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Will Help Draft Legislation for Food

-- or even without food. One of the things that I find most rewarding is helping draft legislation, especially in areas I know a good deal about. Naturally, I'd love it if I can persuade the people I'm talking to (generally legislative staff) about some broad policy points. But often I realize that this is impossible; their bosses, or the legislative majority, is wedded to a particular result.

No problem; I've often found that I can offer pretty good technocratic advice that people can agree on regardless of their bottom line: How to make the text clearer (I realize that sometimes the text is deliberately left vague, but often the vagueness is accidental), how to avoid unintended consequences, how to make the proposal comply with the relevant constitutional rules, and so on. Some legislative staff are specialists, but many are generalists, and don't have much experience with, say, First Amendment law (the area in which I can probably contribute the most). A specialist academic's eye can often help, regardless of where you are politically.

I've done this quite a bit in past years, and I'd love to do more. My question, for those who are familiar with the way legislative drafting works: How could I -- and my blogging colleagues -- get more calls like this?

Steve:
I would suggest, in complete seriousness, that you do a better job than this guy.
4.18.2006 9:28pm
Francis:
Here in not-so-sunny California, you should introduce yourself to the Chief Consultant for the Senate and House Committees which will consider legislation in the areas in which you have expertise. The Chief Consultant (whose name and contact number is listed for each House and Senate Committee) is the senior staffer and usually the person who coordinates comments. If not, he or she can send you to the lobbyist who is.

Also, the State Bar committees are always asserting their wisdom on the merits of various pieces of legislation. That road has its own problems.
4.18.2006 9:49pm
Wintermute (mail) (www):
I've drafted legislation for beer before! During the homebrewers nationwide drive for 50-state explicit legalization. It passed without amendment.

Next time "someone" tries to connect you with a legislator, take an interest.
4.18.2006 10:29pm
BruceM (mail) (www):
As long as you have libertarian leanings, no democrats or republicans want you to be in a position to be offering your non-party line, possibly loose cannon opinions as to what a bill you may have helped draft actually means. Keep begging.
4.19.2006 12:24am
DJ (mail):
Here's how: Get that fancy law firm that you work for to hang out a lobbying shingle and get on their lobbyists' speed dial. The surest way to get your hands into the legislative process is to join the folks who do the real heavy lifting: the third house.
4.19.2006 1:05am
Harriet Miers' Law Partner:
I do this for a living in a large state (not California) on behalf of political subdivisions and nonprofits.

First, a technical note. Learn the drafting conventions of the legislature, realizing that each body may have different preferences. Many state legislative drafting manuals are online. Staff does not always know these conventions. When they submit your drafts without alteration to lege counsel, the staff attorney will be impressed by the fact you took the time to do it right. For example, if you are asked to draft a floor amendment to a pending bill, and you use the congressional formula "strike out and insert in lieu thereof," when your state uses "strike X and substitute Y" your work will suffer from the perception it was drafted by an amateur and will be scrutinized very carefully and may be rewritten entirely by distrustful floor counsel and lawyer-members. This ties in with your recommendation in Academic Legal Writing to format the article into law review article form before submission.

Second, the only way you are going to get the work is to make yourself known at the legislature as an expert. That means finding a hot issue, calling up either the sponsor or chief opponent, and volunteering to be their expert to help them through committee hearings, floor fights, and conference committees. This happens a lot with tax bills -- legislators are always looking for somebody to point out the downside to any portion of these bills.

While you're working the issue, make sure you feed a lot of info to the capitol press corps. It doesn't matter what the LA paper says about you, if the capitol press corps doesn't know you as the hip, highly colorful and pithily quotable expert that you are, you ain't getting a lot of repeat calls. If the capitol press corps likes you and plays you up, the next words of a legislator's mounth is "get me volokh in here" on the next big issue in your field.
4.19.2006 1:18am
Robert Schwartz (mail):
It would be helpful to know what topics you are interested/expert in. I know about commercial law which is largely done through the uniform laws process. Other areas will work differently.

My own expeditions into this arena have been pretty dispiriting, but YMMV.
4.19.2006 1:32am
Ross Levatter (mail):
Dear Prof. Volokh,

What type of food legislation did you hope to help draft? I hear the movement to help end farm subsidies could use some assistance...

But perhaps I misunderstand...
4.19.2006 5:43am
Aultimer:
Prof. V - I spent some time lawyering for lobbyists - I think it's tough for someone who advertises thinking for himself, and much easier if "your" issues are party-line or motherhood &apple pie.

Maybe the shortest road to critical mass is to draft first and shop to the interested "side". You blogged on funeral protest bans earlier - that'd be a good one. After just a couple of those, you'd be in the loop there.
4.19.2006 10:06am
123 (mail):
See www.nccusl.org.
4.19.2006 11:09am
Ira B. Matetsky (mail):
The U.S. and the Legislatures of many states have offices that provide the sort of drafting assistance you refer to, which are staffed by full-time government employees in the legislative branch, a status I presume that you do not aspire to. (They are the successors to the office of the Parliamentary Draftsman in London.) Therefore, your best avenue is probably to offer your unofficial services to the offices of individual Members or senior staffers who are involved in committees that have jurisdiction over the areas you are interested in, and/or are working on policy areas that concern you -- or, less elegantly, to lobbyists.

Regarding technical issues of drafting style, as raised by one commenter, the best reference is probably Lawrence E. Filson, THE LEGISLATIVE DRAFTER'S DESK REFERENCE (Congressional Quarterly 1992). There is also a book about to be released which seems to be getting rave advance reviews, Tobias A. Dorsey, LEGISLATIVE DRAFTER'S DESKBOOK (TheCapitol.Net forthcoming 2006). There are also official guidebooks at the federal level and presumably for some states as well. See sources cited in Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60-61 &72 (2004).
4.19.2006 11:16am
Flguy:
If you are looking for legal contacts in your (U.S.) state legeislature, such as the bill drafting offices mentioned by a previous poster, one source is the Legal Services Staff Section of the National Conference of Satate Leguilatures. They have contact persons listed by state on their website here: http://204.131.235.67/programs/legman/legalsrv/lssshome.htm
4.19.2006 5:20pm
John Noble (mail):
You can get richer, faster, exposing the cracks by exploiting the ambiguities. DC recently adopted a comprehensive smoking ban. It won't apply to bars until 1/1/07. It includes the following text:

"Sec. 4917. Exemptions.
"The following places shall be exempt from the provisions of this part:
"(1) A retail store that is used primarily for the sale of tobacco products and
accessories in which the total annual revenue generated by the sale of non-tobacco products or accessories is no greater than 25% of the total revenue of the establishment; provided, that it does not share space with any other establishment;
"(2) A tobacco bar;
"(3) An outdoor area of a restaurant, tavern, club, brew pub, or nightclub;
"(4) A hotel room or motel room rented to one or more guests;
"(5) A medical treatment, research, or nonprofit institution where the activity of smoking is conducted for the purpose of medical research or is an integral part of a smoking cessation program; and
"(6) Theatrical productions.

"Tobacco bar" is defined, and the others are fairly self-explanatory; but "theatrical productions" is fun to play with. Presumably, they meant to refer to the cast -- you could hardly stage Sherlock Holmes without a pipe -- and theaters typically don't allow the audience to smoke anyway. But it's the "place" that is exempt, according to the plain language.

The client runs a strip-club. A lot of the customers, even most of the dancers, smoke cigarettes. He wants to know why the dancers' 15-minute sets aren't "theatrical productions," and why his customers can't light up while they watch -- either under the breadth of the word "place" or by insistence that a smoke-filled club is the "set," and the "theatrical production" calls for audience participation. Want a piece of the retainer?
4.19.2006 8:47pm