Category: Analysis
Road to Approval: Congressional Hurdles For President Obama’s Trans-Pacific Partnership Agreement
President Obama’s second term has been defined by increased usage of his foreign policy powers. Whether or not one approves of the agreements with Cuba and Iran, among others, these agreements will have enormous implications for the United States and members of the international community. On October 5, 2015, President Obama announced his administration’s newest agreement: the Trans-Pacific Partnership (TPP). The TPP, a partnership between the United States, Japan, and ten other Pacific Rim nations, promises to be the largest regional trade accord in history. The key features of the agreement include improving market access, advancing living standards around the world, promoting innovation and trade, and integrating economies across the Asia-Pacific region. The TPP is set to positively impact “40 percent of the global economy.” Before taking effect, however, each of the twelve nations must ratify the agreement. For President Obama, this means presenting the text to Congress for approval.
The Constitution confers upon the president the ability to make treaties, so long as he has “the Advice and Consent of the Senate.” This consent exists when two-thirds of Senators present concur (Article II, section 2) to the treaty. However, Presidents throughout history have preferred making international agreements through executive agreements rather than treaties. Executive agreements, as opposed to treaties, allow a president to bypass Senate approval. Although the president’s ability to make such agreements is nowhere mentioned in the Constitution, the Supreme Court has upheld their legality. See United States v. Belmont, 301 U.S. 324, 330 (1937) (holding that the Executive, as the sole organ of the government, has the authority to sign non-treaty agreements without the advice and consent of the Senate). Executive agreements, however, do not have the same legal status as treaties, unless they are ratified by the Senate. Executive agreements exist either as sole-executive agreements, made by the president alone if he is acting within his exclusive powers, and congressional-executive agreements, made by the president and authorized by Congress.
The TPP is an example of a congressional-executive agreement, and will need to be approved by a simple majority vote in both the House and Senate. However, before this vote happens, numerous procedural matters need to take place, according to the Congress-enacted Trade Promotion Authority. First, which has already occurred, negotiators from TPP countries must review the text of the agreement before the official text is released. Second, once the text was finalized, President Obama, on November 5, 2015, informed Congress that he intends on signing the TPP, which triggered a 90-day notice during which Congress may review the text (the public only gets 60 days to review the text). Third, once the 90-day period finishes in early February 2016, President Obama may sign the agreement. Fourth, once signed, President Obama must wait another 30 days before submitting the legislation to Congress. Fifth, since President Obama was given “fast-track authority” by Congress, Congress would not be able to make any amendments to the signed agreement, instead only being given the opportunity to reject or concur to the TPP. Thus, if everything goes according to President Obama’s plan, a vote could be held as early as March 2016. However, the House Ways and Means and Senate Finance committees could offer suggestions for changes during the 30 day period preceding final submittal to Congress. This could push the vote date back, potentially past the 2016 Presidential elections.
Diet Building
Tokyo, Japan 1936
The lengthy timeline for the TPP is likely realistic given the changes that will be proposed by the numerous proponents and opponents of the TPP. Depending on whose voice is louder, the TPP could be quickly approved by Congress or could theoretically be stalled until President Obama is no longer in office. Thus, it is important to analyze the points being put forth by the two groups.
Proponents of the TPP claim that TPP’s reduction in tariffs will make U.S. products more affordable abroad, which will increase U.S. exports dramatically. Second, the TPP will make the United States a more important player in a region that has long been tied with China. For this reason, it is no surprise that China has been excluded from the TPP Third, the TPP promises to impose “strict guidelines on environmental and labor standards”, which include wildlife-trafficking. Interestingly, the TPP proponents consist of bipartisan supporters, including Vice President Joe Biden and Republican Representative Kevin Brady, the new Ways and Means Committee Chairman, who stated that “[d]one right, this agreement will open a billion middle class customers to American goods and services.”
Although proponents are numerous, a fact which allowed for the approval of “fast-track authority” earlier this year, the President will need to convince opponents of the TPP in order to ensure passage of this agreement. Opponents, which include Presidential hopefuls Donald Trump and Bernie Sanders, are concerned over various points of the TPP. First, opponents claim that the TPP will have a massive impact on a large percentage of workers around the world because it could increase competition for low-wage positions. Second, opponents are concerned over protection of intellectual property of pharmaceutical companies, which has long been ignored abroad. Proponents, however, argue that the TPP will establish uniform rules on corporations’ intellectual property.
Although, thus far, everything seems to be going right for the Obama administration’s TPP, opponents are sure to stand in the way. Notably, U.S. Senator Orrin Hatch has stated that “[w]hile the details are still emerging, unfortunately I am afraid this deal appears to fall woefully short.” Whether this opposition statement stems from actual disagreement with the TPP or from dislike of the Obama administration, however, is hard to know. While opponents point to the TPP’s labor provisions as reasons to reject the TPP, other provisions seem to outweigh this potentially negative consequence. The TPP pushes for innovation, increased trade, and includes much needed protections for wildlife and the environment.
Though the TPP is sure to face intense debate in Congress, President Obama will likely do everything in his power to ensure the agreement’s passage. The approval of this massive economic agreement would cement President Obama’s place in history and would surely add to his legacy as a foreign policy-oriented President.
Jeffrey Butensky moved from Argentina to Plantation, Florida and graduated from the University of Florida with a double major in Linguistics and Anthropology. He anticipates graduating from Boston University School of Law with a Juris Doctor in Spring 2017. Although Jeff has a diverse set of legal interests including corporate law, bankruptcy, and immigration, Jeff also hopes to be involved with legislation one day.
Legislating a Disaster: Congressional and Tribal Responses to the Gold King Mine Spill
On August 5, the Animas River in La Plata County, Colorado suddenly turned a bright and unnatural shade of orange as an estimated three million gallons of toxic wastewater spilled from the abandoned Gold King Mine. Local, State, and Tribal governments scrambled to react as the wastewater brought a sudden spike in levels of arsenic, lead, and other dangerous metals. In response to the spill, access to the river has been closed indefinitely and three states (Colorado, New Mexico, and Utah) and two tribes (The Navajo Nation and the Southern Ute Tribe) have declared states of emergency. The wastewater spill—a result of heavy machinery usage near the mine—was ironically caused when Missouri-based EPA contractor Environmental Restoration LLC accidentally breached the mine during an attempted clean-up effort. The spill has not only caused a potentially devastating environmental impact, and put strain on already limited water resources, but also stands to curb tourism, one of the area’s largest economic sectors after the closure of the area’s once profitable mines. Acting to address the crisis, bills have been filed in the House and the Senate, which seek to hold the EPA responsible for costs and harm related to the spill. Additionally, Navajo Councilman Jonathan Hale has filed a tribal bill asking the Navajo Nation to formally adopt a resolution asking the United States President to hold the EPA responsible for the negative impacts of the spill on the Navajo Nation.
The Gold King Mine Spill Recovery Act of 2015:
In response to the ongoing Gold King Mine crisis, Senator Tom Udall (D-NM), along with Senator Martin Heinrich (D-NM) and Senator Michael Bennet (D-CO), introduced S.2063, the Gold King Mine Spill Recovery Act of 2015, on September 22. The bill would impose liability for “any damage to, or loss of, property, or a personal injury or death” under the Federal Torts Claims Act (“FTCA”) for any “injured person,” defined as any individual, tribe, state, business, or other non-Federal entity that suffered injury as a result of the Gold King Mine spill. The bill defines allowable damages under the FTCA as instances of property, business, and financial loss. The bill also waives the maximum amount limitation for FTCA claims related to the Gold King Mine spill and empowers the Administrator of the EPA to provide compensation for an FTCA claim related to the Gold King Mine spill in an amount greater than $25,000 without prior written approval of the Attorney General. The bill further instructs the EPA to create the Gold King Mine Spill Response Program, which includes monitoring and disclosure requirements related to the rivers effected by the Gold King Mine Spill. Finally, the bill would amend Title I of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to address mining related issues by instructing the agencies in charge of aspects of the bill to assess and develop plans related to potentially dangerous mine sites and to disclose to potentially affected states, towns, and tribes before engaging in certain activities that could result in hazardous material discharge. S.2063 is currently pending before the Senate Judiciary Committee.
On September 24, Representative Ben Ray Lujan (D-NM), along with four co-sponsors from New Mexico and Colorado, introduced a bill substantively similar to S.2063 in the House. H.R. 3602 is currently pending before the House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice.
Navajo Nation Bill:
In addition to Congress’s bills, the Navajo Nation is also considering legislation to address the Gold King Mine spill. Delegate Jonathan Hale, chair of the Navajo Council’s Health, Education, and
Navajo Nation Council Chambers
Window Rock, Arizona
Human Services Committee, has filed a bill before the Navajo Nation Council, requesting that the Navajo Nation formally resolve to urge the President of the United States to hold the EPA accountable for their negligence. Legislation 0326-15’s background cites both the immediate harms that Navajo Nation citizens have suffered—including some Navajo citizens having to haul water hundreds of miles to avoid drinking from potentially contaminated sources on the reservation—and the uncertainty surrounding potential future harms that could serve to cause ongoing harm to the Navajo people and government for years. The bill also stresses the importance of the government-to-government relations between the US and tribal governments and the trust relationship and fiduciary duties created by the Treaty of 1849 and the Treaty of 1868. While passing this bill would not substantively change Navajo policy, it would create a strong statement from the legislative branch of Navajo government that the Nation believes the United States should accept full responsibility for the negative effects their negligence has imposed on the Navajo government and people. This bill follows other emergency legislation introduced to the Navajo Council, requesting that over a million dollars be allocated to monitoring and research related to the Gold King Mine spill.
Given the realities of election-year politics, action on the Congressional bills will likely be slow; if it happens at all. However, given the high-profile nature of the spill, it is possible that the efforts to aid the effected parties could gain traction. Notable is the close coordination between the House and the Senate on the Gold King Mine Spill Recovery Act. While the bills are certain to be changed during the committee process, when introduced both the House and the Senate versions of the bill were nearly identical, with only minor punctuation and word-substitution differences. Further, while the Navajo bill would not actually change any Navajo policy, an officially legislated call on President Obama to have the US government accept responsibility for the harm the EPA negligently caused on the Navajo Nation would be a strong show of political pressure. Due to the widespread harm caused by the spill, it is clear Congress needs to act. Without decisive Congressional action, cleanup efforts will be slow and litigation could drag on for years, if not decades. Additionally, while the Navajo Nation is currently limiting their approach to essentially shaming Congress into action, they should consider a more substantive push. The Navajo Nation may have openings to sue the government, and even barring that may find other more forceful approaches to ensuring their citizens are protected from the effects of the spill. While the Navajo government has devoted one million dollars to study the spill’s effects, this may fall short of actual research needs—not to mention the expensive clean-up costs. While progress remains slow for now, decisive action is needed.
For the latest information on the House and Senate bills be sure to follow their development on www.congress.gov and for the latest on Navajo Nation legislation visit http://www.navajonationcouncil.org/legislation.html.
Tyler L. Spunaugle is from Miami, Oklahoma and graduated from Dartmouth College majoring in both Philosophy and Native American Studies. Tyler is scheduled to graduate from Boston University with a Juris Doctor in Spring 2016, with active participation in two of BU's clinics. After graduation, Tyler will be working as a staff attorney for the Government Accountability Office in Washington, DC.
Florida Legislature Passes Drone Privacy Bill
The FAA predicts that by 2030, the Unites States could see more than 30,000 drones filling its skies. Drone use by the government and private individuals alike has long been permitted in the United States for some time without significant regulation. However, state governments and privacy advocates have started to express concern as drones have become increasingly prevalent. In response to fears of government overreach and private citizen abuse, Florida enacted the “Freedom from Unwanted Surveillance Act” regulating drone use by both private citizens and the government.
Public support for drone use varies. A Monmouth University poll found that 80% percent of Americans support the use of drones in search and rescue operations, 67% are in favor of using drones to track down runaway criminals, and 64% support drones in border control. However, the poll also found that less than a third of respondents supported drones in routine law enforcement activities—like giving speeding tickets—while more than 40% indicated they would be “very concerned” about privacy if police used drones with high-tech cameras.
Although still rare, law enforcement agencies are beginning to use military grade technology for surveillance. These spy drones can be equipped with cameras, microphones, or cell phone interception technology like “stingrays.” Some drones have even been programmed to track vehicles using license plate readers. Perhaps most disturbing, the surveillance drones of the near future could be equipped with facial or biometric recognition software, allowing them to identify and surreptitiously follow individuals from far in the air, possibly without a human at the controls.
Yet, drones operated by law enforcement agencies are far from the only threat to privacy from above. Drones with cameras and other technology are increasingly affordable and available to the public, with few legal restrictions on where, or how, the devices can be used.
Faced with rapidly advancing technology and unclear rules Florida’s “Freedom from Unwanted Surveillance Act” addresses two important gaps in privacy law created by drones: an individual’s expectation of privacy and civil damage penalties.
The Fourth Amendment protects against unreasonable searches and seizures. According to the Supreme Court a person must have “an actual (subjective) expectation of privacy” that society recognizes as ‘reasonable.’” While there is a presumption that a person has a reasonable expectation of privacy in their home, the protection does not extend to anything visible to the public, including privately owned yards. The Court has held that fly-overs of property with manned vehicles—like helicopters—are not searches under the Fourth Amendment because the airspace is public and therefore objects within view of the public are not protected. Drones, however, create a relatively new scenario where it is both inexpensive and efficient to obtain aerial images of private property, the implications for surveillance have yet be fully fleshed out.
The Freedom from Unwanted Surveillance Act creates a statutory presumption that any person on private property has a reasonable expectation of privacy when not visible from the ground. To obtain images of any person or objects not visible from street level with a drone would require either a warrant or the express written consent of the property owner. The bill also contains exceptions for preventing terrorist attacks and emergency situations. Non-surveillance activities such as construction, property appraisals, and utility line inspections would also be permitted.
In most states, individuals can sometimes protect themselves from drone surveillance through common law privacy tort law suits (Solove & Schwartz, Privacy Law Fundamentals). Unfortunately, it is very difficult to win a lawsuit for privacy violations. The privacy violation must be “highly offensive,” and the plaintiff must give a proof of damages. (Solove & Schwartz, Privacy Law Fundamentals). A neighbor’s drone that peered through windows or secretly recorded a conversation might be considered “highly offensive,” but damages would be difficult, if not impossible, to calculate.
The Freedom from Unwanted Surveillance Act addresses these issues as well, by creating a civil remedy for violations of the act’s provisions. An aggrieved person could bring a civil action against any private individual, organization, or government actor for surveillance of private property. The surveillance does not have to be particularly offensive, and holds violators strictly liable. In addition, the bill allows for attorneys fees, compensatory damages against the government, and punitive damages against private citizens, all of which encourage enforcement of the Act’s powerful provisions.
Florida’s innovative legislation creates protections for the State’s residents without unduly burdening law enforcement or industry. The Act represents a welcome step towards preserving privacy in an era where the law rarely keeps pace with changing technology. States around the country should consider following in Florida’s footsteps and enact legislation preserving the privacy of citizens from a sky soon to be blanketed with drones.
Alexander N. Macheras is from Andover, Massachusetts and graduated from Boston College majoring in political science with minors in economics and environmental studies. Alexander is expected to graduate from Boston University with a Juris Doctor in Spring 2016. With a diverse set of legal interests including privacy and election, and constitutional law, Alexander hopes to be involved with legislation in the future.
Using 1115 Waivers to Fulfill the Affordable Care Act’s Promise
In the last few months Montana has taken substantial steps toward joining Iowa, Arkansas, Michigan, and Indiana as states that are to fulfilling the promise of Affordable Care Act by expanding their Medicaid programs through special waivers. The Affordable Care Act (ACA) was designed to drastically reduce the number of uninsured people in the United States by providing access to affordable health insurance to all Americans. Despite struggles with implantation, and continuing legal threats, the ACA has been largely successful at expanding access to health insurance to middle class Americans. However, it has fallen woefully short of providing the same access to low-income Americans.
The ACA was designed to have Medicaid provide insurance for low income Americans. Medicaid is a public
The Ether Dome
Massachusetts General Hospital, 1846
insurance program that is partnership between the states and the federal government. Each state runs a unique Medicaid program within the parameters set by the federal government and with substantial financial support from the federal government. The ACA required states to expand Medicaid to all Americans whose family incomes fell below 133% of the poverty level. The federal government would pay for the first three years of the expansion and then 90% of the costs for all of the following years. States that refused to expand would have faced potentially serious financial repercussions for their current Medicaid programs. In 2012, Supreme Court ruled that the possible repercussions for states choosing not to expand Medicaid were too sever and therefore “coercive” and ruled unconstitutional.
The Court’s decision made the Medicaid expansion optional for states. Political opposition to the ACA, and President Obama, in both state legislatures and in governors’ offices has caused over a dozen states to choose not to expand Medicaid. Based on a belief that states would expand Medicaid programs the ACA only provides subsidies for purchasing health insurance to individuals above the poverty level. Now there are an estimated 4 million people living below the poverty line without access to Medicaid or health insurance subsidies. Meanwhile people with higher incomes are given government assistance in the form of insurance subsidies.
In response to this coverage gap, or to try to take advantage of the overwhelmingly good deal the Medicaid expansion represents for states, many states whose leaders were/are politically hostile to “Obamacare” have found an alternative method to expanding Medicaid. Working with the Centers for Medicaid and Medicare Services (CMS). Indiana, Arkansas, Iowa, and Michigan states have utilized an §1115 waiver to negotiate expansions that a structurally different than those envisioned by the ACA. Montana is the latest state to try to join them.
Named after Section 1115 of the Social Security Act §1115 waivers have been part of the Medicaid program for decades. They serve as a means for states to experiment with new demonstration projects, which are supposed to be evaluated to determine their effectiveness. Waivers allow states to negotiate with CMS to design a feature of their Medicaid program that does not have to conform to all of the rules established by the federal government. Prior to the ACA states had used §1115 waivers to change benefits packages, utilize non-emergency cost sharing, and expand managed care in Medicaid. The §1115 waivers are not a carte blanch to ignore all of the rules that govern Medicaid programs. CMS has set out formal rules governing the waiver process and cannot waive core requirements of the program and they are required to be budget neutral.
Each of the states that have expanded their Medicaid programs through and §1115 waiver have negotiated a slightly different arrangement with CMS. Arkansas is enrolling Medicaid expansion enrollees in qualified health plans on its state health insurance marketplace and utilizing the federal Medicaid funding to pay for those enrollees insurance premiums. Iowa used two §1115 waivers to set up a similar premium support model for beneficiaries over 100% of the poverty level and enroll those under 100% of the poverty level in Medicaid managed care. The plan covers 190,000 previously uninsured Iowans.
States seeking to expand through a § 1115 face more obstacles than just negotiating with CMS. Like a traditional Medicaid expansion and §1115 waive still requires legislative approval, and the legislative process is fraught with political pitfalls. Just ask the Governors of Utah and Tennessee. The Utah House of Representative and Utah Senate failed to reach a deal this session after they rejected the Governor’s original proposal. A special Tennessee Senate panel rejected a proposal the Governor had spent months negotiating with CMS. Fortunately, for low-income citizens of Montana their plan already has preliminary legislative approval.
While the jury remains out on the effectiveness of the §1115 waiver expansions compared to the traditional Medicaid expansion one thing is certain low-income people have better access to health insurance in states that have implemented §1115 expansions than those in states that have no expansion. Hopefully, Montana can avoid the conflicts that have stalled Utah and Tennessee’s’ proposals, and hopefully both of those states keep trying to find comprises that results in expansions. The ACA unintentionally created a coverage gap that affects the most vulnerable citizens. But states have the tools to close the gap. All states should pursue a Medicaid expansion of some sort because beyond being sound policy, Americans should not have their insurance status determined by their zip code.
Timothy Murphy anticipates graduating from Boston University School of Law with a Health Law concentration in May 2016.
But Do They Have Standing? The House and the ACA
Over the last year a considerable amount of ink and column inches have been spent on the House of Representatives of the United States’ (the House) lawsuit over President Obama’s decision do delay enforcing portions of the Affordable Care Act (ACA). At least a portion of that ink was spent on the absurdity of a lawsuit to enforce a provision of a law that the Speaker reportedly hates that the House has voted to repeal multiple times. But additional tweets, posts, and columns were dedicated to the more concrete legal question in the suit: Does the House of Representatives have standing to sue the President for failure to enforce the law? Or, is the Speaker wasting valuable taxpayers money as well as judicial and administrative resources on a political stunt.
After it appeared the suit might go away because the plaintiff lacked council, it appears that an initial
Johns Hopkins Hospital Dome
Baltimore, 1889
resolution to the question of the House’s standing may be in the works. The Administration has filed a motion to dismiss the suit based on the plaintiffs’ lack of standing. Both sides have summited briefs in support of their position and District Court Judge Rosemary M. Collyer held a motion hearing for May 28, 2015. Soon we will find out at least initially if the House has standing to sue the Administration.
If you are not a law student, lawyer, or a political junkie you probably have two questions. One, what is the House suing the Administration for and two what is standing? The two questions are actually significantly intertwined. First standing is the term that federal courts used to describe who is able to bring a suit before them by determining what constitutes a case or a controversy. The constitution only permits federal courts to hear “cases and controversies.” Absent a case or controversy federal courts lack the power to decide the issues of a case.
Typically standing requires first that the plaintiff suffers a particularized injury-in-fact, not a generalized grievance suffered by everyone. Second, that the injury must be “fairly traceable to the defendant’s allegedly unlawful conduct.” Finally, the injury must be redressable by the relief requested by the plaintiff. However, the Supreme Court has allowed members of legislatures to also assert special institutional injuries, if the challenged action amounts to the nullification of a their vote. The Court articulated the standard in Raines v. Byrd. In Raines Members of Congress filed a suit challenging the constitutionality of the recently enacted line item veto. The Court found that the injury did not amount to vote nullification, but in doing so described what would count as such nullify a law or appropriation that has been properly enacted or the enforcement of a law that has been improperly enacted. The Court also gave significant weight Members in Raines retained their legislative power and could repeal the act in question if they had the political support.
In the suit pending before the Judge Collyer the House asserts that the Administration’s decision to delay enforcing the employer mandate portion of the ACA, and the manner in which the Administration provided for cost sharing reductions under the ACA has injured the House itself. The House’s complaint alleges “[t]he actions of the defendants… injure the House by, among other things, usurping its Article I legislative authority.” This very deftly is an attempt to avoid normal standing requirement by asserting the special type of institutional injury the Court recognized in Raines. However, like the plaintiffs in Raines the House’s alleged injury falls short of the threshold of vote nullification.
Administration has done nothing to nullify a congressional vote under the standard articulated in Raines. As the Court described in vote nullification is a very specific institutional injury. The House seeks to extend this narrow injury to any administration of the law with which it disagrees. This would not only be a massive expansion of what constitutes and injury for standing, but would ultimately endanger the Presidents authority to administer the law under the Article II take care clause.
The House also maintains the same type of legislative remedies that the plaintiffs in Raines had at their disposal. In fact, because in this action the House itself is the plaintiff rather than a small collection of members in Raines it maintains functionally more substantial legislative remedies. Article I provides Congress with the ability to enact legislation, the power to control appropriations, and in the most extreme cases to bring official charges of impeachment. Any and all of these powers provide an avenue for redress that is more appropriate than involving the court system. In fact the House has utilized its legislative power to try to repeal the ACA and restrict funding for the administration of the law. The only legislative power the Speaker Boherner is unwilling to pursue is impeachment, not because the House has cannot do so, but because of the political consequences.
The House’s argument for standing also seems to rely on an assumption that if it is not granted standing then the constitutional dispute “must be resolved by the fortunes of politics.” The relative merits of political or judicial resolution of constitutional issues notwithstanding (that would take another blog post to tackle… or an entire book), this argument relies on two incorrect assumptions; that private parties lack standing to challenge the action and that the requirements of standing can be waived by courts in the interest of public policy. Neither of these assumptions is true.
It is easy to imagine how another party having standing to challenge the Administrations actions. Any person whose employer has chosen not to provide health insurance to her would have standing. This uninsured individual would have to show that their employer’s decision not to offer health insurance was caused by the Administration’s failure to enforce the penalty. While this may be a difficult case to prove, it is completely conceptually possible and perhaps even likely to happen in the future.
The second assumption is that the standing requirement is a policy choice and not a constitutional constraint on federal courts ability to hear cases. While my personal beliefs are to the contrary, a strong argument could be made the allowing the House to have standing to bring actions such as this would be a beneficial public policy. But the federal courts are not able to make that choice. The Supreme Court has repeatedly emphasized that the standing requirements are based on the constitution not public policy. Granting an exception in this case on a public policy rational would overturn a century of case law concerning the standing requirement.
It is extremely difficult for Congress to ever meet standing requirements, and the House has almost certainly not met them in this lawsuit. The entire endeavor has been a phenomenal waste of taxpayer money, judicial resources, and all of the time and ink that we have spent covering it. But maybe that was the House’s intention all along; grabbing favorable newspaper headlines not judicial decisions.
Timothy Murphy anticipates graduating from Boston University School of Law in May 2016 with a concentration in Health Law.
Unconstitutional Budget Cuts – the Illinois Pension Controversy
Across the country, state governments are facing financial crises and seeking to devise effective ways of saving costs. In Illinois, lawmakers have recently found themselves in conflict with the Illinois Supreme Court over a 2013 budget-related pension reform law. On May 8, 2015, the Court found the law unconstitutional, compelling legislators to go back to the drawing board and find alternative means of balancing the budget.
Illinois State Capitol
Springfield 1868
With the aim to reduce expenditures, the 2012-2013 Legislature passed “An act concerning public employee benefits,” meant to address “atypically large debts and structural budgetary imbalances” and an extremely low—and potentially falling— credit rating. Also, the state’s public pension system was considered the most underfunded of any in the United States. The General Assembly expressed hope that the Act would “lead to fiscal stability for the State and its pension systems.” The key provisions of the Act were:
1) terminate automatic, compounded annual cost-of-living increases for retired persons;
2) increase the retirement age for current public employees; and
3) reduce the salary amount that can be used for the calculation of pension benefits.
The Illinois State Constitution, however, includes specific pension provisions for public employees; Article 13, Section 5 describes the pensions in Illinois as a binding contract "which shall not be diminished or impaired.”
Various employee groups, retirees, and unions challenged the Act by asserting their constitutional rights. The Illinois Retired Teachers Association sued first in December, 2013, with a labor coalition named We Are One joining in the litigation a month later. The labor coalition boasted over 621,000 members, including: the Service Employees International Union (SEIU) Local 73, the Illinois AFL-CIO, the Illinois Federation of Teachers, the Illinois Nurses Association, the Illinois Police Benevolent and Protective Association, the Associated Fire Fighters of Illinois, and others. The We Are One complaint asserted that the Act violated the Illinois Constitution’s Pensions Clause and resulted in "an unconstitutional diminishment and impairment of the pension amount a member receives,” as well as violations of the Constitution’s Contracts Clause and Takings Clause.
After the Illinois Circuit Court found the pension law to be unconstitutional, the State appealed to the Illinois Supreme Court. Several amicus curae, including those submitted by professors specializing in constitutional and contract law, social service providers and the City of Chicago, supported the law and argued in favor of its legitimacy. Like the state, they argued the state’s sovereign police power enabled it to reduce the pension benefits as a way of addressing the current budget emergency.
The Illinois Supreme Court, however, unanimously voted to strike down the pension reform law. The court found that the Act violated the Pension Clause despite the financial difficulty placed upon the state with the public pension program:
“For as long as there have been public pension systems in Illinois, there has been tension between the government’s responsibility for funding those systems, on the one hand, and the costs of supporting governmental programs and providing governmental services, on the other.” Nevertheless, the court firmly concluded that the law was unconstitutional, writing that “there is simply no way that the annuity reduction provisions in Public Act 98-599 can be reconciled with the rights and protections established by the people of Illinois when they ratified the Illinois Constitution of 1970 and its pension protection clause.”
The court was also unconvinced by the State’s primary affirmative defense – that the pension reform law was a valid exercise of the State’s police power in a state of emergency. Citing the cyclical nature of the economy, the Court asserted that the State has faced fiscal struggle before and cannot lower or terminate expenditures that the Illinois Constitution protects. As one potential alternative, lawmakers have submitted legislation to confront the state debt by amending the Illinois Municipal Code. This law would allow cities in Illinois to file Chapter 9 bankruptcy petitions under the national Bankruptcy Code.
The Illinois pension reform controversy may hold an important lesson for other legislatures struggling to balance the budget, especially since six other states have constitutional protections for public pensions. If the Illinois Supreme Court’s decision is any indication of how other state courts might react, legislators would be advised to keep state constitutionality in mind when developing budget-related bills; the judiciary will likely not be receptive to economic arguments when used as justification for violating an unambiguous constitutional clause. Facing such provisions, lawmakers may ultimately be drawn to amending the state constitution as a strategy, which Illinois Governor Rauner reportedly plans to pursue in the next year.
Chloe Noonan is from Monterey, California and graduated from Sarah Lawrence College with concentrations in Modern Languages and International Studies. She anticipates graduating from Boston University School of Law with a Juris Doctor in Spring 2016. During Summer 2015, Chloe will intern at the Lawyers’ Committee for Better Housing in Chicago, Illinois, where she plans to focus on affordable housing preservation and eviction defense for low-income tenants.
A Win for Common Sense, A Loss for Agency Deference: ACLU v. Clapper
Edward Snowden shocked the world when he leaked highly classified and confidential information in June 2013 regarding government authorized surveillance of telephone calls in the United States. The American Civil Liberties Union then filed suit against James Clapper, the Director of National Intelligence. The district court returned a verdict in favor of the government concluding that “the NSA’s bulk telephony
Texas State Capitol
Austin 1888
metadata collection program is lawful.” Of course, the ACLU appealed. On May 7th 2015, the 2nd Circuit Court of Appeals reversed the district court’s decision and concluded that “the program exceeds the scope of what Congress has authorized. . . .” Among the many administrative law issues that the court considered, the court debated and discussed the scope of the term “relevant” as used in § 215 of the PATRIOT Act in relation to the breadth of the metadata collection program.
The Metadata Program and § 215
According to the appellate court opinion, the metadata program was a sprawling endeavor by the government to require telephone companies to provide “‘on an ongoing daily basis’” information to the NSA regarding calls where at least one party was located in the United States. Section 215 authorizes the government to request “an order requiring the production of any tangible things . . .” to investigate terrorism. Further, the law (50 U.S.C § 1861) stipulates that the request should “include a statement of facts . . . that the tangible things are relevant to the authorized investigation . . . .” (emphasis added). One question before the court was whether the data gathered from NSA’s very broad metadata collection program constituted something that was relevant to an authorized investigation.
The Arguments on Authorization
One of the cruxes of the opinion is whether Congress authorized the NSA to act in such a broad fashion. If the court determined that “relevant” included the NSA’s broad data gathering program, then the NSA would be acting within the bounds that Congress laid out for them in § 215. The government contended that relevance “is an extremely generous standard.” The court noted that the government compares the standard of relevance meant to be used in this context to the standard of relevance used in grand jury investigations. That is to say the government could require dissemination of records in order to search for the information that would help prevent future terrorist attacks. The court observed that this analogy is even supported by the legislative history behind § 215. On the other side, the ACLU argued that “relevance is not an unlimited concept, and that the government’s own use (or non-use) of the records obtained demonstrates that most of the records sought are not relevant to any particular investigation.” They asserted that the government is not seeking the records “to review them in search of evidence bearing on a particular subject . . .” but instead wants create a “vast data bank, to be kept in reserve and queried if and when some particular set of records might be relevant to a particular investigation.” Ultimately, the court concluded that “relevant” had a more narrow definition than the government argued, therefore the NSA’s metadata collection program is unlawful.
The Court’s Careful Balancing Act
Despite compelling arguments from the government, the court reached the right conclusion. The court recognized that the government used legislative history effectively in its argument and references discussion from the 2006 PATRIOT Act reauthorization debate where Senator Kyl likened the scope of the § 215 relevance standard to the standard that has been effective during a grand jury investigation while prosecuting other crimes. However, the court ultimately used this legislative history and testimony against the government. The judge notes that according to Morissette v. United States, when Congress acts to enact a term of art into law that has a commonly recognized legal meaning, like relevance in this case, then it also adopts all of the ideas that have developed and defined that law over the years. The case holds that there is an important distinction between a specific act investigated by the grand jury and the broad demands of the government in requesting telephone metadata. Further, the court pointed out that this metadata bank isn’t even useful until the government has a reason to search through it, which is fundamentally different from the traditional use of document gathering in a grand jury setting. This is a good use of legislative history by the court because, while the government did have clear intentions of adopting this standard, their use of this floor debate in construing the term “relevant” cuts against them under the Morissette standard.
Additionally, the court utilized the dictionary definition to interpret the statute. The court reasoned that the government reads the term “authorized investigation” out of § 215 by gathering the information and then using it when a need arises. The Oxford English Dictionary defines “investigate” as: “[t]o search or inquire into; to examine (a matter) systematically or in detail; to make an inquiry or examination into.” The court found the definition of “investigate” contemplates the specificity of a particular investigation. This is a good use of textualism as a cannon of statutory interpretation. It is the words in the statute that were enacted, not the overarching policy goals that the public did not even know about until they were controversially leaked. Based on this court’s reasoning, the text of the statute does not support an overbroad metadata collection program and, therefore, the NSA’s metadata program exceeded the scope of relevant as used in § 215.
A Win for Common Sense, A Loss for Agency Deference
While the term “relevant” was construed correctly, and the construction is likely to sit well with the general public, there is an argument to be made that the court should not have interfered with what the NSA clearly thought was a proper construction of the term. The NSA was tasked with implementing measures to combat terrorism. It then designed a program and followed the proper procedures to obtain authorization to carry out the plan. Now the program is getting all kinds of negative backlash. This seems to run counter to the theory of agency deference due to its place in the Constitutional order (Chevron) and agency expertise (Mead). However, the court walked a tight rope and made good use of the traditional tools of statutory interpretation in deciding that the government’s program was over broad given the statute use of the term “relevant.” As such, the Second Circuit reached the correct conclusion: the NSA was not authorized to conduct this broad metadata collection because the information was not relevant to an investigation.
Now that Congress has reformed the collection of metadata through the USA FREEDOM Act, the statutory interpretation in ACLU v. Clapper may be §215’s lasting legacy.
Michael Whittington is from Arlington, Texas and received his philosophy degree from the University of Texas at Arlington. He is set to graduate from Boston University School of Law with a Juris Doctor in Spring of 2016. Michael hopes to work with legislation in some capacity regardless of the path his career takes after law school.
Technology & Legislative Drafting In The United States
Professor Sean J. Kealy
Boston University School of Law
Note: Professor Kealy delivered this keynote speech in September 2014 at a conference on legislation held in Seoul, Korea. The conference was sponsored by the International Association of Legislation (IAL) and the Korean Legislative Research Institute (KLRI).
The Massachusetts State House
Boston, 1787
Technology has had a profound impact on legislative drafting in the United States over the past 25 years. In the early 1990s, many American legislative staff were still drafting bills on a typewriter, as their predecessors had done 90 years before. At that time they were also amending bills with a pen; as had been the practice since the 1600s. Since then, there have been tremendous changes: computers, sophisticated word processing, data bases of legislative documents, internet research and drafting sessions conducted remotely have all changed the way a legislature does business and the way we go about drafting a bill.
I began thinking about this topic a few years ago when I heard IAL’s president, Wim Voermans give a presentation in Cape Town, South Africa. He talked about how the first automobiles looked like the horse carriages that came before. With time, and new technological advances, however, cars began to look completely different to serve new purposes and to maximize the new technology.
We now have new and amazing new technological tools at the disposal of legislatures—those very traditional and slow to change institutions. This raises several questions: what technology has made an impact on legislatures? How has that technology changed the process of drafting and passing legislation? and will legislatures change to maximize the technology available to them?
II. The impact of technology on an ancient process
These questions are especially pertinent in the United States. Some of our legislatures have been operating for a very long time— in fact, my home state of Massachusetts’ legislature, which is called the Great and General Court of the Commonwealth, has been meeting continuously since 1629. In America we also have a very complicated legislative structure:
We have 51 legislatures, and with only one exception, they are all bi-cameral. The House of Representatives and the Senate in each legislature have their own rules, traditions, and customs. To become law, a bill must go through a complex process involving several substantive and financial committees in each chamber, floor debate and amendment, often a conference committee between the chambers, executive amendments and possibly a veto, and then veto override procedures by the legislature. This is a complicated process that someone from a parliamentary system may rightly view as “messy” and “disorganized.” There are many points in this process where a bill may be amended, and what the president or governor or their executive agency requests for legislative language is rarely, if ever, passed in that form. In addition, in our system, only a fraction of the bills come from the executive. Most are drafted by or at the request of individual legislators. And the number of bills is enormous. In Massachusetts, a state of 6 million people, and with 200 members of the legislature, there will be over 6,000 new bills filed in January in anticipation of the new legislative session. 1,100 more bills will be filed in Utah’s legislature, which represents about 2.9 million people.
These are hyper traditional organizations that do not change quickly or easily. In Massachusetts, one of the hotbeds of technological innovation in the United States, bills are still printed on paper—blue paper if they originate in the Senate and tan paper if they originate in the House. Those paper bills are carried, often with handwritten notations, between the two chambers by young men and women called pages. When I worked in the Senate we had stacks of blue “An Act” paper, so called because of the pre-printed first words at the top of the page. In the mid 90s, we would type the bill title and language onto the page; by the 2000’s we would send the blue paper through the printer and hope we had aligned the bill language properly.
When I first started with the legislature, one of the largest offices on our floor was the Legislative Documents Room. Every legislative document was printed many times and stored in small numbered mailboxes, in magnificent varnished shelves that must have been 150 years old, in case a legislative staff member, lobbyist, activist, or member of the public came in and asked for a copy of a bill or report by its number. By the early 2000’s, however, nearly every legislative document was posted on-line and easily accessible through a computer. And yet the Legislative Documents Office persisted. It lasted another 8 or 9 years, with its staff of 5 or 6 people spending their days reading the newspaper, watching a small television and hoping someone—anyone— would come in. Finally, the legislature closed this office, and this year is finally transforming the unused space into a new hearing room.
III. My Survey
To prepare for this presentation, I surveyed members of the two professional and non-partisan drafting offices in Congress and similar drafting offices in each state. I received responses from Congress and nearly 20 state legislatures spread throughout the country. The respondents were a very experienced group— they had a combined 517 years of legislative drafting experience, with an average career of nearly 23 years.
This short survey asked the following questions:
- How satisfied are drafters with the technology in their office and for their legislature?;
- What technological change has made the greatest impact—either positively or negatively— on their work?;
- Has technology changed the way they draft or assess legislation?;
- Has technology changed the legislative process in a positive or negative way?; and
- Has the legislature, as an institution or in part, resisted technology based changes?
The respondents stated that most of the technological changes have had a positive impact. They are able to work more quickly, are more efficient, and they are more confident in their work product. This group reported significant drawbacks as well, particularly the perception that drafting can be done in a very short period of time and the loss of face to face meetings to discuss important policy details. I will deal with each of these aspects and what they mean for the potential future of legislation.
IV. How satisfied were drafters with their technology?
In regard to the first questions; how satisfied are drafters with the quality of the technology both in drafting offices and for the legislature in general, on a scale of 1 to 10, with 1 being poor and 10 excellent. The responses showed a very high level of satisfaction with the technology—much higher than I expected. All together, the average rating for the quality of technology in the drafting office was 8.37 and only nominally lower for the legislature as a whole at 8.32. Not surprisingly, the drafting offices in Congress, with all of their resources, reported the highest score of 10. Only three states gave their technology scores as low as 6.
I was surprised by how high the scores were, given the state of the US economy over the last several years, which has had a particularly dramatic effect on the annual budgets of the states. The states have had little money to preserve existing programs, so I expected that technological advancements would have been delayed, causing lower scores. In fact, several states reported major technological upgrades over the past few years, although a few reported that they will be getting new technology now that the economy has improved.
I was also surprised to see the scores for the drafting offices and the legislatures as a whole being so similar. This was due in part to my own experience in the Massachusetts Legislature, where the drafting offices had much better access to on-line research than lawyers working for individual lawmakers or committees. Three states did report that they had better technology than the rest of the legislature, but two states reported that they had slightly worse technology than the legislature as a whole. It should be noted that these two states were the two states that reported the greatest dissatisfaction with their technology.
In some ways, however, the results were not surprising. The people responding were the most senior members of their offices, and probably who made the decision to purchase the technology they had. If I heard from more younger drafters, they may have taken a more critical view of the technology at their disposal. In addition, many of these older drafters knew what life was like before computers and e-mail, so all of the cumulative changes led them to give higher score, whereas young drafters, who have never known a world without laptops and video conferencing, would take a dimmer view of what legislatures have to work with. In fact, I had one state with two responders: one senior drafter and one with only 1.5 years of service. While the experience drafter gave their legislature’s technology an 8.5, the new drafter only gave a 6.
V. What technological change (if any) has made the greatest impact (either positively or negatively) on your work? and Has technology changed the way you draft or assess legislation?
The answers to the questions, “what technological change (if any) has made the greatest impact (either positively or negatively) on your work?” and “has technology changed the way you draft or assess legislation?” were varied:
Computers: one state did not have computers at all as late as the year 2000, and another state got their first computers in 1995.
Laptops: one drafter particularly appreciated the ability to work from home.
The internet: one experienced drafter suggested that the internet has had the greatest impact with more thorough legal research and the ability to quickly and thoroughly assess legal issues and craft legal opinions. In addition, drafters can easily research related laws and see how other states have dealt with similar problems. The ability to search existing law electronically helps greatly with consistency, cross-referencing and indexing statutes. The internet not only gives greater resources to the legislative staff, but dramatically improves transparency for the public in that they can easily see where a bill is in the system and what changes have been made to a bill.
E-mail: the ability to deliver bills and amendments electronically. Also the ability for outside actors such as agencies, civil society and lobbyists to offer input on bills.
Local area networks: for moving documents through the system and allowing a secure system for drafters, policy makers and the clerks to draft and re-draft legislation. One state reported that they are now able to do far more work with fewer staff members.
Drafting platforms: software that create a mostly paperless system and eliminates the need for literally cutting and pasting paper during the amendment process. Some of these are developed for the individual legislature’s needs and some are commercial programs that are later tailored to the legislature’s specification. For example the US House and a few state’s drafters are now using XML to draft, amend and tag legislation rather than using traditional word processing systems. This speeds up the “mechanics of drafting,” allowing more time for research and other time consuming aspects of drafting and allows collaboration across a variety of devices and systems within government. This movement will continue to improve in the next few years; several legislature report working on even more powerful programs that will make amendments a redline of current laws for enhanced readability, and automatic engrossment. Other states report desiring these systems, but are held back by the cost, which can be in the millions of dollars.
Session management systems: In only the last 15 years, several states report having added searchable databases with a variety of legislative materials such as: bill requests, legislative language, correspondence, memos, research, speeches and talking points. These replace forms, files of paper, notebooks and file cards. Drafters now can create a legislative record, and track legislation with a great deal of ease.
VI. Has technology changed the legislative process in a positive or negative way?
Next I asked, “Has technology changed the legislative process in a positive or negative way?” Overall, the responses were very positive, with most drafters citing improved efficiency, speed, accuracy and far less paper than was needed in the future. Others cite increased productivity that allows fewer staff members to complete more work in a shorter period of time. The fact that legislative materials, including floor debate, hearings and legislative history materials, are now more available to the public was also mentioned by multiple states as a positive change.
One state offered that they expect the technological changes to be positive, but for the time being, the new technological and old paper based systems are operating in tandem. Old habits die hard.
The responses, however, were not uniformly positive. One state reports that technological advancements have reduced the “analytical quality of requests submitted to the drafting office.” Presumably with 1st drafts that are copied from other states or drafted as a response to a news report from earlier that morning. Similarly, one drafter complained that technology allows other legislative actors to become sloppy in their requests for legislative materials.
Another office complained that the new technologies cause more and more drafting to be done by e-mail, rather than bringing multiple actors together to discuss and negotiate what the policy and legislative language should look like.
The most common complaint was that legislators now had an expectation that legislative drafting can and will be done very quickly. This creates an expectation of “instant gratification” for drafting requests, whereas legal research, thorough analysis and careful legislative drafting still require a fair amount of time. A very interesting comment came from one longtime drafter who pointed out that the younger legislators prize expediency and want to use technology to speed up the legislative process. In contrast, older legislators don’t want to use technology, but want to rely on the deliberative nature of the legislature to slow down the process.
I was surprised that none of the drafters included what I think is a very serious problem that was identified by my friend and colleague Toby Dorsey identified in a recent law review article. Toby wrote of outside actors, particularly special interests, will “draft”—often poorly because it is language they are submitting to many legislatures— legislation for their financial and ideological benefit and e-mail the language to their allies in the legislature. These legislators will then forward the language to the professional drafting offices to “check for technical problems” or to put the language in “proper form” without any analysis or further thought given to the proposal. This reduces the drafting offices to mere technicians—and is a true waste of their abilities.
VII. Has the legislature, as an institution or in part, resisted technology based changes?
Next I asked “Has the legislature, as an institution or in part, resisted technology based changes?” I asked this question based on my own experience with the Massachusetts Legislature. I spent 9 years working with legislators and senior staff, and the way they sometimes approached technology was at times comical—at times frightening. My friends and I watched on—and laughed— the first time a laptop computer or an iPhone made its way onto the floor of the Massachusetts House or Senate and the members gathered around it, acting as though they were looking at an artifact that had been dropped from Mars. I also saw an older legislative drafter become befuddled and angry when he was forced to start using the “track changes” and “comment” functions on Microsoft Word rather than marking up a bill with his beloved red pencil.
Therefore, I was surprised that most respondents said that there had not been much resistance to technological changes. A few states reported that certain legislators had resisted at first when they were given a laptop or asked to change how they acted to accommodate the new technology, but that the resistance was short lived. One drafter was especially philosophical stating, “technology always meets with resistance” but that progress was being made. Other states reported that the changes were incremental and that slowly—but surely, the legislators and staff were adjusting to the new technology.
A few states reported that resistance was mostly on financial and there would be greater technological advances if not for the difficult fiscal situation many states still find themselves in.
Maybe the technological advance that has met with the most resistance in a few states is the webcasting of committee hearings and floor debate. This rings true with my own experience. At one point, my employer wanted to audiotape committee hearings to create a legislative record. This proposal met so much resistance from other committee members and leadership that it was never implemented. Legislators are constantly worried that they will misspeak and be embarrassed and will oppose any measure that increases this possibility. In one state, legislative business may be seen on the web in real time, but it is not archived. That state’s governor, however, has begun recording the committee and floor debates and archiving them independent of legislative authority.
VIII. Where do we go from here?
a. Change the legislative process to meet the new technology
So, now that new technologies have become so integrated into the legislative process, what will happen in the future? The final question of my survey was, “If you could change any part of the legislative process, the legislature as an institution, or legislative drafting by utilizing modern technology, what would it be?”
Here, the respondents were surprisingly reluctant to offer suggestions. Many simply replied, “none” or “not sure.” Others suggested that they would simply seek to keep modernizing systems. A drafter stated that while their legislature readily adopts to new technology, the legislators would resist changes to procedural changes. One respondent gave a similar, but a more philosophical answer: “Technology should respond to and support the legislature and its process and needs and not be a means of changing these or the driver of change.”
I disagree. Technology has already changed the way legislatures operate in significant ways and will continue to do so in the near future. For all of the good and valuable contributions these tools offer, legislators and their staff must be aware of and guard against the problems these tools can also create.
For example, having special interests drafting and electronically submitting legislative language directly to a legislator, which is then forwarded to the professional drafters for “cleaning up,” is a significant problem. It has become too easy for a legislator to “draft” and promote legislation without the careful design and assessment that a professional drafting office can provide.
Another example is that as we move closer to a paperless process, legislatures will need to adapt new policies and procedures to back up what is increasingly done electronically. Obviously, technology is vulnerable to hacking, viruses and malfunction. Legislatures should plan to create divisions or repurpose existing offices to archive legislative business in paper form, what one respondent called a “bible copy” that can be used as the official record if the computers fail.
Maybe the greatest threat to the legislative process going forward is the very thing that makes technology so appealing—its efficiency. On respondent stated, “the efficiency of technology is at odds with the deliberation and delay that is so valuable in the legislative process.” Although new efficiencies are welcome in true emergencies; those are few and far between. The vast majority of bills benefit from the slow, deliberative process where research and careful analysis is prized.
The existing legislative rules and procedures that slow down the process to respond to the problems of the 18th and 19th centuries: slow travel to the capitol; slow communication; representatives who may not have been educated or even illiterate; and the ability of powerful political factions that could force through legislation with out proper scrutiny from other legislators and the public.
The process must now be changed with technology firmly in mind. The rules must slow down the process to allow a drafter the time for proper research, analysis, and careful drafting.
Perhaps these rules could dictate a certain amount of time between 1st and 2nd reading that will give the drafter time to do their job properly.
Perhaps the rules should dictate that for bills scheduled to be reported from a committee, there must be at least one face-to-face meeting of stakeholders to work out policy and drafting issues, rather than relying on a string of e-mails.
Perhaps the rules should dictate that instead of “reading” the bill to the legislators on the floor, bills and amendments must be posted on-line for a certain period of time to provide transparency for legislators, the media, and the public.
b. Use the technology to aid underprivileged countries
Technology has also opened a new and exciting avenue for legislative drafting. Legislation to date has been an isolated and often a purely local endeavor. Policy, and the laws that reflect the policy, have always been formulated in the parliament building, or in the short space between the executive’s mansion and the legislature. Legislators looking for ideas might look to other states or countries for recently passed or revised laws, but there has been little opportunity for collaboration.
This situation is changing in a very positive way. For the last several years I have been involved with the African Parliamentary Knowledge Network (APKN). Founded at a 2008 continent wide conference held in Cairo, Egypt, this Network seeks to create opportunities to offer support and information for the benefit of African parliaments that are attempting to assert their important role after decades of dominance by “Big Man” presidents.
For the last several years, my students and I have supported this valuable work through my School’s Africa i-Parliaments Clinic. For each clinic, we solicit projects from parliaments around Africa—typically a model bill that has been drafted by an international organization, or by the President’s office, which members of parliament wish to see redrafted to reflect parliamentary priorities. We work on these projects, utilizing evidence-based legislative methods, with the client and with several volunteer drafters, parliamentarians, and experts from every part of Africa. We operate with the guiding principle that only the client parliament can decide for itself what is the best policy or legislative language—all in an effort to empower, and not replace, parliament through international assistance.
The tools are commonplace now, but extraordinary too: e-mails, video conferencing, cloud based services such as Google Drive to store and share materials and to revise legislative language together in real time. New African drafters and students at African universities can participate and learn alongside my law students. The clients receive the legal and policy support they desire and the rest of the Network gets a chance to offer their experiences and learn from the client parliament.
There are so many places where a desire for democratic institutions must be fostered and assisted. Some legislatures have been very generous in this endeavor. The European Parliament and the Parliament of Great Britain in particular have lent their resources and expertise to the APKN effort. In addition, the Parliament of Scotland has built a partnership with the nation of Malawi to provide links between their parliaments and civil society in each country.
Still, there is so much more that can be done. I ask all of the members of this great organization to consider how else we can use the technological marvels currently available to us to support the work of our brothers and sister drafters working in emerging and fragile democracies around the world.
