A civics education for USA Today
April 5, 2019
Rob O'Dell and Nick Penzenstadler don't know how the legislative process works. That is the most charitable interpretation I can come up with after reading their breathless USA Today piece about "model" legislation.
One might just ignore the story, since it was written in collaboration with a leftist special interest group that calls itself the Center for Public Integrity. It reads a like a fundraising letter, packed with words like "disguised," "infiltrated," and "copycat." It deserves comment, however, since Oklahoma Rep. Collin Walke last year introduced a bill to "expose" sources of legislative language.
This whole edifice rises from a false premise: state legislators write, or are supposed to write, the bills they pass. Yes, legislators are responsible to understand the bills that come before them, and to make good faith decisions about whether to support or oppose them. But to write them all?
Here is how the process usually works. Someone--usually either a constituent, an organization, or another government official--brings a legislator an idea for a bill. It might be just the germ of an idea, or it might already be written out in the form of a bill. Either way, if the legislator likes it, he or she will pass it along to a staff attorney.
Legislative staff write most of the bills. How do they do it? They might look at other states laws, or model legislation, or just come up with it on their own. Even if the bill is already written, a staff attorney will still look it over and can suggest changes. Staff sends the draft bill back to the legislator, who decides whether to file it or not.
What's important here is that the legislator decides whether to ask for the bill, whether to file it, and whether to advocate for it. As soon as it's filed, it becomes a public document with the legislator's name on it. The process from that point on is public.
So why not force disclosure of everyone involved in coming up with the bill in the first place? Three reasons.
One, it's impractical. Many bills are the result of lots of people's ideas, or borrow from several states' laws. Many bills are asked for by multiple people, often over many years, before they ever come close to passing. Tracking and reporting all this would never really happen--instead, it would be opportunistic. The most popular person or organization would be credited with being the originator of the idea.
This leads to the second, more serious problem. Do we really want the legislative process to become more of a popularity contest? The American Founders often wrote anonymously so their ideas would be received without bias based on the author's identity. Sometimes unpopular people, businesses, or groups have good ideas or important expertise. Forced disclosure would freeze unpopular voices out of the process.
And third, for the reasons set out above, it is unnecessary. The important part of the process--debating and voting on bills--is already public.
Finally, some history. Model bills are nothing new. O'Dell and Penzenstadler seem never to have heard of the Uniform Law Commission, formed in 1892. According to its website, the ULC "provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law." It also points out that by focusing the work of people around the country on particular areas of law, it provides "services that most states could not otherwise afford or duplicate."
The American Medical Association writes model bills, although it also gets no mention from O'Dell and Penzenstadler. Every interstate compact is essentially a "model" bill, requiring compacting states to adopt identical legislative language. The American Bar Association, a private interest group of attorneys with a distinctively leftward tilt, pushes model rules at state court systems.
There is nothing nefarious about people coming up with ideas and sharing them with legislators. Contrary to the suggestion in the USA Today article, legislators almost never write their own bills. Yet there is no way to pass a law without a public process, including public votes by legislators. O'Dell and Penzenstadler either don't understand how all this works, or perhaps they just want to drive certain voices and ideas out of the process altogether.