PART III LEGISLATIVE REFERENCE AND BILL-DRAFTING AGENCIES A characteristic of public administration, distinguishing it sharply from that of private undertakings, is that it must rest upon a foundation of law. It is of the utmost importance therefore, if efficient administration is to be had, that this legal basis shall be of a proper character, both as regards the nature of its provisions and the technical manner of their expression. Efficient legislation must thus be deemed to be one of the prime factors of efficient administration. A service that rests upon a properly drawn body of administrative law has made a big step towards securing efficiency in operation. One which does not enjoy this advantage finds its problem of securing efficiency correspondingly more difficult, if not, indeed, impossible of solution. It is a matter of congratulation, therefore, that recent years have witnessed a very important movement in the United States in the direction of bringing into existence agencies having for their purpose the promotion of efficient legislation. These agencies may render to the legislator services of two distinct ends. On the one hand they may furnish him with information bearing on the substantive matter of the legislation which he has in mind. This is the function of legislative reference libraries, so-called. On the other hand, they may provide the legislator with expert assistance in drafting the text of the proposed legislation. It need hardly be pointed out that the best results are to be obtained when both these services are furnished to the legislator. Nevertheless, not a few of our states have made provision for one of the two without the other. In the following chapters account is given, first of those agencies which furnish both these types of service to the leg islator; second, of those which furnish only bill-drafting service; and finally, of those which furnish only information. In the case of agencies engaged in bill drafting, the aim is not to supply information as the result of scientific investigation but simply to make available the services of persons technically trained in the drawing up of projects of law. In the case of legislative reference bureaus, the element of scientific investigation plays a part since their aim is not simply to collect and classify, and thus render readily available information needed by the legislature, but upon request, or in anticipation of a request, to go afield and collect all possible information upon pending or probable subjects of legislation—the texts of bills, and official and unofficial accounts of the manner in which laws in other jurisdictions have operated. In most cases, it has not been thought necessary to publish the results of inquiries thus undertaken, but, in other cases, valuable series of publications, which will be later mentioned, have been issued, It may, however, be observed at this point that while in most cases the legislative reference departments limit the assistance which they give to providing pertinent data, in some cases they also venture opinions as to the argumentative weight to be attached to the information which they supply. An instance of this practice is found in the legislative reference department of the Library Commission of Wisconsin. While the value of the opinions rendered by reference services may be considerable, it is clear that there is danger in this practice, since it necessarily draws the department into the arena of politics and policy with the inevitable result of bringing it into discredit, or at least into disfavor, with those who do not happen to agree with the judgments it expresses. Before proceeding to the account of the three types of services above mentioned, it seems desirable to reproduce the very excellent discussion of the general principles which have been outlined above, and of related matters, made in 1913 by a committee of the American Bar Association appointed to investigate the subject. This report is reproduced in the following chapter. CHAPTER XII THE PROBLEM OF LEGISLATIVE REFERENCE AND BILL-DRAFTING SERVICE A REPORT OF A COMMITTEE OF THE AMERICAN Your committee was appointed (1) "To consider whether some efficient agency can not be devised to provide the several State legislatures with scientific and expert assistance in the framing of legislation" and (2) report on "the existing methods of furnishing such assistance in the preparation of legislative enactments, together with a recommendation as to the part, if any, which this association should take in the matter." The most important existing permanent public agencies for funishing information and rendering expert assistance in the preparation of legislative enactments are the State legislative reference bureaus and drafting departments. Assistance in the framing of legislation given by existing agencies falls under two heads, legislative reference service, or the work of collecting material throwing light on the subject matter of legislation, and drafting service. The legislative reference service, now actually carried on in several States, demonstrates that it is entirely practicable to collect, classify, digest, and index, prior to a session of a legislature, all kinds of material bearing on practically all subjects likely to become subjects of actual legislation at the session. This material, where the bureau is well run, includes not only books and pamphlets, such as might be found in an ordinary library, but also copies of bills introduced into the 1 Paragraph omitted relates to composition of the committee and its method of work. various State legislatures and laws which have been enacted in this and foreign countries, and other printed materials relating to the operation of such laws or the conditions creating a need for them. Indeed, on most subjects of possible legislation, the difficulty is not to find material, but to arrange the large mass of available material so as to make its efficient use practical. That such service has great possibilities of usefulness is evident, especially where the service is directly contributory to the drafting service, a matter to be presently explained. The increasing complication of our industrial, social and governmental administrative problems renders it necessary, if the discussion of matters pertaining to legislation is to proceed in a reasonably intelligent manner, that systematic effort be expended on the collection and arrangement of material bearing on current matters of public discussion likely to become the subject of legislative enactment. A central agency to furnish such service does not take the place of special commissions or committees created to investigate particular subjects and recommend legislation. The object of the central reference service should be to assist such bodies, as well as individual members of the legislature and others desiring information pertaining to subjects of legislation. Existing agencies also demonstrate that it is possible to provide expert drafting service for the more important measures and some assistance in the drafting of all bills introduced. The number of bills, for which expert drafting assistance can be furnished, would appear to be merely a question of the size of the force and the amount of the appropriation for its support. Your committee, therefore, believes that it is entirely practical to establish, in connection with any legislature, a permanent agency capable of giving expert drafting assistance for all bills introduced, and they urge the Association to place itself on record as favoring such an agency as the most practical means of bringing about scientific methods of legislation, that is to say, methods of drafting statutes which will secure: 1. Conformity to constitutional requirements. 2. Adequacy of the provisions of the law to its purpose. 3. Coördination with the existing law. And 4. The utmost simplicity of form consistent with certainty. The technical shortcomings of our statutes are chiefly due to the fact that they come from so many hands working without supervision and without a concerted plan. Each statute is apt to create, to some extent, an administrative machinery of its own, to have its own peculiar provisions for sanction and enforcement, and to frame new rules and principles applicable to already existing acts in pari materia. The multiplicity of separate provisions for separate statutes produces confusion, and unnecessarily encumbers our law. A distinct drafting service will produce the one thing indispensable to scientific legislation: a professional attitude of mind, which means training for the work, devotion to it, and a reputation at stake in its proper execution, without which a high quality of workmanship is as unlikely in legislation as in any other work. The organization of the two services, legislative reference and legislative drafting, and their relation to each other, are important factors in the usefulness of the results obtained from the establishment of the service. The agencies now existing, considered from the point of view of organization, fall into two classes; those in which the legislative reference work and the bill drafting are provided for in a single permanent bureau, as in Wisconsin, Indiana, and Pennsylvania, and those in which the legislative reference work is carried on by the State library or one of its divisions, the drafting work being done by persons appointed by and operating under the direct control of the legislature, as in New York, Connecticut, and Massachusetts. Your committee does not feel that they are as yet in a position to express an opinion on the relative merits of either form of organization. They are, however, of the opinion that the reference service should be so organized and operated as to be directly contributory to the drafting service, and that all questions of organization of the two services, their physical location and the relation of the reference work to the other ends than the drafting of bills, as, for instance, supplying to legislators and others material for the discussion of pending or possible legislation, should be decided with this |