on one hand the number of times that I've been required to be on the floor, but it is a feature of our office that we've been present for a lot of these debates. That's not to say that floor consideration is less important than committee consideration, but our attendance on the floor was of lower priority. The fourth one is for Member work. So as you can see a lot of our effort is put into conference committee floor consideration and then we also have to be responsive to each individual Member and their individual priorities, which can also be a time challenge for us. The last item here is that the speaker can basically direct us to perform other tasks that are within our purview. I mentioned that our client relationships are a bit unique. They're distinct from what you might find in private practice. That's for several reasons. First is that our clients are staff, they are House staff as much as we are. So we don't have billable hours, we don't have the same sort of relationship that one might have with a paying client. The second is that, unlike other attorneys in other practices, we don't advocate for a position. Our goal is simply to help the client formulate their policy and express that clearly and coherently. The other thing that's maybe not different is that we are subject to unexpected amendments, procedural issues, things changing on a dime with the political wind shifting. A salient example would be the ACA and having to pass a reconciliation bill on top of the original bill because of the dynamics in the Senate. The other thing that can complicate things for our clients is that they are limited in some ways by what they can offer by the Constitution House rules and current law. And I say current law only to the extent that there might be a statutory scheme in place that would be completely upended by a policy that the client is proposing. Obviously, we can amend current law to whatever they want it to be, but that can be constraining in certain situations. Now that we've talked a little bit about the role of the legislative drafter, I'd like to pause for a review to examine what might a drafter assist with. I'm gonna read the scenario and give you a few moments to consider whether or not this would be something that a drafter might assist with. Scenario one. Abigail wants to know if eliminating daylight savings time will cost the US economy. Now, my answer is no. This is not something that I would be able to assist with. This is more likely something that should go to the Congressional Budget Office or the Congressional Research Service. The Congressional Budget Office, as you might know, provides economic analysis on different policies, and because this policy would be nascent and not drafted, they might not be able to provide that assistance quite yet but that would be more their purview than it would be mine. Scenario two. Larry is asking whether 60 days is sufficient time for USDA to implement a grant program. So I still say no here, even though I have experienced drafting many grant programs involving USDA. Still, I would say that USDA is the expert here and would have knowledge on whether or not they have the resources and capability to start implementing a grant program within a 60 day window. Scenario three. Heidi is looking for an analysis of a particular amendment to be offered by another Member on the bill her boss introduced. And we have a winner. This is something a drafter could definitely assist with. We'd be analyzing the amendment, analyzing the bill, and telling the client how they interact with one another. Now that we've discussed the role of the legislative drafter, we're gonna get into the drafting process. The drafting process essentially consists of four, five-ish steps. The first is the policy idea that is conceived at the leadership committee or member staff level. The second is that staff sending their request to us. We have front office staff that essentially triages the requests that come in. They are then assigned to the appropriate attorney based on subject matter. The next step is we acknowledge receipt of the request and begin our analysis. The analysis is really the hardest part of the job and I always say it's the part that if you mess up you don't really get to fix. It can consist of a lot of different considerations but we can refine those into a few clarifying questions. These are questions we ask ourselves, and we ask the clients, sometimes together. The four big clarifying questions that we like to analyze first are, what problem is the client actually seeking to solve? You might be surprised to learn that the number of times we see a text or just a request and then when we ask the client what problem they're actually trying to solve, we learn is much more narrow than what we initially had seen in the email or request. So that's a very important question that can often help the drafting later on. The second is, what is the client's proposed solution? Sometimes they don't include one. Sometimes they have a lot of different ideas or solutions. If they have too many or the solution is not completely refined, that's something that we would've probably ask them to consult with CRS about, so that we know what their policy actually is before we begin drafting. And once they have a solution, we would need to know, how would that proposed solution be administered, by which federal agency or entity? And then how would that be enforced? Is it enforceable by operation of current law? Does the client want to impose a penalty or some other incentive or some reporting mechanism to provide oversight? There are lot of different options there. Enforcement is one of the things that most of my clients tend to overlook, but it's something that they definitely should all think about. The next one is, whether there are any special timing considerations, and to whom does the new law apply? So there may be a new law going into effect that would affect a manufacturer of widgets. Does the widget manufacturer have enough time to change their practices before the new law goes into effect? Those sorts of things that we need to think about. And then there are constitutional issues that we need to think about. Whether current law or regulations are gonna be affected by the bill in question. Whether there's agency action or case law involved, and that case law and agency action would definitely be something that I would want feedback from either the agency involved Congressional Research Service or committee staff who generally is more knowledgeable about matters relating to the agencies. Are there any jurisdictional issues? We haven't discussed too much about the parliamentarians but they are an important office within the House. They decide where bills are referred to, what can be offered, what is in order as an amendment to appropriations bills, for example. So there might be some jurisdictional issues with respect to referral that the client needs to think through, especially 'cause their boss might not be on the committee that they want this bill to be in front of or vice versa. What is the client's message and how do we convey that? So sometimes the message might not be as clear as they think it is, and it's important to clarify that with them, what they're trying to convey with the bill. And lastly, any unintended consequences by the policy in question that would involve an analysis of the law, and the issue spotting that we engage in when we look at a particular policy, and that's something that I think most lawyers do in their day-to-day work. So now that we've discussed a bit about what goes into a request and the types of things that we like to see, I just want to show you all an example of a request. This is not a real request, this is something that I made up relating to campaign finance, which is one of the areas that I used to work on. The request comes in as follows. My boss would like an amendment to the campaign finance law so that campaign donors don't get disclosed if they give less than $100. He also would like to make electronic filing amendatory. So my first question for you all is, is this something that you could start working on as a drafter? If not, what questions would you have for the client? And I'll pause for a minute while you think through that. So the questions that I would have for the client relate to whether or not they wanna only affect contributions, which is the term that's used in the Federal Election Campaign Act of 1971 versus expenditures. Whether they want to include other thresholds for disbursements of contributions and other activities that get reported. There are lots of questions that I will not get into that might be addressed in this bill. But I do think that for someone who's been drafting for a little while, this would probably give us enough to just get started. That's not to say we wouldn't have questions as we began or that questions wouldn't be in an email or in the draft, but it has sufficient specificity about the law involved, the Member's policy intent. Again, some open questions remain about what provisions are actually involved and timing is something that definitely was not addressed. For example, if this were to go into effect tomorrow, would someone who gave $150 yesterday be subject to this new provision? That's something for the client to think through. So now that we have a request, we're going to start talking about the drafting process. And I wanted to begin by discussing the forms of legislation which is something I hinted at earlier. Usually, when we receive a request, it's fairly obvious the type of legislation that we're going to be preparing. Sometimes it's not, but most of the time it is. There are essentially four that we really work with on a regular basis, that would be a bill for introduction or a resolution. A resolution can come in three different forms. A simple resolution that would be offered by one body or another, one chamber or another, a concurrent resolution and that is this House and Senate putting forward that resolution, and a joint resolution that would be House and Senate plus it would be presented to the President for the President's signature. The final one that we prepare a lot of are amendments that would be to a bill that's in committee or on the floor. Note that the only forms of legislation that actually have the force of law are bills, which you might have guessed, and joint resolutions, other than as you also might have guessed, constitutional amendments as we know there's a special process for those. The simple or concurrent resolutions are really used for expressing the views of one chamber or another. They can be used for administrative purposes as well. If you've seen a budget resolution, you know that that's usually a concurrent resolution. We're gonna pause here for another review. I'm gonna read a scenario and give you a moment to decide what form of legislation this client would be best served by. Scenario one. Legislative vehicle to express the sense of the House that the cultivation of watermelon is vital to United States agriculture. If you guessed a simple or concurrent resolution, I would be inclined to agree with you. In this scenario, the client has expressed an interest in only the House, not the Senate, so I would lean toward a simple resolution. And again, that would be expressing the views of the House with respect to watermelon. Scenario two. Anna's boss, upon reading a New York Times article about the lack of education on postpartum care, wants a vehicle to provide incentives to states to increase educational healthcare providers in postpartum care. In this scenario, I would say that the client is looking for a bill on postpartum care. When we say a vehicle in this context, we mean a legislative vehicle, that can mean whatever... We say vehicle 'cause that's what moves through the Congress. Scenario three. Hugo's boss is looking to express congressional disapproval with respect to the sale of certain weapons to a foreign adversary. This one, I think, is a little less obvious. Usually, when the Congress is expressing it's approval or disapproval, especially with respect to a foreign government, they use a joint resolution. So it's still the views both bodies but it goes to the President for his signature. Now that we know the form of legislation we're going to be using, I'd like to move on to discussing how federal statutes are organized. So you've probably seen a public law number in your practice upon enactment. Federal law is given a public law number that appears usually with either PL or Public Law and then followed by two numbers linked by a dash. The first number indicates the Congress in which that particular public law was enacted. A Congress is a two year Congress, each year in that Congress is a session. For example, we are about to start the 118th Congress and the first session of that Congress. So if you were to see for example, Public Law 117-105 that would indicate that that public law is the 105th law enacted during the 117th Congress. Those laws would then be printed as slip laws, and at the end of each session of Congress, the slip laws would be compiled into the statutes at large. And you can see the statutes at large for your own edification at Govinfo is where they're maintained. The United States Code is a completely separate thing. It started as a way of organizing statutes by subject matter. For decades now, the Law Revision Counsel is an office that has been tasked with both organizing the statutes at large into provisions within United States Code and separately codifying titles of the United States Code. And that can create some confusion. A lot of folks tend to not distinguish between positive and non-positive titles of the United States Code. So when we draft, we refer to the enacted law. And what that means is, unless a title of the United States Code has been specifically enacted as a title of the United States Code, it is considered non-positive law. If it is a non-positive law title of the United States Code, we refer to the underlying statute at large or public law which might differ slightly in language and references from the United States Code version that is available publicly. But if that title of the United States Code is the enacted law, meaning that Congress enacted say Title five of the United States Code as Title five, then we would be able to refer to the United States Code citation. The reason that this project has taken so long is that it's often difficult to get enough support for a codification project. There can be a lot of pitfalls with doing so. It can invite litigation or upset current agency interpretation because inherent in that process is correcting of errors and some reorganization. To see for yourself which titles are enacted versus non-enacted or positive versus non-positive, the Office of Law Revision Council maintains the US Code at uscode.house.gov, and on the front page you'll see a list of all the titles of the US Code. If a title has an asterisk next to it that indicates that it is an enacted or positive law title. So just to walk you through some examples of what that might look like and how we refer to positive and non-positive law. The first example I included here is Section 40115, the section heading reads Aviation Weather Research. The administrator may carry out a program of collaborative research with the National Oceanic and Atmospheric Administration on convective weather events with the goal of significantly improving the reliability of two hour to six hour aviation weather forecasts, and that is found at Title 51 United States Code. Title 51, if you look at that list, has an asterisk next to it that indicates that it is a positive or enacted title of the United States Code. Therefore, the correct citation is Section 40115 of Title 51 United States Code. But that's only if drafting outside of the code itself. If for example you were drafting in another title of the United States Code, say Title five, and you wanted to refer to that Section, you would say such as Section 40115 of Title 51. The next example is non-positive law, that is Section 4303 of Title seven United States Code and that refers to floral research and promotion to effectuate the declared policy of this chapter, and that's another distinction between the enacted law and the US Code that term chapter. The secretary shall subject to the provisions of this chapter, issue, and from time to time amend orders applicable to persons engaged in production sale, importation, or handling of flowers and plants. Such orders shall be applicable to all production or marketing areas or both in the United States. Title seven is non-positive law. Therefore, the citation would actually be to the underlying law. In this case, it's Section 1704 of the Floral Research and Consumer Information Act. And you'll note that I included the parallel USC citation and we do that when we refer to the statutes at large of the public laws and we do that to help orient folks to be able to find that law. And the last note I'll say about this is that, you'll note that I did not include anything like as amended in either citation and that is because upon enactment, amendments are considered executed to the statute at hand so there's no need to say as amended. Now that we know how the laws are organized once they're enacted, I'll move on to how we structure a bill. So here I've included a little handy cheat sheet that specifies the levels within a section. Most people refer to these incorrectly. So now you have this little blurb that you can refer to, so you always refer to them correctly. And they go from section on all the way through to subitem, and you'll note that the enumerators change and we move on down, the indentation moves over to the right. We start with a section heading. One other thing I'll add here is that the first Section in the bill will say Section one and then will have the heading, subsequent sections just have this abbreviated SEC period. We can move on to subsections, paragraphs, subparagraphs, clause, subclause, item, and subitem. Now that we know the levels, how does one cite to a provision? So we always refer to the highest parent level when we cite to levels within a section. So if we were to refer to this paragraph one here, we would say section two, a, one, rather than paragraph one, a, two. Other acceptable references could be to paragraph one of section two a, or subsection a, one, of section two. And there are various reasons you might wanna do it that way. Obviously, the shorter reference is section two, a, one. If you were to refer to multiple lower levels. So in this example on little cheat sheet, if I had included a second paragraph and you wanted to refer to paragraphs one and two, you would say paragraphs one and two of subsection a. If you are drafting within a particular provision, so for example, returning back here, if I'd had three paragraphs here and I had a one and then after all this I had paragraph two and I had a paragraph three, and I wanted to refer to just paragraphs one and two within paragraph three, I would say, for example, paragraphs one and two do not imply. I would not say, for example, paragraphs one and two of subsection a because my new paragraph three is in subsection a. And as you may have guessed, sometimes a section does not cut it for these larger bills like the omnibus appropriations that we tend to pass from time to time. In that case, you would see larger or bigger levels. They are as follows, a division, title, subtitle, chapter, subchapter, part, and subpart. These might not all appear exactly this way. There is some difference among teams in our office between subchapters and chapters and parts and subparts. But you will often see divisions and titles and subtitles in sections. Now within a bill, we have a general structure that we tend to follow. Our MO is to include the general rule first. You'll note that the House and Senate do differ on how we structure our bills. The Senate will almost always include their definitions first. We only do that if the definition is so essential to the understanding of the draft that it would not make sense to proceed to the main message without understanding where the definition is. So generally our structure is general rule, that's the main message or rule of the bill, the thou shall not of the bill. The exceptions, those would be when the main message of the bill would not apply at all. There are then special rules including transition rules that we might specify. Those would be circumstances in which the main rule may apply slightly differently. Say this rule only applies on Tuesday, or in the case of a changing regulatory scheme, you might wanna give folks time to adjust to the new rules. Next, we'd have other provisions that a client might wanna include, those can really run the gamut, different types of limitations, or they wanna specify that something is allowed, something like that. Then we have our definitions which are, as you can see, closer to the end, unlike the Senate. And the effective date or applicability, and I think we discussed just having some additional time built in sometimes, and the authorization of appropriations and funding. We'll discuss some of those a little bit later. One of the other big questions that we wanna ask as we begin our drafting is, whether or not a provision is to be a amendatory or freestanding? I think the names speak for themselves, but just to be super clear, provision of law is freestanding if it can be read on its own, or amendatory, meaning that it would amend either provision of law or in some cases a bill under consideration. There are a few things that we look at when determining whether a bill should be a amendatory or freestanding. It's whether the provision of law is intended to be temporary in nature like a report or more permanent. More temporary provisions usually are drafted to be freestanding, and the reason is that we really try not to clutter up the law with things that aren't gonna be permanent. The other thing that might weigh in favor of making something amendatory is if there are provisions of law that would be affected by matters contemplated by the bill. So for example, if the provision in question borrows definitions from existing law, it might make sense to park your new provision, for lack of a better phrase, within current law. I've included an example of amendatory versus free-standing language. So on the left hand side you'll see an example of free-standing language. You'll often hear folks refer to language outside the quotes and that we use that to mean freestanding language because it's not appearing in a quote block, meaning that it's not going into another provision of law. So this one is just a study on vital statistics reporting by the Secretary of Health and Human Services. You'll see this is something that is a one-time report that is submitted to Congress. So that is something that would be typically seen as freestanding. The second example on the right is a amendatory bill amending the Commodity Credit Corporation Charter Act, and that is essentially this bill is raising the borrowing limit for the Commodity Credit Corporation and that was to be a permanent change going forward, so that is why that is amendatory. There are a few other provisions that you will see that I just wanted to discuss briefly. I mentioned the effective dates and dates of applicability. A bill, unless otherwise specified, will take effect on the date of enactment. There might be countervailing reasons for including a later effective date or date of applicability, that could be given an agency time to stand up a program or issue regulations, or there might be a reason to provide advanced notice say to our, example, our manufacturer of widgets whose products would be adulterated or misbranded under the Federal Food, Drug and Cosmetics Act. You might wanna give that manufacturer time to pull the offending products from the market. Authorization of appropriations. Each statute, when enacted, carries with it an implicit authorization of appropriations to carry out their provision of law for however much the agency might need to carry that out. When we do include this sort of language, it's to limit the amount or duration of availability of funding. So for example, if you wanted only $20 million for two years, you would say, there is authorized to be appropriated to carry out this section $20 million either for the period of fiscal years 2023 and 2024 or each of fiscal years 2023 and 2024. That's just an example. The other thing I wanted to discuss is purposes and findings. So you might have seen bills that contain fairly lengthy finding sections. We advise against using those because that language is not really the operative rule. It doesn't relate to the main message of the bill and what the bill is actually seeking to do. Our thought is that the operative language, if they're drafted correctly, will accomplish the sponsor's goals. The other concerns are that readers, if they see a 14 page section of findings, might lose interest before they even get to the main message of the bill. Before we get to our exercise that I've included for you, I wanted to discuss some drafting conventions, sort of the the guiding principles to lead us to that clear and coherent expression of the law. We always say that simple clear statements are usually, if not always, best. We accomplish that in a few ways. You can break up complex and compound sentences to make the draft clearer, including numbered lists, et cetera. The other thing that we like to emphasize is to watch tenses. We try to avoid using terms like future, existing, current, and that is because a reader should be able to pick up a piece of legislation at any time, whether that's today or 10 years from now, and have that same piece of legislation speak to the time at which the reader is looking at it, not when the draft was written, enacted, or put into effect. Next, we wanna be mindful of our audience, whether you were drafting to direct an head of an agency or the general public. For example, there might be some terms that are very meaningful to an agency that the agency understands well that might not require a definition if you're just speaking to the agency. Next, we try to use the singular, wherever possible, to remove any confusion when using the plural form. And this one, the next one is a bit different from what you might have been taught in other writing, is that we are very intentional about our word choice. We do not use different words to mean the same thing and we try to use active words wherever possible. Lastly, we are not afraid to define terms that are not in and of themselves independently clear. There are just two more drafted convention/word choice issues that I just wanted to flag for you. They are shall versus may. So when we are requiring an agency or entity to do something, we use the term shall, when granting permission, may. When denying authority or privilege, we use may not, though some folks prefer shall not, they perceive it as stronger, may not is our preference, but you'll see shall not, I think, sprinkled throughout federal law. The second one is a big one and that's includes and including. I think a lot of folks tend to believe that including but not limited to is helpful in some way. Our philosophy is that the terms includes and including are not exhaustive and therefore including but not limited to is surplusage and should be stricken. I said almost always stricken because we don't always win that one. So now that we've talked about the drafting process and drafting conventions, I just wanted to pause for a minute and talk about those challenges that we encounter in our work. The first is, who is actually doing the drafting? And that has gotten complicated I'd say over the years because so much of the institutional knowledge has gone to outside entities, and those entities are not usually trained legislative drafters, that would sometimes involve legislative text being drafted on the outside, it getting passed to a Member then getting that passed to us which then involves us unpacking what the Member's intent. Again, going through that analysis that walked through earlier. And then at times redrafting because the language that they sent us does not match the legislative intent of the Member. The other big one is workload. The sheer volume of requests that we're required to process. I included here some statistics from the 116th and 117th Congress. And you'll note that in the 117th Congress, as of just mid-October, we had already exceeded the total number for the 116th Congress and that was with roughly two months to go. And you'll also note that fewer bills were actually enacted this Congress than were last Congress. So we were generating a lot more work and not as many bills were actually enacted into law. As you might have guessed, those workload constraints also posed time constraints, and because of the nature of the 24/7 news cycle and the 24/7 work of the House, that imposes a lot of additional time pressure on our work as well. Political constraints are also a factor. There are some words that we just cannot use in legislation from one side or the other 'cause that poses political problems for them. And obviously the political winds shift on a dime so that can also complicate matters for us. And lastly, the parliamentary considerations that I flagged a little bit earlier with respect to what is in order in budget reconciliation or appropriations bills, or what might be referred to which committee, those can also complicate our work. So if you wanna read more about the drafting process or how we go about our work, I've included a list of sources for further reading. They include a couple of books written by former legislative drafters, and our manual which actually was recently updated. So I hope that I can include that once it's released. The "Introduction to Legislative Drafting" is actually on our website. And lastly, the prefaced and the editor's note to the 2006 edition of the US Code, which you can actually find at uscode.house.gov. Next, I'll proceed into the brief exercise that I prepared for you. It consists of essentially three parts and it relates to Little Red Riding Hood. I'll begin with just a factual background. This is obviously fictional, but I feel like it might help to just state it clearly. This is something I made up. So as factual background, Jane Woodson, a legislative assistant to Representative Ami DiLupo, comes to you with a constituent case. She presents as background to her request the following. Red R Hood, having survived an attack by a wolf as a young girl, came to believe that she might have been spared that particular trauma in the woods if she'd had a furry companion of her own to protect her. In her adult life, due to her commitment to protecting young and old from predatory wolves, she founded RR Hood Protection Services, a company that breeds dogs to protect their owners against wolf attacks. She sought a license as a dealer under Section three of the Animal Welfare Act. And you can see that parallel citation here, that would be Section 2133 of Title seven US Code. The company became so successful that she opened three more facilities in other districts. She still hasn't said exactly what she wants, this is just her background. Ms. DiLupo is concerned for the welfare of the puppies breaded those facilities and wants the office responsible for enforcing the Animal Welfare Act to inspect those facilities and report back to Congress on the extent of violations of that act by those facilities and other dog breeders. I'm gonna pause for a moment and let you think about what questions you might have about what the client has asked for. So the questions that I would have for this client are the following. What is the scope of these new inspections? Are all breeders of all animals subject to the Animal Welfare Acts subject to them? Or is it limited only to dog breeders? Is it limited to a certain number of facilities? Is limited by the annual gross income of the facilities? Secondly, under the Animal Welfare Act, inspections are already required to be conducted under Section 16. So is the Member's intent to require more frequent inspections or simply greater transparency with respect to the inspections that are already being conducted? Third, what is the timing for the report that's supposed to go to Congress? Should it be directed to specific committees? And what information is going to be included in the report? I've included a link to the Animal Welfare Act so you can take a look at that Section 16 and see that it already requires inspections to be conducted. I'll move on to exercise part two. Even though you asked Jane some questions about her first policy, she has not yet answered your questions. She comes back three weeks later stating that her boss has reached out to USDA's Animal and Plant Health Inspection Service separately and discovered that in their last inspection of RR Hood Protection Services facilities, the dogs are being trained as protectors by being pitted against each other. Animal fighting ventures are against the law but USDA says it lacks the authority to enforce that provision against those facilities because of the way the statutory language is formulated. Ms. DiLupo wants to eliminate the loophole that is allowing RR Hood Protection Services to skirt the animal fighting provision. And here I'm gonna pause again so you can think through some questions you might have for the client about this particular policy. So my questions for the client, Jane, here would be, is the conduct in question already prohibited by law? What provisions of law might be involved? Whether this should be amendatory or freestanding? And so here I'm gonna turn us to a particular provision of the Animal Welfare Act. So this is the Animal Welfare Act in its entirety, and I'm gonna direct your attention specifically to Section 26 f, and you'll note the term animal fighting venture is defined here. Specifically it says, "It is any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least two animals for the purposes of sport, wagering, or entertainment, except that the term animal fighting venture shall not be deemed to include any activity the primary purpose of which involves the use of one or more animals in hunting another animal." So I think that that provision is pretty on point. And it's interesting that the initial draft included for purposes of sport, wagering, or entertainment. This is not a purpose that was contemplated by Congress when they defined animal fighting venture. So I'm gonna run through the next part of the exercise and then I will show you what I came up with. The third part of our exercise involves looking at that same section of law and you'll see that there are some technical issues with it. One issue that we can see right away, it's in that Section 26. If we were to scroll up to subsection a, you can see here there's a little footnote here in the law that the casing is wrong, and then here in this note eight, the amendment to insert a new paragraph two and re-designate paragraph two... Was the note here? Was technically made to paragraph one of subsection a. So this provision doesn't actually reflect the way that it was amended back in 2014. So we'll take a look at how that was done in 2014. We're looking at Public Law 113-79. This was the 2014 Farm Bill, and this was a provision of law that amended subsection a of Section 26 to add a new paragraph specifying additional unlawful conduct. That's this, "Attending or causing an individual who has not attained the age of 16 to attend" an animal fighting venture. I'll show you where the error occurs. So it's really here. So this clause three should actually be a new subparagraph because we're amending subsection a and here we refer to paragraph one. So since we're amending subsection a, this should really be a new subparagraph. And the other thing that I wanted to point out that was a technical issue is this. This is again Section 26, and we're gonna get all the way to the end here. When this was originally enacted in the 70s, this Section 26, this subsection a included two paragraphs. Our compilation of the law does not include the second. The reason that was omitted is because it was actually an amendment to Title 39 in United States Code relating to the Postal Service. And we do not typically, because this was an amendatory provision, include another amendment within an amendatory provision. So that was an error that should probably be fixed. And now that we've talked through all three parts of that exercise, I'm gonna walk through what I came up with. Okay, so as we talked about Jane's request, it consists of essentially two parts plus the technical issues that we noticed in the law. So the first section, again, she never quite answered our questions with respect to the report. So what I did hear is a pretty common practice for us is that I included some questions in brackets and some blanks. And you can see that I put in my section heading as a report in violations of the Animal Welfare Act by certain dealers. And again, if you remember our fact pattern, RR Hood Protection Services is registered as a dealer under the Animal Welfare Act. So here we've said not later than blank, it's usually if Congress is gonna require a report, they wanna tell the agency when they want that report. And here, again, if you remember from the initial request, Jane asked for APHIS, which is the Animal and Plant Health Inspection Service, to be carrying out this report 'cause they are in fact the division within USDA that would be conducting this sort of inspection. So we've said not later than blank Secretary of Agriculture acting through the administrator of APHIS shall submit to. And then again, she didn't answer this question on whether she wants this to be generically submitted to Congress or to specific committees. A report on inspections conducted under the Animal Welfare Act. And here I see, I omitted the USC site, but that should have been included. Of facilities of dealers that, and then this was another question she had not answered. Which kind of dealers, is it anyone licensed under the act? What about exhibitors that are licensed under the act? And then again, we were missing some information on what should be included. So I just included, such reports shall include with respect to each such inspection, the nature and extent of the violation cited during the inspection, and then I just asked the broad question of other information. Sometimes I think it's helpful to include these notes to help guide the clients in thinking through their policy. So the next section is the amendatory section that we talked about, that definition of animal fighting venture. And in this case we're gonna be amending 26, f, one, of the Animal Welfare Act, and you'll see the parallel citation is here, is amended by striking. And if you remember that 26, f, one, we talked about the purposes not covering the purposes of training, it just specifies sport, wagering, or entertainment. So we can strike our entertainment because this isn't a list with serial commas and say entertainment comma or training as a personal protection animal, and hopefully that would do it. On Section three, I mentioned the technical corrections. I think this would be a lot to really get into during our brief discussion here. But suffice it to say that correcting these things can be more complicated than you might think. I had to include a note that this correction would be effective as if included in the enactment of the Agricultural Act of 2014, so that it would retroactively be fixed. And instead of amending the Animal Welfare Act, I'm amending the original enacting statute that amended that section which was that 2014 bill. And I'm amending Section 12308, b, one, of that act. And essentially I'm just moving things over and like I said, I would be adding new subparagraphs instead of those clauses three and four that we talked about just to have everything at the appropriate level. The other technical issue that I noted, because that provision had been amended so many times since its original enactment, it was simpler to amend both provisions that were included there in the underlying law. That's all I had for our discussion today. If you have any questions, please feel free to reach out to me. I've included my email address.

Presenter(s)

MVJ
Michelle Vanek, JD
Counsel
U.S. House of Representatives, Office of the Legislative Counsel

Credit information

Jurisdiction
Credits
Available until
Status
Alabama
  • 1.0 general
December 31, 2024 at 11:59PM HST Approved
Alaska
  • 1.0 voluntary
December 14, 2024 at 11:59PM HST Available
Arizona
  • 1.0 general
December 14, 2024 at 11:59PM HST Available
Arkansas
  • 1.0 general
Pending
California
  • 1.0 general
December 14, 2024 at 11:59PM HST Approved
Colorado
    Not Offered
    Connecticut
    • 1.0 general
    December 14, 2024 at 11:59PM HST Available
    Delaware
      Not Offered
      Florida
        Not Offered
        Georgia
        • 1.0 general
        Unavailable
        Guam
        • 1.0 general
        December 14, 2024 at 11:59PM HST Available
        Hawaii
        • 1.0 general
        December 14, 2024 at 11:59PM HST Approved
        Idaho
          Not Offered
          Illinois
          • 1.0 general
          December 20, 2024 at 11:59PM HST Approved
          Indiana
          • 1.0 general
          December 31, 2024 at 11:59PM HST Approved
          Iowa
            Not Offered
            Kansas
              Not Offered
              Kentucky
                Not Offered
                Louisiana
                  Not Offered
                  Maine
                  • 1.0 general
                  December 31, 2026 at 11:59PM HST Self-apply
                  Minnesota
                    Not Offered
                    Mississippi
                      Not Offered
                      Missouri
                      • 1.0 general
                      December 14, 2024 at 11:59PM HST Available
                      Montana
                        Not Offered
                        Nebraska
                          Not Offered
                          Nevada
                          • 1.0 general
                          December 31, 2026 at 11:59PM HST Approved
                          New Hampshire
                          • 1.0 general
                          December 14, 2024 at 11:59PM HST Available
                          New Jersey
                          • 1.2 general
                          January 9, 2025 at 11:59PM HST Approved
                          New Mexico
                            Not Offered
                            New York
                            • 1.0 skills
                            December 14, 2024 at 11:59PM HST Available
                            North Carolina
                            • 1.0 general
                            Pending
                            North Dakota
                            • 1.0 general
                            December 14, 2024 at 11:59PM HST Available
                            Ohio
                            • 1.0 general
                            Unavailable
                            Oklahoma
                              Not Offered
                              Oregon
                                Not Offered
                                Pennsylvania
                                  Not Offered
                                  Puerto Rico
                                    Not Offered
                                    Rhode Island
                                      Not Offered
                                      South Carolina
                                        Not Offered
                                        Tennessee
                                          Not Offered
                                          Texas
                                          • 1.0 general
                                          Unavailable
                                          Utah
                                            Not Offered
                                            Vermont
                                            • 1.0 general
                                            December 14, 2024 at 11:59PM HST Approved
                                            Virginia
                                              Not Offered
                                              Virgin Islands
                                              • 1.0 general
                                              December 14, 2024 at 11:59PM HST Available
                                              Washington
                                              • 1.0 law & legal
                                              December 22, 2027 at 11:59PM HST Approved
                                              West Virginia
                                                Not Offered
                                                Wisconsin
                                                  Not Offered
                                                  Wyoming
                                                    Not Offered
                                                    Credits
                                                    • 1.0 general
                                                    Available until

                                                    December 31, 2024 at 11:59PM HST

                                                    Status
                                                    Approved
                                                    Credits
                                                    • 1.0 voluntary
                                                    Available until

                                                    December 14, 2024 at 11:59PM HST

                                                    Status
                                                    Available
                                                    Credits
                                                    • 1.0 general
                                                    Available until

                                                    December 14, 2024 at 11:59PM HST

                                                    Status
                                                    Available
                                                    Credits
                                                    • 1.0 general
                                                    Available until
                                                    Status
                                                    Pending
                                                    Credits
                                                    • 1.0 general
                                                    Available until

                                                    December 14, 2024 at 11:59PM HST

                                                    Status
                                                    Approved
                                                    Credits
                                                      Available until
                                                      Status
                                                      Not Offered
                                                      Credits
                                                      • 1.0 general
                                                      Available until

                                                      December 14, 2024 at 11:59PM HST

                                                      Status
                                                      Available
                                                      Credits
                                                        Available until
                                                        Status
                                                        Not Offered
                                                        Credits
                                                          Available until
                                                          Status
                                                          Not Offered
                                                          Credits
                                                          • 1.0 general
                                                          Available until
                                                          Status
                                                          Unavailable
                                                          Credits
                                                          • 1.0 general
                                                          Available until

                                                          December 14, 2024 at 11:59PM HST

                                                          Status
                                                          Available
                                                          Credits
                                                          • 1.0 general
                                                          Available until

                                                          December 14, 2024 at 11:59PM HST

                                                          Status
                                                          Approved
                                                          Credits
                                                            Available until
                                                            Status
                                                            Not Offered
                                                            Credits
                                                            • 1.0 general
                                                            Available until

                                                            December 20, 2024 at 11:59PM HST

                                                            Status
                                                            Approved
                                                            Credits
                                                            • 1.0 general
                                                            Available until

                                                            December 31, 2024 at 11:59PM HST

                                                            Status
                                                            Approved
                                                            Credits
                                                              Available until
                                                              Status
                                                              Not Offered
                                                              Credits
                                                                Available until
                                                                Status
                                                                Not Offered
                                                                Credits
                                                                  Available until
                                                                  Status
                                                                  Not Offered
                                                                  Credits
                                                                    Available until
                                                                    Status
                                                                    Not Offered
                                                                    Credits
                                                                    • 1.0 general
                                                                    Available until

                                                                    December 31, 2026 at 11:59PM HST

                                                                    Status
                                                                    Self-apply
                                                                    Credits
                                                                      Available until
                                                                      Status
                                                                      Not Offered
                                                                      Credits
                                                                        Available until
                                                                        Status
                                                                        Not Offered
                                                                        Credits
                                                                        • 1.0 general
                                                                        Available until

                                                                        December 14, 2024 at 11:59PM HST

                                                                        Status
                                                                        Available
                                                                        Credits
                                                                          Available until
                                                                          Status
                                                                          Not Offered
                                                                          Credits
                                                                            Available until
                                                                            Status
                                                                            Not Offered
                                                                            Credits
                                                                            • 1.0 general
                                                                            Available until

                                                                            December 31, 2026 at 11:59PM HST

                                                                            Status
                                                                            Approved
                                                                            Credits
                                                                            • 1.0 general
                                                                            Available until

                                                                            December 14, 2024 at 11:59PM HST

                                                                            Status
                                                                            Available
                                                                            Credits
                                                                            • 1.2 general
                                                                            Available until

                                                                            January 9, 2025 at 11:59PM HST

                                                                            Status
                                                                            Approved
                                                                            Credits
                                                                              Available until
                                                                              Status
                                                                              Not Offered
                                                                              Credits
                                                                              • 1.0 skills
                                                                              Available until

                                                                              December 14, 2024 at 11:59PM HST

                                                                              Status
                                                                              Available
                                                                              Credits
                                                                              • 1.0 general
                                                                              Available until
                                                                              Status
                                                                              Pending
                                                                              Credits
                                                                              • 1.0 general
                                                                              Available until

                                                                              December 14, 2024 at 11:59PM HST

                                                                              Status
                                                                              Available
                                                                              Credits
                                                                              • 1.0 general
                                                                              Available until
                                                                              Status
                                                                              Unavailable
                                                                              Credits
                                                                                Available until
                                                                                Status
                                                                                Not Offered
                                                                                Credits
                                                                                  Available until
                                                                                  Status
                                                                                  Not Offered
                                                                                  Credits
                                                                                    Available until
                                                                                    Status
                                                                                    Not Offered
                                                                                    Credits
                                                                                      Available until
                                                                                      Status
                                                                                      Not Offered
                                                                                      Credits
                                                                                        Available until
                                                                                        Status
                                                                                        Not Offered
                                                                                        Credits
                                                                                          Available until
                                                                                          Status
                                                                                          Not Offered
                                                                                          Credits
                                                                                            Available until
                                                                                            Status
                                                                                            Not Offered
                                                                                            Credits
                                                                                            • 1.0 general
                                                                                            Available until
                                                                                            Status
                                                                                            Unavailable
                                                                                            Credits
                                                                                              Available until
                                                                                              Status
                                                                                              Not Offered
                                                                                              Credits
                                                                                              • 1.0 general
                                                                                              Available until

                                                                                              December 14, 2024 at 11:59PM HST

                                                                                              Status
                                                                                              Approved
                                                                                              Credits
                                                                                                Available until
                                                                                                Status
                                                                                                Not Offered
                                                                                                Credits
                                                                                                • 1.0 general
                                                                                                Available until

                                                                                                December 14, 2024 at 11:59PM HST

                                                                                                Status
                                                                                                Available
                                                                                                Credits
                                                                                                • 1.0 law & legal
                                                                                                Available until

                                                                                                December 22, 2027 at 11:59PM HST

                                                                                                Status
                                                                                                Approved
                                                                                                Credits
                                                                                                  Available until
                                                                                                  Status
                                                                                                  Not Offered
                                                                                                  Credits
                                                                                                    Available until
                                                                                                    Status
                                                                                                    Not Offered
                                                                                                    Credits
                                                                                                      Available until
                                                                                                      Status
                                                                                                      Not Offered

                                                                                                      Become a Quimbee CLE presenter

                                                                                                      Quimbee partners with top attorneys nationwide. We offer course stipends, an in-house production team, and an unparalleled presenter experience. Apply to teach and show us what you've got.

                                                                                                      Become a Quimbee CLE presenter image