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.

Key drafting questions

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.  

Helpful resources

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 for bills that were introduced in the current or a past Congress.