Some Guidelines for Making Laws

Back in the day when I was counsel for a Washington Legislature House Committee, I was asked by a non-profit to put together an outline to help them pursue legislative change. I ran across that outline in my regular purge of files. It seems quaint but still relevant. I share it for the benefit of those nice people who believe a good idea will find its own way into law.

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Successful policy development gets you one-fifth of the way toward implementation. Moving from policy to law requires the successful blending of power, publicity, politics and money.

1. Policy – the right solution for the problem.
2. Power – the ability to implement the policy.
3. Publicity – the ability to communicate the problem and solution to the public and to those with influence over the outcome.
4. Politics – the ability to overcome personal and organizational objections to otherwise acceptable policy.
5. Money – the ability to pay for implementation of policy.

The blender recipe is a mix of agreed words and numbers.

1. Know the law drafting process and the gambits and ruses used to sidetrack policy.
2. “It sounded good when we talked about it” – words and numbers are the only things that matter.
3. Facts, facts, and facts – know your subject in all its facets. You can’t ride a horse until you know which end to face.
4. Know the capabilities of the people and organizations affected. Horses can’t fly.
5. Practice inclusion and many parts make the whole. You can’t pull on the reins until the bit is in the horse’s mouth.
6. Practice honesty, humility and humanity in all your dealings despite the urge to make a splash on social media. If you can’t ride, say so. If you can, don’t show off.

Understand paper power, pretend power and real power.

1. Know how government works. Power springs from many sources.
2. Power of the people – initiatives and referendums.
3. Power of the legislature – know the legislative process and legislators who will introduce a bill.
4. Power of the executive – know who will draft the regulations and has oversight of statutory implementation.
5. Power of the judiciary – understand mechanisms for enforcing, interpreting, and changing the law through litigation.
6. The difference between real power and paper power – a judge may issue an order but judges don’t patrol the streets.

Publicity shouldn’t happen by mistake.

1. Communicate policy to those who you believe will support the policy.
2. Keep it simple. “We want to win.”
3. Be direct. “This will pay for food.”
4. Use the proper medium
5. Communicate to those who oppose the policy.
  1. Show your effort to mitigate and balance.
  2. Show the benefit.
  3. Admit the flaws and invite improvement.
  4. Show the harm if the policy is not adopted and demonstrate your ability to communicate that harm to voters – “I have a video of people starving.”

Politics happens.
1. Any elected official with ambition wants re-election; but few want to candidly admit and openly discuss this ambition as a factor in considering a policy.
2. Politics requires consensus and compromise to gain votes; policy must often yield to or be diluted by earlier promises that secured other policy objectives.
3. Politics requires the maintenance and acquisition of power which may preclude or enhance cooperation between political opponents.
4. Broad political philosophies will be altered by strongly held personal beliefs.
5. Politicians have the same personal strengths and weaknesses as anyone else including good will or animosity toward the person recommending a policy. The right policy often fails when proposed by the wrong person.

Everything worth doing costs something.

1. Know the costs of implementing policy and the sources to meet these costs.
  1. Public donations
  2. General fund revenues
  3. Specialized taxes
  4. User fees
  5. Grants
2. Know the governmental budget process.
  1. Budgets can indirectly amend or thwart policy.
  2. Conditional appropriations and timing may just be another form of no.
  3. Budgets can direct money to the wrong place, at the wrong time, and for the wrong reasons.
3. Consider and alleviate the costs to those affected by the policy.
4. No one wants to put people out of work, close businesses, or waste money. Every disliked policy will produce these nasty effects. Every liked policy will cost nothing, produce income, and create jobs.
5. Know how to count and recognize the cost of a policy as the same cost counted somewhere else. If I always feed my horse, then a law that requires me to feed my horse oats does not cost the price of oats. It’s the cost of oats minus the cost of what I already feed my horse.

Converting policy into Law – “That’s not what I meant.”

1. If money is the grease of government, written words and numbers are the gears.
2. Know the differences among statutes, regulations, and judicial decisions and how these affect policy.
3. Know how statues, regulations, and judicial decisions are made – who makes them, who bakes them, and who says they’re cooked.
4. Know the people who tell those in power how to be powerful.

The basic elements of a written law
1. Intent and purpose
2. Definitions
3. Substantive provisions
4. Exceptions and limitations
5. Enforcement
6. The fine print: codification, effective dates, and other dangerous and boring trivia can hide success or failure.

I say potato and you say spud.

1. Words lead to the actuation or defeat of policy – May, shall, and, or, but, excluding, including, not limited to – words to live by.
2. Every word is politically charged; know which ones to avoid, which ones to use and when to use them. The right words can avoid political suicide. No one likes a tax; but we may be able to live with user fees.
3. Grammar can defeat intention.
4. Be precise: “All persons owning a single family dwelling in cities of more than 5,000 residents, with green shingled roofs, and painted cedar siding shall…” meaning “you there with the yellow shirt.”
5. Conflict of laws: All politics is local unless preempted.
6. Know the hierarchy of laws – that some federal laws may complement or override state and local laws, that state laws may override local laws.
7. Know how regulation and statutes work together, that statutes override conflicting regulations.
8. Know that courts can interpret laws changing the drafter’s intent and purpose.
  1. Know the effect of a court decision – separate but equal, equal, mostly equal and we can’t look.
  2. Know what will happen if a law must be litigated and rules that a court will follow when deciding a law’s meaning.
  3. Know how to plan for and influence this process in advance – acceptable evidence and persuasive evidence.
  4. Know how to sow the seeds or plant the “glove” for future court dates – legislative intent and colloquy.

There are five versions of every unique idea.

1. Know your history. Old laws are amended repeatedly; you may be asking for a return to another decade’s practice and procedure. What caused the change and why return. Legislation proposed this year may have been introduced and defeated last year.
2. Get help. There are many public and private organizations that draft and recommend statutes and regulations, e.g., NAIC, NAAG, NGA, and NCSL. There are also specialists within government charged with responsibility for drafting and maintaining public laws – Wash. State Code Reviser’s Office. These organizations also publish drafting guidelines.
3. Don’t reinvent the wheel. Use the “boilerplate” language. Some words, clauses, and paragraphs have time-tested and judicially approved meanings. Being original may cause premature death.

Love hurts and Christmas trees kill.

1. Loving an idea to death – know when to say no to help and “bigger and better” ideas.
2. Avoid drafting legislation that becomes the “Christmas tree” for everyone else’s public policy ornament. Keep a narrow focus and narrower bill title.
3. Be prepared to kill your policy “child” rather than see it harmed in the hands of enemies. Bad policy enacted can become the zombie that kills change.
4. Know when to say yes to a study of a policy rather than the implementation of the policy.
5. Some government agencies can be trusted to do the right thing and others can’t. Know how to use and how to avoid efforts to push a policy to the regulatory level for meaning and implementation. Some laws are sent to government agencies to die.
6. Know when to gamble on the risk of litigation. Some court decisions can be setbacks while other decisions foreclose a policy.

Complex formulas and intricate procedures can mask revolutionary ideas.

1. Controversial elements of policy can hide in the deeper recesses of thick legislation. Read and understand the entire legislative or regulatory proposal.
2. Look for internal contradictions and other conflicts within the same proposal. Know the hierarchy of meaning and interpretation within a law.
3. Remember that something that seems like a gift may be a trojan horse. A simple addition to a proposal may consume all the time and money intended for the substance of policy.

Trust is your greatest asset and civility your gauge for action.

1. Never lie, break a promise, or allow an ally to misunderstand your intentions.
2. Admit your mistakes.
3. Learn the protocols and rhythms of government and follow them.
4. Don’t confuse policy with personality – some of the nicest people have the dumbest ideas and some of the meanest people have the best.
5. Don’t confuse process with personality – kind people can be ruthlessly effective politicians and enemies can be inept.
6. Don’t take criticism or praise personally; it may be strategic, not personal.
7. There are few reasons to publicly display anger, aggression, and disrespect – know the differences and which ones you can give and take.
8. Know which principles you cannot compromise and let people know in advance.

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In such a polarized political environment in which we find ourselves today, if that last section above were followed, I would expect to find rainbows and unicorns on every city block. We can hope.