• Sketching out our laws: Legislative Council is already at work
     | November 26,2012

    The legal staff of the Statehouse already is pushing to develop hundreds of bills for the upcoming session, creating the groundwork for state representatives’ and senators’ new laws.

    In the 2011-12 biennium, perhaps the smallest capitol legal staff in the country brought forth 1,047 bills, but only 191 became law. For the upcoming session, the Legislative Council is working on more than 200 bills as legislators continue making requests to draft bills.

    A staff of around 50 people makes up the office, which is shared between legislators regardless of party.

    “We have one staff, and it’s a central staff,” said Bill Russell, who headed the Legislative Council from 1972 to 2008 but also spent part of his legal career in Congress. “In a state like New York, every committee would have its own staff ... There might be 150 (legislative) members and there may be 1,000 staff.”

    In some cases, Vermont’s legal staff can end up writing the bill for one legislative group and the countering amendment by another group that could gut the bill, said Deputy Secretary of State Brian Leven, who spent 12 years with the Legislative Council, helping draft major legislation like campaign finance reform and redistricting.

    State higher-ups said a private attorney would be prohibited from serving two opposing clients due to conflict of interest, but legal staff with the council have a unique exception. It’s a position with legislators that requires considerable trust, Leven said.

    Ending one’s day at a preset time each night could also even affect that bipartisanship, he said, where legislators could be adversely affected by unfinished work.

    “During the session, people do a lot of evening and weekend work, and if you have kids you go home, have dinner, put them to bed and then start in,” said Emily Bergquist, who served as director and chief counsel for three years and put in 14 years as tax counsel.

    Although the volume of bills drafted may raise eyebrows, the length of bills can sometimes be a few pages or a mere update of previous bills proposed.

    House Speaker Shap Smith said he’s always been impressed by how quickly the Legislative Council can turn around legal analysis.

    “When we were trying to understand what the court had done in the Vermont Yankee decision, they were able to break it down in an hour or two ... so we could respond to it,” Smith said.

    To complicate that, staff many times realize when they try to draft a bill just how many other questions there are.

    “It’s just part of the process,” Russell said. “It’s building a consensus and trying to capture in legal language something that’s obtuse.”

    Once, Leven, the deputy secretary of state, had to assist a committee with an issue over personnel, and he hadn’t worked that much with the group. He sat down with the chairman and vice chairman, but the legislators were requesting contradictory information that couldn’t be drafted together.

    He eventually told them he’d have to wait until they unify proposals or else he’d have to draft two different texts for the same committee.

    When the state restructured school district funding to make it more equitable through Act 60, legislators tried to explain how the legislation should be drafted, frequently using metaphors such as thermostats and ratchets to explain the financing, which didn’t hold up on paper, Russell said.

    Although the difficulties were no one’s fault, Russell said, drafters ended up going back and forth with legislators to refine how exactly legislation could accomplish the task.

    “You just tried and tried again. If it didn’t work, we’d re-write it,” Russell said. “You never know what is an issue when it’s described in general terms until you sit down to write it.”

    “None of these are in final form,” he said of bills prepared before the Legislature convenes each year. “They’re really just a sketch.”


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