By OCPA President Jonathan Small
You may have seen some recent news stories bemoaning the fact that many pieces of legislation are not totally original, and quite a few ideas that become law originated and were tested and debated elsewhere.
First came USA Today, in collaboration with the liberal Center for Public Integrity, noting that just about every state legislature in America considers model legislation suggested or even drafted by a wide range of advocacy groups, which come from every possible place on the political spectrum.
Then The Oklahoman published a story that was itself modeled after the USA Today article criticizing model legislation. On the “lack of self-awareness” scale, that may set some sort of record. Nonetheless, the hype surrounding these articles is far greater than their substance.
USA Today reported at least 10,000 bills were based on model legislation with around 2,100 of those bills signed into law. But, to get the number that high, USA Today had to go back eight years, a period in which the paper reports nearly 1 million bills were filed in the 50 states’ legislatures and Congress.
That means model legislation accounted for just 1 percent of all bills filed in the last eight years across the country. And the share of model bills signed into law represented two-tenths of 1 percent of all measures filed. Put simply, legislative drafting has not been outsourced to any meaningful degree. And when “model legislation” is used, it’s not necessarily a bad thing.
Oklahoma passed a model bill, for example, based on the “right to try” movement that allows desperately ill people to try to save their lives with experimental medications. Does this really upset anyone, even if the bill was derived from legislation passed elsewhere first?
Right now advocates of Obamacare’s costly Medicaid expansion are using a popular vote model from other states to circumvent the Legislature. I disagree with their goal but have no problem with their effort to mimic other states.
That’s how a free market of ideas is supposed to work. Legislative bodies, from your local city council to the state Legislature and on to Congress discuss, debate, and vote on tens of thousands of proposed laws every year. Some are requested by constituents. Some come from industry or trade groups. Still others are proposed by single-issue advocacy groups, and in all those cases bills are frequently modeled on legislation that has been considered in other states.
In Oklahoma and elsewhere, every bill is vetted by staff attorneys, debated in open committees and floor action, and given multiple votes. There is nothing nefarious about any of this. There is no king from right, left or center dictating laws.
One benefit of our federalist system of government is that states are allowed to try out new policies and other states then learn from their counterparts’ experiences. There’s nothing wrong with that, despite what some activists with bylines may think.
Jonathan Small serves as president of the Oklahoma Council of Public Affairs (www.ocpathink.org).
We’ve been using model legislation, drafted elsewhere, for well over 60 years. A classic example is the Uniform Commercial Code. Every state has it now, and though every state tweaked it in spots to meet local preferences, it’s been a heck of a good set of rules for the various subjects it covers. Incidentally, the group that drafted the Code had delegates from most states, and I think we provided one.
One other note: look at some of the earliest state legislation: much of it was modeled on laws already in place in the Dakotas and other plains states. Trying to draft legislation from whole cloth is a fraught and difficult exercise, and is unnecessary where there is good model legislation from specialist groups that have studied the subject or from states that have already tested out the law.