What exactly is legislative drafting, sometimes also called bill drafting? To start, legislative drafting is defined more broadly to include primary legislation and secondary legislation. Primary legislation is what immediately comes to mind when you think of legislation – bills, resolutions, and constitutional amendments that are debated and voted on by the legislative branch. Secondary legislation is regulations, executive orders, and other types of rules generally written by executive branch agencies.
In California, this work is done by the Office of the Legislative Counsel. The approximately 80 attorneys in the office draft five to seven thousand bills per year and write an additional eight to eleven or twelve thousand amendments to those measures. All states have some variation of a central legislative drafting office like California’s Office of Legislative Counsel.
Let’s take a look at the who, what where, when, and how of legislative drafting.
There are professionals around the country who draft legislative measures. However, only a handful of law schools offer legislative drafting clinics. There is also a graduate diploma in Legislative Drafting offered from Athabasca University in Alberta, Canada, and an LLM in Legislative and Regulatory Drafting at the University of London.
These individuals draft legislative measures, which include bills, resolutions, and constitutional amendments. They may also advise on the constitutionality of proposed legislation. Many state and federal executive branch agencies also have lawyers who draft, again, what’s called secondary legislation, like regulations, notices, executive orders.
Professionals draft measures at statehouses around the country, as well as in numerous state agencies and departments. There are just a handful of full‑time professional drafters in the private sector. Most bill drafters are actually employed by the public sector.
Most state legislatures meet a few months each year. California, some other states, and the US Congress, have full-time legislatures.
Professional bill drafters utilize skills that they’ve developed through drafting measures, primarily through on‑the‑job experience and some training, like in the California Legislative Counsel Bureau. Legislative drafters have to select their words carefully, avoid unnecessary prose, and write in simple, consistent language to reduce the potentials for ambiguity and misunderstandings.
Some often characterize legislative drafting as more of an art than a science. In other words, you might have three drafters with the same proposal but draft three different versions of the same statute. Of course, each might have proponents or detractors of those three different versions of a similar statute.
You can find the transcript of today’s audio here.