THE LEGISLATION GAME

By Attorney Jonathan Emord
March 1, 2010
NewsWithViews.com

Drafting legislation to expand federal power has become a popular sport in Washington. It is no longer necessary for a member to have proof of a genuine problem, problems can be declared even without proof of their existence or upon the prediction that they will soon be upon us. Fiction is just as good a basis for drafting legislation as fact, or so most members who play the legislation game see it.

The way it works is simple. If you are a member of the House of Representatives or the Senate, you receive a steady stream of lobbyists into your office weekly. Or, if you are particularly anxious to build a new constituency, you can simply contact a leading figure and invite them in to see you. Most often, however, members just sit and wait because soon folks will come knocking. You then decide which of those visiting has the greatest money to give to you or the greatest popular pull or, preferably, both.

You then have your staff meet with the folks who come to visit first (no politician likes to tell constituents that a solution does not exist for their problems). The staff consists of young college age kids, often on unpaid or low paid internships, who usually have very little idea about the world beyond their interest in coming to Washington, D.C. for a semester or two. These kids listen often to professionals, lobbyists and lawyers and executives who call for regulation. Most often they call for regulation to protect their own economic interests but say it is for a public good.

The staff then assembles a brief for the member. The chief of staff edits it and summarizes it. The member reads the thing (or not) but decides which of the issues to champion. The member is often not much more savvy when it comes to American history, the Constitution, or the law than his interns, and is often more interested in securing re-election and campaign contributions than doing anything for anyone else. So as the member listens to the briefing, he is variously musing: If I help these people will they give me money? If I help these people will I be able to crow about doing something that I know will bring me money and support? If I help these people will it offend any of those who give me money now or who support me?

Then after the briefing the member may say, okay, let’s draft the bill. Does he then draft it? No, not ordinarily. Often the party seeking the bill already has it drafted for him. He then takes the bill, submits it to legislative counsel working for the House and Senate, and they translate it into a final bill with the member’s name on it. The member may then circulate it among colleagues for them to sign onto it.

The member may then introduce it on the floor of the House or Senate and issue press releases, crowing about his or her effort to stem some perceived or trumped up horror. The constituent group likewise crows about the member. The media covers it, particularly the local media. The member gets new campaign contributions. The member gets a new constituency to shore up his or her chance for re-election.

The bill gets assigned to a committee where it usually dies. The member ordinarily knows that will happen. He still gets credit for the bill from the special interest groups and can tell those groups that they must marshal support for the measure. He may give it little or no support himself, signaling to colleagues that he really does not care, or he may try to drive it through. The degree of action on his part is rarely seen by constituents unless they are big concerns with a lobbying presence on the Hill. Then, if he has introduced the measure he has to appear supportive of it, or they will lose faith in him and move to another “championâ€