'I'm Just a Bill' How legal review can affect a proposed law

Anyone who’s watched classic Schoolhouse Rock! animated shorts can sing through the steps of how a bill becomes a law. It starts as an idea, is then written up by a lawmaker and sent to the capital. It may die in committee or it may make it to the floor for a vote. If it passes the House, it’s sent over to the Senate, and vice versa, where the bill must again make it out of committee and to the floor for a vote.

 

The catchy “I’m Just a Bill” tune is a great tool for kids to learn about lawmaking, but up close the process seems anything but harmonious and simple.

The second session of the 28th Legislature begins Tuesday. Legislators have already pre-filed about 70 bills, and while some will make it to the floor for a vote others won’t even get a committee hearing. Despite this, all bills go through a process that is sometimes overlooked by the public and, depending on the scope of the bill, might have a major impact on its final form.

Is a proposed law constitutional? How will the new law affect pre-existing ones? Are there any unintended consequences of passing a bill that its author might not know about? How does a bill need to be worded to fulfill its intent? These are the kind of questions that come to the Legislative Affairs Agency when lawmakers are drafting and considering new bills.

“By making one change you can have a ripple, so we want to make sure the clients are aware of that,” said Legal Services Director Doug Gardner.

Gardner said his department’s primary tasks are to make sure that proposed laws are within the bounds of the U.S. and state constitutions, and to advise the legislator if a proposed law is preempted by federal law or not within the Legislature’s authority to amend. He said legislators are also advised about the full impact of a law and how it may affect a state department or certain procedures. Legal staff also assist legislators in drafting bills to ensure that its wording is precise.

“These are the kinds of things that are on our radar,” Gardner said. “We want to make sure that the bill practically works.”

Depending on the scope or intent of a bill, the state’s Department of Law may start examining the bill before it even gets through committee, said Attorney General Michael Geraghty.

“During the process, some bills may get a lot of scrutiny, other bills may not; they may be pretty benign or narrow focused,” Geraghty said. “Other bills get more scrutiny because it’s tackling a bigger issue or it’s more complex.”

While legislators have access to their own legal services department, they can also go to the Department of Law for help with drafting legislation or to seek clarification on a bill. Geraghty said democratic legislators might tend to use the legislative legal services department, but are entitled to similar services at the Department of Law.

A bill with complicated or broad implications might inspire two different opinions, he said.

“Sometimes there (are) close questions and (legislative) legal can have one opinion on it and we can have another,” Geraghty said. “I think lawyers can reasonably disagree sometimes.”

One bill last year that raised questions of constitutionality was House Bill 69, introduced by Rep. Mike Chenault, R-Nikiski. When first introduced at the beginning of the 2013 session, the bill sought to exempt certain firearms and firearm accessories in Alaska from federal regulation. It also sought to criminalise federal officials who attempted to enforce federal laws or regulations on certain firearms in the state.

Chenault introduced the bill around the same time President Barack Obama unveiled a comprehensive gun policy reform package in response to the shooting at Sandy Hook elementary school in Newtown, Conn. A legislative lawyer’s legal opinion was that Chenault’s bill was likely unconstitutional.

“We’ll work the bill through the process,” Chenault said during a press conference just days after introducing the bill. “People talk about it being unconstitutional, it may be, but that doesn’t mean we can’t have those discussions and decide whether or not we want to go forward with it and have the courts decide whether it’s unconstitutional.”

The bill did get worked through the process and was amended in the Senate to include language that prevents state and municipal agencies from aiding in the implementation of certain federal statues and regulations related to firearms. It also declared certain federal regulations as unconstitutional in Alaska and exempted certain firearms and firearm accessories from federal oversight. The resulting bill, which was eventually signed by Gov. Sean Parnell, was quite different from the original but kept the spirit of what Chenault had first proposed.

“It’s a good example of a bill that does go through the hopper and through the committee process and sees changes in one body or the other,” Geraghty said. “It’s a work in progress until the end of the day.”

Geraghty’s department is ultimately responsible for giving an in-depth legal review to every bill after it passes both lawmaking bodies but before it gets to the governor. He said his department will advise the governor about all implications of a law and sometimes, depending on the law, will give an opinion on whether the law is “bad policy or sets a bad precedent.”

“We’re not policy makers. We try to keep to legal review,” Geraghty said. “Obviously, those areas overlap to some extent on occasion.”

• Contact reporter Jennifer Canfield at 523-2279 or at jennifer.n.canfield@juneauempire.com. Follow her on Twitter at https://twitter.com/canfieldjenn.

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