Approaching a Problem
The need for legislation
The first step in the legislative drafting process is identifying a problem to be solved. The next steps are developing a policy for solving it and fleshing out that policy in enough detail to draft effective legislation. Before proceeding to the drafting stage, however, it is important to ask whether the policy is one that is best accomplished legislatively.
Reasons that a legislative solution may not be appropriate include constitutional limitations, insurmountable problems with enforcement, and the difficulty of stating the policy with enough specificity. Additionally, the policy may already be accomplished by existing statutes or regulations, or it may be preferable to try to persuade an agency to enforce existing law in a different way. If new, binding legislation is not appropriate or desirable but Congress still wants to express its views on a policy, it may do so through a nonbinding resolution or sense of Congress provision.
Once the decision has been made to proceed with new, binding legislation, answering the questions below will help to produce a draft that accomplishes the intended policy and avoids unintended consequences.
- What is the scope of the policy—To whom or what does it apply?
- For example, does a policy that applies to the States also apply to the territories and the District of Columbia? Does a policy that applies to “Federal funds” also apply to Federal loan guarantees? Does a policy that applies to individuals also apply to corporations?
- Should there be any exceptions or special rules for particular persons or things?
- Questions of administration—Who will be responsible for carrying out the policy?
- Are the States or the Federal Government responsible?
- If the Federal Government, which particular entity in the Federal Government?
- Will the policy be administered by one entity or many?
- Should a new entity be created to administer the policy?
- Questions of enforcement—What if the policy is not followed?
- Will people be encouraged to follow the policy through incentives or punished for violating it (carrots versus sticks)?
- If there are going to be penalties, should they be criminal or civil?
- Questions of timing
- Should the policy take effect on the date of enactment or at some later time?
- How much lead-time will agencies or private actors need to prepare to implement the policy?
- Are there constitutional or other legal restrictions on applying the policy immediately?
- Should the policy apply to different persons or things at different times?
- If the policy affects current programs or current behavior, should there be any transitional rules?
- What is the relation between the policy and existing law—Must existing law be amended to avoid conflicts with the policy?
There are numerous resources available for acquiring the needed background information to formulate a coherent policy. The Congressional Research Service provides nonpartisan, impartial policy and legal expertise to all Members of Congress and staff. The relevant Federal agencies can also provide expertise to Members and staff as a policy is developed. To see how Members have approached similar problems, you may want to search on Congress.gov for bills that were introduced in the current or a past Congress.