Cook on Concord: A modest proposal for the legislative process

Several veteran legislators of both parties graciously have asked if I would repeat a column first run in March 1994 and then again in 1997 about how legislators should approach the many bills they are asked to consider.

At the risk of repeating myself, but with thanks to those who think the thoughts have value, here goes:

The legislative process often seems to resemble the famous pudding that “lacks a theme.”

I think the following structure for examining proposed legislation makes sense. When tested against the following questions, a “no” answer to any question would result in a “no” vote on the legislation. Only after all eight hurdles were jumped would a bill get a “yea” vote.

The questions are:

1. Is there a real problem here? The fact that someone sponsors legislation – and, in a state of 1.3 million people, even a committee room filled with people for or against a measure — does not mean a problem exists. Put another way, three phone calls does not equal a groundswell.

2. Does the problem need governmental action? There are a lot of problems in the world that cannot be solved by governmental action. Further, governmental action implies a change in the status quo, additional bureaucracy, restrictions of freedom, regulation and the need to educate the general populace that there is a new law. Therefore, the second question should be whether a law can solve it.

3. Will governmental action help more than hurt the situation? Even if one problem can be solved by legislative action, will that solution create problems in other areas (cost, regulatory hassle, unexpected interference with some other situation, creation of new problems, etc.) so that the cure is worse than the disease?

4. Is the specific legislation a technically good bill that will work regardless of the merits of the issue? This is a key question that, frankly, does not seem to be asked enough. Even the worst problem can be made worse by a bad solution. The legislator’s task should be to analyze the specific legislation to see whether it will be a good law.

5. Is this the best solution? Often proposals and hearings point out the need for some kind of action even if the proposal before the Legislature is not thought to be a good answer. Sometimes a simple amendment will solve the problem, and sometimes further study is needed. Obviously, finding a better solution is a better solution.

6. Is the bill really the purpose of its proponent? While an initial proposal may be innocent looking, it may be the first step in a series that proponents hope will change the law in a way legislators may not want. If there is an ulterior motive, and if it can be detected, each legislator must decide whether to stop the trend at the outset or hope to be able to stop the momentum built up by passing the first step later.

7. Does this legislation, no matter how good, fit with my philosophy of government? While this question does not apply to pieces of legislation involving technical matters that legislators usually leave to those with special knowledge of a subject, large issues should be tested so a legislator can explain to himself and his constituents how his actions square with his stated philosophy.

If the bill, even though it has survived the first six steps, runs afoul of one’s philosophy, it should be questioned before a vote for passage is given. If the bill passes this hurdle, it should be subjected to the final test.

8. Is this bill politically irresistible? Some matters are backed by such popular demand that it is almost impossible to vote against them. When faced with these kinds of pressures, certain legislation becomes inevitable, and most legislators will find it necessary to vote for them, notwithstanding the prior steps. However, this should be the last question asked, and not the first, or there won’t be a critical analysis of legislation.

(Note: the political irresistibility of legislation can also be created by the Committee Chairman, political party leadership or important local issue.)

Oh, and in 2009, given the budget and economic issues, a ninth question probably should be added: No matter how good this bill is, can we afford it?

Brad Cook is a shareholder in the Manchester law firm of Sheehan Phinney Bass + Green and heads its government relations and estate planning groups. He also serves as secretary of the Business and Industry Association.