Category: Legislative Operations
How State Medicaid Reimbursements are Limiting Hepatitis C Coverage and Solutions
Hepatitis C has rapidly become a major public health problem, and accessibility to new and affordable treatments has been highly sought after. Hepatitis C virus (HCV) can be transmitted by blood transfusions or contaminated needles; although no symptoms are present at the outset, chronic Hepatitis C infection can give rise to liver complications such as cirrhosis or liver cancer. As the leading infectious killer in the U.S., HCV chronically infects 2.7 million to 3.5 million people in the U.S. Since first coming onto the U.S. market in in 2013, Sovaldi has been one of the few, if only, medications to successfully treat Hepatitis C at a cure rate of over 90% after 12 weeks of treatment, with few side effects. Sovaldi holds considerable exclusivity due to its novelty. As such, Sovaldi costs $1,000 per pill, leading to a costly $84,000 for a 12-week treatment regimen. In contrast, Sovaldi costs less than $1 per pill.
Sovaldi pricing has received nationwide attention; to the point of rare bi-partisan partnership taking action. On July 11, 2014, Senate Finance Committee Ranking Member Ron Wyden (D-Oregon) and senior Committee Member Chuck Grassley (R-Iowa) requested information on Gilead Sciences’ pricing tactics that have negatively affected public payers’ access to Sovaldi. The lawmakers deemed the investigation pertinent since the medication raises “serious questions about the extent to which the market for this drug is operating efficiently and rationally,” and Sovaldi’s price “appears to be higher than expected given the costs of development and production and the steep discounts offered in other countries.” After an 18-month investigation and hearing, Congress released an extensive report on December 1, 2015, detailing Gilead Sciences’ pricing, marketing, and development mechanisms on Sovaldi and Harvoni.
Among other conclusions explaining the price variation, the report determined that Gilead did not easily provide access to states’ Medicaid programs. Medicaid programs spent $1.3 billion on Sovaldi, before rebates, in 2014 alone, yet less than 2.4 percent of Medicaid-eligible patients with HCV received treatment. In fact, many states have resorted to restricting access to covering a limited number of Medicaid patients. Some states, such as New Mexico, limit Medicaid coverage to the sickest patients, or those who have pre-existing liver damage. These states require healthcare providers to “perform risky liver biopsies on patients to prove how sick they are, or wait until patients have late-stage liver disease before they can be eligible for coverage.”
A recent study examined how consistently state Medicaid programs abided by recommendations made by the American Association for the Study of Liver Disease and the Infectious Diseases Society of America on treating, managing, and preventing HCV. Out of the 42 states (including the District of Columbia) that had publicly available Medicaid reimbursement criteria, 74% restricted access to Solvaldi to those with advanced fibrosis or cirrhosis, which occurs at stage F4 of the disease. Furthermore, a majority of states limit Medicaid reimbursements to patients who have abstained from drug and alcohol use for a certain period of time, even those who have undergone opioid substitution therapy. From these findings, the study concluded that current state Medicaid reimbursements may violate federal Medicaid law, which provides that state Medicaid programs plans must include drugs manufactured by pharmaceutical companies that have negotiated rebate plans with the Secretary of Health and Human Services, except for those under the restrictive lists of drugs.
Some states have rearranged their Medicaid program policies by forming a pool with other states and purchasing alternative treatments exclusively in an effort to force coverage away from Solvaldi. As of January 2015, Missouri and 24 other states successfully reached a negotiation with AbbVie to secure an extra 20 to 30 percent rebate system for their Medicaid patients. However, these negotiations place restrictions on Medicaid enrollees, who are required to stay sober for 90 days before beginning the Viekira Pak treatment. Although Missouri anticipates to save $4.2 billion from these rebates, the lag time of over six months for calculating rebates into the state budget means it will be too soon to determine the overall cost savings on Medicaid spending. The Missouri state department also plans to provide Solvaldi to an estimated 15 to 20% of HCV patients who cannot be effectively treated by Viekira Pak, which implies that the medication cannot clinically treat all people infected by HCV. Exclusive Medicaid negotiations with alternative treatments could lead to unintended leftover costs from providing for patients whom Viekira Pak is not a valuable option.
Recent litigation on the state level has addressed issues of Medicaid coverage of Sovaldi. In B.E. v. Teeter, Washington Medicaid enrollees, who were HCV patients that did not receive DAA medication, brought a class action suit against the Washington State Health Care Authority (“WHCA”), under claims of violating the Medicaid Act for categorically excluding them from “medically necessary” drugs. The federal district court sided with the plaintiffs’ argument, granting their motion for preliminary injunction, given that the plaintiffs had satisfied all the factors necessary to warrant such a remedy. In doing so, the court determined that the plaintiffs’ evidence “will likely establish that the WHCA is failing to follow its own definition of medical necessity by refusing to provide DAAs to monoinfected enrollees with a F0-F2 score and offering only “monitoring” in lieu of this breakthrough treatment.”
This decision significantly marked the first time that a federal court deemed restrictions to Hepatitis C state Medicaid programs as illegal, and thus could provide a precedent for other states to follow suit. Consumers from California and, again Washington, have also recently filed suits against private insurance companies, such as Anthem Blue Cross and Group Health Cooperative. Since these lawsuits have involved gathering a class of injured plaintiffs, however, issues of class certification under Rule 23(a) and 23(b)(2) will need to be resolved, as they were in B.E. v. Teeter. As such, law suits filed on behalf of a consumer class may not be the most efficient resolution, since time constraints and litigation costs could prolong the desired remedy, if the court chooses to grant it.
Massachusetts employs a fee-for-service program for distributing Solvaldi. As such, the state has relatively unrestricted access to Sovaldi compared to other states; yet, only an estimated 1,075 members have been approved for treatment regimens among the 7,658 members living with HCV. In an unprecedented move, on January 2016, Massachusetts Attorney General Maura Healey issued a letter warning to sue Gilead Sciences for potentially violating unfair trade practice under section 2 of chapter 93A of the Mass. Gen. Laws. However, the lawsuit may not contain the merits required to bring an action under consumer protection law. The AG eventually spent months negotiating with Gilead Sciences and recently, on June 30, 2016, reached a new drug rebate program to provide unrestricted coverage to MassHealth patients in need of Hepatitis C treatment. Since the MassHealth rebate program was recently implemented on last August 1st, the effectiveness of the pricing solution will need to be monitored further to determine whether Medicaid coverage of Solvaldi is expanded to offer more treatments to those in need.
Monica Chou anticipates graduating from Boston University School of Law in May 2018 and plans to practice health law.
Legislators of the Year 2015
In our inaugural Legislator of the Year Award, the staff of Dome is pleased to recognize Rep. Elijah Cummings (D- MD) and Speaker Paul Ryan (R-WI).
Elijah Cummings
Rep. Elijah Cummings really earned this award in April and May during and after the riots in his home town of Baltimore protesting the death of Freddie Gray. The Freddie Gray case was one of the true low points in a year filled with low points concerning race relations and the conduct of police officers around the country. Incident after incident made minority communities feel besieged in their own neighborhoods by an apparently aggressive, militarized and racist police force. For their part, the police have an extraordinarily difficult job and often feel unduly criticized when force is used in dangerous circumstances and when the officer legitimately feels threatened. This fissure in our society deepened and widened this year and is a complex social problem that will likely take years to fully understand and address.
Still, during one of the darkest moments of the spring, Rep. Cummings took a leadership role and provided not only a voice of reason, but rallied his community to act in a thoughtful and positive manner to seek justice and reform.
He called for peaceful protests that would lead to change while praising the restraint of the Baltimore Police. He pushed for a stop to the violence that tore at Baltimore and helped clear the streets during a mandatory curfew. He also lent an eloquent voice to a community seeking justice. At Mr. Gray’s funeral Rep Cummings spoke directly to Gray’s mother, "For me, I am in the twilight years, but I am telling you we will not rest, we will not rest until we address this and see that justice is done. … We will not fail you.” Rep. Cummings welcomed a Federal probe into the Baltimore Police, hoping the investigation would lead to improved relations between the police and the community, “The community needs the police and the police need the community to solve crime.”
When something like this happens, a community typically looks to and rallies around local leaders—pastors, city councilors and mayors. Congressmen, with big districts, focused on federal issues, and spending much of their time in Washington, are naturally not as close to a particular neighborhood or constituency. It is a great testament to Rep. Cummings that when Baltimore needed a reassuring—yet outspoken—presence, they turned to him.
Earlier this month the first prosecution of a police officer involved in the Gray Case ended in a mistrial. Even before the decision, Rep. Cummings again called for calm, “Our future as a more just community will depend more upon our own actions than it will upon the decision of Officer Porter's jury.”
Mr. Gray’s death could have resulted in politicians scoring cheap political points by whipping up the crowd. Fortunately, Baltimore has been blessed with Rep. Cummings who at once is a stabilizing force for the community while also calling for much needed reform.
Rep. Cummings could have been a Legislator of the Year for service to his community, but he also played a crucial role as an opposition leader in the House. He continued to be a key voice on the House Committee on Oversight and Government Reform, playing the foil to Chair Jason Chaffetz (R-UT). More importantly, he agreed to serve as the Ranking Member on the House Select Committee on Benghazi. This never-ending inquiry seems to be nothing more than an attempt to hurt Hillary Clinton’s presidential campaign. The Committee reached its lowest point on October 22, 2015 when Chair Trey Gowdy (R-SC) kept Secretary Clinton on the witness stand for a ridiculous 11 hours. Rep. Cummings was outstanding throughout; pointing out the needless badgering of the witness by his fellow committee members and countering the political—and at times outrageous—lines of questioning.
Some of his constituents want Rep. Cummings to run for the Senate. The Senate’s gain would be the House’s loss—the House needs his leadership now more than ever.
Paul Ryan
This must have been a shocking autumn for the young representative from Wisconsin. Not that he ascended to a position of great power in Washington; the talented Rep. Ryan has always been headed in that direction. His intelligence, creativity and work ethic propelled him first to the chair of the Budget Committee and more recently to the Ways and Means Committee. In many ways he has been the true policy driver of the Republican Party in the Capitol during a time of thoughtless ideology and bumper sticker level political attacks. Speaker Ryan has already been the GOP’s vice presidential pick, and likely was headed to leading the ticket at some time in the future.
And then John Boehner stepped down as Speaker.
Mr. Boehner finally had enough of the backstabbing “Freedom Caucus” and his inability to get any sort of legislation—even essential spending and debt limit bills— through his own chamber without a major struggle because the bills were not ideologically pure enough for a semi-secret cabal of representatives. Then the “Freedom Caucus” refused to support Mr. Boehner’s logical successor Rep. Kevin McCarthy (R-CA). With the subsequent disarray, the caucus turned to a reluctant Rep. Ryan to take the gavel.
Speaker Ryan was right to be reluctant for a multitude of reasons:
First, he was never on the “leadership track,” training to be Majority Leader or Speaker. There is a reason people apprentice with leadership, and why the Austin-Boston Connection was so successful for so many decades. Leadership must deal with the Senate and the President and protect the House while making reasonable compromises. Leadership must skillfully interact with the press and craft a message that—again—protects and benefits the House membership. Leadership must devote considerable time to what David Hawkings calls “the member services dark arts.” Much of this will be new to Speaker Ryan, who has devoted his legislative career to committee work.
Second, the problems that took down Speaker Boehner will only grow. The “Freedom Caucus” is newly emboldened and will continue to hold a sword over the Speaker’s head. Outside groups will no doubt start calling him a RINO or Squish every time he makes a compromise. The Republican Caucus will continue to be a fractured and difficult to manage, especially in an election year. The new Speaker, therefore, will have all the challenges that made Speaker Boehner happily give up the gavel.
Finally, this was not part of his personal plan. Until this autumn, Speaker Ryan had an excellent chance to be a serious presidential contender in the not too distant future. Will he still have that chance after a stint as the Speaker? He will suffer many slings and arrows from both sides of the aisle. And history has not been kind—only James K. Polk successfully used the Speakership as a stepping stone to the Presidency, and only after being governor of Tennessee in between.
And yet Speaker Ryan put all of that aside and took the gavel. He put the House and the Congress above himself and his personal ambition. Congress desperately needs the stability he will bring, and therefore, Speaker Ryan is a very worthy Legislator of the Year.
Sad Display On Senate Floor
By: Special Correspondent Webster
On July 24, 2015, Senator Ted Cruz (R-Texas) brought Congress to a new low accusing Senate Majority Leader Mitch McConnell (R-Kentucky) of lying during a floor speech. Speaking about trade treaties and the reauthorization of the Export-Import Bank, a current Tea Party boogieman, Cruz publicly discussed several private conversations with the Majority Leader at a Republican Caucus and in McConnell’s Office.
It is widely believed that McConnell agreed to attach the Export-Import reauthorization to "must-pass" legislation in order to win support from Sen. Maria Cantwell (D-Wash.) for a trade package earlier this year. Cruz voted for the trade package because he “believes in free trade,” but was aghast that a compromise had been reached somewhere along the line that would allow the Export-Import Bank be reauthorized.
First, Cruz detailed a discussion that took place in a Republican Caucus. When Cruz asked 
McConnell whether there was a deal in place for the Bank, “The majority leader was visibly angry with me that I would ask him such a question,” Cruz said. "The majority leader looked at me and said, “There is no deal, there is no deal, there is no deal.” Cruz went so far as to compare this denial to that of Peter the night before Christ was crucified.
Cruz reports that after lunch his staff said that McConnell was lying, but that he believed McConnell, “What I told my staff that afternoon, I said, well I don't know if that's the case or not. But I don't see how when the majority leader looks me in the eyes and makes an explicit promise... I don't see how I cannot take him at his word.”
Later, Cruz detailed a private conversation with McConnell in his office where the Majority Leader allegedly denied there was a deal on the Bank to move the Trade Bill forward.
In the end, there was such a deal, which Cruz declared to be a “corrupt deal,” and explicitly accused the Senate Majority Leader of lying to him, “Well, we now know that when the majority leader looks us in the eyes and makes an explicit commitment that he is willing to say things that he knows are false,” said Cruz. "That has consequences for how this body operates,” he continued. "If you or I cannot trust what the majority leader tells us, that will have consequences on other legislation, as well as on how this institution operates."
“Today is a sad day for this institution,” said Cruz at the beginning of his speech. So true—but not in the way Sen. Cruz intended.
First, give up the Jesus imagery—you are not the Son of Man. McConnell’s “betrayal” of Cruz here rises to the level of Peter denying Jesus to the crowd on Holy Thursday? Honestly?
Second, shame on Ted Cruz for what he did to his staff. Although I have never met them, I am willing to bet they are young, smart, and ambitious professionals who hope to have a long career either in government or working to influence the government from the private sector. Washington is, and always will be, a small town. It was his staff who first said the Majority Leader, one of the most powerful Republicans in the country, was lying? They persisted despite their Boss saying he believed Mitch McConnell? Cruz strongly implied that McConnell was lying in his speech, but the only time the word was explicitly used, it came from his staff? Ted Cruz is not long for Washington. He is not going to be the next President and he clearly does not want to be part of the US Senate, given his bomb throwing as opposed to crafting legislation and working to oversee the government. His staff, however, are just starting careers in Washington, and the Republican establishment is going to have long memories. The member-staff relationship is a sacred one—sometimes stronger than the member’s marriage. What is said in the office is sacrosanct. A staffer who reveals what is said (without authorization) to an outsider can, and should, be fired. The member owes the same duty to his staff.
Third, Cruz decided to make public conversations he had in a caucus—which is assumed to be confidential; as well as a private meeting with McConnell, which I am sure all parties knew was private, or Mitch would not have closed the door to his office. Airing dirty laundry on C-Span is petulant and coarse.
Fourth, Cruz is not the first, nor will he be the last, to use a Senate seat to run for the White House; still one does not have to denigrate the former to win the latter. Frankly, I am not sure why so many senators even want to be President. Those senators who have tried for the White House—but lost—have discovered that the Senate can be a true font of power and a “bully pulpit” that, over time, far outstrips the influence of a President. Thurmond, Humphrey, Goldwater, Kennedy, Dole, Hatch, McCain—they were (and in the case of the last two, still are) giants. Each of these men was probably a far better senator after their presidential ambitions were set aside. Incendiary comments like these demonstrate that Cruz has no interest in making the Republic a better place through a seat in the Senate. He is smart, Ivy educated, a great debater, and has been entrusted with a Senate seat by the people of Texas. Even if he has a change of heart after his soon-to-be-failed Presidential quest, the bridges to his fellow Republicans will be burned and bridges to the Democratic Senators will never be attempted. How sad.
Fifth, as the list above shows, this correspondent has no issue with strong points of view or personalities. In my time, I have been condemned for difficult positions. The Senate is enriched by strong points of view and challenging the other 99 members as legislation is crafted. In fact, Senate rules empower that minority of view and ensure that it will be heard and have a chance to influence every issue that comes through the chamber. Courageous stands on principle make the Senate a special place— but that is not what Cruz did here. With that immense power, comes a great measure of responsibility. Even in the US Senate, one person cannot stop the will of a supermajority of their colleagues. The Congress must respond to the issues of the day and do so in a reasonable amount of time. The peculiar rules of the Senate demand civility and decorum. Further, the Senate— and this is a difficult point for the Tea Party types to accept—requires compromise to accomplish the work of the nation. Was there a “corrupt deal” in place when McConnell made his assurances to Cruz? I don’t know. I do know that the Senate Majority Leader has to manage a lot of moving parts: his caucus, the Senate as a whole, the House, the Administration, his party, not to mention his constituents back home—all at the same time. Things change, and deals must be made to accomplish what the leader thinks is right. The caucus chose McConnell as their leader because they felt he could do what was right for the caucus, the Senate and the country. Circumstances change in Washington on a daily basis. When they do, that is not the same as lying. In addition, compromise is what grown-ups do in every facet of their lives— only children expect to get their way every time.
Finally, Cruz chose to use incendiary language on the Senate Floor. The Constitution’s Speech or Debate Clause guarantees Cruz free speech on the Senate floor, but just because he can say something does not mean he should. There are few things that can be said on the floor and on the record that legislators find abominable and foremost is that a colleague “lied.” Senate rules state that no senator “in debate shall, directly or indirectly, by any form of words impute to another senator or to other senators any conduct or motive unworthy or unbecoming a senator.” Cruz’s statement is even worse than when an Irish legislator told another to “Fuck off.” It calls into question the Leader’s integrity—something he needs to run the Senate, and negotiate with the House and President.
Cruz made his speech and probably wanted to score a few cheap points against “the establishment” to fire up his Presidential campaign supporters. Sadly, his words diminish a great institution.
Webster is a special correspondent for Dome.
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.
