FEDERAL AGENCIES IN THE
LEGISLATIVE PROCESS:
TECHNICAL ASSISTANCE IN
STATUTORY DRAFTING

CHRISTOPHER J. WALKER
The Ohio State University
Michael E. Moritz College of Law
Final Report to the Administrative Conference of the United States
November 2015
This Report was prepared for the consideration of the Administrative Conference of the United States. The opinions, views, and
recommendations expressed are those of the Author and do not necessarily reflect those of the members of the Conference or its
committees, except where formal recommendations of the Conference are cited.

ADMINISTRATIVE CONFERENCE
OF THE UNITED STATES

About the Author: Christopher J. Walker is an Assistant Professor of Law at The Ohio State
University Moritz College of Law. His research has been published in the Administrative Law Review,
George Washington Law Review, Minnesota Law Review, and Stanford Law Review, among others. Prior to
joining the Moritz faculty, Professor Walker clerked for Justice Anthony M. Kennedy of the U.S.
Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice, where he
represented federal agencies in a variety of contexts. He currently serves as a Council Member for
the American Bar Association’s Section of Administrative Law and Regulatory Practice and blogs
regularly at the Yale Journal on Regulation. Follow on Twitter: @chris_j_walker.

FEDERAL AGENCIES IN THE LEGISLATIVE PROCESS:
TECHNICAL ASSISTANCE IN STATUTORY DRAFTING
Christopher J. Walker*

TABLE OF CONTENTS
Introduction ........................................................................................................................................................ 1
I.

Background: Federal Agencies in the Legislative Process .............................................................. 5
A.

Federal Agencies and Substantive Legislative Activities .......................................................... 6

B.

Federal Agencies and Technical Assistance in Legislative Drafting ...................................... 9

C.

Federal Agencies and Appropriations Legislation ..................................................................10

II.

Study Findings ....................................................................................................................................11
A.

Study Methodology .....................................................................................................................11

B.

General Findings on Agency Technical Drafting Assistance Process .................................12
1.

Initial Congressional Request..............................................................................................12

2.

Rate of Providing Technical Assistance in Drafting Legislation ...................................13

3.

Factors that Affect Whether Agency Provides Technical Assistance ...........................16

4.

Agency Actors Involved in Providing Technical Drafting Assistance .........................20

5.

Format of Agency Response to Technical Assistance Request .....................................24

6.

Factors that Affect Whether Congress Adopts Agency Technical Assistance ............26

C.

Agency Organizational Models for Providing Technical Assistance ...................................28
1.

Centralized Legislative Counsel Model .............................................................................28

2.

Decentralized Agency Experts Model ...............................................................................29

3.

Centralized Legislative Affairs Model ................................................................................29

D.

Common Challenges in Providing Technical Assistance ......................................................30
1.

Intra-Agency Challenges ......................................................................................................30

2.

Congressional Challenges ....................................................................................................32

3.

The Technical–Substantive Drafting Assistance Dilemma ............................................33

* Assistant Professor of Law, Michael E. Moritz College of Law, The Ohio State University. For excellent field
work, research assistance, and development of the case studies included in the appendices, many thanks to Elle Celeste,
Ally Chiu, Logan Payne, Rita Rochford, and Aaron Stevenson. Thanks are also due to Alissa Ardito, Reeve Bull, Neil
Eisner, Jarrod Shobe, and Matt Wiener for helpful feedback on the interview and survey design and on earlier drafts of
the Report as well as to the members of the ACUS Rulemaking Committee and the countless government officials who
shared their insights and expertise on the topic. This research was funded in part by a grant from The Ohio State
University Democracy Studies Program.

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Federal Agencies in the Legislative Process
Final ACUS Report—November 2015
Christopher J. Walker

III.

Proposed Recommendations and Best Practices...........................................................................35
A.

Best Practices for Agency to Improve Technical Drafting Assistance................................35
1.

Consider Memorializing Guidance on Agency’s Role in the Legislative
Process ...................................................................................................................................35

2.

Better Identify and Involve Agency Experts in the Technical Assistance
Process ...................................................................................................................................36

3.

Consider Providing Ramseyer/Cordon Drafts as Part of Technical
Assistance...............................................................................................................................37

4.

Maintain Distinct Roles for and Strong Working Relationship Between
Legislative Affairs and Legislative Counsel.......................................................................37

5.

Integrate Technical Assistance Process for Appropriations ..........................................38

B.

Best Practices to Strengthen Agency–Congress Relationship in Legislative Process ........39
1.

Strive to Provide Technical Drafting Assistance Whenever Congress
Requests .................................................................................................................................39

2.

Engage in More Congressional Education Efforts and In-Person Interaction ...........39

3.

Consider Leveraging Expertise to Provide Other Forms of Assistance ......................40

4.

Explore Opportunities for Agency Staff to Detail in Congress ....................................41

Conclusion ........................................................................................................................................................41
Appendix A: Survey Instrument and Responses.........................................................................................43
Appendix B: Agriculture Overview ...............................................................................................................48
Appendix C: Commerce Overview ...............................................................................................................52
Appendix D: Education Overview................................................................................................................56
Appendix E: Energy Overview ......................................................................................................................60
Appendix F: Federal Reserve Overview .......................................................................................................64
Appendix G: HHS Overview .........................................................................................................................67
Appendix H: Homeland Security Overview ................................................................................................72
Appendix I: HUD Overview..........................................................................................................................77
Appendix J: Labor Overview .........................................................................................................................81
Appendix K: PBGC Overview ......................................................................................................................86

ii

INTRODUCTION
Federal agencies draft statutes. Indeed, they are often the chief architects of the statutes they
administer.1 Even when federal agencies are not the primary substantive authors, they routinely
respond to congressional requests to provide technical assistance in statutory drafting. Yet despite
their substantial role in the legislative process, our understanding about how agencies interact with
Congress is greatly undertheorized and perhaps even less understood empirically. This Report,
which was commissioned by the Administrative Conference of the United States (ACUS),2 explores
the latter role of federal agencies in the legislative process: the provision of technical assistance in
statutory drafting.
To be sure, many have recognized over the years that the administrative state plays an expansive
role in drafting legislation for Congress. For instance, Felix Frankfurter observed back in 1942 that
“[f]rom the very beginning of our government in 1789, federal legislation like that now under review
has usually not only been sponsored but actually drafted by the appropriate executive agency.”3 In
1961, James Craig Peacock echoed Justice Frankfurter’s observation:
For it cannot be overlooked that, in Washington, at least, the extent to which the spade work
of the actual drafting of important legislation has been shifted all the way back to the agency
level, is a major phenomenon of present day government. . . . Indeed, the executive branch
of the Government is no longer even expected to confine itself to the mere making of
recommendations or proposals. It is practically expected to implement them in the form of
already drafted bills.4

1 Agency interpretations of those statutes, moreover, receive generous judicial deference, see Chevron U.S.A. Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (deferring to an agency’s reasonable interpretation of an
ambiguous statute that the agency administers), with agency interpretations of these interpretations receiving even more
deference. See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (according an agency’s interpretation of its
own regulation “controlling weight unless it is plainly erroneous or inconsistent with the regulation”); Auer v. Robbins,
519 U.S. 452, 461 (1997) (same).
2 This Report was prepared for the consideration by ACUS. The opinions, views, and recommendations expressed
are those of the Author and do not necessarily reflect those of the members of ACUS or its committees, except where
formal ACUS recommendations are cited.
3 Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 177 (1942) (Frankfurter, J., dissenting); see also JERRY L. MASHAW,
CREATING THE ADMINISTRATIVE CONSTITUTION: THE LOST ONE HUNDRED YEARS OF AMERICAN ADMINISTRATIVE
LAW 221 (2012) (noting how, in the 1800s, “Congress often depended upon the departments to draft major legislation,”
including that Congress requested the Department of Treasury to draft the legislation that created the Department of
Interior); Lisa Schultz Bressman, Chevron’s Mistake, 58 DUKE L.J. 549, 582–84 (2009) (discussing agency involvement in
drafting legislation); Robert A. Katzmann, Madison Lecture: Statutes, 87 N.Y.U. L. REV. 637, 656–61 (2012) (discussing the
role of federal agencies in the legislative process); Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The
Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, 123 YALE L.J. 266, 340–41 (2013) (discussing
the role of federal agencies during the 1890–1950 period in preparing bills, appearing at committee hearings, and helping
to develop a bill’s legislative history); Peter L. Strauss, When the Judge Is Not the Primary Official with Responsibility to Read:
Agency Interpretation and the Problem of Legislative History, 66 CHI.-KENT L. REV. 321, 347–49 (1990) (discussing significance
of the agency’s relationship to Congress in legislative process).
4 JAMES CRAIG PEACOCK, NOTES ON LEGISLATIVE DRAFTING 2–3 (1961); accord DONALD HIRSCH, DEP’T OF
HEALTH & HUMAN SERVS., DRAFTING FEDERAL LAW 1 (1980) (“Virtually all major programs of federal financial
assistance, and most of the significant regulatory statutes, have in their ancestries a proposal made to Congress by an

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Federal Agencies in the Legislative Process
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In other words, “[b]ecause agencies have day-to-day experience with the legal, political, and
operational aspects of the laws,” as Clinton Brass of the Congressional Research Service has more
recently explained, “[i]t is not surprising that a fair proportion of the legislation that is considered in
the legislative process tends to have been drafted or influenced at some point by executive branch
employees, including both career civil servants and political appointees.”5
Recent empirical work has shed some additional light on the role of federal agencies in the
legislative process. For instance, Lisa Bressman and Abbe Gluck have surveyed over one-hundred
congressional drafters and reported that the congressional “respondents told us that first drafts are
typically written by, respectively, the White House and agencies, or policy experts and outside
groups, like lobbyists,” but that “[e]mpirical work is lacking for the details of this account . . . .”6 The
Author of the Report has similarly surveyed over one-hundred federal agency rule drafters (not
agency legislative drafters), and their responses reinforce that federal agencies play an important and
substantial role in the legislative process.7 For example, four in five (78%) agency rule drafters
surveyed indicated that their agency always or often participates in a technical drafting role for the
statutes it administers (with another 15% indicating sometimes), and three in five (59%) reported
that their agency always or often participates in a policy or substantive drafting role for the statutes
the agency administers (with another 27% indicating sometimes).8 In other words, recent empirical
work confirms what has long been noted anecdotally in the literature and what anyone who has
participated in the federal legislative process no doubt has observed firsthand: federal agencies are
involved regularly and extensively in the legislative process.

executive agency, customarily in the form of a draft bill. Generally speaking, these proposals are developed with greater
formality than bills written within Congress.”).
5 Clinton T. Brass, Working in, and Working with, the Executive Branch, in LEGISLATIVE DRAFTER’S DESKBOOK: A
PRACTICAL GUIDE 275 (Tobias A. Dorsey ed., 2006); accord JACK DAVIES, LEGISLATIVE LAW AND PROCESS NUTSHELL
§ 25–3 (2007) (noting that “[g]overnment agencies bring many bills to every legislature”); Peter L. Strauss, “Deference” Is
Too Confusing—Let’s Call Them “Chevron Space” and “Skidmore Weight,” 112 COLUM. L. REV. 1143, 1146 (2012)
(observing that “[t]he agency may have helped to draft the statutory language, and was likely present and attentive
throughout its legislative consideration”).
6 Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside—An Empirical Study of Congressional
Drafting, Delegation, and the Canons: Part II, 66 STAN. L. REV. 725, 758 (2014); see also Abbe R. Gluck & Lisa Schultz
Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I,
65 STAN. L. REV. 901, 998–1011 (2013) (detailing survey findings of congressional drafters on agency involvement in
legislative process); accord Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case
Study, 77 N.Y.U. L. REV. 575, 600 (2002) (discussing responses from case study of legislative drafting in the Senate
Judiciary Committee about the role of agency officials in drafting statutes and conducting legal research).
7 Christopher J. Walker, Inside Agency Interpretation, 67 STAN. L. REV. 999, 1036–38 (2015) (detailing agency rule
drafter survey findings with respect to the role of federal agencies in the legislative process).
8 Id. at 1037 & fig.6. These responses are no doubt conservative estimates of agency involvement with Congress, as
the agency officials surveyed were regulatory personnel, not necessarily agency officials who are actively involved in the
legislative process. See id. (noting lower rates of personal participation in the legislative process from the agency rule
drafters surveyed). Moreover, one in four respondents (24%) indicated their agency participates “in drafting legislative
history (e.g., floor statements, committee reports, conference reports, hearing testimony and questions, etc.) of statutes
the agency administers.” Id. at 1037–38.

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Moreover, in the 1970s several empirical studies were conducted on the role of federal agencies
in drafting substantive legislative proposals.9 Perhaps the most ambitious study to date comes from
the American Bar Association’s Standing Committee on Legislative Drafting, which under the
direction of Reed Dickerson commissioned the editors of the Catholic University Law Review to
conduct interviews and develop case studies on how federal agencies draft and advocate for agencyinitiated substantive legislation. The Catholic University Law Review published its nearly 200-page report
in 1972.10 The report presented findings as to the role of the administrative state in the legislative
process at seven federal agencies: the Department of Defense; the Department of Housing and
Urban Development; the Department of Justice; the Department of Transportation; the
Department of Health, Education, and Welfare; the Federal Trade Commission; and the Office of
Management and Budget.11 Like nearly all of the scholarship and empirical work done to date,12
these rich case studies focused almost exclusively on agency-initiated substantive legislation.13
Since the 1970s there has been little further empirical exploration into the role of federal
agencies in the legislative process—despite a growing theoretical literature calling for a more
purposivist approach to agency statutory interpretation based in part on the premise that federal
agencies are heavily involved in the legislative process and thus have comparative expertise in
legislative process and history compared to the courts.14 An important recent exception to this
9 See DAVIES, supra note 5, § 25–3 (focusing solely on “[a]gency bill making”); HIRSCH, supra note 4, at vii (explaining
that this book was prepared “to train program lawyers of what used to be the Department of Health, Education, and
Welfare, so that under the guidance of experienced legislative draftsmen they could help write the bills, in the areas of
their counseling experience, for HEW’s annual legislative program”); PROFESSIONALIZING LEGISLATIVE DRAFTING:
THE FEDERAL EXPERIENCE 5–95 (Reed Dickerson ed., 1973) (exploring further agency-initiated substantive legislation);
Brass, supra note 5, at 271–93 (focusing primarily on agency’s role in substantive legislative activities); Robert S. Gilmour,
Central Legislative Clearance: A Revised Perspective, 31 PUB. ADMIN. REV. 150, 150–58 (1971) (exploring the process within
the agency that takes place prior to seeking legislative clearance from the Executive Office of the President).
10 The Catholic University Study of Federal Legislative Drafting in the Executive Branch, 21 CATH. U. L. REV. 703 (1972)
[hereinafter CULR Report].
11 Id. at 709–10.
12 See sources cited supra note 9.
13 CULR Report, supra note 10, at 705–06 (explaining that the ABA-commissioned study “concentrate[d] on
legislative proposals originating in about a half dozen representative agencies”).
14 See, e.g., William N. Eskridge, Jr., Expanding Chevron’s Domain: A Comparative Institutional Analysis of the Relative
Competence of Courts and Agencies to Interpret Statutes, 2013 WIS. L. REV. 411, 427 (arguing that agencies should “read statutes
broadly, in light of their purposes, and follow a quasi-legislative political process for interpretations addressing big policy
questions or arenas not resolved by the statute”); Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A
Preliminary Inquiry into Agency Statutory Interpretation, 57 ADMIN. L. REV. 501, 537 (2005) (finding “persuasive grounds for
believing that legitimate techniques and standards for agency statutory interpretation diverge sharply from the legitimate
techniques and standards for judicial statutory interpretation”); Jerry L. Mashaw, Prodelegation: Why Administrators Should
Make Political Decisions, 1 J.L. ECON. & ORG. 81, 91–99 (1985) (arguing that delegation of policy decisions to agencies is
better than delegation to courts based on comparative accountability, responsiveness, and legitimacy); Kevin M. Stack,
Purposivism in the Executive Branch: How Agencies Interpret Statutes, 109 NW. U. L. REV. 871, 875 (2015) (taking argument
further by asserting that Congress directs agencies to engage in purposivist statutory interpretation); Strauss, supra note 3,
at 321–22 (arguing that “the use of legislative history may have an importance in the agency context for maintaining law
against politics, however one regards its use at the judicial level”); Cass R. Sunstein & Adrian Vermeule, Interpretation and
Institutions, 101 MICH. L. REV. 885, 928 (2003) (arguing that “attention to institutional considerations can show why
agencies might be given the authority to abandon textualism even if courts should be denied that authority”).

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scholarly void is a study conducted by Jarrod Shobe in 2014, in which he interviewed fifty-four
agency staffers involved in legislative matters at fourteen executive departments and eleven
independent agencies.15 The Shobe study consisted of fifty-five questions (many with subquestions)
that explored broadly the role of federal agencies in the legislative process, including some
exploration of their role in providing technical drafting assistance.16 Those findings, where relevant,
will be discussed throughout the Report.
Despite some prior investigation into the role of federal agencies in proposing substantive
legislation for congressional consideration, virtually no work has been done to document the role of
the administrative state in providing Congress with technical assistance in statutory drafting.17 It
turns out that the vast majority of legislative drafting conducted by federal agencies today is not
agency-initiated substantive legislation, but technical responses to congressional requests for review
of proposed legislation. In other words, unlike substantive legislative activity, when agencies engage
in technical drafting assistance they provide feedback on congressionally drafted legislation without
taking a substantive position on the legislation.18 Yet very little is publicly known about how agencies
interact with Congress in providing technical drafting assistance, or how agencies interact internally
to help their congressional liaisons leverage the expertise of the whole agency in such efforts.
This Report focuses on that technical drafting assistance process. To better understand the
process, the Author met with agency officials at some twenty executive departments and
independent agencies for a total of over sixty hours of interviews. Ten of these agencies agreed to
participate on the record: the Departments of Agriculture, Commerce, Homeland Security,
Education, Energy, Health and Human Services, Housing and Urban Development, and Labor as
well as the Federal Reserve and the Pension Benefit Guaranty Corporation. Individual overviews of
these agencies’ processes for providing technical drafting assistance are included as Appendices B–K
to this Report. Subsequent to the interviews, the participating agencies responded to an anonymous
follow-up survey that consisted of forty questions concerning their technical drafting assistance
processes and practices. The survey and full responses are reproduced as Appendix A.

15 Jarrod Shobe, Agencies as Legislators: An Empirical Study of the Role of Agencies in the Legislative Process, at 3–4 (Aug. 27,
2015), http://ssrn.com/abstract=2652520.
16 Id. at 10–12.
17 The Report does assess the quality of technical assistance now being conducted by federal agencies. For some
guidance on legislative drafting, see, for example, Civil Justice Reform, Exec. Order No. 12,988, 61 Fed. Reg. 4729,
4730–32 (Feb. 7, 1996).
18 As further discussed in Part I.B, the Office of Management and Budget (OMB) contemplates that federal agencies
will provide technical drafting assistance and does not require OMB preclearance of such technical feedback. Instead, it
merely instructs agencies to keep OMB apprised of such activities and to make clear to the congressional requester that
the agency feedback does not represent the substantive views of the agency or the administration. See OFFICE OF MGMT.
& BUDGET, CIRCULAR A-19: LEGISLATIVE COORDINATION AND CLEARANCE § 7(I) (revised Sept. 20, 1979),
https://www.whitehouse.gov/omb/circulars_a019/ [hereinafter OMB CIRCULAR A-19]. To do that, agencies typically
provide a disclaimer along the following lines: This technical drafting assistance is provided in response to a
congressional request and is not intended to reflect the viewpoint or policies of any element of the Agency, the
Department, or the Administration.

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Federal Agencies in the Legislative Process
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Christopher J. Walker

The Report proceeds as follows: Part I provides a brief overview of the role of federal agencies
in the legislative process: their substantive legislative activities which the Office of Management and
Budget (OMB) preclears per OMB Circular A-19 (Part I.A), the agencies’ provision of technical
assistance in statutory drafting (Part I.B), and their role in the budget and appropriations process as
related to providing technical drafting assistance (Part I.C).
Part II presents the study findings based on the agency interviews and anonymous follow-up
survey. After detailing the study methodology in Part II.A, Part II.B presents the general findings on
the technical drafting assistance process—including details on the congressional requesters and types
of requests and responses, the rate of technical drafting assistance requests, the factors that affect
whether the agency decides to provide assistance and whether Congress adopts the agency response,
and which actors within the agency are involved in developing the process. Part II.C outlines the
general agency organizational models for providing technical assistance: the predominant centralized
legislative counsel model; the decentralized agency experts model; and the centralized legislative
affairs model that seems more common at independent agencies. Part II.D presents the findings
regarding common challenges the agencies identified in providing technical drafting assistance—the
challenges inside the agency, those related to their congressional counterparts, and those implicated
by the technical–substantive line drawn by OMB Circular A-19.
Part III turns to discussing the best practices that certain agencies have developed to address
these challenges and proposes recommendations for ACUS to consider. These recommendations
focus both on internal agency practices to improve the technical drafting assistance process and on
external practices that may strengthen agencies’ relationship with Congress in the legislative process.
The Report concludes by briefly mapping out the next steps in empirical and theoretical research
needed to better understand the role of federal agencies in the legislative process.

I.

BACKGROUND: FEDERAL AGENCIES IN THE LEGISLATIVE PROCESS

This Part briefly reviews the variety of ways in which federal agencies participate in the
legislative process. Although this Report focuses on how federal agencies respond to congressional
requests for technical assistance in statutory drafting, it is helpful to situate that process within the
administrative state’s larger legislative role. Part I.A addresses the ways in which federal agencies
engage in substantive legislative activity, which in the context of executive agencies is generally
governed by the OMB Circular A-19 preclearance process. Part I.B turns to the technical drafting
assistance process—the main subject of the Report—which concerns the agency’s role in providing
technical feedback on congressionally drafted legislation without taking an official substantive
position on the legislation. Part I.C briefly outlines the role of federal agencies in the appropriations
and budget process. The focus in this Part is on executive agencies, and the nuances implicated by
independent agencies are further explored in Part II and in the agency-specific overviews contained
in Appendices B–K.

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A.

Federal Agencies and Substantive Legislative Activities

To understand the role of federal agencies in substantive legislative drafting, it is helpful to first
understand the President’s role. The President’s legislative function finds its roots in the
Constitution. In particular, Article II, Section 3, instructs that the President “shall from time to time
give to the Congress Information of the State of the Union, and recommend to their Consideration
such Measures as he shall judge necessary and expedient.”19 The former clause is now exercised by
the traditional State of the Union address, whereas the latter is often called the Recommendations
Clause and involves the President’s direct, substantive role in the legislative process.20 Combined
with the presidential veto power,21 the Supreme Court has explained that these constitutional
provisions “limit[] [the President’s] functions in the lawmaking process to the recommending of laws
he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor
equivocal about who shall make laws which the President is to execute.”22
Moreover, the President’s influence and control over the administrative state have constitutional
roots that help explain the President’s (and the administrative state’s) substantive role in the
legislative process. In particular, Article II, Section 3, instructs that the President “shall take Care
that the Laws be faithfully executed,”23 and Article II, Section 2, further provides that the President
“may require the Opinion, in writing, of the principal Officer in each of the executive Departments,
upon any Subject relating to the Duties of their respective Offices.”24 In other words, the President
has a duty to ensure that the executors of the law—including the federal regulatory state—do so
faithfully, and the President has the power to request the substantive views of federal agencies
within their areas of expertise. These additional constitutional duties and powers help the President
advance the Executive’s substantive legislative agenda under the Recommendations Clause.
In an April 2013 memorandum to all heads of departments and agencies, the President’s OMB
reinforced these constitutional foundations for the President’s legislative clearance function:
The President’s legislative responsibilities are founded in his constitutional duties and
powers to: (1) require the opinion in writing of the principal officer in each of the Executive
departments; (2) take care that the laws are faithfully executed; (3) give the Congress
information on the State of the Union; (4) recommend to the Congress such measures as he
19 U.S. CONT. art. II, § 3.
20 See Brass, supra note 5, at 274; see also J. Gregory Sidak, The Recommendation Clause, 77 GEO. L.J. 2079, 2081–82

(1989) (noting that “James Madison’s notes on the Constitutional Convention for August 24, 1787, reveal that the
Framers explicitly elevated the President’s recommendation of measures from a political prerogative to a constitutional
duty”).
21 U.S. CONT. art. I, § 7 (“Every Bill which shall have passed the House of Representatives and the Senate, shall,
before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he
shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large
on their Journal, and proceed to reconsider it. . . .”).
22 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).
23 U.S. CONT. art. II, § 3.
24 U.S. CONT. art. II, § 2.

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Christopher J. Walker

judges necessary; (5) approve or disapprove bills passed by the Congress; and (6) convene
either or both houses of Congress.
The legislative recommendations of the President in his three regular annual messages—
State of the Union, Budget, and the Economic Report—together with those in any special
messages or other communications to the Congress generally constitute the President’s
legislative program. These recommendations often originate in the agencies, the Congress,
and commissions, panels, and task forces established by law or by administrative order.25

OMB Circular A-19, which was last amended over three decades ago in 1979, sets forth the
guidelines for the Executive’s legislative coordination and clearance process.26 Within OMB, the
Legislative Reference Division is in charge of the Circular A-19 process and “coordinates the
articulation of the Administration’s position on legislation by overseeing the review and clearance of
the Administration’s legislative proposals, testimony, and statements on bills progressing through
Congress.”27 Circular A-19 applies to all Executive Branch agencies unless exempt by statute,28 and
as federal agencies understand it, Circular A-19 requires OMB preclearance of all “substantive”
legislative activities in which those agencies engage.
Although an exhaustive treatment of the Circular A-19 preclearance process lies outside the
ambition of this Report, it is worth outlining the types of legislative activities contemplated for
OMB coordination and preclearance. First, federal agencies must submit annually their legislative
program (or lack thereof) for coordination and clearance purposes.29 Second, agencies must submit
for OMB preclearance any “proposed legislation,” which is defined broadly to include “[a] draft bill
or any supporting document (e.g., Speaker letter, section-by-section analysis, statement of purpose
and justification, etc.) that an agency wishes to present to Congress for its consideration” as well as
“any proposal for or endorsement of Federal legislation” that the agency desires “to transmit to
Congress, or to any Member or committee, officer or employee of Congress, or staff of any
committee or Member, or to make available to any study group, commission, or the public.”30
25 Memorandum from the Office of Mgmt. & Budget on Legislative Coordination and Clearance to the Heads of
Departments and Agencies, M-13-12, at 2 (Apr. 15, 2013) https://www.whitehouse.gov/sites/default/files/omb/
memoranda/2013/m-13-12.pdf [hereinafter OMB April 2013 Memo].
26 OMB CIRCULAR A-19, supra note 18.
27 The Mission and Structure of the Office of Management and Budget, OFFICE OF MGMT. & BUDGET,
https://www.whitehouse.gov/omb/organization_mission/[hereinafter OMB Mission and Structure].
28 OMB CIRCULAR A-19, supra note 18, § 4 (“All executive branch agencies (as defined in section 5b) are subject to
the provisions of this Circular, except those agencies that are specifically required by law to transmit their legislative
proposals, reports, or testimony to the Congress without prior clearance. OMB will, however, honor requests from such
agencies for advice on the relationship of particular legislation, reports, or testimony to the program of the President.
The municipal government of the District of Columbia is covered to the extent that legislation involves the relationship
between it and the Federal Government. Agencies of the legislative and judicial branches are not covered by this
Circular.”); see also Brass, supra note 5, at 291 (detailing agencies with legislative “bypass” authority).
29 OMB CIRCULAR A-19, supra note 18, § 6 (detailing the requirements for the agency legislative program
submission); see also Brass, supra note 5, at 288–89.
30 OMB CIRCULAR A-19, supra note 18, § 5(c) (defining “proposed legislation”); see id. § 7 (detailing the requirements
for “[s]ubmission of agency proposed legislation and reports” for OMB review); see also Brass, supra note 5, at 289–90.

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Third and related, this OMB preclearance requirement applies to any agency “report,” which
includes “[a]ny written expression of official views prepared by an agency on a pending bill for (1)
transmittal to any committee, Member, officer or employee of Congress, or staff of any committee
or Member, or (2) presentation as testimony before a congressional committee.”31 For agencyproposed legislation and reports, OMB then engages in an extensive clearance and coordination
process—sometimes even initiating interagency consultation and coordination32—before the agency
can transmit that proposed legislation or report to Congress (though there are narrow exceptions
and separate procedures for time-sensitive legislative matters).33
Finally, Circular A-19 provides the process by which the President receives substantive feedback
from federal agencies on enrolled bills for presentment and veto purposes. When OMB requests an
agency’s views on an enrolled bill, the agency will provide written feedback, including whether it
approves, how the enacted bill would affect existing law, whether a signing statement should be
issued, and so forth.34 Although not expressly detailed in Circular A-19, OMB has a similar process
for soliciting agency feedback to be included in “Statements of Administration Policy (SAPs)” on
pending bills:
OMB prepares SAPs for major bills scheduled for House or Senate floor action in the
coming week, including those to be considered by the House Rules Committee. In addition,
SAPs are sometimes prepared for so-called “noncontroversial” bills considered in the House
under suspension of the rules. SAPs are prepared in coordination with other parts of OMB,
the agency or agencies principally concerned, and other EOP units. Following its clearance, a
SAP is sent to Congress by OMB’s Legislative Affairs Office.35

31 OMB CIRCULAR A-19, supra note 18, § 5(e) (defining “proposed legislation”); see id. § 7 (detailing the requirements

for “[s]ubmission of agency proposed legislation and reports” for OMB review). OMB Circular A-19 also defines
“report” to include “any comment or recommendation on pending legislation included in an agency’s annual or special
report that an agency proposes to transmit to Congress, or any Member or committee, or to make available to any study
group, commission, or the public.” Id. § 5(e).
32 See id. § 9 (detailing interagency consultation process).
33 See id. § 8 (detailing OMB clearance process for agency proposed legislation and reports). For more on the OMB
clearance process, based on interviews with agency officials, see Shobe, supra note 15, at 30–34 [Part II.D].
34 OMB CIRCULAR A-19, supra note 18, § 10; see also OMB April 2013 Memo, supra note 25, at 3 (“To assist the
President in deciding his course of action on a bill, OMB requests each interested agency to submit within 48 hours its
analysis and recommendation in a letter to OMB. Such views letters are signed by the head of the agency or other
Presidential appointee. OMB prepares a memorandum to the President on the enrolled bill which transmits these views
letters and summarizes the bill, significant issues, and various agency and OMB recommendations. If an agency
recommends disapproval, it is responsible for preparing a draft of an appropriate statement for the President’s
consideration.”).
35 OMB April 2013 Memo, supra note 25, at 3. OMB’s Office of Legislative Affairs is separate and distinct from the
Legislative Reference Division and serves as OMB’s liaison with the Hill and the legislative affairs offices throughout the
federal administrative state. The Office’s involvement with Congress includes “disseminat[ing] budget materials,
descriptions of relevant concerns, and statements to Congress to communicate the Administration’s positions.” OMB
Mission and Structure, supra note 27. The Legislative Reference Division, by contrast, “coordinates the articulation of the
Administration’s position on legislation by overseeing the [Circular A-19] review and clearance of the Administration’s
legislative proposals, testimony, and statements on bills progressing through Congress.” Id.

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As Clinton Brass of the Congressional Research Service has explained, “The purpose of a SAP
(usually pronounced ‘sap’) is to communicate to Congress the coordinated views of the President
and agencies regarding a piece of legislation.”36 These SAPs are available on OMB’s website.37
In sum, federal agencies play a significant and important substantive role in the legislative
process—a role that, at least with respect to executive agencies, is coordinated and precleared by the
President through OMB’s Legislative Reference Division.
B.

Federal Agencies and Technical Assistance in Legislative Drafting

OMB Circular A-19, however, also contemplates that federal agencies play an important role in
providing technical assistance in statutory drafting. Such technical drafting assistance goes through a
different process. Indeed, as discussed in Part II, federal agencies often receive congressional
requests—from committee staffers, staffers for individual Members of Congress, or Members
themselves—for technical assistance in statutory drafting. These requests can range from review of
draft legislation to (less common) requests for the agency to draft legislation from scratch based on
specifications provided by the congressional requester. And the agency responses can vary from oral
communications of general feedback or written memoranda summarizing the key feedback to
suggested legislative language or redlined suggestions on the draft legislation.38
Unlike substantive legislative activities that require OMB preclearance, Circular A-19 instructs
that “[a]gencies need not submit for clearance bills that they prepare as a drafting service for a
congressional committee or a Member of Congress, provided that they state in their transmittal
letters that the drafting service does not constitute a commitment with respect to the position of the
Administration or the agency.”39 Based on the Author’s review of a number of agency responses to
technical drafting assistance requests, this disclaimer states something along the following lines:
NOTE: This technical drafting assistance is provided in response to a congressional request
and is not intended to reflect the viewpoint or policies of any element of the Agency, the
Department, or the Administration.

Although technical drafting assistance need not be precleared by OMB, Circular A-19 instructs
agencies to advise OMB of such drafting requests—and forward a copy of requests when made in
writing—as well as to provide OMB with the agency’s response “at the time of transmittal, together
36 Brass, supra note 5, at 277; see also id. at 277–78 (discussing SAPs further).
37 OFFICE OF MGMT. & BUDGET, STATEMENTS OF ADMINISTRATION POLICY ON NON-APPROPRIATIONS AND

APPROPRIATIONS BILLS, https://www.whitehouse.gov/omb/legislative_sap_default.
38 See generally Brass, supra note 5, at 276–77 (“While the development of legislative proposals by the executive
branch is a process that originates within the executive branch itself, another process, usually called ‘executive branch
comment on legislation,’ originates within the legislative branch. At the discretion of actors within the legislative branch,
and especially its committees, a legislative branch actor contacts an executive agency to solicit information and policy
preferences on legislation. This can be done formally (with a letter or email to an agency official) or informally (by
telephone or in person).”); accord Shobe, supra note 15, at 33–34 [Part II.D].
39 OMB CIRCULAR A-19, supra note 18, § 7(i).

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with an explanatory statement of what the bill would accomplish if that is not contained in the
transmittal letter.”40 As further discussed in Part II, it seems that the majority of agencies do not
comply with these instructions with respect to the run-of-the-mill technical drafting assistance
requests.41 Moreover, based on information gathered from the federal agencies, it does not appear
that OMB has made any systematic effort to enforce these notice and transmittal requirements.
As detailed in Part II and perhaps contrary to conventional understanding, the bulk of agency
legislative drafting today does not come in the form of substantive, agency-initiated legislation, but
in the form of responding to congressional requests for technical drafting assistance. Such requests
do not go through the formal OMB preclearance process; indeed, most such requests never reach
OMB’s radar.
C.

Federal Agencies and Appropriations Legislation

Federal agencies are also heavily involved in the budget and appropriations process, but those
are governed by a different set of OMB offices and procedures and often involve a different part of
the agency (typically the agency’s budget office) than traditional legislative drafting. OMB Circular
A-11 governs the federal budget process—a process that involves federal agencies submitting their
budget requests and material for OMB consideration to be included in the President’s budget.42 The
extensive OMB budget process lies outside the scope of the Report and has been detailed
exhaustively elsewhere.43 Similarly, on the congressional side, appropriations legislation is handled
separately from authorization and other substantive legislation—a different process, a different set
of congressional committees in the House and Senate, and a different part of the agency.44 And the
appropriations process has evolved into an important yet unorthodox form of lawmaking.45
For the purposes of this Report, however, the legislative process for appropriations cannot be
ignored entirely, especially in light of the somewhat modern phenomenon of including substantive

40 Id.
41 See also Brass, supra note 5, at 277 (“When responding, agencies do not always clear their responses with OMB

under the Circular A-19 process, sometimes—but not always—to the consternation of OMB. Clearly, it would be
infeasible for an agency to clear every telephone call with OMB, but this can be a gray area under the A-19 process.”);
Shobe, supra note 15, at 33–34 [Part II.D] (noting that agency respondents indicated that “bills drafted for Congress at
Congress’s request are not considered a statement of agency or administration policy, and so agencies are able to avoid
the OMB clearance process for this type of draft legislation”).
42 OFFICE OF MGMT. & BUDGET, CIRCULAR A-11: PREPARATION, SUBMISSION, AND EXECUTION OF THE BUDGET
(June-30, 2015), https://www.whitehouse.gov/omb/circulars_a11_current_year_a11_toc.
43 See generally Brass, supra note 5, at 285–86 (discussing further the OMB budget process).
44 For a helpful, basic overview of the federal budget process, see CENTER ON BUDGET POLICY & PRIORITIES,
POLICY BASICS: INTRODUCTION TO THE FEDERAL BUDGET PROCESS (Apr. 20, 2015), http://www.cbpp.org/research/
policy-basics-introduction-to-the-federal-budget-process. See generally BILL HENIFF JR. ET AL., CONG. RESEARCH SERV.,
INTRODUCTION TO THE FEDERAL BUDGET PROCESS (Dec. 3, 2012), https://www.fas.org/sgp/crs/misc/98-721.pdf.
45 See generally BARBARA SINCLAIR, UNORTHODOX LAWMAKING: NEW LEGISLATIVE PROCESSES IN THE U.S.
CONGRESS 111–28 (detailing how the appropriations and budget processes have evolved into a new and predominant
form of unorthodox lawmaking).

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provisions or “riders” in appropriations legislation.46 As discussed in Part II and detailed more fully
in the agency-specific overviews included as Appendices B–K, it has become more critical that
agencies provide technical review and drafting assistance on proposed appropriations legislation that
include such substantive provisions. Yet, because agency processes for reviewing authorization and
appropriations legislation have historically been channeled through different parts of the agency,
such coordination to provide technical drafting assistance on appropriations legislation has proved
to be a challenge at some agencies.

II.
A.

STUDY FINDINGS

Study Methodology

As detailed in the Introduction, little information is publicly available on the role of federal
agencies in the legislative process, and even less on their role in providing technical drafting
assistance. Accordingly, the approach to this Report is necessarily exploratory in nature. To better
understand the process, the Author met with agency officials at some twenty executive departments
and independent agencies for a total of over sixty hours of interviews. These interviews were free
flowing and investigative, although they were based on a preliminary (and evolving) outline
developed during preliminary conversations with some agency and congressional staffers as well as
the ACUS staff. The vast majority of these interviews took place in person, including all of the initial
interviews with the ten agencies that agreed to participate on the record. To encourage a candid
conversation, the interviews were not recorded. For most interviews, however, a law student
research assistant or ACUS legal intern accompanied the Author; both of us took extensive notes
and, when possible, attempted to capture verbatim the agency officials’ responses.
At ten of the event agencies where we conducted interviews, officials agreed to participate on
the record and to be profiled in this Report: the Departments of Agriculture, Commerce, Homeland
Security, Education, Energy, Health and Human Services, Housing and Urban Development, and
Labor as well as the Federal Reserve and the Pension Benefit Guaranty Corporation. We interviewed
a number of officials at these agencies—always including as least one senior attorney who serves as
legislative counsel for the agency and often also a senior official from the agency’s legislative affairs
office and/or from the agency’s budget or finance office that deals with the appropriations process.
Individual overviews for each of these agencies’ processes for providing technical drafting assistance
are included as Appendices B–K to the Report. Those overviews have been reviewed by the
agencies and their extensive comments have been incorporated; the agencies have also be given a
chance to review and comment on earlier drafts of the Report.
Not surprisingly, a number of common themes emerged during these interviews. We also
identified a number of areas where it would be helpful to get answers to specific questions from
each participating agency and where it may be beneficial to get those answers anonymously. We thus
46 See, e.g., Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61, 84–91 (2006) (detailing the use
of appropriations riders to substantively constrain federal agency action).

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requested that the ten participating agencies respond to a follow-up survey concerning their
technical drafting assistance processes and practices. The survey consisted of six main questions
with a number of subquestions for a total of forty questions. As discussed in detail in this Part, a
number of these questions were designed to confirm some of the general trends that we seemed to
uncover during the interview process. The anonymous survey was administered online via the online
survey software Qualtrics, but an electronic version of the survey was also circulated to the agencies
in advance to allow them to coordinate a collective response from the appropriate officials. All of
the participating agencies responded. The survey instrument also allowed for comments on each
question, and the agency respondents provided a dozen such additional comments. This Part
explores the results from the survey; the survey and full responses are reproduced in Appendix A.47
B.

General Findings on Agency Technical Drafting Assistance Process

Although the agencies interviewed have different organizational models for providing technical
drafting assistance (Part II.C), face a somewhat varying set of challenges (Part II.D), and have
developed a number of distinct best practices (Part III), the general technical drafting assistance
process is strikingly similar across the federal agencies analyzed. The findings presented here are
organized in roughly chronological order in how technical assistance is requested, provided, and
received. The process at each specific agency is discussed in greater detail in the agency-specific
overviews presented in Appendices B–K.
1. Initial Congressional Request
The initial congressional request process is similar across agencies: a staffer for a congressional
committee or for an individual Member of Congress—usually the former—reaches out to the
agency. Sometimes, though rarely, the request comes from a Member of Congress directly, but
oftentimes the request is made by the staffer before the Member has been presented with the draft
bill. Likewise, most requests are submitted before the proposed legislation has been introduced in
Congress, though sometimes the initial request arrives after the legislation has been introduced
during the committee mark-up stage. Sometimes, moreover, the agency offers technical assistance
on proposed legislation without an express congressional request. And, of course, the agency

47 In this Report, those questions (and the relevant subquestions) are cited to with a prefix “Q.” Because the main
questions build on prior questions and track the technical assistance process chronologically, the six main questions were
asked in a fixed order; subquestions were randomized within each main question to minimize response-order effects. See,
e.g., Jon A. Krosnick & Duane F. Alwin, An Evaluation of a Cognitive Theory of Response-Order Effects in Survey Measurement, 51
PUB. OP. Q. 201 (1987); William S. Sekely & Vicki L. Blakney, The Effect of Response Position on Trade Magazine Readership
and Usage, J. ADVER. RES., Nov./Dec. 1994, at 53. There are methodological costs to not fully randomizing the survey in
that the order may affect the answers, though such effects are typically more an issue with attitudinal studies (which this
is not). See generally HOWARD SCHUMAN & STANLEY PRESSER, QUESTIONS AND ANSWERS IN ATTITUDE SURVEYS:
EXPERIMENTS ON QUESTION FORM, WORDING, AND CONTEXT (1981). Moreover, as noted above, the survey was
distributed in advance in electronic format so that officials at each agency could coordinate the agency’s collective
response prior to one official from each agency entering that response into the online survey application. Accordingly,
any potential response-order effects could be mitigated by this somewhat unconventional survey methodology.

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routinely remains involved in providing technical drafting assistance as the proposed legislation
works its way through the legislative process.
The requester’s initial agency contact is typically the agency’s legislative affairs office—the office
that is the agency’s official liaison with Congress and manages all agency communications and
interactions with the Hill. The agency officials interviewed, however, underscored that the process is
informal and relationship/personality driven. One agency official, for instance, remarked: “When
the real work gets done, it’s the subject matter experts at the agency and at the congressional
committee that interact. I can guarantee you that they have their direct lines.” Accordingly, it is not
at all unusual for a congressional staffer to reach out to agency personnel with whom she has
worked previously to get informal feedback on draft legislation. At most agencies, there is a policy—
or at least an informal expectation or norm—that the legislative affairs staff is made aware of any
such congressional requests, though a number of agency officials interviewed were skeptical that
such notice was always provided. As one agency official remarked, congressional staffers “know
who to call [at the agency] to get informal advice.” The agency responses to the follow-up
anonymous survey were consistent with these observations: All of the agency respondents indicated
that the legislative affairs staff always (40%), usually (50%), or often (10%) are involved in the
agency’s response.48
A number of agency officials, moreover, noted that the agency can often anticipate some
congressional requests for technical assistance based on congressional hearings and other meetings
with agency officials. For instance, it is not unusual for the request to be sparked by a congressional
hearing where agency officials have testified or by a less formal agency briefing of congressional
staffers. As one agency official observed, “If [the agency] briefs something, then Congress often
requests TA [technical drafting assistance].”
As for the form of the request, the congressional staffer usually has already drafted some
proposed legislative language and explains what that language is attempting to accomplish. The
staffer expects the agency to provide general feedback on the proposed legislation, oftentimes with
suggested edits and redlines to the draft language. Sometimes the congressional requester has not
already drafted the legislative language and instead provides the agency with a set of specifications
for the legislation, with the expectation that the agency develop the first draft. This latter type of
technical assistance request is much rarer.
2. Rate of Providing Technical Assistance in Drafting Legislation
The agency officials interviewed uniformly indicated that the number of congressionally drafted
bills for which they provide technical assistance is much greater than the number of agency-initiated

48 Q3(a).

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substantive bills (those that would go through the OMB Circular A-19 preclearance process).49
During the interviews there seemed to also be a general consensus that their agency provides
technical assistance during the drafting phase on virtually all of the bills that ultimately get enacted
that directly affect their agency. They seemed less confident about bills that only indirectly affect
their agency, and the feedback was mixed among agencies about appropriations legislation.
To gain further insight into how often agencies provide technical assistance during the drafting
process for bills that are introduced in Congress or ultimately enacted (as well as appropriations
legislation), the anonymous online follow-up survey asked six questions on those subjects. Figure 1
depicts the responses to those questions.50
Figure 1. Frequency of Agency Technical Drafting Assistance
in the Legislative Process

With respect to introduced legislation that directly affects the agency, almost seven in ten
respondents indicated that their agency “often” (40%) or “usually” (30%) provides technical
49 A number of agency officials interviewed also emphasized that the amount agency-initiated substantive legislation

varies by presidential administration, which party controls Congress, whether there is a divided Congress—just to
mention a few factors.
50 Q1(a)–(f).

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assistance in the drafting process. The remainder (30%) indicated “sometimes” with no one
reporting “always,” “rarely,” or “never.”51 If converted to a composite score, the score would be 4.0
on a 6.0 scale (4.0 = often).52 When asked the same question about introduced legislation but only
about such legislation that indirectly affects the agency, the rate unsurprisingly drops: Three in ten
(30%) respondents indicated that their agency often provides such technical assistance, with no one
indicating usually or always. Three in five (60%) indicated sometimes, and the remainder (10%)
rarely—for a composite score of 3.2 (3.0 = sometimes).53
One would expect the rate of providing technical assistance to be much higher among the bills
that are actually enacted, and that is supported by the agency officials surveyed—at least with respect
to legislation that directly affects the agency. Four in five respondents indicated that their agency
often (20%), usually (50%), or always (10%) provides technical drafting assistance with respect to
enacted legislation that directly affects the agency; the remainder (20%) indicated sometimes, for a
composite score of 4.5 (4.0 = often; 5.0 = usually).54 (Similar to introduced legislation, the reported
rate of providing technical assistance is lower for legislation that only indirectly affects the agency.55)
This finding is consistent with prior empirical work. In particular, of the fifty-four agency staffers
involved in legislative matters that were surveyed in 2014 as part of the Shobe study, about two in
three staffers surveyed indicated that their agency plays “at least some role” in 100% of the
legislation that is enacted in the areas covered by the agency with nearly all of the remaining staffers
indicating that their agency plays at least some role in 75–99% of such enacted legislation.56
During the interviews, a number of agency officials indicated that a common challenge to
providing technical assistance in legislative drafting is that appropriations legislation often includes
substantive provisions, yet the appropriations process is separate and distinct from the regular
legislative process. As such, appropriations may not always go through the traditional technical
review process at the agency. Our follow-up survey casts some doubt on whether those challenges
continue to frustrate agency technical assistance efforts. With respect to appropriations legislation
that directly affects the agency, seven in ten respondents indicated that their agency often (10%),
usually (20%), or always (40%) provides technical assistance, with a fifth (20%) indicating sometimes
51 Q1(a).
52 Composite scores are calculated by giving 6 points for “always,” 5 points for “usually,” 4 points for “often,” 3
points for “sometimes,” 2 points for “rarely,” and 1 point for “never.” The aggregate is then divided by the total number
of respondents for the question.
53 Q1(b). “Directly” and “indirectly” were not defined in the survey.
54 Q1(c).
55 Seven in ten (70%) agency respondents indicated that their agency sometimes provides technical assistance during
the drafting process on enacted legislation that indirectly affects the agency, with the remainder indicating either rarely
(20%) or usually (10%)—for a composite score of 3.0 (3.0 = sometimes). This composite score is strangely lower than
the score (3.2) for introduced legislation that indirectly affects the agency. Q1(d).
56 Shobe, supra note 15, at 27–28 & fig.8; see also id. at 23 & fig.5 (reporting that “[f]orty-eight respondents (89%) said
that Congress often or always requires agency review, and only one respondent said rarely (2%) and none said never”).
As detailed in note 15, the fifty-four agency officials surveyed in 2014 worked across the administrative state, from
fourteen executive departments and eleven independent agencies. Id. at 10–11.

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and the remainder (10%) rarely.57 Although the composite score of 4.6 is roughly the same as for
enacted legislation that directly affects the agency (4.5), the rate of respondents who indicated that
the agency always (40%) provides such technical assistance is by far the highest of the six questions.
By contrast, with a composite score of only 2.7 (2.0 = rarely; 3.0 = sometimes), the agency
respondents indicated that their agency is least involved in providing technical assistance on
appropriations legislation that only indirectly affects the agency.58
In sum, based on the agency interviews and follow-up survey responses, it seems reasonable to
conclude that federal agencies often provide technical drafting assistance on legislation that directly
affects those agencies. The rate of participation is unsurprisingly higher for legislation that actually
gets enacted, and substantially lower for legislation that only indirectly affects those agencies. The
picture for appropriations legislation is more mixed and varied by agency. Finally, it is important to
note that these survey questions were not limited to when Congress requests technical assistance,
but to all introduced, enacted, and appropriations legislation that directly or indirectly affects the
respondent’s agency. This is because, as the agency officials noted repeatedly in the interviews, it is
not unusual for federal agencies to review and offer technical comments on legislation even without
a request from Congress—especially on legislation that has a likelihood of being enacted.59
3. Factors that Affect Whether Agency Provides Technical Assistance
During the interviews conducted for the Report, the agency officials uniformly indicated that
their agency responds to just about every congressional request for technical drafting assistance that
the agency receives—regardless of the political party affiliation of the requesting Member, the effect
the legislation would have on the agency, the likelihood of such legislation actually being enacted, or
any other factor. In the follow-up survey, we asked eight questions to explore these responses
further, and, as discussed below, the agency respondents’ anonymous responses generally support
their interview responses.
Before turning to these survey responses, it is worth exploring why federal agencies seem so
willing to provide technical drafting assistance in response to any congressional request. To someone
outside of the legislative process, this phenomenon may come as a surprise. After all, federal
agencies are not required to provide such assistance to Congress. There is no constitutional or
statutory mandate to do so, and the President has similarly not attempted to impose such a

57 Q1(e).
58 Only three in five respondents indicated that their agency provides technical assistance often (20%) or sometimes
(40%) on appropriations legislation that indirectly affects the agency, with the remainder indicating never (10%) or rarely
(30%). Q1(f).
59 This is consistent with the findings from the Shobe study. See Shobe, supra note 15, at 24–25 & fig.6 (noting that
“[t]wenty-eight respondents (52%) said that their agency always or often reviews legislation without a request from
Congress and another nineteen (24%) said they sometimes do”).

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requirement.60 When asked why their agency is so willing to provide technical drafting assistance, the
agency officials provided a number of rationales.
First and foremost, the agency officials acknowledged that it is critical that their agency maintain
a healthy and productive working relationship with Congress. Congress is the source of the agency’s
statutory mandate and, even short of legislative action, has a number of tools to oversee and affect
the agency’s day-to-day operations. Providing technical drafting assistance, especially when it is not
actually required of the agency, strengthens that relationship. In so doing, the agency builds up
institutional capital to use later to advance the agency’s priorities or to help ease the pressure of
congressional oversight. One agency official stated, for instance, that “oversight is always in the back
of our minds” when we are providing technical drafting assistance. Indeed, another remarked that
his agency feels particularly pressed to complete all technical drafting assistance requests before a
senior agency official is scheduled to appear at a congressional hearing.
Second, most of the agency officials underscored that providing technical drafting assistance is
critical to ensure that the proposed legislation does not unnecessarily disrupt the existing statutory
(and regulatory) scheme. In other words, agencies provide technical drafting assistance on proposed
legislation that will affect them to ensure that the legislation is technically correct—even if they do
not necessarily agree with all of the proposed legislation’s substance. As one of the agency
respondents in the Shobe study remarked, “Sometimes there are bills we don’t like, but we still try to
make it the best we can. When we give technical assistance we are trying to help the drafter make the
bill the best we can even if we don’t like it. If it ultimately passes it is better that we have input than
not.”61 Similar comments were made by the agency officials interviewed for this Report.
Third, even if the proposed legislation is unlikely to be enacted, providing technical drafting
assistance helps educate the congressional staffers about the agency’s existing statutory and
regulatory framework. A number of agency officials interviewed noted that Congress often
introduces legislation that just duplicates existing law, and providing technical assistance helps
Congress understand that the agency already has the authority to address those issues (and may
already be addressing them). To capture this rationale, a number of agency officials referred to the
technical assistance process as maintaining a “dialogue” between Congress and the agency. Although
not mentioned by the officials interviewed for the Report, one agency respondent in the Shobe
study expressed a related rationale of assisting the agency to understand how to implement the
legislation: “Even if we don’t like a bill, we spend a lot of time reviewing and providing substantive
comments so that even though we don’t like it, we will at least know what to do and how to
implement it.”62

60 As discussed in Part I.A, the President does require federal agencies to provide feedback to OMB on certain
legislative proposals and enacted bills, but such requirements do not extend to providing drafting assistance to Congress.
61 Shobe, supra note 15, at 24.
62 Id.

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Finally, one agency official interviewed for the Report indicated that the agency provides
technical drafting assistance because it serves as “a very good source of intelligence.” Put differently,
by responding to technical drafting requests from all Members of Congress and thus encouraging
congressional staffers to submit such requests on any legislation they are contemplating, the agency
is better able to anticipate, monitor, and respond to any potential legislative proposals that may
affect the agency.
To better understand which factors may affect whether an agency decides to provide technical
drafting assistance in response to a congressional request, we asked the agency respondents how
often eight factors affect whether their agency grants such request. Figure 2 depicts the responses to
those questions, reporting the average frequency for how often a particular factor affects whether
their agency decides to provide technical assistance requested by Congress.63 As Figure 2 depicts, the
agency officials’ anonymous survey responses are generally consistent with their comments during
the interviews: their agency almost always decides to provide technical drafting assistance when
Congress so requests regardless of the circumstances. No factor averaged more than a “sometimes”
matters response, and only “sometimes” if rounded up.
Figure 2: Factors that May Affect Whether the Agency Decides to Provide
Technical Assistance Requested by Congress (average frequency)

63 Q2(a)–(h).

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For example, four in five agency respondents indicated that it never (20%) or rarely (60%)
matters if the proposed legislation is likely to be enacted, with the remainder indicating either
sometimes (10%) or often (10%)—for a composite score of 2.1 (2.0 = rarely; 3.0 = sometimes).64
Factors such as whether the whether Congress has provided a reasonable deadline (2.7), the agency
has sufficient resources (2.5), or the technical assistance request is for comments on a draft bill (as
opposed to asking the agency to draft the bill) (2.5) also do not seem to matter much, as least not
with respect to whether the agency will provide assistance.65 As one agency respondent noted in the
comments, “The goal is to always be responsive to requests from the Hill for technical drafting
assistance; however, an analysis of whether a particular piece of legislation is moving could influence
the amount of time and effort spent on a request.”66
What about the identity or politics of the congressional requester? Again, those factors do not
seem to matter too much. The least influential factor on the list is whether the request comes from a
Member of the majority or minority party in Congress, with four in five agency respondents
reporting that the majority/minority identity never (30%) or rarely (50%) matters; the remainder
indicated sometimes (10%) or often (10%), for a composite score of 2.0 (2.0 = rarely).67 Presidential
politics seem to matter a bit more—at least for some agencies—with one in five (20%) agency
respondents indicating that it usually matters whether the technical assistance request comes from a
Member from the President’s party. But three in five respondents disagreed, indicating such party
affiliation never (30%) or rarely (30%) matters, with the remainder indicating sometimes (10%) or
often (10%).68
One respondent underscored in the comments that “[t]his may vary from administration to
administration. In some administrations, all (or almost all) requests are honored; in others, the
Department is more responsive to majority, or to the President’s party.”69 Moreover, it is important
to underscore that these questions concern whether to grant the technical drafting assistance
request, not how much time and resources the agency dedicates to the response. As one agency
respondent remarked, “The agency always responds to technical comments requests; we may put
more or less time or resources into requests that come from, for example, our authorizing
committees versus another, more tangentially-related committee.”70 The Shobe study explored this
important distinction further, finding:
[M]any respondents reported different interactions with congressional staff from a party
different from that of the President. Twenty-eight respondents (52%) said their interactions
are often or always different and another fourteen respondents (26%) said their interactions
64 Q2(a).
65 Q2(b), (c), (d).
66 Q1 cmt.2.
67 Q2(g).
68 Q2(h).
69 Q2 cmt.2.
70 Q2 cmt.3.

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are sometimes different. This is despite the fact that many respondents said that they try to
offer assistance to both parties.71

Similarly, despite agency officials noting during interviews that it is much more common for the
technical assistance requests to come from committee staffers than staffers for individual Members,
that distinction does not appear to matter when deciding whether to provide technical drafting
assistance: three in five respondents indicated that this factor never (20%) or rarely (40%) matters,
with the remainder indicating sometimes (20%) or often (20%)—for a composite score of 2.4 (2.0 =
rarely; 3.0 = sometimes).72
Finally, the factor among the eight surveyed that seems to matter the most—albeit with still an
average response (2.8) of just under sometimes mattering—is whether the proposed legislation
furthers agency objectives (as opposed to undermining agency objectives): half of the respondents
indicated that this usually (20%), often (10%), or sometimes (20%) matters, with the other half
indicating never (20%) or seldom (30%).73 One agency respondent in the Shobe study may be
reflective of those who indicated that this factor at least sometimes matters:
We usually will help out Congress any time they request technical assistance. However, if our
department hates a bill, we don’t want to fix it for them because from our perspective it
can’t be fixed. If we strongly oppose the bill we are not going to help them make technical
changes to make it better.74

Again, it is worth emphasizing that these questions focus on factors that affect whether the
agency decides to provide any technical drafting assistance at all. The factors could still affect how
much time, resources, and detail are provided for a particular request. One agency respondent’s
comment in response to the survey nicely summarizes the majority view shared during the agency
interviews conducted prior to the survey:
We strive to accommodate all requests and do so “blind” to the chamber, to the majority or
minority status of the requesting party, to the nature of the request (i.e., from committee
staff or Member staff), or the likelihood of action. Those elements, however, may affect the
priority placed on the assistance provided. If anything, scope and timing dictate the amount
of assistance provided. Rarely, do we refuse to provide assistance, and only if there is good
cause to do so (e.g., the request goes to legislation that is repugnant to public policy or the
interests of the United States).75

4. Agency Actors Involved in Providing Technical Drafting Assistance
As discussed in Part II.B.1, congressional requests for technical drafting assistance generally
arrive first at the agency’s legislative affairs office, though some informal requests are sent to agency
71 Shobe, supra note 15, at 45; see also id. at 45 fig.11.
72 Q2(f).
73 Q2(e).
74 Shobe, supra note 15, at 24.
75 Q2 cmt.1.

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experts directly based on prior relationships between the agency and congressional personnel. Part
II.C details the various agency organizational models, but this Part explores the related question
about which agency actors are involved in the agency’s response to a congressional request for
technical assistance.
During the interviews, the general response was that the agency involves those within the agency
with expertise in the substantive matter in addition to those with expertise in legislative drafting. In
other words, while the legislative affairs staff may be the congressional liaison (and gatekeeper), the
program and policy experts and the agency’s legislative counsel are quickly involved in reviewing the
proposed legislation and providing comments. For some agencies, the regulatory counsel are also
involved, and the agency officials interviewed generally indicated that OMB is generally not involved
in purely technical assistance and that private parties (regulated entities or other outside
organizations) are rarely involved in developing the agency’s response.
To further explore this topic, the anonymous follow-up survey asked the participating agencies
six questions about how often a variety of actors are involved in the agency’s response to a
congressional request for technical assistance. Figure 3 presents the responses to those survey
questions, which are generally consistent with the responses given during the agency interviews.76 As
Figure 3 illustrates, all of the agency respondents indicated that the legislative/congressional affairs
staff are often (10%), usually (50%), or always (40%) involved in the agency’s response—for a
composite score of 5.3 (5.0 = usually; 6.0 = always).77 Nine in ten respondents similarly indicated
that agency legislative counsel—for example, attorneys in the agency’s chief or general counsel
office—are always (40%), usually (40%), or often (10%) involved in the agency’s technical assistance
response, with the remainder (10%) indicating sometimes—for a composite score of 5.1.78
With respect to agency officials outside of the legislative affairs and legislative counsel staffs, the
results are a bit more mixed. Seven in ten agency respondents indicated that agency program/policy
experts always (20%) or usually (50%) participate, with the remainder indicating sometimes (20%) or
rarely (10%)—for a composite score of 4.5 (4.0 = often; 5.0 = usually).79 This is consistent with the
Shobe study, in which about nine in ten (89%) agency officials surveyed indicated that they “always
notify affected parties within their agency of potential legislation.”80 As one agency respondent in the
Shobe study observed, “We are the technical drafters, but the program clients drive the policy. They
are the ones carrying out the policy so they know it much better than we do.”81

76 Q3(a)–(f).
77 Q3(a).
78 Q3(b).
79 Q3(c).
80 Shobe, supra note 15, at 28.
81 Id. at 29–30.

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Figure 3. Frequency of Involvement of Various Actors in Agency’s Response
to Congressional Request for Technical Drafting Assistance

However, with respect to the agency’s rulemakers/regulatory staff, seven in ten respondents
indicated that they are rarely (60%) or never (10%) involved, with 10% indicating sometimes and the
remainder (20%) indicating usually—for a composite score of 2.6 (2.0 = rarely; 3.0 = sometimes).82
This is somewhat surprising. At both the Department of Energy and the Department of Housing
and Urban Development, for instance, the legislative and regulatory counsel are housed in the same
division within the agency general counsel’s office and cross-train in both legislative and regulatory
drafting. One agency respondent commented along these lines: “Legislation/regulatory attorneys are
in the same office at our agency, so regulatory staff have the same input as the agency’s legislative
counsel, as appropriate for a given request.”83 At most other agencies these lawyers are not housed
in the same division and apparently do not interact nearly as much, at least with respect to legislative
drafting.84 One respondent noted in the comments that “[o]ur answer (never) pertains to staff who
82 Q3(d).
83 Q3 cmt.3.
84 These responses, however, are consistent with those from the Author’s empirical study of agency rule drafters,

who similarly reported less personal involvement in legislative drafting. See Walker, supra note 7, at 1037 & fig.6.
Moreover, as noted in the prior study, see id. at 1047–48, this disconnect between the agency’s legislative drafters and its
regulatory drafters casts some doubt on the scholarly calls, see note supra 14 (citing literature), for a more purposivist
approach to agency statutory interpretation based in part on the agency’s involvement in drafting the legislation that it is
now interpreting. This disconnect may similarly cast some doubt on one of the rationales for judicial deference to agency

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are dedicated regulation writers. Other program staff are often involved in developing regulations
and in the regulatory process; they participate more frequent[ly] in developing technical assistance
than [d]o dedicated regulation writers.”85
Finally, involvement of actors outside of the agency in the agency’s response to a congressional
request for technical assistance is markedly lower. Consistent with the agency interviews, all of the
agency survey respondents indicated that regulated entities and other outside organizations are rarely
(56%) or never (44%) involved in the agency’s technical drafting assistance response—for a
composite score of 1.6 (1.0 = never; 2.0 = rarely).86 With respect to the “rarely” responses, one
agency official interviewed remarked that “private parties go to Congress first, and then come to the
agency’s legislative counsel and substantive staff” to lobby for particular drafting changes. Even
then, however, the agency seldom lets the private party play a role in the agency’s actual response to
Congress.
Similarly, three in five agency respondents reported that OMB is rarely (40%) or never (20%)
involved, with the remainder indicating sometimes (30%) or often (10%).87 This results in a 2.3
composite score (2.0 = rarely; 3.0 = sometimes), which is similar to the reported involvement of
their agency’s rulemakers/regulatory staff (at 2.6). It should be noted, however, that during the
interviews agency officials often mentioned that they sometimes coordinated technical drafting
assistance with other agencies that would be affected by the proposed legislation. This interagency
coordination may explain some of the “sometimes” or “often” responses about OMB’s
involvement. The survey did not ask about interagency coordination in providing technical drafting
assistance—a topic that merits further examination especially in light of the rise of multiagency
regulatory and enforcement responsibilities.88

statutory interpretations. See CHRISTOPHER EDLEY, ADMINISTRATIVE LAW: RETHINKING JUDICIAL CONTROL OF
BUREAUCRACY 145 (1992) (nothing that a “common argument in favor of deference to agency interpretation of statutes
is that agency officials are more knowledgeable of the legislative intent since they were direct or indirect participants in
the legislative process,” but pointing out that such argument “can be met by exploiting empirical insufficiencies” about
actual agency involvement in the legislative process).
85 Q3 cmt.2. This comment may explain the apparent discrepancy between the agency officials surveyed here and
those surveyed in the Shobe study—nearly 90% of the latter indicated that “people within agencies who are tasked with
day-to-day implementation and administration of agency statutes are also involved in the [drafting assistance] review
process.” Shobe, supra note 15, at 28 & fig.9.
86 Q3(f). At least one agency respondent must have misunderstood the question, noting in the comments that, “[a]s
a rule, we do NOT provide drafting assistance to any entity beyond the U.S. Government.” Q3 cmt.1. Another agency
chose not to respond to this subquestion.
87 Q3(e).
88 See, e.g., Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 HARV. L. REV. 1131 (2012);
Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 SUP. CT. REV. 201; Jason Marisam,
Duplicative Delegations, 63 ADMIN. L. REV. 181 (2011).

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5. Format of Agency Response to Technical Assistance Request
As discussed in Part I.B, Circular A-19 does not require OMB preclearance of agency technical
drafting assistance responses “provided that they state in their transmittal letters that the drafting
service does not constitute a commitment with respect to the position of the Administration or the
agency.”89 Circular A-19 does, however, instruct agencies to advise OMB upon receipt of any such
congressional requests, to forward the requests if they are in writing, and send OMB any agency
response “at the time of transmittal, together with an explanatory statement of what the bill would
accomplish if that is not contained in the transmittal letter.”90 During the interviews, a number of
agency officials indicated that their agency does not follow these OMB notice and transmittal
instructions, and several indicated that OMB has not attempted to enforce these requirements.
Circular A-19, after all, has not been updated since the Carter Administration in 1979, so perhaps
some of the guidelines no longer apply in practice.
Another recurring theme that emerged during the agency interviews is that the process of
providing technical assistance is highly informal and that a lot of it takes place by phone instead of in
writing. One agency official’s comment during an interview is reflective of at least a half dozen other
agency officials who remarked on the form of the technical assistance: “Try to avoid redlining and
avoid email. . . . Sometimes we draft up talking points or comments, but almost always try to find a
way to just pick up the phone.” The anonymous follow-up survey explored these issues further in
four questions, the results of which are depicted in Figure 4.91
As Figure 4 illustrates, the survey responses do not support this perceived systemic practice that
agencies try to provide feedback orally in lieu of in formalizing it in writing. To the contrary, written
feedback appears to be the predominant format. For instance, all respondents indicated that their
agency usually (30%) or often (70%) provides “[w]ritten feedback in a form other than a redline or
actual draft legislation (for example, email or memo summarizing technical feedback)”—for a
composite score of 4.3 (4.0 = often; 5.0 = usually).92 Similarly, four in five respondents indicated
that their agency usually (40%) or often (40%) transmits an “[a]gency redline of draft legislation
provided by congressional staffer,” with the remainder (20%) indicating sometimes—for a
composite score of 4.2.93
Respondents reported slightly lower use of “[o]ral communication of comments and
suggestions”: three in five respondents indicated that their agency usually (20%) or often (40%)
communicates technical drafting assistance orally, with the remainder indicating sometimes (30%) or
rarely (10%)—for a composite score of 3.7 (3.0 = sometimes; 4.0 = often).94 To be sure, these
89 OMB CIRCULAR A-19, supra note 18, § 7(i).
90 Id.
91 Q4(a)–(d).
92 Q4(d).
93 Q4(b).
94 Q4(a).

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options are not mutually exclusive. The agency officials indicated during the interviews and
recognized in their survey responses that there is often overlap between oral and written feedback.
But the idea that agencies try to avoid providing written technical feedback seems misplaced—or at
least overstated—based on the survey responses.
Figure 4. Format of Technical Drafting Assistance
Provided by Federal Agencies

Finally, the agency respondents surveyed seem to reinforce the agency officials interviewed in
stating that it is less common for their agency to draft new legislation in response to a technical
drafting request. Half (50%) of the respondents indicated that their agency sometimes provides
“[n]ew suggested legislation drafted by agency,” with the remainder indicating often (30%) or rarely
(20%)—for a composite score of 3.1.95 Of those who indicated often, one respondent commented
that “[t]echnical assistance sometimes (or even often) includes new legislative language suggested by
the Department, but it rarely (if ever) includes a new suggested text of the entire bill.”96
The lack of new suggested legislation is likely due in part to the fact that congressional staffers
seldom request agencies to draft legislation from scratch—the lack of which a number of agency
officials interviewed lamented. One agency official, for instance, remarked: “Congress sends more
draft bills than objective memos [that provide specifications for the agency to draft the legislation].
95 Q4(c).
96 Q4 cmt.1.

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It would be easier if Congress set forth objectives and let [the agency legislative counsel] draft it.”
This was not the majority view, however, among the agency officials interviewed. Most seemed to
prefer to provide technical comments on legislation that someone in Congress had drafted rather
than to draft new legislation for the congressional requester.
6. Factors that Affect Whether Congress Adopts Agency Technical Assistance
The agency interviews focused on the technical drafting assistance process from the
congressional request through the agency response. The anonymous follow-up survey went one step
further and asked eight questions concerning “how often [certain] factors seem to affect whether
Congress adopts the technical assistance provided by [the respondent’s] agency.” The responses to
those questions are presented in Figure 5.97 The questions build on findings from the Shobe study,
where the agency officials surveyed “overwhelmingly reported that Congress accepts technical
comments” with nearly all (96%) respondents reporting that Congress does so always or often.98
Figure 5. Factors that Affect Whether Congress Adopts the
Technical Assistance Provided by the Agency (average frequency)

97 Q5(a)–(h).
98 Shobe, supra note 15, at 27 & fig.7.

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As depicted in Figure 5 and similar to the responses about factors that affect whether the agency
decides to provide the requested technical assistance (in Figure 2), the identity and politics of the
congressional requester do not seem to matter too much, whereas other noteworthy factors do seem
to matter. The factors that the respondents indicated mattered least are whether the congressional
requester was from the President’s party (2.9), whether the requester was a committee staffer or
staffer for an individual Member of Congress (3.2), and whether the requester was a staffer from the
majority or minority party in Congress (3.2).99 It seems to matter a little bit more—again, at least
from the perspective of the agency respondents—“[w]hether the technical assistance was provided
for committee/member staff of member who supports the agency’s objectives” (3.3).100 For each of
these four factors, however, one in five (20%) agency respondents indicated that it rarely seems to
matter. And with the exception of the last factor of supporting the agency’s objectives (at 60%), at
least seven in ten respondents indicated that the other three factors at most only sometimes matter.
So what do agencies believe seems to affect whether Congress adopts the technical assistance
their agency provides? At what stage of the legislative process the technical assistance is provided
seems to matter. Three in five (60%) agency respondents indicated that it appears to often matter
whether it was offered “prior to the legislation being introduced (as opposed to, for instance, at the
committee markup stage or later).” Another three in ten (30%) indicated that sometimes matters
with the remainder (10%) indicating rarely—for a composite score of 3.5 (3.0 = sometimes; 4.0 =
often).101 This is consistent with the Shobe study, where a few respondents reported that the timing
of the agency’s comments mattered, with one respondent in particular stating: “After the markup it
gets to the really late stages of the process if we want to raise an issue we really have to push hard
because no one wants us to be bringing up issues. You have to convince them to make changes at
that point.”102 It similarly seems to matter whether the proposed legislation is likely to be enacted.
Three in five agency respondents reported that it seems to always (10%) or often (50%) matter, and
another three in ten (30%) indicated it sometimes matters with the remainder (10%) indicating
rarely—for a composite score of 3.7.103
Echoing the themes that emerged during the agency interviews, relationships matter. Indeed, of
the eight factors included in the survey, relationship received the highest composite score of 3.9 (4.0
= often). Three in five respondents indicated that it usually (30%) or often (30%) seems to matter
“[w]hether there is a strong working relationship between the agency officials involved and the
congressional staffers requesting assistance,” with the remainder (40%) indicating sometimes.104
Another factor reported on average as seeming to matter a lot to Congress is, somewhat surprisingly,
the format of the technical assistance: “[w]hether the technical assistance consists of suggested
99 Q5(e)–(g).
100 Q5(h).
101 Q5(c).
102 Shobe, supra note 15, at 26 n.89.
103 Q5(a).
104 Q5(b).

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redlined changes to draft legislation (as opposed to more generalized feedback).” Seven in ten
respondents indicated that the format usually (10%) or often (60%) matters, with the remainder
indicating sometimes (20%) or rarely (10%)—for a composite score of 3.7.
These questions only scratch the surface of this important inquiry, and the findings are
necessarily quite limited. For instance, as one agency respondent observed, “We don’t always know
whether our comments are accepted—if, for example, the legislation doesn’t go anywhere, we might
not know whether they took our suggestions.”105 Much more work needs to be done to understand
what affects whether Congress adopts the technical assistance federal agencies provide, including
more exploration into the views of the congressional staffers and Members who review and consider
the technical comments provided by the agencies.
C.

Agency Organizational Models for Providing Technical Assistance

While Part II.B sets forth the findings with respect to the general process for—and agencyspecific variation to—providing technical drafting assistance, this Part turns to cataloguing the
various agencies’ organizational models in place to provide such assistance.106 Each agency profiled
in the Report has a distinct organizational model for providing technical drafting assistance, and
those differences are explored in detail in the agency-specific overviews in Appendices B–K. Despite
these important and vast differences among agencies, however, three general models emerge from
the ten agencies profiled in the Report: a centralized legislative counsel model; a decentralized
agency experts model; and a centralized legislative affairs model. Each will be addressed in turn.
1. Centralized Legislative Counsel Model
The predominant model among the agencies profiled in the Report is one where the legislative
counsel within the agency’s office of general counsel is the primary drafter and coordinator of all
technical assistance responses.107 To be sure, the legislative affairs office remains the official liaison
and communicator to Congress and generally the first agency contact for a technical drafting
assistance request. But once the request is received, the legislative affairs staff turns over the drafting
coordination to the agency’s legislative counsel. The legislative counsel reaches out to the agency’s
policy and program experts and other officials where appropriate. When the technical assistance
request is complete, the legislative counsel sends it back to the legislative affairs staff to officially
communicate back to the congressional requester. At times, however, informal communications
have already taken place between the legislative counsel (and other agency experts that have been
involved in the process) before the legislative affairs staff receives the technical assistance response.
105 Q5 cmt.1.
106 For more on the importance of agency organizational structure for intra-agency coordination, see Jennifer Nou,
Intra-Agency Coordination, 129 HARV. L. REV. (forthcoming 2015), http://ssrn.com/abstract=2667925.
107 This model, with some substantial variations, has been adopted by the Departments of Agriculture, Education,
Energy, Homeland Security, Housing and Urban Development, and Labor. As detailed in Appendix G, the Department
of Health and Human Services has a hybrid organizational structure somewhere between the centralized legislative
counsel model and the centralized legislative affairs model.

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Other times, the legislative affairs staff facilitates the teleconference or in-person meeting between
the congressional requester and the relevant agency personnel, including the legislative counsel.
This model has several advantages that are particularly relevant to executive agencies. First,
legislative counsel often have more expertise in legislative drafting than legislative affairs staffers, as
all legislative counsel have law degrees and training in statutory interpretation, whereas that is not
always true with legislative affairs staffers. At many agencies, there also tends to be less turnover—
and thus more institutional knowledge retained—among legislative counsel. But perhaps more
importantly, legislative counsel are career civil servants, whereas legislative affairs staffers often are
political appointees (or at least the office heads and deputies are political appointees). During the
interviews many agencies officials emphasized the important career–political division between
legislative counsel and legislative affairs for maintaining the agency’s status with Congress as an
expert, nonpartisan provider of technical drafting assistance. For instance, the HHS officials—
among others—listed this as one of the agency’s best practices: “Having [legislative affairs] deal
directly with Congress—and the politics that may be implicated when dealing with Congress—
allows the OGC Legislation Division (and the rest of the Department) to maintain its role as an
expert, nonpolitical counselor on legislative drafting.”
2. Decentralized Agency Experts Model
One agency profiled in the Report—the Department of Commerce—has adopted a more
decentralized agency experts model. This model also seems to have been adopted at (at least) the
Department of Treasury and to some extent the Federal Communications Commission, though
neither agency is profiled in the Report. Under this model, the legislative affairs office serves as the
gatekeeper and official congressional liaison, but instead of sending technical drafting assistance
requests to a centralized legislative counsel division, the requests are typically handled by the bureaulevel policy and program experts (and attorneys, where applicable). The agency general counsel’s
office only gets involved with cross-agency legislation or where otherwise determined helpful or
necessary.
This decentralized model perhaps better leverages the bureau-level agency experts and gets the
requests more quickly before the agency officials best situated to substantively and technically review
the proposed legislation. But it may do so at the cost of not involving lawyers who have specialized
in legislative drafting and who may be more aware of common drafting problems and cross-cutting
agency issues. Under this model, moreover, the legislative affairs staff may have to play a more
involved role in developing the agency’s response, which could frustrate the political–career division
in executive agencies discussed in Part II.C.1.
3. Centralized Legislative Affairs Model
The final model centralizes the technical drafting assistance process within the legislative affairs
office, as opposed to within the legislative counsel’s office. Unsurprisingly, this model has developed

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at independent agencies—among the agencies profiled in the Report, the Federal Reserve System—
where the legislative affairs staff consists of career civil servants, not political appointees. In this
model, the legislative affairs staff coordinates the process with the agency’s program and policy
experts and relies on the agency general counsel’s office when appropriate.
The Pension Benefit Guaranty Corporation has a variant of this model. There, the agency
general counsel’s office is the primary coordinator for technical drafting responses. The majority of
technical requests from Congress, however, deal with requests for economic modeling for proposed
legislation and not requests for legislative language review. Those requests are handled by the
legislative affairs staff (there, the Office of Policy and External Affairs).
D.

Common Challenges in Providing Technical Assistance

A substantial portion of the agency interviews focused on the challenges in their agency’s current
process of providing technical drafting assistance. Agency officials identified a number of challenges,
but eight obstacles seemed to emerge as common themes. The anonymous follow-up survey asked
the agency respondents whether they agreed that these are indeed challenges, and the responses are
reported (by composite score) in Figure 6.108 These challenges can be grouped in three categories,
each discussed in turn: intra-agency challenges; congressional challenges; and the technical–
substantive drafting assistance dilemma.
1. Intra-Agency Challenges
During the agency interviews, two intra-agency challenges emerged as common themes. First, a
number of agency officials noted the difficulty of providing technical assistance on appropriations
legislation. As detailed in the agency-specific overviews included as Appendices B–K, appropriations
legislation is generally not handled by the legislative affairs offices at federal agencies, but by the
agency’s financial or budget office. Yet, as discussed in Part I.C, Congress in recent years has
increasingly inserted substantive provisions or “riders” in appropriations legislation—requiring more
technical drafting review from the agency. Because agency processes for reviewing authorization and
appropriations legislation have historically been channeled through different parts of the agency,
agencies have had to adapt to provide technical drafting assistance with respect to proposed
appropriations legislation. Second, some agency officials also expressed concern that a fair amount
of technical drafting assistance occurs informally at lower levels within the agency without involving
the legislative counsel or legislative affairs personnel that should be included in the process.

108 Q6(a)–(h). Composite scores for these questions are calculated somewhat differently from the rest of the
questions in the survey by giving 5 points for “strongly agree,” 4 points for “agree,” 3 points for “somewhat agree,” 2
points for “disagree,” and 1 point for “strongly disagree.” The aggregate is then divided by the total number of
respondents for the question.

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Figure 6. Perceived Obstacles in the Current Process for Providing
Technical Drafting Assistance (average agreement)

Despite being mentioned as obstacles in the agency interviews, the agency respondents to the
anonymous survey generally disagreed that these are actually problems. About two thirds (67%)
disagreed that “[t]he appropriations process at the agency is not sufficiently incorporated into the
agency’s technical drafting review process,” with the other third (33%) somewhat agreeing—for a
composite score of 2.3 (2.0 = disagree; 3.0 = somewhat agree).109 In revisiting the agency interviews
in light of these survey responses, the most reasonable reconciliation seems to be that historically
this authorization–appropriations division within the agency may have been a problem, but that
perhaps the agencies have adequately evolved to address the issue. Indeed, as discussed in Part III
and in the agency-specific overviews in Appendices B–K, agencies have taken a number of steps to
make sure that substantive provisions in appropriations legislation receive technical review.
Likewise, two in five agency survey respondents disagreed (20%) or strongly disagreed (20%)
that “[t]echnical legislative assistance often takes place at lower levels within the agency without
going through the formal approval processes (including review and approval by congressional

109 Q6(e). One of the agencies did not respond to this question, presumably an agency that is not subject to the
appropriations process.

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affairs, legislative counsel, etc.) that the agency has established.”110 Another two in five (40%) only
somewhat agreed, with the remainder (20%) agreeing (though no one strongly agreed)—for a
composite score of 2.6 (2.0 = disagree; 3.0 = somewhat agree). This survey finding is harder to
square with the agency interviews, and the survey respondents offered no comments to clarify their
disagreement with this perceived problem. One explanation could be that, although this
phenomenon may take place, it is not truly a problem for the agency—perhaps because only less
significant technical assistance occurs through this informal, lower level process. Another perhaps
more likely explanation is that the wording of the question—in particular, the inclusion of the term
“often”—may have affected the responses.
In all events, based on the survey responses, these intra-agency challenges may not be as serious
as suggested during the agency interviews. Indeed, of the eight challenges included in the survey,
they are the ones with which the agency respondents disagreed most.
2. Congressional Challenges
The challenges presented by Congress, however, were more consistently reported as obstacles
across the agency interviews and the anonymous follow-up survey. The survey assessed three
different challenges that Congress presents (actually four, but the fourth will be discussed in Part
II.C.3).
First, a frequent complaint during the agency interviews was that the congressional staffers are
unfamiliar with the agency’s governing statutes and implementing regulations and often propose
legislation that would duplicate existing law or inadvertently disrupt the current statutory and
regulatory scheme. Oftentimes this complaint was stated in tandem with a lament about the
turnover among congressional staffers, discussed below. The survey respondents generally agreed
that this lack of statutory awareness in Congress is a challenge. Half of the respondents agreed
(40%) or strongly agreed (10%) with another two in five (40%) somewhat agreeing that
“[c]ongressional staffers often are unfamiliar with the agency’s governing statutes and implementing
regulations”—tied for the highest composite score of 3.5 (3.0 = somewhat agree; 4.0 = agree).111
Second, the agency officials interviewed repeatedly noted that the deadlines congressional
requesters impose are unreasonable, unpredictable, or otherwise difficult to meet. Two agency
officials in particular wished that Congress would try to time technical drafting assistance requests to
coincide with the congressional recesses. Another two referred to many congressional requests as
“fire drills” because the deadlines are unreasonably tight yet often not real. Many, however,
recognized that there is little that can be done, as the tight deadlines are inherent in the legislative
process. Again, the agency survey respondents generally agreed that congressional deadlines are a
problem: Half agreed (40%) or strongly agreed (10%), another two in five somewhat agreed (40%),
110 Q6(f).
111 Q6(g). The remainder (10%) disagreed, with no one disagreeing strongly.

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and the remainder disagreed (10%) that “[t]he timing for responding to congressional requests for
technical drafting assistance is unpredictable and/or difficult to meet”—tied for the highest
composite score of 3.5.112
Finally, a fair number of agency officials interviewed bemoaned the turnover in congressional
staff—as to both the institutional memory on the Hill and the congressional–agency working
relationship. Turnover among congressional staffers is not necessarily a new phenomenon and has
been well documented elsewhere.113 The agency officials surveyed somewhat agreed that this is a
problem: Three in ten (30%) agreed and another two in five (40%) somewhat agreed, with the
remainder (30%) disagreeing that “[t]he turnover of staff in Congress makes it difficult for the
agency to have a strong working relationship with Congress.”114
3. The Technical–Substantive Drafting Assistance Dilemma
As discussed in Part I.A, Circular A-19 requires OMB preclearance for any agency substantive
legislative activity, which for shorthand can be understood to include any agency substantive or
policy position on proposed legislation in addition to any agency-initiated substantive legislation.
Purely technical drafting assistance, by contrast, does not require OMB preclearance. Despite that
the Report does not focus on the OMB Circular A-19 process, nor intend to explore the role of
federal agencies in substantive legislative activities, all of the agency officials interviewed volunteered
a number of comments—most of them critical or at least constructive—about the Circular A-19
process.
These comments ranged from complaints about how slow and burdensome the OMB
preclearance is, and how antiquated the current guidelines are (they have not been updated in over
three decades), to how there is no clear standard to distinguish between technical and substantive
legislative assistance, and how the notice and transmittal requirements for technical assistance are
honored in the breach and/or should be formally abandoned. Many agency officials, however, also
countered that Circular A-19 should not be revisited as the informal agency (and OMB) processes
that have developed to function around the formal Circular A-19 processes work efficiently; formal
modification by OMB would likely only disrupt an informal system that seems to be functioning
quite well.
A number of these criticisms about the OMB process lie outside the scope of the Report, which
focuses on the agency technical assistance in legislative drafting. A few of these perceived challenges,

112 Q6(f).
113 See, e.g., Jarrod Shobe, Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting, 114 COLUM. L. REV.

807, 846 (2014) (“For example, all except for two House committees had staff retention rates below 60% in the period
between 2009 and 2011, a period in which control of the House passed from Democrats to Republicans.”).
114 Q6(h).

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however, directly relate to technical drafting assistance. These challenges can be grouped around
three main issues, which were further explored in the anonymous follow-up survey.115
First, a number of agency officials mentioned during the interviews that it is difficult to
distinguish under OMB Circular A-19 between substantive legislative assistance that requires
preclearance and purely technical legislative assistance that does not. As one agency official put it,
“The technical–substantive distinction involves a lot of judgment; it’s a smell test.” When asked
about this problem in the anonymous follow-up survey, the agency respondents somewhat agreed:
Roughly two in five (44%) somewhat agreed that “[i]t is difficult to distinguish purely technical
assistance from substantive drafting assistance that should go through OMB Circular A-19 review,”
whereas the remainder split between disagreeing (33%) and agreeing (22%)—for a composite score
of 2.9 (3.0 = somewhat agree).116
Second, during the interviews the agency officials suggested that because they perceive the OMB
process as cumbersome and unclear, their agency often attempts to respond to a congressional
request for more substantive feedback without going through the OMB preclearance process. A
remark made by an agency official interviewed for the Shobe study is similar to a number of
comments made by agency officials interviewed for this Report: “The more policy oriented it gets
the more levels of bureaucracy it has to be cleared through. . . . If I want to provide policy input but
don’t want to go through a bunch of layers of bureaucracy then I pick up the phone.”117
When asked whether “the agency often tries to find a way to respond to a congressional request
for more substantive feedback without going through the OMB process,” nearly four in five agency
respondents agreed (22%) or somewhat agreed (56%), with the remainder (22%) disagreeing—for a
composite score of 3.0 (3.0 = somewhat agree).118 One agency respondent commented, though, that
this practice is still consistent with Circular A-19:
We definitely agree that the OMB review process is in fact cumbersome or opaque. The
answer above (somewhat agree) addresses the second part of the statement—whether we
often try to find a way to respond without going through the process. However, our
responses in such situations comply with Circular A-19.119

Finally, the most consistent comment during the interviews with respect to the technical–
substantive dilemma is that—as we phrased it in the follow-up survey—“[w]hen congressional
requesters say they want technical assistance, what they often really want is to know the agency’s
substantive position on the proposed legislation.”120 Sometimes, the agency officials explained, the
115 One of the agencies did not respond to two of these three questions—Q6(b), (c)—presumably one that is an
independent agency and thus not subject to OMB Circular A-19.
116 Q6(b).
117 Shobe, supra note 15, at 33.
118 Q6(c).
119 Q6 cmt.1.
120 Q6(d).

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congressional staffer just wants to know if the proposed legislation would make good policy. Other
times, as one official explained, “the [congressional] staffer wants to sell it to the Member and being
able to say that the agency says it’s okay or has worked on it” helps sell the proposed legislation with
the staffer’s boss. In those cases, the congressional staffers do not want a formal, official agency
position—just the agency expert’s unofficial take on the proposed legislation. This puts the agency
in a difficult position of either not providing the type of assistance the congressional requester
desires or skirting the technical–substantive line set forth in Circular A-19.
When the agencies were asked about this problem in the anonymous follow-up survey, everyone
agreed (40%) or somewhat agreed (60%) that “what congressional staffers often really want is to
know the agency’s substantive position on the proposed legislation”—for a composite score of 3.4
(3.0 = somewhat agree; 4.0 = agree).121 Although the agency officials may be right that OMB
Circular A-19 should not be revisited as the informal processes work just fine, these findings suggest
that the technical–substantive drafting dilemma is a real one and at least merits further attention.
Such investigation should evaluate not only the views of the federal agencies, but also those of the
congressional requesters and of the Legislative Reference Division staff at OMB.

III.

PROPOSED RECOMMENDATIONS AND BEST PRACTICES

The best practices identified during the agency interviews and from the anonymous agency
survey responses can be grouped into two (albeit overlapping) categories: intra-agency policies and
practices to improve the technical drafting assistance process; and agency policies and practices to
strengthen the agency’s relationship and interaction with Congress in the legislative process. Each
will be addressed in turn, framed as potential recommendations for consideration by ACUS.
Additional best practices identified by the agencies are included at the end of each of the agencyspecific overviews included as Appendices B–K to the Report.
A.

Best Practices for Agency to Improve Technical Drafting Assistance
1. Consider Memorializing Guidance on Agency’s Role in the Legislative Process

Intra-agency coordination in providing technical drafting assistance is critical and, especially at
the larger departments, sometimes challenging. At least two of the agencies profiled in the Report—
the Departments of Homeland Security and Labor—have issued formal agency directives on how
the agency should interact with Congress in the legislative process.122 The DHS officials noted that
121 Q6(d).
122 See U.S. DEP’T OF HOMELAND SECURITY, LEGISLATIVE PROCEDURES MANAGEMENT DIRECTIVE, MD No.
0420 (Feb. 28, 2005), http://www.dhs.gov/sites/default/files/publications/mgmt_directive_0420_legislative_
procedures.pdf; U.S. DEP’T OF LABOR, SECRETARY’S ORDER 11-2006, LEGISLATIVE CLEARANCE PROCESS; DRAFTING
LEGISLATIVE PROPOSALS, 71 Fed. Reg. 60802-01 (Oct. 16, 2006); see also U.S. DEP’T OF INTERIOR, MEMORANDUM TO
ALL ASSISTANT SECRETARIES, SOLICITOR, BUREAU HEADS, AND HEADS OF OFFICES ON INFORMATION PROVIDED TO
CONGRESS (Sept. 2, 2003), http://www.blm.gov/style/medialib/blm/wo/Information_Resources_Management/
policy/im_attachments/2006.Par.75654.File.dat/im2006-180attach1.pdf.

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the guidance had not been updated in years, but that it helped establish the norms at the agency’s
founding. The Department of Labor similarly noted that the Secretary’s Directive is not something
that is reviewed often, but that it reinforces the agency’s informal policies and norms for legislative
drafting assistance.
Especially in light of the agency concerns discussed in Part II.D.1 that a fair amount of technical
drafting assistance occurs at lower levels in the agency without involvement from legislative affairs
and legislative counsel personnel, it could be helpful to educate agency program and policy staff and
perhaps even memorialize some of the policies and procedures the agency expects to be followed.
The formal policies issued by Labor and DHS are helpful starting points for agencies interested in
memorializing their legislative drafting assistance policies and procedures.
2. Better Identify and Involve Agency Experts in the Technical Assistance Process
As detailed in Part II.B.4, the agency officials interviewed underscored the importance of
including all of the relevant agency experts—and in particular, the agency policy and program
experts in addition to the legislative drafting experts—when responding to congressional requests
for technical drafting assistance. Seven in ten agency survey respondents, moreover, indicated that
agency program/policy experts always (20%) or usually (50%) participate.123
Although most agency officials interviewed indicated that the informal agency processes and
practices usually ensured that the relevant agency experts participated, it may be worth developing
more formal networks of agency experts to be contacted when technical drafting requests are made.
For instance, at the Department of Energy, the Office of Legislation, Regulation and Energy
Efficiency has developed a formal directory of the top fifty agency policy and program experts. This
list is just the tip of the iceberg as many more agency officials get involved in responding to various
technical drafting assistance requests. But it may be helpful to have a shorter list of initial points of
contact within the agency, especially for large agencies with many component agencies.
It is likely that many agencies have implemented similar processes to network with agency
experts and distribute technical drafting assistance requests to the relevant agency experts. For
instance, one of the agency officials interviewed in the Shobe study mentioned a similar practice:
We have a distribution list that hits every office in the department. We’ll forward whatever
incoming documents we get to those contacts. If it is specific to one office then we have
additional contacts in that program office. We aren’t necessarily the subject matter experts in
each thing, so we coordinate with the experts to make coherent comments.124

In other words, identifying the relevant agency experts and creating a directory of such experts may
just be the first steps; it may also be worth considering whether to distribute all technical drafting
assistance requests to that network to ensure that the agency fully leverages its expertise.
123 Q3(c).
124 Shobe, supra note 15, at 30

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3. Consider Providing Ramseyer/Cordon Drafts as Part of Technical Assistance
Another potential intra-agency best practice, which is something that at least the Department of
Housing and Urban Development (HUD) has implemented, is to provide, when feasible and
appropriate, the congressional requester with a Ramseyer/Cordon draft as part of the technical
assistance response. A Ramseyer/Cordon draft is a redline of the existing law—not the proposed
legislation—that shows how the proposed legislation affects current law by underscoring proposed
additions to existing law and bracketing the text of proposed deletions.125 At least in HUD’s
experience, it used to be customary for Congress to provide a Ramseyer/Cordon draft early in the
drafting process, but that seems to no longer be the case. Accordingly, HUD’s Office of Legislation
and Regulations routinely creates Ramseyer/Cordon drafts for internal use and as technical
assistance to the congressional requester.
This practice may be particularly helpful in combatting one of the biggest challenges identified
by the agency officials interviewed and surveyed: as detailed in Part II.D.2, because of turnover and
other factors, congressional staffers are often unfamiliar with the agency’s governing statutes and
routinely propose legislation that duplicates existing law or inadvertently disrupts the current
statutory scheme. By providing a Ramseyer/Cordon draft as part of the agency’s technical drafting
assistance response, the congressional requester can better visualize how the proposed legislation
would affect existing law and thus avoid duplication or unintended consequences.
4. Maintain Distinct Roles for and Strong Working Relationship Between Legislative Affairs
and Legislative Counsel
Many of the executive agencies—especially those that follow the predominant centralized
legislative counsel model discussed in Part II.C.1—emphasized the importance of separate and
distinct roles for the legislative affairs staff and the legislative counsel as well as the importance of
maintaining a strong working relationship between the two offices. The legislative affairs staff can
make difficult, often politically sensitive decisions in their interactions with Congress, but by leaving
the technical drafting assistance to the legislative counsel (as well as rest of the agency experts), the
agency is able to maintain its expert, nonpartisan status in the legislative process. It can also better
leverage its institutional memory in legislative drafting. Agencies that expressly noted this as a best
practice or important feature include: the Departments of Agriculture, Commerce, Education,
125 See 4 DESCHLER’S PRECEDENTS, ch. 17, § 60 (“The Ramseyer rule provides that whenever a committee reports a

bill or joint resolution repealing or amending any statute or part thereof, the committee report is to include the text of
the statute or part thereof to be repealed, as well as a comparative print showing the proposed omissions and insertions
by stricken-through type and italics, parallel columns, or other appropriate typographical devices. The purpose of the
Ramseyer rule is to inform Members of any changes in existing law to occur through proposed legislation.”),
http://www.gpo.gov/fdsys/pkg/GPO-HPREC-DESCHLERS-V4/html/GPO-HPREC-DESCHLERS-V4-3-7-3.htm.
Agencies should be familiar with creating Ramseyer/Cordon drafts because Circular A-19 generally requires them for
agency-proposed legislation. See OMB CIRCULAR A-19, supra note 18, § 7(f)(1)(b) (requiring for agency-proposed
legislation that the agency provide a “comparison with existing law presented in ‘Ramseyer’ or ‘Cordon’ rule form by
underscoring proposed additions to existing law and bracketing the text of proposed deletions (This need be done only
when it would facilitate understanding of the proposed legislation.)”).

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Health and Human Services, Homeland Security, and Housing and Urban Development, as well as
the Federal Reserve and the Pension Benefit Guaranty Corporation.
Even in a decentralized system like the model embraced by the Department of Commerce,
agency officials recognized the importance of maintaining a healthy working relationship and role
division between legislative affairs and the rest of the agency personnel involved in providing
technical drafting assistance. In particular, legislative affairs handles the day-to-day relationship with
Congress while the rest of the agency maintains its nonpartisan, expert status. Indeed, even at the
Federal Reserve where the legislative affairs office consists entirely of nonpartisan agency officials,
the agency officials interviewed recognized the value of having everything from Congress go
through the Congressional Liaison Office (legislative affairs), such that the agency is better able to
maintain a strong and productive working relationship with Congress as well as speak with a
consistent voice on the Hill.
5. Integrate Technical Assistance Process for Appropriations
As noted in Part D.1, agencies have struggled to integrate review of appropriations legislation
into the technical drafting assistance process. Appropriations legislation is generally not handled by
the legislative affairs office at federal agencies, but by the agency’s financial or budget office. Yet, as
discussed in Part I.C, Congress in recent years has increasingly inserted substantive provisions or
“riders” in appropriations legislation—necessitating more technical drafting review from the agency.
Because agency processes for reviewing authorization and appropriations legislation have historically
been channeled through different parts of the agency, agencies have had to adapt to provide
technical drafting assistance with respect to proposed appropriations legislation.
Several agencies have taken different approaches to address the issue. At the Department of
Labor, for instance, the process for providing technical assistance on appropriations is integrated
into the general technical assistance process with the addition of the Budget Center’s role. One
helpful practice at Labor is that one staffer within the general counsel’s office is devoted to tracking
appropriations in order to make the process even more efficient. The Federal Communications
Commission appear to have adopted a similar practice: Within the Office of Legislative Affairs, one
agency official is designated as reviewing all proposed appropriations legislation to ensure it is
technically sound and to involve the relevant agency experts in the appropriations legislative process.
Another effective innovation on this front comes from the Department of Commerce, which
helps coordinate legislative efforts on the appropriations and authorization sides by holding a weekly
meeting between the Director of the Office of Budget, the Chief Counsel for Legislation, and the
Assistant Secretary for Legislative and Intergovernmental Affairs. Similarly, although the
Department of Agriculture has not formalized a weekly meeting, the agency officials interviewed
underscored that the agency has placed great emphasis on cultivating a strong working relationship
between its Office of General Counsel and its Office of Budget and Program Analysis.

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Finally, the Department of Education has taken a number of measures to incorporate the review
of appropriations legislation in the technical drafting assistance process. Because a fair amount of
appropriations legislation is not expressly directed at the Department of Education but nevertheless
affects education programming, the Division of Legislative Counsel tracks such legislation and keeps
the Budget Service and the rest of the Department apprised of such developments.
B.

Best Practices to Strengthen Agency–Congress Relationship in Legislative Process
1. Strive to Provide Technical Drafting Assistance Whenever Congress Requests

As detailed in Part II.B.3, the agency officials interviewed and surveyed for this Report
repeatedly emphasized that their agencies attempt to respond to virtually every request they receive
from Congress for technical assistance in legislative drafting. Responding to congressional technical
drafting assistance requests, the agency officials emphasized, (1) assists the agency in maintaining a
healthy and productive working relationship with Congress, (2) ensures that the proposed legislation
does not unnecessarily disrupt the existing statutory and regulatory scheme, (3) helps educate the
congressional staffers about the agency’s existing statutory and regulatory framework, and (4) keeps
the agency informed of potential legislative action that could affect the agency.
Accordingly, federal agencies should strive to provide technical drafting assistance in response to
each congressional request—regardless of whether the request comes from the majority or minority
party, from a congressional committee or Member staffer, or from a Member from the President’s
party; of the likelihood that the proposed legislation will actually be enacted; or of whether the
proposed legislation furthers the agency’s objectives—just to name a few factors. That agencies
should provide technical assistance whenever Congress requests it does not necessarily mean they
should expend the same amount of time and resources on each and every request.
2. Engage in More Congressional Education Efforts and In-Person Interaction
During the agency interviews, a recurring theme mentioned by the vast majority of agency
officials interviewed is that the agency must cultivate its relationship with congressional staffers by
visiting them in person and by engaging in extensive efforts to educate them about the agency’s
statutory and regulatory scheme, its effective programs and initiatives, and its current challenges. Inperson, face-to-face meetings on the Hill are critical to developing these relationships.126
The Labor Department, for instance, actively engages congressional staffers in face-to-face
interactions in order to build relationships of trust. As part of that effort the Department will often
coordinate for agency program and policy experts to go to the Hill to brief congressional staff on
Accord PARTNERSHIP FOR PUBLIC SERVICE, GOVERNMENT DISSERVICE: OVERCOMING WASHINGTON
DYSFUNCTION TO IMPROVE CONGRESSIONAL STEWARDSHIP OF THE EXECUTIVE BRANCH 12 (Sept. 2015) (“Agency
leaders should be proactive in building and owning congressional relationships and use their congressional affairs staff to
strengthen their presence on Capitol Hill, not insulate them from it. Further, agency leaders should hold their staff
accountable for developing positive working relationships with members and staff.”).
126

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the work of each component agency so congressional staffers (and the Members) are more informed
when it comes to legislative drafting and review—and, of course, when it also comes to
congressional oversight efforts.
The Department of Homeland Security engages in similar in-person educational efforts, but it
also noted that bringing legislative counsel to Congress from the outset of the drafting process on a
particular piece of legislation allows the technical drafters and agency experts to have access and
provide feedback during the critical initial-drafting stage. By not only bringing policy and program
experts but also legislative drafting experts, the congressional staffers are made aware of the agency’s
expert technical drafting assistance and are more likely to take advantage of those resources earlier in
their legislative drafting initiatives.
3. Consider Leveraging Expertise to Provide Other Forms of Assistance
A related best practice that may be worth considering at many agencies is to explore ways in
which the agencies can leverage their expertise and resources to provide forms of technical
assistance other than just legislative drafting. As David Epstein and Sharyn O’Halloran have noted,
“the executive branch is filled (or can be filled) with policy experts who can run tests and
experiments, gather data, and otherwise determine the wisest course of policy, much more so than
can 535 members of Congress and their staff.”127
The Pension Benefit Guaranty Corporation (PBGC) is perhaps exceptional in this respect.
Unlike most other agencies, the PBGC’s main technical assistance to Congress involves providing
economic modeling for proposed legislation. This is an invaluable resource for Congress, and other
agencies with empirical analysis resources may want to consider providing similar technical
assistance in the legislative process to improve legislative outputs and to strengthen their relationship
with Congress. Indeed, officials at the Federal Reserve indicated that the agency does not just assist
in technical drafting of legislation, but it also shares the agency’s economic and policy expertise by
briefing congressional staffers on the cutting-edge research being published by economists and
policy analysts at the Federal Reserve. A fair amount of the Federal Reserve’s interaction with
Congress involves such education efforts about the expert analytic/empirical research capacity that
the agency possesses and is willing to share with Congress.
It may be the case that the PBGC and Federal Reserve are uniquely positioned to share expertise
with Congress other than purely technical drafting assistance—but probably not. Many other
agencies can and should explore ways to leverage their expertise to assist Congress in its legislative
initiatives. To provide but one example, agencies could consider communicating the results of their
127 David

Epstein & Sharyn O’Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science
Approach, 20 CARDOZO L. REV. 947, 967 (1998). To be sure, the Congressional Research Service (CRS), a legislative
branch entity housed within the Library of Congress, also provides policy and legal analysis to Congress. For more on
CRS, visit http://www.loc.gov/crsinfo/. Federal agencies, however, can and should leverage their on-the-ground
expertise to supplement the excellent work already being done by CRS.

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regulatory impact analyses to Congress, given that Congress often writes statutes in a way that
regulatory costs will necessarily exceed regulatory benefits (leaving the agency no discretion to
produce a utility-maximizing regulation). Such sharing of agency expertise not only would help
improve the legislative outputs, but it would also strengthen the agency–congressional relationship.
4. Explore Opportunities for Agency Staff to Detail in Congress
A number of agencies noted the value of having agency staff who have worked in Congress—
not just legislative affairs staff with Hill experience (which is common across agencies) but also
legislative counsel and other agency personnel who are often involved in the technical drafting
assistance process. At the Department of Energy, for instance, the majority of lawyers in the Office
of Legislation, Regulation, and Energy Efficiency worked in Congress prior to joining the office.
This Hill experience, the agency officials explained, is a tremendous resource when providing
technical assistance in legislative drafting.
Many agency legislative counsel and other personnel involved in the technical drafting assistance
process have had no such prior experience. But a number of agencies have created that experience
by having their legislative counsel and policy personnel detail on congressional committees. For
example, agency officials at the Federal Communications Commission, especially at the bureau level,
often detail in Congress. Detailing attorneys from the USDA’s Office of General Counsel during the
Farm Bill reauthorization is also quite common, and proves invaluable during the reauthorization
process but also afterward as it strengthens the agency’s relationship with Congress and results in
attorneys who have greater expertise in the legislative process and more familiarity with the key
players on the Hill.
The Department of Housing and Urban Development has also experimented with detailing
attorneys to Congress. Two of the attorneys in the Office of Legislation and Regulations have
worked on the Hill, and the Office has found that experience to be very valuable. One attorney did a
detail on the Hill through the Brookings Institute’s Legis Congressional Fellowship.128 It may be
worth considering whether to establish a more formalized program across the federal administrative
state to set up such details in Congress—similar to the successful arrangements already established
for intra-executive branch details.

CONCLUSION
As the Report illustrates, federal agencies routinely and extensively participate in the legislative
process. There are few bills that get enacted (or even introduced) which have not first been reviewed
and revised by the agencies that will ultimately administer those statutes. These findings have
profound implications for how we view the congressional–agency relationship as something more
nuanced than the traditional principal–agent relationship posited by positive political theorists; for
128 For more information on the Legis Fellowship, visit http://www.brookings.edu/about/execed/legis-fellowship.

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how we think about the proper approach to agency statutory interpretation and whether, as legal
scholars have advocated, it should be more purposivist in nature than judicial interpretation; and for
how we think about judicial deference to agency statutory and regulatory interpretations in light of
the fact that agencies are often drafting the legislation they are subsequently interpreting via
regulation—just to provide a few examples.
The findings uncovered and recommendations proposed in the Report should also help federal
agencies improve the practices and procedures they utilize to provide technical assistance in
statutory drafting and, in turn, to further strengthen their day-to-day working relationship with
Congress. But, above all, the Report should underscore the importance of further empirical study
and theoretical development about the role of federal agencies in the legislative process. Much more
work needs to be done to understand how federal agencies can improve in their provision of
technical assistance; how (or if) the Office of Management and Budget can assist agencies in carrying
out their legislative technical drafting assistance role; and how Congress can take better advantage of
the vast experience and expertise in the modern administrative state. Federal agencies, Congress, and
OMB—as well as scholars and students of administrative law—should earnestly examine how to
improve the ways agencies provide technical assistance in statutory drafting.

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APPENDIX A: SURVEY INSTRUMENT AND RESPONSES
Question 1. For each category of legislation listed below, please indicate how often your agency provides
technical assistance:
[CLARIFICATION NOTE: This question explores how often the agency provides technical assistance for
bills that ultimately reach different stages of the legislative process—not whether the agency provides
technical assistance AFTER enactment, introduction, etc.]
Total
# Question
Never Rarely Sometimes Often Usually Always
Mean
Responses
Introduced legislation that
a
0
0
3
4
3
0
10
4.00
directly affects the agency
Introduced legislation that
b
0
1
6
3
0
0
10
3.20
indirectly affects the agency
Enacted legislation that
c
0
0
2
2
5
1
10
4.50
directly affects the agency
Enacted legislation that
d
0
2
7
0
1
0
10
3.00
indirectly affects the agency
Appropriations legislation that
e
0
1
2
1
2
4
10
4.60
directly affects the agency
Appropriations legislation that
f
1
3
4
2
0
0
10
2.70
indirectly affects the agency
Comments (optional):
Text Response
1. Item (c): “Enacted legislation that directly affects the agency.” Our answer (usually) assumes that the intent was to ask
how often we provide technical assistance before enactment on legislation that is ultimately enacted. We rarely if ever
provide technical assistance after a bill is enacted.
2. The goal is to always be responsive to requests from the Hill for technical drafting assistance, however, an analysis of
whether a particular piece of legislation is moving could influence the amount of time and effort spent on a request.
3. The questions regarding appropriations legislation are more expertly answered by our CFO; this was an educated
guess on the part of the legal office. Regarding legislation that directly affects the agency, I responded sometimes
because legislation that directly affects, for example, a government-wide personnel issue may not come to us first for
technical drafting assistance.
Question 2. Please indicate how often the following factors affect whether your agency decides to provide
technical assistance requested by Congress:
Total
# Question
Never Rarely Sometimes Often Usually Always
Mean
Responses
Whether the proposed
a legislation is likely to be
2
6
1
1
0
0
10
2.10
enacted
Whether Congress has
provided a reasonable
b deadline to review and
1
3
4
2
0
0
10
2.70
provide technical assistance
on legislation
Whether the agency has
sufficient time/resources
c available to review and
1
4
4
1
0
0
10
2.50
provide technical assistance
on legislation
Whether the technical
assistance request is for
d
1
5
2
2
0
0
10
2.50
redline/comments on draft
bill language (as opposed to a

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Federal Agencies in the Legislative Process
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Christopher J. Walker

e

f

g

h

request for the agency to
draft bill language from
scratch based on
specifications provided by
congressional staff)
Whether the proposed
legislation furthers agency
objectives (as opposed to
undermining agency
objectives)
Whether the technical
assistance request comes
from committee staff (as
opposed to an individual
member’s staff)
Whether the technical
assistance request comes
from majority
committee/member staff (as
opposed to minority staff)
Whether the technical
assistance request comes
from committee/member
staff of member from the
President’s party

2

3

2

1

2

0

10

2.80

2

4

2

2

0

0

10

2.40

3

5

1

1

0

0

10

2.00

3

3

1

1

2

0

10

2.60

Other/Comments (optional):
Text Response
1. We strive to accommodate all requests and do so “blind’ to the chamber, to the majority or minority status of the
requesting party, to the nature of the request (i.e., from committee staff or Member staff), or the likelihood of action.
Those elements, however, may affect the priority placed on the assistance provided. If anything, scope and timing
dictate the amount of assistance provided. Rarely, do we refuse to provide assistance, and only if there is good cause to
do so (e.g., the request goes to legislation that is repugnant to public policy or the interests of the United States).
2. Items (g)-(h) (Whether the request comes from majority as opposed to minority, or from the President’s party as
opposed to the other party). This may vary from administration to administration. In some administrations, all (or
almost all) requests are honored; in others, the Department is more responsive to majority, or to the President’s party.
3. The agency always responds to technical comments requests; we may put more or less time or resources into requests
that come from, for example, our authorizing committees versus another, more tangentially-related committee.
Question 3. Please indicate how often the following actors are involved in your agency’s response to a
congressional request for technical assistance in legislative drafting:
Total
# Question
Never Rarely Sometimes Often Usually Always
Responses
Agency’s
a Legislative/Congressional
0
0
0
1
5
4
10
Affairs Staff
Agency’s Legislative Counsel
(for example, attorneys in the
b
0
0
1
1
4
4
10
agency’s Chief or General
Counsel Office)
Agency’s Program/Policy
d
0
1
2
0
5
2
10
Experts
Agency’s
e
1
6
1
0
2
0
10
Rulemakers/Regulatory Staff

44

Mea
n
5.30

5.10
4.50
2.60

Federal Agencies in the Legislative Process
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Christopher J. Walker
f
g

Office of Management and
Budget
Regulated Entities and Other
Outside Organizations

2

4

3

1

0

0

10

2.30

4

5

0

0

0

0

9

1.56

Other/Comments:
Text Response
1. As a rule, we do NOT provide drafting assistance to any entity beyond the U.S. Government.
2. Item (d) (rulemakers, regulatory staff). Our answer (never) pertains to staff who are dedicated regulation writers.
Other program staff are often involved in developing regulations and in the regulatory process; they participate more
frequent in developing technical assistance than to dedicated regulation writers. Item (f) (regulated entities and outside
entities). This may differ from administration to administration.
3. Legislation/regulatory attorneys are in the same office at our agency, so regulatory staff have the same input as the
agency’s legislative counsel, as appropriate for a given request.
Question 4. Please indicate how often the technical assistance provided by your agency is in the following
formats:
Total
# Question
Never
Rarely Sometimes Often Usually Always
Mean
Responses
Oral communication of
a
0
1
3
4
2
0
10
3.70
comments and suggestions
Agency redline of draft
b legislation provided by
0
0
2
4
4
0
10
4.20
congressional staffer
New suggested legislation
c
0
2
5
3
0
0
10
3.10
drafted by agency
Written feedback in a form
other than a redline or
actual draft legislation (for
d
0
0
0
7
3
0
10
4.30
example, email or memo
summarizing technical
feedback)
Other/Comments (optional):
Text Response
1. Item (c). Technical assistance sometimes (or even often) includes new legislative language suggested by the
Department, but it rarely (if ever) includes a new suggested text of the entire bill.
Question 5. Please indicate how often the following factors seem to affect whether Congress adopts the
technical assistance provided by your agency:
Total
# Question
Never Rarely Sometimes Often Usually Always
Responses
Whether the proposed
a legislation is likely to be
0
1
3
5
0
1
10
enacted
Whether there is a strong
working relationship between
b the agency officials involved
0
0
4
3
3
0
10
and the congressional staffers
requesting assistance
Whether the technical
c assistance was provided prior
0
1
3
6
0
0
10
to the legislation being

45

Mean
3.70

3.90

3.50

Federal Agencies in the Legislative Process
Final ACUS Report—November 2015
Christopher J. Walker

d

e

f

g

h

introduced (as opposed to, for
instance, at the committee
markup stage or later)
Whether the technical
assistance consists of
suggested redlined changes to
draft legislation (as opposed
to more generalized feedback)
Whether the technical
assistance was provided for
committee staff (as opposed
to an individual member’s
staff)
Whether the technical
assistance was provided for
majority committee/member
staff (as opposed to minority
party staff)
Whether technical assistance
was provided for
committee/member staff of
member from the President’s
party
Whether the technical
assistance was provided for
committee/member staff of
member who supports the
agency’s objectives

0

1

2

6

1

0

10

3.70

0

2

5

2

1

0

10

3.20

0

2

5

2

1

0

10

3.20

0

2

7

1

0

0

10

2.90

0

2

4

3

1

0

10

3.30

Other/Comments (optional):
Text Response
1. We don’t always know whether our comments are accepted—if, for example, the legislation doesn’t go anywhere, we
might not know whether they took our suggestions.
Question 6. Please evaluate your agreement with the following statements about potential challenges to
providing technical assistance in legislative drafting:
Strongly
Somewhat
Strongly
Total
# Question
Disagree
Agree
Disagree
Agree
Agree
Responses
The timing for responding to
congressional requests for
a technical drafting assistance is
0
1
4
4
1
10
unpredictable and/or difficult to
meet.
It is difficult to distinguish
purely technical assistance from
b substantive drafting assistance
0
3
4
2
0
9
that should go through OMB
Circular A-19 review.
Because the OMB review
process is so cumbersome or
opaque, the agency often tries to
c
0
2
5
2
0
9
find a way to respond to a
congressional request for more
substantive feedback without

46

Mean

3.50

2.89

3.00

Federal Agencies in the Legislative Process
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Christopher J. Walker

d

e

f

g

h

going through the OMB
process.
When congressional requesters
say they want technical
assistance, what they often really
want is to know the agency’s
substantive position on the
proposed legislation.
The appropriations process at
the agency is not sufficiently
incorporated into the agency’s
technical drafting review
process.
Technical legislative assistance
often takes place at lower levels
within the agency without going
through the formal approval
processes (including review and
approval by congressional
affairs, legislative counsel, etc.)
that the agency has established.
Congressional staffers often are
unfamiliar with the agency’s
governing statutes and
implementing regulations.
The turnover of staff in
Congress makes it difficult for
the agency to have a strong
working relationship with
Congress.

0

0

6

4

0

10

3.40

0

6

3

0

0

9

2.33

2

2

4

2

0

10

2.60

0

1

4

4

1

10

3.50

0

3

4

3

0

10

3.00

Other/Comments (optional):
Text Response
1. Item (c) (OMB review process). We definitely agree that the OMB review process is in fact cumbersome or opaque.
The answer above (somewhat agree) addresses the second part of the statement—whether we often try to find a way to
respond without going through the process. However, our responses in such situations comply with Circular A-19.
2. The last question is perhaps more appropriately addressed by our congressional affairs office.

47

APPENDIX B: AGRICULTURE OVERVIEW
OVERVIEW OF TECHNICAL ASSISTANCE TO CONGRESS AT
U.S. DEPARTMENT OF AGRICULTURE*
I.

Overview of Agency

The U.S. Department of Agriculture (USDA) was born out of the work of attorney Henry
Leavitt Ellsworth, the first Commissioner of Patents, who encouraged the collection and
distribution of seeds through the U.S. Postal Service and was able to secure the first congressional
funding for agriculture in 1839. However, it was not until May of 1862 that President Abraham
Lincoln officially established the Department of Agriculture.1 The new department was tasked with
acquiring and distributing “useful information on subjects connected with agriculture in the most
general and comprehensive sense of that word” and procuring, propagating, and distributing “new
and valuable seeds and plants.” The establishing legislation further called for comprehensive and
accurate record keeping, which led to the establishment of the National Agricultural Library. The
library was specifically mentioned in appropriations for the department starting in 1864.
The current work of the USDA spans a number of broad policy areas: assistance to rural
communities, conservation and forestry, education and research, food and nutrition, animal and
plant health, food safety, and marketing and trade. From inspecting and licensing the facilities that
process food, to providing broadband internet to underserved communities, to administrating the
multi-billion dollar SNAP program, the work of the USDA touches the lives of every American and
despite the breadth of topics the agency oversees, the USDA uniquely relies on a single piece of
legislation every 5–6 years to authorize almost all of its activities—the Farm Bill.2
II.

Agency Process for Providing Technical Assistance in Legislative Drafting

The USDA provides technical assistance to Congress on three distinct types of legislation:
appropriations, the Farm Bill, and other more traditional legislation that may affect the USDA.
USDA is unique in that the Farm Bill governs most of the activities of the agency. A new Farm Bill
is considered approximately every 5–6 years with the most recent update in 2014. The Office of
General Counsel (OGC) at USDA has a longstanding relationship with the committees on the Hill
that are involved in drafting and pulling together all the titles of the Farm Bill.

This overview draws on interviews and communications with various officials at the U.S. Department of
Agriculture as well as from publicly available information. Thanks are due to Eleanor Celeste (The Ohio State University
Moritz College of Law Class of 2016) for spearheading the research and drafting of this overview.
1 For more information on the Department’s mission and organization, visit http://www.usda.gov/wps/portal/
usda/usdahome.
2 For one perspective on the Farm Bill reauthorization process, see Neil D. Hamilton, The 2014 Farm Bill: Lessons in
Patience, Politics, and Persuasion, 19 DRAKE J. AGRIC. L. 1 (2014).
*

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Usually, the agriculture committee staff does the initial drafting of the Farm Bill. After which,
OGC staff go to the Hill to meet with committee staff. Often there are policy considerations as to
the extent OGC participates in the conversations, but generally almost every page of the Farm Bill
receives some level of legal review. A key to success in providing effective technical assistance is
drafting and revising legislative language to match the style of the legislative counsel on the
committees at any given time. Technical assistance is most effective when drafted in the style of the
office of legislative counsel in charge of the bill or a title because language is more likely to stay in
the bill and is less likely to be subject to editing that can lead to legal errors if it already fits the
committee’s and the counsel’s style.
If a Member of Congress wants USDA technical assistance on a Farm Bill issue, she generally
approaches the Department’s Office of Congressional Relations (OCR) directly or through
committee staff. OCR acts as the clearinghouse before OGC can give technical advice on how a
given proposal would affect different programs and the agency overall. However, sometimes
committee staff go directly to OGC staff with specific questions for which OGC generally alerts
OCR before responding.
At times there are USDA-related, non-appropriations legislation that is not part of the Farm Bill.
These legislative initiatives are either one-off bills introduced by Members to address a program area
covered by USDA or bills that implicate a particular USDA agency, such as the Forest Service.
These bills go first to OCR—the gatekeeper for agency–congressional relations and the official
liaison to Congress—or the mission area congressional relations staff, and then to OGC for
technical drafting assistance.
A. Role of Agency’s Congressional Affairs Staff
The Department’s Office of Congressional Relations (OCR) consists of about a half-dozen
officials, most of whom are political appointees with prior experience working on the Hill. The
Assistant Secretary for Congressional Relations directs the office and reports to the Deputy
Secretary and Secretary.
The Office acts as a gatekeeper and manager of the majority of the requests for technical
assistance that come into USDA. Sometimes, staff and members will go straight to OGC or the
Office of Budget and Program Analysis (OBPA) because of a prior relationship. However, the vast
majority of congressional requests for technical assistance in legislative drafting are first filtered
through OCR and then directed to OGC or to OBPA.
B. Role of Agency’s Legislative Counsel
The Office of General Counsel (OGC) handles the legislative drafting portfolio and reports to
the Deputy Secretary and the Secretary. Previously, there was a separate legislative division within
OGC; however, that division was folded into the general law and research division. Three to four of
the seventeen attorneys in the general law and research division do legislative work specifically
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Christopher J. Walker

related primarily to appropriations, Departmental Administration, the research, education, and
economics mission area, and miscellaneous matters. Additionally, other divisions of OGC provide
technical legislative drafting assistance in the areas covered by their client agencies. All draft language
is considered close hold, and OGC generally does not share any language they are providing as
technical assistance except as directed by the requester or OCR.
OGC attorneys working on the legislative portfolio generally do not have specific Hill
experience prior to joining the USDA, but several have been through multiple Farm Bill
reauthorizations. Additionally, OGC has found it useful to detail one of its attorneys to the
Agriculture Committees during the Farm Bill reauthorization. That way, the staffer can provide
informed advice about how a new Farm Bill will affect the USDA and learn the process from the
legislative side. The staff member returns to USDA with first-hand legislative experience and is able
to be an even more effective legislative lawyer in OGC.
OGC handles most of the technical assistance requests that come from Congress. When
working on appropriations, OGC works closely with OBPA and consults with OCR as appropriate.
Aside from appropriations, most technical assistance requests outside of the Farm Bill process come
through OCR or the congressional relations staff of the USDA mission areas.
C. Role of Agency’s Policy, Regulatory, and Other Personnel
The Office of Budget and Program Analysis (OBPA) participates extensively in providing
technical assistance on appropriations matters. OBPA has the expertise to answer complicated
questions about how certain proposals will affect the budget and program areas specifically. OBPA
is the office that coordinates on appropriations matters with OMB when necessary. OBPA acts as a
gatekeeper for appropriations questions and sometimes loops in the specific agency congressional
relations or budget staff, depending on the assistance requested.
With respect to the USDA’s other policy and program personnel, OGC generally has a closehold policy and only involves such agency personnel when authorized. This is particularly true for
appropriations legislation that goes to OBPA.
D. Role of Office of Management and Budget
The USDA generally does not clear technical assistance requests with the Office of Management
and Budget, but both OGC and OBPA ensure that the Department complies with Circular A-19
with respect to the Department’s substantive positions on legislation. Again, the USDA is in
somewhat of a unique position with the Farm Bill, as that process involves policy personnel from
the Department and the Administration in addition to the agency legislative counsel.

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Christopher J. Walker

III.

Technical Drafting Assistance as Part of Appropriations Process

The Office of Budget and Program Analysis (OBPA) is heavily involved in the technical
assistance provided as part of the appropriations process. OGC also plays a role in providing that
technical assistance. These exchanges are based on relationships built on trust and confidence. OGC
works in a way that maintains a reputation for not making policy, but strictly providing professional
legal review when providing technical assistance.
During the appropriations process OGC in consultation with OBPA is sometimes asked by
committee staff to provide technical assistance to revise entire accounts. Revising entire accounts is
usually an exercise to shorten the entire bill and clean up the language to eliminate superfluous text.
These requests are processed by OBPA in conjunction with OGC and generally are not initially sent
to OCR. Generally, OGC and OBPA just clean up the language and flag potential problems or
unclear drafting. These requests usually come at the last minute during committee markup. If OGC
or OBPA is asked to provide assistance on a particularly hot button policy issue or will be working
with a committee on a daily basis on a specific matter, they will loop in OCR as part of the
discussions.
IV.

Effective Practices and Features Implemented at the Agency
1. Farm Bill Reauthorization Process: A Farm Bill reauthorization occurring every 5–6 years
allows the USDA to forge strong relationships on the Hill and maintain its
institutional expertise over the subject matter.
2. Congressional Detailing: The detailing of attorneys from the USDA’s Office of General
Counsel during Farm Bill reauthorizations proves invaluable during the
reauthorization process but also afterward as it strengthens the agency’s relationship
with Congress and results in an attorney who has greater expertise in the legislative
process.
3. Appropriations Legislation Coordination: Because a fair amount of substantive legislation
is now included in appropriations legislation, it is of even greater importance that the
budget and legislative counsel teams work together to provide technical assistance on
appropriations legislation. The USDA has cultivated a strong working relationship
between its Office of General Counsel and its Office of Budget and Program
Analysis.
4. Reputation as Professional Drafters: It is a tremendous value to have legislative counsel
within the Office of General Counsel who are career attorneys with no political ties
to the current administration, so that their counsel is viewed as technical and
nonpartisan.

51

APPENDIX C: COMMERCE OVERVIEW
OVERVIEW OF TECHNICAL ASSISTANCE TO CONGRESS AT
THE U.S. DEPARTMENT OF COMMERCE*
I.

Overview of Agency

The Department of Commerce’s mission is to create the requisite conditions for economic
growth and opportunity. The Department works with businesses, universities, communities, and
workers to promote job creation, economic growth, sustainable development, and improved
standards of living for Americans. The Department is comprised of twelve bureaus that drive
progress in five goal areas: trade and investment, innovation, environment, data, and operational
excellence.1
II.

Agency Process for Providing Technical Assistance in Legislative Drafting

The Office of Legislative and Intergovernmental Affairs serves as the gatekeeper and face of the
Department to Congress. Technical assistance requests are sent on to the Office of the General
Counsel’s Assistant General Counsel of Legislation and Regulations (AGC-L&R), which coordinates
the responses to such requests with the various lawyers and program folks within the relevant
bureaus. The Office of Legislative and Intergovernmental Affairs maintains oversight on processing
requests.
Each bureau within the Department has its own legislative affairs offices—staffed mostly by
political appointees—and the Department’s and bureaus’ legislative affairs offices coordinate in
responding to congressional requests for legislative drafting assistance. Technical assistance by
definition does not take a substantive view on an issue, but this understanding may be inconsistent
with congressional expectations. The AGC-L&R therefore regulates the Department’s desire to be
as responsive as possible to Congress without getting ahead of the Secretary of Commerce or the
Administration.
Typically, the congressional requester sends a draft of the contemplated legislation for technical
assistance and comments from the agency; technical assistance requests that involve initial drafting
are rare. The form of assistance will vary depending on the specific request involved, but may
involve redlining a bill or making global comments.

* This overview draws on interviews and communications with various officials at the U.S. Department Commerce

as well as from publicly available information. Thanks are due to Ally Chiu (Harvard Law School Class of 2017) for
spearheading the research for and drafting of this overview.
1 For more information on the agency’s mission and organization, visit http://www.commerce.gov/about.

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Christopher J. Walker

A. Role of Agency’s Congressional Affairs Staff
The Office of Legislative and Intergovernmental Affairs is located within the Office of the
Secretary.2 The Assistant Secretary of Legislative and Intergovernmental Affairs is aided by a Deputy
Assistant Secretary, a Director of Legislative Affairs, and a Director of Intergovernmental Affairs.
The Legislative Affairs office is responsible for liaison and coordination with Congress,
congressional committees, and individual Members. They ensure the Department’s responsiveness
to inquiries or requests for information, reports, or other assistance from Members and their staffs.
In contrast, the Intergovernmental Affairs office is the liaison and coordinates with state, county,
and municipal governments, and oversees the maintenance of their relationships with the
Department.3
The Office of Legislative and Intergovernmental Affairs consists of about a dozen staff
members, all political appointees, who generally all have worked in Congress at some point and
some of whom also have law degrees. Each bureau also has a counterpart to the Office of
Legislative and Intergovernmental Affairs, comprised mostly of political appointees, as well as some
career staff for continuity. The Department and bureau legislative affairs offices work together to
respond to congressional requests for legislative drafting assistance.
B. Role of Agency’s Legislative Counsel
The Office of the Assistant General Counsel for Legislation and Regulations (OAGC-L&R) is
located within the Office of the General Counsel.4 The Office is headed by an Assistant General
Counsel who is assisted by the Chief Counsel for Legislation and the Chief Counsel for Regulation.
The Legislative Division works with various bureaus to develop and support the Department’s
legislative initiatives and is the focal point within the Department for coordinating the analysis of
legislation and developing and articulating the views of the Department on pending legislation. This
office is the principal legal liaison with the Office of Management and Budget (OMB), with whom it
works to obtain required clearances and interagency consensus on Departmental letters, reports,
testimonies, and legislative proposals for delivery to Congress. The office also represents the
Department’s views in interagency deliberations on legislative proposals and expressions of
legislative views advanced by other agencies.
The Legislative Division is staffed by five attorneys and two support staff. The attorneys have
each been assigned bureaus of the Department of Commerce. The Legislative Division attorneys
work closely with bureau chief counsel offices in the provision of technical drafting assistance.
2 For the Department of Commerce’s organization chart, visit http://www.commerce.gov/sites/commerce.gov/
files/media/files/2014/department_organization_chart.pdf.
3 For more information on the Office of Legislative and Intergovernmental Affairs, visit http://www.osec.doc.gov/
opog/dmp/doos/doo10_12.html.
4 For more information on offices within the Department of Commerce’s Office of the General Counsel, visit
http://ogc.commerce.gov/.

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These bureau offices often play a significant role in technical assistance, while AGC-L&R becomes
more involved for cross-agency bills. The Department’s Legislative Division is almost always
involved if real technical drafting is taking place, but it is not always brought into the loop when
there are only questions on proposed legislation. Those requests may be handled by just the
legislative affairs staff, in coordination with the relevant bureau program and legal staff.
C. Role of Agency’s Policy, Regulatory, and Other Personnel
The Regulatory Division within the OAGC/L&R, discussed above, serves as the primary
contact for all regulatory matters concerning the Department. This office advises the diverse bureaus
within the Department on administrative law requirements and procedures involved in the
rulemaking process, and provides legal counsel on other related laws and Executive Orders. It also
serves as the Department’s liaison with OMB and other Federal agencies during interagency review
and clearance of regulations issued by the Department, and provides Secretarial-level clearance for
all Federal Register publications. In addition, this office advises the Secretary on regulatory matters,
develops the Department’s regulatory policies and procedures, and provides the Department’s
official position on regulations affecting the Department. There are five members of the Regulatory
Division, including the Chief Counsel for Regulation. There are no specialized distinctions between
the members in title, unlike the Legislative Division which differentiates based on the various
departmental bureaus.5 The Regulatory Division seldom plays a role in providing technical assistance
in legislative drafting.
Bureau program and policy experts and counsel, by contrast, play an important role in providing
technical drafting assistance. Generally the Department’s Office of Legislative and
Intergovernmental Affairs coordinates such feedback from the bureaus, in coordination with OGC’s
Legislative Division.
D. Role of Office of Management and Budget
The Office of Management and Budget (OMB) is not usually involved in the process for
technical assistance requests. It only becomes involved when the Department wishes to take a
substantive position on pending legislation, in which case the Department follows the procedures
set forth in Circular A-19.
III.

Technical Drafting Assistance as Part of Appropriations Process

Technical assistance requests related to the appropriations process are handled directly by the
Department of Commerce’s Chief Financial Officer and Assistant Secretary for Administration and
the Director of the Office of Budget. Each bureau also has its own budget office. The Chief
Financial Officer nonetheless keeps the Chief Counsel for Legislation abreast of appropriations
5 For more information on the OGC’s Regulatory Division within AGC-L&R, visit http://ogc.commerce.gov/
collection/office-assistant-general-counsel-legislation-and-regulation.

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matters during weekly meetings. The Office of Legislative and Intergovernmental Affairs
coordinates appropriations matters between the Department and relevant bureaus. The Legislative
Division in the Office of General Counsel is not involved in the appropriations process unless
appropriations legislation contains substantive provisions that may need technical review.
IV.

Effective Practices and Features Implemented at the Agency
1. Appropriations and Authorization Legislative Assistance Coordination: Each week the
Director of the Office of Budget, the Chief Counsel for Legislation, and the
Assistant Secretary for Legislative and Intergovernmental Affairs meet to discuss
interactions with Congress and other matters.
2. Relationship Between Legislative Counsel and Legislative Affairs: The Department has
maintained a close working relationship between the legislative affairs staff who deal
directly with Congress and the legislative counsel who help coordinate the provision
of technical assistance in the legislative process. This relationship is critical, especially
when there are also extensive coordination efforts that need to be made with the
relevant bureau-level legislative affairs, counsel, policy, and program folks. Moreover,
the Department splits the recordkeeping between the Office of Legislative and
Intergovernmental Affairs and AGC-L&R in a logical scheme—in particular, the
former retains informal communications while the latter keeps formal records,
ensuring that information is easily accessible when necessary.

55

APPENDIX D: EDUCATION OVERVIEW
OVERVIEW OF TECHNICAL ASSISTANCE TO CONGRESS AT
THE U.S. DEPARTMENT OF EDUCATION*
I.

Overview of Agency

The U.S. Department of Education was established in 1979 and became operational in 1980
through the Department of Education Organization Act (DEOA). The creation was the result of
the transfer of various offices and functions from other agencies, principally from the Education
Division of the Department of Health, Education, and Welfare (which was re-named the
Department of Health and Human Services) to the Department. The DEOA created ten offices
including: the Office for Civil Rights, the Office of Elementary and Secondary Education, the Office
of Postsecondary Education, the Office of Vocational and Adult Education, the Office of Special
Education and Rehabilitative Services, the Office of Education for Overseas Dependents, the Office
of Educational Research and Improvement, the Office of Bilingual Education and Minority
Language Affairs, the Office of General Counsel (OGC), and the Office of Inspector General. Over
the years, Congress has adapted and expanded the Department in response to national needs,
including by adding and eliminating individual offices as statutory entities and by renaming several of
the ten original offices.1
The Department’s mission is to provide for America’s students by encouraging academic
achievement, promoting equal access to education, and preparing students for global competiveness.
To do this, the Department seeks to institute policies for federal student aid, to collect and
disseminate data on America’s schools, to focus on national key issues related to education, and to
provide equal access to education while prohibiting discrimination.2
II.

Agency Process for Providing Technical Assistance in Legislative Drafting

The Department provides technical assistance in legislative drafting by reviewing and sometimes
drafting legislative proposals. For instance, the Department may provide redline feedback on a draft
or suggest how they might draft it; however, the agency personnel clarify that their suggestions do
not reflect a formal proposal or an official initiative from the Department of Education or the
Administration. Their assistance is merely a courtesy, and technical in nature. While the technical
assistance process is not very formal due to a more hands-off approach from OMB than in the past,

This overview draws on interviews and communications with various officials at the U.S. Department of
Education as well as from publicly available information. Thanks are due to Rita Rochford (The Ohio State University
Moritz College of Law Class of 2017) for spearheading the research for and drafting of this overview.
1 To see a chart on the current structure of the Department of Education visit http://www2.ed.gov/about/offices/
or/index.html.
2 For more information on the Department’s mission and organization, visit http://www2.ed.gov/about/overview/
focus/what_pg2.html.
*

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the Department sends out occasional internal reminders for the preferred process to follow,
particularly at the start of an Administration or when key officials are replaced.
Except with respect to budget and appropriations matters (discussed below), Congressional
requests for technical assistance in legislative drafting (which includes drafting report language as
well as legislative text) go through the Department’s Office of Legislation and Congressional Affairs
(OLCA), which serves as the Department’s legislative gatekeeper and liaison to Congress. Typically,
Members of Congress, or their staff, reach out to OLCA via email or phone. Most of the requests
come from committee staff, but also sometimes from the personal staff of a Member. OLCA then
coordinates the technical drafting assistance response with the Division of Legislative Counsel
(DLC) within the Office of Counsel (OGC). DLC then takes the lead in providing the technical
assistance, with both offices consulting the relevant policy and program experts and lawyers within
the Department to provide feedback about potential impacts.
In recent years, the Department has spent more time than it used to in providing background on
current law to inform Congress before it begins the drafting process. The Department’s technical
assistance ranges from commenting on draft legislation for legal implications or burdens to affected
parties to working with Members of Congress to understand their objectives and help provide
legislative language that works toward their goal. To meet these requests, the Department relies on
their employees’ program expertise. The mechanism for feedback is a collaborative process in which
each member of the team understands the implications involved in meeting a deadline for feedback.
This feedback may be done through meetings, email, or phone—oftentimes the communication is
done via a conference call that includes the relevant agency experts and policy officials.
A. Role of Agency’s Congressional Affairs Staff
The Department’s Office of Legislation and Congressional Affairs is the primary liaison between
the Department and Congress, coordinating all Department matters relevant to Congress (other
than appropriations matters), including congressional requests for technical assistance in legislative
drafting. Headed by an Assistant Secretary who is a political appointee, the Office’s organizational
structure consists of political leadership who work to effectively communicate the Administration’s
position on education issues, career staff for policy who advise on legislation, and congressional
affairs staff who aid in resolving constituent concerns. In total, there are about two dozen staffers in
the Office, many of whom have extensive Hill experience and some of whom have law degrees.
OLCA also works with employees throughout the Department to respond to written and oral
inquiries from individual Members of Congress, prepare for legislative hearings, and facilitate
meetings between Members of Congress and senior Department officials. With respect to
congressional requests for technical assistance in legislative drafting, the Office coordinates the
response to such requests with OGC’s Division of Legislative Counsel. Once the response has been
finalized within the Department, OLCA coordinates the response to Congress, which is sometimes
conveyed in writing but also often conveyed by phone.

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B. Role of Agency’s Legislative Counsel
The Division of Legislative Counsel in the OGC is headed by a career attorney, who supervises
a staff of six, four of whom are attorneys. No one currently in the Division has experience working
on the Hill. All of the attorneys are career staff. The Division provides technical assistance in the
legislative drafting process through comments and open-ended questions. Much of this feedback
occurs over the phone or by email. They help coordinate the feedback process to ensure that staff
members throughout the Department with knowledge of affected programs have an opportunity to
comment. From time to time, the Division reminds Department staff about how the technical
assistance process works, and how it differs from the substantive drafting that requires OMB
clearance per Circular A-19. In addition to technical assistance, the Division also monitors
appropriations bills for other agencies to be aware of any impact on the Department’s programs and
functions.
C. Role of Agency’s Policy, Regulatory, and Other Personnel
The Division of Legislative Counsel is not the regulatory division of the OGC. Instead, OGC
includes a separate Division of Regulatory Services (DRS), which implements the Department’s
statutory mandates via rulemaking and oversees the production and clearance of Federal Register
documents and various “guidance” documents. DRS seldom plays a role in providing technical
assistance in legislative drafting. The Department’s policy and program experts, however, do play a
critical role in providing that assistance, and the Division of Legislative Counsel and Office of
Legislation and Congressional Affairs both make sure that the Department’s experts are involved
throughout the technical assistance process.
D. Role of Office of Management and Budget
Typically, Congress asks for assistance and that is how the Department of Education gets
involved. If the advice is “technical”—that is, it does not formally state the Department’s official
views on the merits of proposed legislation—the Department provides the technical assistance
without seeking OMB clearance. The Division of Legislative Counsel patrols the technical–
substantive line for purposes of OMB involvement.
III.

Technical Drafting Assistance as Part of Appropriations Process

Appropriations legislation is handled by a separate office: the Department’s Budget Service,
which is housed within the Office of Planning, Evaluation and Policy Development. The Budget
Service generally focuses on appropriations legislation specific to the Department, while OGC’s
Division of Legislative Counsel keeps the Budget Service and other offices informed on
appropriations legislation for other agencies that may be of interest, such as Interior’s Bureau of
Indian Education, Defense’s provision of financial assistance to certain school districts, education in
the District of Columbia, and STEM education programs at NASA and the NSF. The Division also

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provides technical assistance on appropriations legislation, on request, particularly when it contains
substantive amendments to the Department’s program statutes, which can sometimes be just as
extensive and significant as in traditional authorizing legislation.
IV.

Effective Practices and Features Implemented at the Agency
1. Appropriations Legislation Monitoring: A fair amount of appropriations legislation not
expressly directed at the Department of Education is nevertheless of interest to the
Department, and OGC’s Division of Legislative Counsel tracks such legislation and
keeps the Budget Service and the rest of the Department apprised of such
developments.
2. Technical Assistance Coordination: The Department’s Office of Legislation and
Congressional Affairs and OGC’s Division of Legislative Counsel have distinct yet
overlapping roles in responding to congressional requests for technical assistance,
and their coordination efforts work well to leverage agency expertise in the legislative
process.
3. Institutional Memory: The lawyers in the Division of Legislative Counsel have many
years of combined experience, and this institutional memory is of great value to the
Department when providing technical assistance in legislative drafting.

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APPENDIX E: ENERGY OVERVIEW
OVERVIEW OF TECHNICAL ASSISTANCE TO CONGRESS AT
THE U.S. DEPARTMENT OF ENERGY*
I.

Overview of Agency

The U.S. Department of Energy was established in 1977 when President Carter signed the
Department of Energy Organization Act. This Act made the Department of Energy the twelfth
cabinet-level agency, and merged many of the federal energy programs that were scattered through
various executive agencies. The Department’s goal is to address energy, environmental, and nuclear
challenges that face America through new science and technological solutions.
The Department has a wide range of programs and initiatives. This breadth of programming
stems from the Department being a consolidation of federal energy programs at its creation. The
Department provides research, financial incentives, and directives to help achieve energy efficiency
within the United States. The Department also regulates all nuclear energy production, clean-up, and
control. Further, the Department encourages the use and production of renewable energy through
different incentive programs.1
II.

Agency Process for Providing Technical Assistance in Legislative Drafting

The process of providing technical assistance in legislative drafting at the Department of Energy
is a relatively informal one. Typically, a staffer from a congressional committee or Member’s office
will reach out to the Department by phone or email to request assistance with draft legislation. Such
congressional communications typically go through the Department’s Office of Congressional and
Intergovernmental Affairs (Congressional Affairs), which serves as the Department’s formal liaison
to Congress.
Such requests for technical assistance will then be passed on to the Office of the Assistant
General Counsel for Legislation, Regulation, and Energy Efficiency (AGC Office) within the Office
of the General Counsel. The AGC Office then identifies the relevant agency policy, program, and
legal staff to assist in responding to the technical assistance request, coordinates and finalizes all
responses to congressional requests for technical assistance in legislative drafting, and ensures
adherence to the technical–substantive distinction for purposes of OMB Circular A-19.
Once the response to the technical assistance request is finalized, Congressional Affairs then
communicates that response to the congressional requester. Oftentimes the response consists of a
written document with general comments or an actual redline of the proposed legislation. Many
* This overview draws on interviews and communications with various officials at the U.S. Department of Energy as

well as from publicly available information. Thanks are due to Aaron Stevenson (The Ohio State University Moritz
College of Law Class of 2017) for spearheading the research for and drafting of this overview.
1 For more on the Department of Energy, visit http://www.energy.gov/mission.

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times the Department also conveys the response through a conference call with the relevant agency
personnel.
A. Role of Agency’s Congressional Affairs Staff
The Office of Congressional and Intergovernmental Affairs (Congressional Affairs) serves as the
Department’s formal liaison to Congress and is the gatekeeper for all Congress–agency
communication. Other offices of the Department do not generally work with or contact staffers on
the Hill without the involvement of Congressional Affairs. There are approximately seven officials
in the Office, many of whom are political appointees with extensive experience working in
Congress, and some of whom have law degrees. Congressional Affairs handles both legislative
activity and all intergovernmental relations responsibilities.
Congressional Affairs, however, rarely drafts legislative material. Rather, it serves as the gobetween with Congress and the Department. The Office typically provides the feedback they receive
through the AGC Office. This OGC office is made up of career employees and has six attorneys
either entirely or partially dedicated to the handling of legislative matters. Although the AGC Office
normally collects and compiles the technical assistance information from different offices
throughout the Department, Congressional Affairs will review and comment on technical assistance
responses they receive before determining the appropriate means to transmit a particular response to
the congressional requester.
Sometimes, however, the Congressional Affairs will work directly with the office that has the
necessary expertise and information to respond to a particular request. In all events, Congressional
Affairs typically assists only in retrieving the information, and rarely does the actual legislative
drafting—the main exception to this is the drafting of legislative testimony.
B. Role of Agency’s Legislative Counsel
The Office of the Assistant General Counsel for Legislation, Regulation, and Energy Efficiency
(AGC Office) is situated within the Office of the General Counsel and consists of approximately
twenty employees. About six of these are attorneys who work specifically on legislative matters,
including technical assistance requests; the two others are career employees who work specifically
with the clearance of Departmental testimony and questions for the record (QFRs) submitted to the
Department by Congress following a hearing. Four of the six attorneys worked in Congress prior to
joining the Department. However, all employees within the Office can assist with legislative work,
including technical assistance requests within their respective areas of expertise (in particular, energy
efficiency matters).
The AGC Office works closely with Congressional Affairs on varying legislative issues. There
are four subsets of work that the office performs. The first is drafting legislative proposals. The
second is providing technical assistance. The third is drafting legislative testimony. The fourth is
responding to QFRs. The employees within the AGC Office do not specialize in one specific type
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of legislative work but cross-train in all four. However, the employees are specialized by subject
matter area, and each employee typically covers several issues that are regulated by or of interest to
the Department (i.e., energy efficiency/renewables, fossil energy, nuclear energy, personnel issues).
The AGC Office provides drafting and technical assistance to Congressional Affairs when
asked, and it coordinates the outreach to policy and program staff throughout the Department who
lend their expertise to respond to the technical assistance request. In the AGC Office, the legislative
and regulatory counsel of the Department are in the same office and are, in some cases, the same
people. This often makes the drafting process much easier and more efficient because the legislative
and regulatory counsel can provide input on issues that may impact the subsequent drafting of
implementing regulations, and their background knowledge of legislation is helpful. Further, the
office that handles the enforcement of regulations within the Department (particularly the
Department’s energy efficiency regulations) provides input when the legislative drafting involves the
enforcement process. When the enforcement attorneys are involved in the process, they provide
input to the AGC Office for inclusion in the response transmitted to Congressional Affairs. The
turnover rate of the attorneys in the AGC Office is low, which leads to increased efficiency and
production due to the development of institutional knowledge.
C. Role of Agency’s Policy, Regulatory, and Other Personnel
Due to the Department’s combination of the regulatory and legislative counsel functions within
the same AGC Office, the regulatory counsel perform work that complements the work done by the
legislative counsel. The regulatory counsel are thus much more involved when the legislative matter
at hand deals specifically with regulation.
Similarly, the policy and program experts throughout the Department are heavily involved in
responding to congressional requests for technical assistance in legislative drafting. The AGC Office
keeps a contact list of agency experts who serve as primary points of contact to the various
programs within the Department, and the AGC Office utilizes this list to make sure that the
appropriate agency personnel are involved in the technical assistance response. The AGC Office
remains the primary coordinator during this process until the response is finalized, at which time
Congressional Affairs conveys the Department’s response to the congressional requester.
D. Role of Office of Management and Budget
The role of the Office of Management and Budget (OMB) in the agency’s legislative assistance
activities can be a potential gray area within the Department. OMB is involved in substantive policy
comments on proposed legislation, not technical assistance in legislative drafting. The AGC Office
ensures adherence to this technical–substantive distinction and ensures compliance with OMB
Circular A-19. The Office also ensures that any written response to a technical assistance request
contains the disclaimer that the response does not represent the position of the Department or the
Administration.

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III.

Technical Drafting Assistance as Part of Appropriations Process

The appropriations drafting process is completely different from the other legislative matters
dealt with by the Department. The process runs through the Office of the Chief Financial Officer,
and then proceeds to a small number of attorneys who work in the General Law Office within the
Office of the General Counsel. These attorneys handle all appropriations matters. Of these, there is
one “appropriations expert” who has been with the Department for a lengthy period of time. This
employee’s institutional knowledge helps the process run smoothly. When these attorneys deal with
the appropriations matter, it is then passed on to the CFO’s Office, and then back to the Hill. The
AGC Office generally is not involved in the review or provision of technical assistance with respect
to appropriations legislation.
IV.

Effective Practices and Features Implemented at the Agency
1. Integrated Legislation and Regulation Office: Unlike most other agencies, the Department
has integrated the legislation and regulation counsel functions in the same office
within the Office of General Counsel, which leverages the Department’s regulatory
expertise in providing technical assistance in the legislative process and vice versa.
2. Centralized Legislative Counsel Office: Unlike some other agencies, all requests for
technical assistance in legislative drafting are handled and coordinated by one office
in the Department’s Office of General Counsel—the AGC Office. This ensures
consistency and coordination across technical assistance requests and allows the
Department to better leverage its expertise.
3. Hill Experience: Four of the six officials in the AGC Office worked in Congress prior
to joining the office. This Hill experience is a tremendous resource when providing
technical assistance in legislative drafting.

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APPENDIX F: FEDERAL RESERVE OVERVIEW
OVERVIEW OF TECHNICAL ASSISTANCE TO CONGRESS AT
THE FEDERAL RESERVE SYSTEM*
I.

Overview of Agency

Established in 1913 as the central bank of the United States, the Federal Reserve System’s role in
banking and the economy more generally has evolved to cover four main areas: conducting the
Nation’s monetary policy; supervising and regulating banking organizations; maintaining the stability
of the Nation’s financial system; and providing financial services such as operating the Nation’s
payment systems. The Federal Reserve System is composed of the Board of Governors of the
Federal Reserve System—an independent federal agency—and twelve regional Federal Reserve
Banks. It also includes the Federal Open Market Committee which consists of twelve members—
the seven members of the Board of Governors of the Federal Reserve System (the Board); the
president of the Federal Reserve Bank of New York; and four of the remaining eleven Reserve Bank
presidents, who serve one-year terms on a rotating basis.1 The Board is composed of seven
members, who are appointed by the President and confirmed by the Senate for fourteen-year terms.
The Chair and Vice-Chair also are appointed by the President and confirmed by the Senate for fouryear terms in those positions and are separately confirmed as governors.
The Board of Governors of the Federal Reserve System employs approximately 2,600 personnel
in their Washington, D.C., office, including economists, researchers, examiners, and lawyers. With
respect to the Federal Reserve’s role in the legislative process, the relevant offices are the
Congressional Liaison Office and the Legal Division.
II.

Agency Process for Providing Technical Assistance in Legislative Drafting

The technical assistance process typically begins at the Federal Reserve when the Congressional
Liaison Office receives draft legislation from a congressional staffer from a committee or Member.
Upon receiving the proposed legislation, the Congressional Liaison Office identifies the relevant
subject-matter experts within the Federal Reserve and then distributes the congressional request to
that small group of experts as well as to the appropriate attorneys within the Federal Reserve’s Legal
Division.
The Federal Reserve’s Congressional Liaison Office facilitates effective communication between
the Federal Reserve and Congress. Congressional requests for information are logged into an
electronic correspondence control system that tracks the process for assigning the request to the
* This overview draws on interviews and communications with various officials at the Federal Reserve System as

well as from publicly available information.
1 For more information on the Federal Reserve System, see BOARD OF GOVERNORS OF THE FEDERAL RESERVE
SYSTEM, THE FEDERAL RESERVE SYSTEM: PURPOSES AND FUNCTIONS (9th ed. 2005), http://www.federalreserve.gov/
pf/pf.htm.

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appropriate Board division for analysis and for preparing a draft response by a senior policy official.
The draft response is reviewed by an officer in the Congressional Liaison Office and prepared for
review and editing by the responding Board member, typically the Chair.
The Congressional Liaison Office then coordinates and collects the comments from the policy
experts, economists, and Legal Division lawyers. These comments are generally technical in nature,
but they can be more substantive if the Board has taken a public position on the underlying
substance of the proposed legislation. When appropriate, the Federal Reserve consults with the
Treasury Department and other financial regulators. Oftentimes, the official response consists of a
phone conversation or in-person meeting, but written responses are not unusual. When written, the
feedback tends to be more general comments, but sometimes it can result in an actual markup of the
proposed legislation.
The Congressional Liaison Office also assists Congress in legislative drafting through
congressional briefings, background discussions, and other education and awareness efforts about
the research being conducted by the Federal Reserve’s economists and policy analysts that may assist
Congress in its legislative initiatives.
A. Role of Agency’s Congressional Affairs Staff
The Congressional Liaison Office is the agency’s liaison to Congress, and its mission is to
maintain positive relationships between the Federal Reserve and its oversight committees in
Congress, as well as to leverage the Federal Reserve’s expertise in the legislative process. The Office
presently consists of six dedicated staff and two administrative assistants. Staff in the Congressional
Liaison Office include a mix of former lawyers, former congressional staffers, and former officials at
other agencies.
The Congressional Liaison Office serves as the coordinator and gatekeeper for congressional
requests for technical assistance in legislative drafting. When the Office receives such a request, it
identifies the appropriate policy experts from various offices within the Federal Reserve and the
subject-matter expert attorneys from the Office of General Counsel. The Office then works with
this small team to develop a response to the congressional request and helps coordinate how the
Federal Reserve does respond—typically orally but also at times in writing.
B. Role of Agency’s Legislative Counsel
The Legal Division consists of approximately one hundred lawyers, but there is no legislative
counsel division within the Legal Division. Instead, the Legal Division has an Associate General
Counsel for Legislation and Special Projects who coordinates the response of the Legal Division to
requests for assistance. Lawyers have developed certain substantive expertise and work on
congressional requests of technical assistance in legislative drafting that fall within their substantive
areas.

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C. Role of Agency’s Policy, Regulatory, and Other Personnel
As noted above, the Office of Congressional Liaison is responsible for bringing together a small
group of experts to respond to a congressional technical assistance request, and the Office reaches
out to the relevant experts—the policy analysts, economists, and other agency personnel. So the
whole agency is involved in responding to Congress, though the Office of Congressional Liaison
attempts to limit the team to a manageable number.
D. Role of Office of Management and Budget
Independent agencies such as the Federal Reserve have no formal obligation to report legislative
drafting requests to the Office of Management and Budget (OMB). Nonetheless, OMB sometimes
approaches the agency to ask about the legislation, especially when a variety of financial regulators
are affected by it.
III.

Technical Drafting Assistance as Part of Appropriations Process

The Federal Reserve receives no funding from general tax revenues, so it generally is not
involved in providing technical assistance in the drafting of appropriations legislation.
IV.

Effective Practices and Features Implemented at the Agency
1. Congressional Liaison Office as Sole Voice to Congress: By having everything from Congress
go through the Congressional Liaison Office, the Federal Reserve is better able to
maintain a strong and productive working relationship with Congress as well as
speak with a consistent voice on the Hill.
2. Congressional Education Efforts as Form of Technical Assistance: Developing relationships
with congressional staffers and educating them on the resources available at the
Federal Reserve are critical. To leverage agency expertise, the Congressional Liaison
Office does not just assist in technical drafting, but it also shares the agency’s
economic and policy expertise by briefing congressional staffers on current research
being conducted by economists and policy analysts at the Federal Reserve. Most
interaction with Congress involves such education efforts.

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APPENDIX G: HHS OVERVIEW
OVERVIEW OF TECHNICAL ASSISTANCE TO CONGRESS AT
THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES*
I.

Overview of Agency

The United States Department of Health and Human Services (HHS) is a cabinet-level
department whose mission is to “enhance and protect the health and well-being of all Americans.”1
The Secretary of Health and Human Services serves as the Department’s chief policy officer and
general manager. The Office of the Secretary provides leadership through seventeen staff offices
that oversee operations, provide guidance, and ensure laws are followed fairly. The Department’s
programs are administered through eleven operating divisions (eight public health agencies and three
human services agencies) in coordination with ten HHS regional offices.
Three staff offices—the Office of the Assistant Secretary for Financial Resources (ASFR), the
Office of the Assistant Secretary for Legislation (ASL), and the Office of the General Counsel
(OGC)—participate in the process of assisting Members of Congress with technical drafting for
HHS-related bills. The Assistant Secretaries and General Counsel are appointed by the President
with the advice and consent of the Senate. With the exception of a handful of Schedule-C excepted
appointees, most of the staffers in these offices are career civil servants.
II.

Agency Process for Providing Technical Assistance in Legislative Drafting

The process for providing technical assistance in legislative drafting begins when a staffer from a
committee of jurisdiction or a Member’s personal office requests the Department’s help. The Office
of the Assistant Secretary for Legislation (ASL), which serves as the primary link between the
Department and Congress, is the official point of contact for technical drafting assistance requests
for legislation other than appropriations. (In HHS, lead responsibility for appropriations legislation
is in the Office of the Assistant Secretary for Financial Resources.) Many ASL staffers have prior
experience working for Members of Congress. Though some ASL staffers have law degrees, the vast
majority of the Department’s legal advisors, including its legislative drafting attorneys, are part of the
Department’s Office of the General Counsel.
The ASL serves as both the gatekeeper and the coordinator of requests for drafting assistance.
When a request for assistance with legislative drafting is received, the ASL may accept or refuse the
request at its discretion—though it almost always chooses to provide assistance regardless whether
the request comes from the majority or minority party in Congress or whether it comes from a
Member of the President’s party. If the ASL chooses to provide assistance, the legislation is directed
* This overview draws on interviews and communications with various officials at the U.S. Department of Health

and Human Services as well as from publicly available information. Thanks are due to Logan Payne (University of
Virginia Law School Class of 2016) for spearheading the research for and drafting of this overview.
1 For more information, visit http://www.hhs.gov/about/index.html.

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to the Office of the Deputy Assistant Secretary for Legislation responsible for the bill’s subject
matter (i.e., discretionary health programs, mandatory health programs, or human services). Staffers
in that office identify and contact stakeholders throughout the operating divisions whose missions
would be affected by the proposed legislation. Using feedback from these stakeholders, the ASL
staff flags any potential problems with the legislation and sends it to the Office of the General
Counsel.
The Office of the General Counsel is the Department’s legal team and provides legal services to
the Secretary, senior departmental officials, and the Department’s agencies and operating divisions.
The team of over 400 attorneys and support staff is grouped into eight divisions grouped by practice
area (e.g., civil rights, ethics, food and drug, etc.). Because of the Department’s size and the scope of
its responsibilities, one of these eight divisions is dedicated solely to legislation.
The OGC’s Legislation Division provides legislative legal services for the full range of HHS
agencies and programs, but each of its staff attorneys is assigned a portfolio of programs for which
they are primarily responsible. These responsibilities include legislative drafting, providing legislative
legal advice to HHS components, and giving legal support and representations for those
components in negotiations within the Executive Branch and with Congress on legislative and
congressional oversight matters. With respect to legislative drafting, their goal is to articulate the
policy ideas embodied in the proposed legislation using precise legal language to remove any
unintended ambiguity or conflict with existing statutes or regulations.
In most cases, the proposed legislation has already been drafted by staffers for a congressional
committee or Member, and the request is simply fine-tuning language or identifying any unforeseen,
undesired consequences. On rare occasions, however, a Member of Congress will approach HHS
and ask for its attorneys to draft legislation to achieve an intended result based only on an outline of
the policy framework. Provided that the agency is not stating its views on the merits of the proposed
legislation, this type of request still falls within the category of technical drafting and is therefore
exempt from the OMB clearance requirement imposed by Circular A-19.
When the drafting is complete, the OGC and/or ASL distribute the draft to appropriate
components of the Department for review. After review (and any necessary revision), the ASL
returns the legislation to the Member or staffer who requested the assistance. The format of the
technical assistance can vary from general comments on the legislation to specific suggested
language changes—and even redlining of the draft legislation or additional drafting when requested
or otherwise warranted. While technical assistance typically results in a formal, written response
from the agency, there are often informal communications—phone calls or meetings—that also take
place as part of the process.
A. Role of Agency’s Congressional Affairs Staff
The Office of the Assistant Secretary for Legislation (ASL) is the primary link between the
Department and Congress for legislation other than appropriations. (In HHS, lead responsibility for
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appropriations legislation is in the Office of the Assistant Secretary for Financial Resources.) The
Assistant Secretary is appointed by the President with the advice and consent of the Senate—and
the three Deputy Assistant Secretaries are political appointees—but most of the rest of the ASL staff
are career civil servants with about forty total staffers in the office. Many ASL staffers have prior
experience working for Members of Congress, and some also have law degrees—though attorneys
in the Office of the General Counsel’s Legislation Division are responsible for the actual drafting
assistance.
The ASL serves as both the gatekeeper and coordinator of requests for drafting assistance. In
theory, ASL is the official point of contact for all requests for assistance with legislation relevant to
the Department’s mission, but in practice, many requests bypass the Department level and go
directly to the program agency (i.e. the Food and Drug Administration, Centers for Disease Control
and Prevention, etc.). It is understood within the agency that the program agency should loop in
ASL of such requests. When a request for assistance with legislative drafting is received, the ASL
may accept or refuse the request at its discretion—though, as noted above, it almost always chooses
to provide assistance.
If the ASL chooses to provide assistance, the legislation is directed to the Office of the Deputy
Assistant Secretary for Legislation responsible for the bill’s subject matter (i.e., discretionary health
programs, mandatory health programs, or human services). Staffers in that office identify and
contact stakeholders throughout the operating divisions whose missions would be affected by the
proposed legislation. Using feedback from these stakeholders, the ASL staff flags any potential
problems with the legislation and sends it to the Office of the General Counsel. When the drafting is
complete, the ASL and other appropriate Department offices review it, and ASL returns it to the
Member or staffer who made the request.
B. Role of Agency’s Legislative Counsel
The Office of the General Counsel (OGC) is the legal advisor to the Secretary, senior
departmental officials, and the Department’s agencies and operating divisions. The OGC’s 400
attorneys are organized into eight divisions, one of which is dedicated solely to legislation.
The Legislation Division provides legislative legal services for the full range of HHS agencies
and programs. The Legislation Division is headed by an Associate General Counsel and presently
staffed with five additional attorneys and other non-lawyer staffers. The division’s five staff
attorneys are assigned responsibility for a portfolio of programs, but in contrast to how some other
agencies are organized, HHS legislation attorneys are not formally embedded within those programs.
Moreover, unlike the ASL staff, none of the Legislation Division attorneys have previously worked
on the Hill. In addition to drafting legislation, the Legislation Division provides legislative legal
advice to HHS components and represents the Department in negotiations within the Executive
Branch and with Congress on legislative and congressional oversight matters.

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The Legislation Division typically becomes involved in the technical assistance process once
ASL has collected input from policy stakeholders throughout the Department’s offices and
operating divisions. ASL uses this feedback to flag potential problem areas and sends the proposed
legislation to the Legislation Division attorney responsible for the bill’s subject matter.
In most cases, the OGC receives a complete bill drafted by a staffer for a congressional
committee or Member. The HHS drafting attorney generally refines the legal language to resolve any
conflicts with existing statutes or regulations and eliminate any unintentional ambiguity. The HHS
legislative counsel’s involvement may actually be quite substantial. Technical assistance on a bill is by
no means limited to supplying actual draft bill language. It normally includes supplying comments
on how the bill (as drafted) would affect the agency’s programs, whether the bill would pose
administrative difficulties, and whether aspects of the bill are ambiguous. The legislative counsel’s
involvement can include identifying such issues, revising program offices’ attempts to identify such
issues, and advising whether issues identified by program offices can be included in the response to
the Hill without having to obtain OMB clearance.
Occasionally, however, a Member of Congress will approach HHS and ask for its attorneys to
draft a legislative provision to achieve an intended result based only on an outline of the policy
framework. If the ASL elects to accept such a request, the drafting attorney will fulfill it. HHS
considers such products also to be technical for purposes of OMB Circular A-19 as long as the
agency is not stating its views on the merits of the proposed bill.
C. Role of Agency’s Policy, Regulatory, and Other Personnel
The policy and regulatory operations of the Department of Health and Human Services are not
concentrated into a single centralized office or division within the Office of the Secretary. The
Department is divided into eleven operating divisions, each of which contains a number of agencies,
offices, institutes, centers, services, and/or commissions. The Office of the Assistant Secretary for
Legislation collects comments from stakeholders within these agencies, including policy personnel,
before submitting the request for technical drafting assistance to the Office of the General Counsel.
There is no official role for the regulatory staff within the Department to participate in the legislative
assistance process, but they are sometimes looped into the process when deemed appropriate by
ASL or OGC Legislation Division.
D. Role of Office of Management and Budget
The Office of Management and Budget (OMB) plays no role in technical assistance and only
becomes involved if the Department states its views on the merits of the legislation. Pursuant to
OMB Circular A-19, any agency views on the merits of proposed legislation must be cleared by
OMB. When necessary, such “views letters” are drafted by a program office, reviewed and revised
by the Office of the General Counsel, reviewed by other appropriate Department offices (including
ASL), and submitted to OMB for such clearance. If the advice is technical—that is, it does not state

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the agency’s views on the merits of proposed legislation—the agency may provide the advice
without seeking OMB clearance. Both ASL and OGC Legislation Division patrol the technical–
substantive line for purposes of OMB involvement.
III.

Technical Drafting Assistance as Part of Appropriations Process

The technical drafting assistance process for appropriations legislation is generally the same as
the process for authorizing legislation, except it goes through a different channel within the
Department. When the legislation is part of the appropriations process, the Office of the Assistant
Secretary for Financial Resources (ASFR) serves as the gatekeeper and coordinator instead of the
ASL. When the request is received, ASFR collects input from stakeholders throughout the
Department and coordinates the fulfillment of the request. If there are substantive provisions in the
draft appropriations legislation, the OGC Legislation Division reviews and revises the language as
necessary, and once complete, the proposed bill language is returned to the committee via the ASFR.
IV.

Effective Practices and Features Implemented at the Agency
1. Office of the Assistant Secretary for Legislation (ASL): ASL does a terrific job of identifying
the key stakeholders in the program areas across the Department who could be
helpful in providing technical assistance on a particular piece of draft legislation, and
it also serves as an important and effective gatekeeper with Congress.
2. Office of the General Counsel Legislation Division: Having a centralized legislation division
within the General Counsel’s Office dedicated to providing legislative counsel and
assistance helps to leverage the Department’s legislative expertise and institutional
memory while still getting the substantive expertise of the various program areas
when providing technical assistance. Moreover, having a dedicated Legislation
Division promotes expertise in the technicalities, skills of legislative drafting, and
familiarity with the legislative process as well as helps maintain close relationships
with the primary department components involved in the legislative process (ASL
and ASFR).
3. Division Between Legislation Division and ASL (or ASFR, as applicable): Having ASL (or,
for appropriations bills, ASFR) deal directly with Congress—and the politics that
may be implicated when dealing with Congress—allows the OGC Legislation
Division (and the rest of the Department) to maintain its role as an expert,
nonpolitical counselor on legislative drafting.

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APPENDIX H: HOMELAND SECURITY OVERVIEW
OVERVIEW OF TECHNICAL ASSISTANCE TO CONGRESS AT
THE U.S. DEPARTMENT OF HOMELAND SECURITY*
I.

Overview of Agency

The U.S. Department of Homeland Security (DHS) was formed in response to the September
11, 2001 terrorist attacks. Its establishment in 2002 combined twenty-two agencies into a single
cabinet-level agency. Its mission is to maintain the safety and security of the country, and its
jurisdiction extends to transportation security, border security, emergency response, cybersecurity,
chemical facility inspections, and more.1
The United States Coast Guard (USCG), a military service and a branch of the armed services of
the United States, operates as a service in DHS, except when operating as a service in the Navy. The
genesis of the Coast Guard was the United States Revenue Cutter Service, established in 1790, to
serve as an armed customs enforcement service. Since then, through the consolidation of other
services and mission assignments, the Coast Guard’s jurisdiction has expanded to encompass a total
of eleven statutory missions, with activities ranging from law enforcement (in both domestic and
international waters), marine safety regulation, and military service.2
II.

Agency Process for Providing Technical Assistance in Legislative Drafting

Staff members on a congressional committee or in a Member’s office may request technical
assistance from DHS or any of its components. The Office of Legislative Affairs (OLA) is situated
within the Office of the Secretary, and serves as the primary liaison to Members of Congress and
their staffs, to the White House and Executive Branch, and to other federal agencies and
governmental entities with roles in ensuring national security.3
The OLA sends technical assistance requests to the General Counsel’s Legal Counsel Division
(LCD). The LCD provides legal review, guidance, and support on significant litigation matters. They
are also experts on DHS’s statutory authority, and analyze existing powers and assess the impact of
pending legislation. LCD also provides legal support on privacy and civil rights and civil liberties

This overview draws on interviews and communications from various officials at the U.S. Department of
Homeland Security and U.S. Coast Guard as well as from publicly available information. Thanks are due to Ally Chiu
(Harvard Law School Class of 2017) for spearheading the research for and drafting of this overview.
1 For more information on DHS’s mission and organization, visit http://www.dhs.gov/.
2 For more information on USCG’s mission and organization, visit http://www.uscg.mil/.
3 To view the DHS Office of Legislative Affairs’ organizational chart, visit http://www.dhs.gov/sites/default/files/
publications/org-chart-leg-affairs.pdf.
*

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issues, and responds to significant inquiries from Congress and the U.S. Government Accountability
Office.4
Within the LCD, an Assistant General Counsel for Legislative Affairs and three staff attorneys
specialize in responding to requests from Congress, including technical assistance requests.
Currently, none of them have experience working on Capitol Hill, but some previous employees had
such experience. Technical assistance requests may become quite involved, and may involve the
drafting of entire portions of bills. Oftentimes congressional requests for technical assistance are
made directly to the agency components, and the agencies are directed to keep DHS
Headquarters—OLA and OGC—in the loop about any technical assistance they may be providing.
To help coordinate technical assistance efforts and other interactions with Congress, DHS
Headquarters has issued a Legislative Procedures Management Directive. With respect to technical
assistance or “informal comments,” the Directive instructs:
Where Congressional members or their staff request DHS views regarding Draft Legislation,
DHS, in certain instances, may provide informal comments prior to completion of formal
OMB clearance. The extent to which informal comments can be provided depends upon a
number of factors, including, but not limited to, the policy content and format of the
informal comments, as well as the political interest and procedural maturity of the legislation
in question. In all cases, Legislative Affairs and DHS Organizational Elements shall
coordinate informal comments with any significantly affected DHS Organizational Element,
as well as COS, OGC, and CFO, as appropriate. In communicating with the Congress,
Legislative Affairs shall advise the Congress that informal comments remain subject to
formal Administration review and approval.5

In practice, sometimes the notice from component agencies is received concurrently or after the
fact, but coordination is critical.
A. Role of Agency’s Congressional Affairs Staff
The Office of Legislative Affairs (OLA) is headed by an Assistant Secretary, and supported by
two Deputy Assistant Secretaries, one for each house in Congress, and a Chief of Staff. The various
DHS components are divided up among eight directors.6 Components have their own offices that
handle relations with Congress; they report to their respective director. OLA, however, is
responsible for coordinating the overall legislative strategy of the Department. In total, the DHS
Headquarters’ office has twenty to thirty staff members that comprise a mix of career staff and
political appointees. Nearly all of the political appointees within the office have experience on the
4 For a description of the divisions within DHS’s Office of the General Counsel, visit http://www.dhs.gov/office-

general-counsel.
5 Dep’t of Homeland Security, Legislative Procedures Management Directive, MD No. 0420, at 14 (Feb. 28, 2005)
[hereinafter DHS Management Directive], http://www.dhs.gov/sites/default/files/publications/mgmt_directive_0420_
legislative_procedures.pdf.
6 To view the leadership structure of the DHS Office of Legislative Affairs, visit http://www.dhs.gov/
sites/default/files/publications/org-chart-leg-affairs.pdf.

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Hill. At the executive level, the percentage with Hill experience increases. OLA is the gatekeeper and
main point of contact with communications with Congress, including responding to requests for
technical assistance in legislative drafting. This role is reflected formally in the DHS Legislative
Procedures Management Directive:
Legislative Affairs shall perform or direct the final transmittal to the Congress of all Draft
Legislation, Legislative Reports, Legislative Comments, QFRs, Legislative Programs, and
Congressional Testimony for non-appropriations related items. . . . With the approval of
Legislative Affairs, and where not otherwise required by law or policy, DHS Organizational
Elements may perform the final transmission of Legislative Reports.7

As noted, component agencies have their own legislative affairs staff. For instance, the USCG’s
Governmental and Public Affairs is divided into two offices: the Office of Congressional Affairs and
the Office of Public Affairs.8 The Office of Congressional Affairs serves as USCG’s liaison to
Congress and is comprised of approximately ten people, including a captain, deputy, House and
Senate liaisons, deputy House and Senate liaisons, among other staff. All members of this office are
military personnel, and they must rotate out every two years on a staggered schedule.
B. Role of Agency’s Legislative Counsel
A subsection of the Legal Counsel Division of the Office of the General Counsel handles the
technical assistance requests from Congress. The General Counsel is a political appointee. Beneath
the General Counsel are two Deputy General Counsels who are also political appointees and one
career Principal Deputy General Counsel. There are four attorneys within the office who are
dedicated to completing requests by Congress.
Each component agency has its own equivalent office that handles the drafting for technical
assistance requests. For instance, The USCG’s Legislative Counsel is located within their Chief Legal
Office. The office is comprised of three staff attorneys and one paralegal. All members of the office
are career staff. At one point, it used to be a mix of military and civilian. None have Hill experience,
and one has lobbying experience.
Members of these offices operate in a strictly legal function, and technical drafting requests are
considered a professional service. Many requests originate from DHS briefings or hearings on the
Hill, and may be sent directly to the component offices. If the USCG’s Legislative Counsel receives
a request that has a clear DHS departmental component office, they will carve off that portion, draft
the rest, and notify DHS Headquarters.
For every assistance request fulfilled, DHS includes a disclaimer to stipulate that the subsequent
result does not reflect the views of the Department and does not represent the Administration’s
position. Through their specialization, these drafters have accumulated the requisite knowledge to
7 DHS Management Directive, supra note 5, at 14.
8 For more information on the USCG headquarters organization, visit http://www.uscg.mil/top/units/org.asp.

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determine which requests should go through the OMB process and which can be quickly completed.
The average turnaround time for a technical assistance request is one to two weeks. An experienced
drafter will be able to identify potential opposition from various parties.
C. Role of Agency’s Policy, Regulatory, and Other Personnel
The legislative counsel staff that draft technical assistance responses operate independently from
the regulatory staff. The Regulatory Affairs Law Division is a separate division within DHS’s Office
of the General Counsel, while the legislative drafters are encompassed within the Office of the
General Counsel’s Legal Counsel Division. As part of the technical assistance process, the legislative
counsel identify the relevant program and policy folks at the various component agencies and
request their feedback on the draft legislation. This is coordinated between the component agency
and its legislative affairs staff and the legislative counsel and legislative affairs staff at DHS
Headquarters.
D. Role of Office of Management and Budget
OMB is generally not involved in technical assistance requests. Generally, technical assistance
requests are distinct from substantive assistance requests in that technical assistance does not take a
position on an issue. DHS Headquarters may send a request through the OMB process for
assurance if the technical–substantive distinction is unclear.
III.

Technical Drafting Assistance as Part of Appropriations Process

Requests related to appropriations are handled by the Office of the Chief Financial Officer
(CFO). Legislative Affairs staff usually do not handle appropriations-related issues; they would be
involved only where their expertise is relevant, such as in a technical drafting situation. This division
of responsibility is reflected in the DHS Management Directive: “CFO shall perform the final
transmittal to the Congress of all Draft Legislation, Legislative Reports, Legislative Comments,
QFRs, Legislative Programs, and Congressional Testimony for all appropriations related items.”9
The processes for appropriation and authorization may differ between DHS and its components.
For instance, USCG authorizations occur relatively frequently (annually or bi-annually) and their
bills tend to be more comprehensive, while other DHS bills tend to be more issue based.
IV.

Effective Practices and Features Implemented at the Agency
1. Coordination Critical: Especially because DHS is a relatively newer department that
brings together agencies from diverse backgrounds—and diverse relationships with
congressional committees, staffers, etc.—it is critical that DHS Headquarters helps
coordinate technical assistance in legislative drafting.

9 DHS Management Directive, supra note 5, at 14.

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2. Technical Assistance Disclaimers: To avoid confusion on the Hill, DHS strongly
advocates the use of written disclosures—that the following comments do not reflect
the views of the agency, the Department, or the Administration—on all responses to
requests for technical assistance.
3. Use of Legislative Counsel in Congress: DHS and many of its component agencies include
legislative counsel from the outset in the legislation process on the Hill, with the
coordination of the legislative affairs staff. This allows the technical drafters and
experts early access and feedback in the legislative process.
4. Formalized Guidance: DHS has established formal guidance for the agency’s role in the
legislative process, which assists DHS and its components in effectively providing
legislative drafting assistance.

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APPENDIX I: HUD OVERVIEW
OVERVIEW OF TECHNICAL ASSISTANCE TO CONGRESS AT
THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT*
I.

Overview of Agency

The U.S. Department of Housing and Urban Development (HUD) was established as a cabinetlevel agency by the Department of Housing and Urban Development Act of 1965, to coordinate and
administer federal programs that provide funding for housing and community development. HUD’s
mission is to create sustainable, inclusive communities and ensure quality, affordable housing for
everyone. HUD aims to boost the economy and protect consumers by fostering a robust housing
market; address the need for quality, affordable rental homes; utilize housing as a mechanism for
improving life quality; and build inclusive, sustainable, and discrimination-free communities.
HUD’s programs include initiatives for rental and homeownership for low-income families,
regulations to eliminate lead-based paint hazards, grants for state and local governments for urban
community development, housing vouchers, and assistance to the homeless. Agencies within HUD
include the Federal Housing Administration (FHA), which provides mortgage insurance on loans
made by FHA-approved lenders, and the Government National Mortgage Association (Ginnie
Mae), which guarantees investors the timely payment of principal and interest on mortgage-backed
securities that are backed by federally insured or guaranteed loans.1
II.

Agency Process for Providing Technical Assistance in Legislative Drafting

The process for providing technical assistance in legislative drafting generally begins when a
staffer from a committee of jurisdiction over HUD or a Member’s personal office requests HUD’s
drafting assistance. Requests can vary from drafting portions of bills from scratch, to making
comments and edits on a congressional drafter’s version of a proposed bill, to redlining the existing
law to track how it might change current circumstances (known as Ramseyer/Cordon drafts2). While
technical assistance typically results in a formal, written response from HUD to the congressional
requester, there are often informal communications—phone calls or meetings—that also take place
as part of the process.

* This overview draws on interviews and communications from various officials at the U.S. Department of Housing
and Urban Development as well as from publicly available information. Thanks are due to Ally Chiu (Harvard Law
School Class of 2017) for spearheading the research for and drafting of this overview.
1 For more information on the agency’s mission and organization, visit http://portal.hud.gov/hudportal/HUD.
2 See 4 DESCHLER’S PRECEDENTS, ch. 17, § 60 (“The Ramseyer rule provides that whenever a committee reports a
bill or joint resolution repealing or amending any statute or part thereof, the committee report is to include the text of
the statute or part thereof to be repealed, as well as a comparative print showing the proposed omissions and insertions
by stricken through type and italics, parallel columns, or other appropriate typographical devices. The purpose of the
Ramseyer rule is to inform members of any changes in existing law to occur through proposed legislation.”),
http://www.gpo.gov/fdsys/pkg/GPO-HPREC-DESCHLERS-V4/html/GPO-HPREC-DESCHLERS-V4-3-7-3.htm.

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Most requests for legislative drafting assistance are sent to HUD’s Office of Congressional and
Intergovernmental Relations (OCIR), which coordinates within HUD to address each request.
Whether a drafting request should undergo review by the Office of Management and Budget (OMB)
depends on whether the assistance requested is technical or substantive in nature. OCIR is generally
the only direct contact point to Congress for drafting requests. Typically, OCIR sends the request to
the Office of Legislation and Regulations within HUD’s Office of General Counsel. Though the
office consists of two divisions—Legislation and Regulations—each staff member is trained in both
legislative and regulatory drafting. The attorneys ensure that the appropriate program office staff and
their program counsel are included in reviewing and providing technical assistance. Once drafting
and review have been completed, OCIR transmits the technical assistance back to the congressional
requester.
A. Role of Agency’s Congressional Affairs Staff
Staff in the Office of Congressional and Intergovernmental Relations (OCIR) consists primarily
of individuals who have worked on the Hill or have other legislative experience—and the majority
of these dozen or so agency officials are political appointees. OCIR is divided into three offices: the
Office of the Assistant Secretary for Congressional and Intergovernmental Relations, the Office of
the Deputy Assistant Secretary for Congressional Relations, and the Office of the Deputy Assistant
Secretary for Intergovernmental Relations.3 OCIR is subdivided by geographic region and is
responsible for coordinating the presentation of HUD’s legislative and budget program to Congress,
assisting in resolving intra-departmental policy differences and differences between HUD and OMB
on legislative matters, and serving as the principal contact with state and local governments and
public interest groups to provide information regarding HUD’s programs and initiatives.
OCIR directs and coordinates all legislative matters, except for appropriations matters (see
below), regarding HUD’s relationships with Congress, congressional committees, and individual
Members of Congress. OCIR maintains liaison with Congress, the White House, and OMB on
HUD-related legislative matters. OCIR also provides advice to HUD officials on views on HUDrelated legislation and recommends strategies on developing or pursuing legislation of interest to
HUD.4
B. Role of Agency’s Legislative Counsel
Situated within HUD’s Office of General Counsel, the Office of Legislation and Regulations
(OLR) consists of approximately eleven lawyers, four of whom are manager-level and two of whom
have previously worked on the Hill. OLR staffs four attorneys in the Legislation Division and six in

3 To view HUD’s Congressional

and Intergovernmental Relations Staff Directory, visit http://portal.hud.gov/
hudportal/HUD?src=/program_offices/gov_relations/dircir.
4 See Dep’t of Housing & Urban Dev., Delegation of Authority for the Office of Congressional and
Intergovernmental Affairs, 76 Fed. Reg. 62,594 (Oct. 7, 2011).

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the Regulations Division. Because the regulatory work is more steady and legislative work more
sporadic, but more intense when it occurs, everyone in OLR is trained in both areas.
OLR provides legislative and regulatory drafting, statutory and regulatory legal analysis, and
other legal services to HUD program offices in connection with the development, preparation, and
presentation of the Department’s legislative and regulatory programs. The Legislation Division
attorneys coordinate HUD’s policy position on legislation originating in the Executive Branch or in
Congress, attend and monitor congressional hearings that affect HUD, and provide technical
drafting services, legal review, and other technical assistance, as requested by Members of Congress.
The Regulations Division attorneys develop, draft, and clear HUD’s regulations, notices of policy
statements, and other Federal Register or publicly issued policy documents. They also advise on the
rulemaking process and authorities, such as executive orders that may impact rulemakings, and
address questions arising from related regulations in program operations. And they coordinate HUD
policy positions on other agencies’ regulations and government-wide policy statements and circulars
that affect HUD. The attorneys determine when regulatory materials are needed to implement new
statutory authority and when rulemaking is required.5
With respect to technical assistance in legislative drafting, the form of the assistance can vary,
from providing general comments on the proposed legislation, to drafting all or portions of the
desired legislation based on legislative specifications provided by the congressional requester, to
editing the draft version, or providing Ramseyer/Cordon drafts. When drafting, the legislative staff
will customarily consult with the program team to leverage that expertise in the process.
C. Role of Agency’s Policy, Regulatory, and Other Personnel
HUD is somewhat unique in that, within OGC, regulatory and legislative counsel are situated
within the same office—the Office of Legislation and Regulations, and while attorneys specialize in
one or the other tasks, they are also trained in both areas and both play a role in providing technical
assistance in legislative drafting. The Office, in coordination with OCIR, also coordinates these
technical assistance efforts from program experts throughout the Department.
D. Role of Office of Management and Budget
The Office of Management and Budget (OMB) generally plays no role in technical drafting
assistance and only becomes involved if HUD states its views on the merits of the legislation.
Pursuant to OMB Circular A-19, any agency views on the merits of proposed legislation must be
cleared by OMB. When necessary, “views letters” are drafted by the Office of General Counsel for
submission to OMB. If the advice is technical—that is, it does not state the agency’s views on the
merits of proposed legislation—the agency may provide the advice without seeking OMB clearance.
Both OCIR and OLR patrol the technical–substantive line for purposes of OMB involvement.
5 For a more comprehensive description of the various offices within HUD’s Office of General Counsel, visit
http://portal.hud.gov/hudportal/documents/huddoc?id=Legal_Honors_Booklet_2016.pdf.

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III.

Technical Drafting Assistance as Part of Appropriations Process

Requests related to appropriations are channeled through HUD’s Office of the Chief Financial
Officer (CFO) as opposed to HUD’s Office of Congressional and Intergovernmental Relations
(OCIR), though the CFO and OCIR coordinate such efforts. CFO staff functions include
accounting, budget, and financial management. Additionally, the CFO’s office manages financial
systems that process millions of transactions annually to support HUD projects and meet the needs
of the housing community.6 When requests relating to appropriations implicate issues related to
authorizing legislation that may require technical assistance in drafting, OLR is generally involved
and provides assistance in a similar fashion as discussed above with respect to assistance requests
channeled through OCIR. The appropriations technical assistance process, however, tends to be
more streamlined due to the time- and information-sensitive nature of appropriations.
IV.

Effective Practices and Features Implemented at the Agency
1. Integrated Legislation and Regulations Office: Unlike most other agencies, HUD has one
combined office within the General Counsel’s Office that handles both legislation
and regulation. This provides better coordination and technical expertise between the
Department’s regulatory efforts and its assistance to Congress on its legislative
efforts.
2. OCIR/OGC Divide: Having OCIR deal directly with Congress—and the politics that
may be implicated when dealing with Congress—preserves the OGC Office of
Legislation and Regulations (and the rest of the Department) as an expert,
nonpolitical counselor on legislative drafting. There is a “disciplined process” of
intra-agency oversight by the OCIR and the CFO.
3. Ramseyer/Cordon Technical Assistance: It used to be customary for Congress to provide
a Ramseyer/Cordon draft (redline of how proposed legislation affects current law)
with its proposed legislation, but that seems to no longer be the case. So the Office
of Legislation and Regulations routinely creates Ramseyer/Cordon drafts for internal
use and as technical assistance to the congressional requester.
4. Details on the Hill: Two of the attorneys in the Office of Legislation and Regulations
have worked on the Hill, and the Office has found that experience to be very
valuable. One of the office’s former attorneys did a detail on the Hill through the
Brookings Institute’s Legis Congressional Fellowship, and this experience was also
very helpful.7

6 For more information on HUD’s Office of the Chief Financial Officer, visit http://portal.hud.gov/hudportal/

HUD?src=/program_offices/cfo.
7 For more information on the Legis Fellowship, visit http://www.brookings.edu/about/execed/legis-fellowship.

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APPENDIX J: LABOR OVERVIEW
OVERVIEW OF TECHNICAL ASSISTANCE TO CONGRESS AT
THE U.S. DEPARTMENT OF LABOR*
I.

Overview of Agency

In 1884, Congress established the Bureau of Labor Statistics (BLS) to collect information about
labor and employment in the United States. The first cabinet-level Department of Labor consisted
of four pre-existing bureaus: the BLS, the Bureau of Immigration, the Bureau of Naturalization, and
the Children’s Bureau, plus the new U.S. Conciliation Service (USCS), which mediated labor
disputes. In March 1913, just a few hours before Woodrow Wilson was sworn in as President,
President Taft signed the Act to create a Department of Labor. The Department was created to
foster, promote, and develop the welfare of the wage earners of the United States, to improve their
working conditions, and to advance their opportunities for profitable employment.1
Today, the Department of Labor oversees the implementation of more than 180 federal laws
that cover the workplace activities of more than 125 million Americans. Every American workplace
is governed in part by the laws, rules, regulations, and guidance of the Department of Labor. From
workplace safety issues, to family leave, to union activities, to job training, the Department touches
all aspects of the American workplace. A downstream product of the Progressive Movement in this
country, the Department of Labor now works to protect and empower workers in all sectors of the
economy so America can retain and expand its diverse workforce.
II.

Agency Process for Providing Technical Assistance in Legislative Drafting

Congressional requests for technical assistance from the Department of Labor usually come
from two sources: committee and Member staff. Staffers typically contact the Office of
Congressional and Intergovernmental Affairs (OCIA) to request technical assistance in legislative
drafting, those requests are then typically sent along to one or more of the divisions within the
Office of the Solicitor (SOL), which usually takes the lead on the actual drafting or redlining of the
bill text. In most cases, OCIA will reach out to the Office of Legal Counsel (OLC), the component
of SOL that is responsible for handling the coordination and clearance of legislative items related to
the programs and activities of the Department. The Secretary of Labor has issued formal guidance
about such requests and legislative drafting more generally, which states in part:
The Department of Labor (DOL) is requested to comment on many legislative proposals
and related matters by the Office of Management and Budget (OMB) and Congressional
committees. The Solicitor of Labor is responsible for legal review of all legislative matters.
* This overview draws on interviews and communications with various officials at the U.S. Department of Labor as

well as from publicly available information. Thanks are due to Eleanor Celeste (The Ohio State University Moritz
College of Law Class of 2016) for spearheading the research and drafting of this overview.
1 For more information on the agency’s mission and organization, visit http://www.dol.gov/index.htm.

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Related to these legal responsibilities and at the direction of the Secretary, the Office of the
Solicitor also obtains and coordinates the views of the DOL offices and agencies on
legislative matters. In this connection, the Solicitor has delegated to the Associate Solicitor
for Legal Counsel the responsibility of serving as Legislative Liaison Officer with OMB in
carrying out the Department’s responsibilities under OMB Circular A-19.2

As the Secretary’s Order details, within the Office of the Solicitor, OLC handles all legislative
assistance requests. Upon receipt of a congressional request for technical assistance in legislative
drafting, OLC will reach out to program and policy staff of any relevant DOL agency affected by the
legislation, or to other SOL attorneys with expertise in the programmatic areas at issue to seek their
input. The requests for assistance come in many forms and from both sides of the aisle. Sometimes
broad questions about how to accomplish a certain objective comes to the Department. In such
instances, OLC will coordinate experts and call meetings to work through any particularly thorny
policy or programmatic issues and ultimately come up with a solution for how the desired objective
might be accomplished. Most of the time, however, a request for technical assistance involves the
review of initial drafts of proposed legislation or particular statutory provisions. In those cases, after
appropriate review and consultation, OLC will often redline the proposed bill text and provide
bulleted suggestions, but is careful to weigh how much rewriting is appropriate. The Department is
rarely contacted by committee or Member staff and asked to draft a new amendment or piece of
legislation based solely on legislative specifications. When that does happen, the Department tries to
work with the congressional staffer who made the request to get at specific questions and educate
them more generally about the work of the Department in that area.
Sometimes, for specific bills or in the case of legislative priorities of the Administration, the
Department is more actively engaged on the Hill. In some circumstances, attorneys from OLC will
have face-to-face meetings with congressional staff and sit in on drafting meetings to provide realtime technical assistance. An OCIA staffer always accompanies OLC, or any Departmental
representative, to any and all meetings or briefings with anyone on the Hill, including with
committee or Member staff. In these in-person technical assistance meetings, the Department is
most often asked to provide insight into how DOL programs actually work, and how any proposed
statutory language changes would affect the program at issue going forward.
A. Role of Agency’s Congressional Affairs Staff
The Office of Congressional and Intergovernmental Affairs (OCIA) works very closely with the
Office of the Solicitor in facilitating requests for technical assistance. OCIA reports to the Deputy
Secretary of Labor, who reports to the Secretary. OCIA is a small office of less than ten staffers,
with one person specifically assigned to monitor and track the movement of annual appropriations
bills. The office also handles intergovernmental casework and legislative work. Almost all of the staff

2 U.S. Dep’t of Labor, Secretary’s Order 11-2006, Legislative Clearance Process; Drafting Legislative Proposals, 71
Fed. Reg. 60802-01 (Oct. 16, 2006).

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are political appointees, most have prior experience working in Congress, and some have law
degrees.
Most requests for technical assistance that the Department receives go first through OCIA,
which acts as a gatekeeper for those requests. OCIA will accompany attorneys from the Office of
Legal Counsel to technical drafting assistance meetings on the Hill. Again, the Secretary’s Order
formalizes OCIA’s role in the process:
The Assistant Secretary for Congressional and Intergovernmental Affairs has been delegated
authority and assigned responsibility for maintaining the Department’s relationship with the
Congress, legislative planning and action on the President’s legislative initiatives and other
legislative matters affecting the Department, and coordinating communications with
Congress, including communications initiated by Congress. No other Agency or Office may
communicate views to the Congress on legislative matters without the approval of the
Assistant Secretary.3

Once the response to the congressional request has been finalized, OCIA then conveys the response
to the congressional requester. This response is often in writing, but it is not uncommon for the
relevant experts at the Department, including staff from OCIA, OLC, or other DOL agencies and
SOL Divisions, to convey the response orally via teleconference or in person.
B. Role of Agency’s Legislative Counsel
The Solicitor of Labor (SOL) provides all legal services in the Department and acts as the
primary legal advisor to the Secretary. The Office of Legal Counsel (OLC) is responsible for
coordinating all legislative matters in the Department, including congressional requests for technical
assistance. OLC reports to the Deputy Solicitor of Labor, who is a Secretarial appointee and the
Principal Deputy to the Solicitor. OLC also handles the administrative law and ethics work for the
Department. OLC currently has fifteen full-time career attorneys plus the departmental honors
program attorneys.
OLC is responsible for doing the legal legwork for providing technical assistance. The attorneys
in OLC, often with the expert assistance of SOL colleagues, do the drafting, editing, and redlining
on new or existing legislation that comes from the Hill, and they coordinate with the rest of the
Department to leverage agency policy and program expertise in providing such technical assistance.
OLC staff sometimes meet face to face with Hill staff and members to go over these requests and
are responsible for bringing in the relevant experts and/or client agency representatives when
appropriate.

3 Id.

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C. Role of Agency’s Policy, Regulatory, and Other Personnel
The Office of Legal Counsel ensures that all of the policy, program, regulatory, and other
personnel within the Department who may be affected by, or have expertise in, the proposed
legislation are made aware of the technical assistance request and have an opportunity to lend their
expertise for the Department’s response.
D. Role of Office of Management and Budget
The Department of Labor does not typically clear requests for informal technical assistance with
the Office of Management and Budget (OMB), unless the substance or scope of the request
implicates OMB’s involvement pursuant to the requirements of Circular A-19, which sets out the
parameters of the Executive Branch legislative clearance process. The Office of Legal Counsel
(OLC) within the Office of the Solicitor is responsible for making the substantive–technical
determination with respect to whether the Department’s technical assistance efforts with respect to a
particular legislative matter requires OMB review and approval per Circular A-19.
III.

Technical Drafting Assistance as Part of Appropriations Process

A fair amount of technical assistance takes place in connection with the preparation of, and
congressional action on, annual appropriations legislation. The Departmental Budget Center (DBC),
which is part of the Office of the Assistant Secretary for Administration and Management, plays an
important role in the provision of technical assistance on appropriations matters. DBC works with
OCIA on any appropriations-specific request before it is sent to the Office of Legal Counsel (OLC)
for language drafting or revision.
The Department of Labor often encounters substantive policy riders in appropriations
legislation, so they are vigilant in this area. Currently, a number of programs in the Department of
Labor are continued only through appropriations language and not through authorizing legislation.
OCIA and DBC thus coordinate extensively with offices within the Department—and with OLC—
to ensure that the appropriate staff members review appropriations language.
IV.

Effective Practices and Features Implemented at the Agency
1. Integrated Appropriations/Authorization Technical Assistance Process: The process for
providing technical assistance on appropriations matters is integrated into the general
technical assistance process with the addition of the Budget Center’s role—a process
that the Department has found extremely important in light of the rise of substantive
provisions in appropriations legislation. Moreover, one OCIA staff member is
devoted to tracking the progress of the Department’s appropriations bill, or any
omnibus or continuing resolution legislation, in order to make any technical
assistance efforts even more efficient.

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2. Congressional Education Efforts: The Department actively engages congressional staffers
in face-to-face interactions to build trust and establish good working relationships.
As part of that effort, OCIA will often arrange for program and policy personnel to
go to the Hill in person to brief congressional staff on the work of each DOL
component agency so they are more informed when it comes to legislative drafting
and review.

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APPENDIX K: PBGC OVERVIEW
OVERVIEW OF TECHNICAL ASSISTANCE TO CONGRESS AT
PENSION BENEFIT GUARANTY CORPORATION*
I.

Overview of Agency

The Pension Benefit Guaranty Corporation (PBGC) is a wholly owned government corporation
that administers and enforces Title IV of the Employee Retirement Income Security Act (ERISA).1
The PBGC shares ERISA administration and enforcement responsibilities with the Department of
Labor and the Department of the Treasury (particularly the Internal Revenue Service). The
Secretaries of these Departments occupy two of the three seats on the PBGC’s Board of Directors,
and the Secretary of Labor serves as the Board’s chair. The third seat is occupied by the Secretary of
Commerce.
The Board of Directors establishes and oversees the PBGC’s general policies. From the agency’s
creation in 1974 to the passage of the Pension Protection Act of 2006, the Chair appointed the
PBGC’s Executive Director; since 2006, the Director of the PBGC has been appointed by the
President with the advice and consent of the Senate. The Director is responsible for managing the
PBGC’s personnel, organization, and budget and oversees eight operating divisions. These divisions
are headed by eight senior executives and staffed by career civil servants. Two of these divisions, the
Office of the General Counsel (OGC) and the Office of Policy and External Affairs (OPEA), work
together to fulfill requests for technical assistance with legislative drafting and/or modeling and
forecasting, with the assistance of experts from other PBGC offices as needed.
II.

Agency Process for Providing Technical Assistance in Legislative Drafting

Contacts with Congress are managed by the Office of Policy and External Affairs (OPEA). The
Office of the General Counsel (OGC) serves as the gatekeeper of all requests for drafting assistance
that are not solely requests for modeling and forecasting. When the request is received, OPEA
consults with OGC to determine if the request is technical or policy oriented; if the former,
technical assistance is almost always provided. OGC determines whether the request triggers the
OMB Circular A-19’s clearance requirements. Requests for the types of assistance that would trigger
these requirements (i.e., substantive drafting assistance or requests for specimen bills) are extremely
uncommon, but OGC will often give the OMB an informal notice as a courtesy whenever it
provides any type of assistance with legislative drafting. As the General Counsel is Secretary to the
Board, OGC also determines if the request raises policy issues that should be brought to the Board’s
attention under PBGC’s bylaws.

* This overview draws on interviews and communications from various officials at the Pension Benefit Guaranty

Corporation as well as from publicly available information. Thanks are due to Logan Payne (University of Virginia Law
School Class of 2016) for spearheading the research for and drafting of this overview.
1 For more information on the PBGC, visit www.pbgc.gov.

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The typical type of request the PBGC receives is a request to determine whether the proposed
legislation achieves its intended results. Similar to other agencies, congressional staffers will
approach the PBGC to see if the language conflicts with any existing statutes or results in any
unforeseen consequences. But where other agencies often must rely on experience and institutional
knowledge to forecast outcomes, the PBGC can provide Congress with sophisticated modeling and
forecasting using its Pension Insurance Modeling System (PIMS).2
When a request involves modeling, the Chief Policy Officer sends the modeling component to
the Policy, Research, and Analysis Department (PRAD) within the Office of Policy and External
Affairs (OPEA). PRAD’s actuaries and economists then simulate the effects of the legislative
changes and compile a report, which is sent up the chain of command to the PBGC’s Chief Policy
Officer. If necessary, the Chief Policy Officer will work with the OGC to refine the language of the
proposed legislation to achieve the desired policy effect.
Requests for purely technical drafting assistance (i.e., no modeling required) are perhaps less
common at the PBGC than at many other agencies due to the PBGC’s narrow ERISA
responsibility. Members of Congress have a number of other, much larger expert agencies from
which they can request technical drafting assistance with ERISA legislation, including the
Departments of Labor and Treasury. However, these larger agencies do not have the PBGC’s
advanced modeling capabilities, which is why so many of the requests to PBGC involve some form
of modeling.
If only legislative drafting assistance is involved, and no modeling is necessary, the request is sent
to one of OGC’s four or five attorneys that help draft legislation, who will involve attorneys from
PBGC’s Office of Chief Counsel (OCC) if it involves areas within their expertise. These attorneys
also coordinate with policy staff in OPEA. Once complete, OGC will attach a disclaimer to the final
product stating that it does not reflect the official policy of the agency or the administration and
return it to the office of the Member or committee that made the request. Throughout the process,
all communications between the PBGC and external stakeholders related to legislative drafting are
directed through Chief Policy Officer and OGC. This policy ensures that the agency meets any
expectations of confidentiality held by any requesting party that may want to keep the legislation
private for strategic reasons.
A. Role of Agency’s Congressional Affairs Staff
The PBGC’s policy and legislative affairs personnel are part of the Office of Policy and External
Affairs (OPEA). The OPEA, led by the Chief Policy Officer, oversees and directs interactions with
Congress and Executive Branch agencies and manages the analysis, review, and drafting of legislative
and other policy proposals. The OPEA has two component departments, the Office of

2 For more information on the PIMS, visit http://www.pbgc.gov/about/projections-report/pension-insurancemodeling-system.html.

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Communications, Outreach and Legislative Affairs (COLA), and the Policy Research and Analysis
Department (PRAD).
COLA fills the typical “congressional affairs” role within the agency, but not that office’s typical
function in the technical drafting assistance process. COLA coordinates PBGC’s interactions with
the press and various stakeholders including organizations that represent pension plan participants,
pension practitioners/administrators, plan sponsors, and Congress. At PBGC, however, the Office
of General Counsel serves as the gatekeeper for legislative drafting requests, through the Office of
Legal Policy, whose principal client is OPEA. The actual functions of a typical congressional affairs
staff with respect to technical drafting assistance are mostly performed by either the Office of
General Counsel or the OPEA’s departmental component, PRAD. The OGC serves as the
gatekeeper of drafting requests, and OPEA and PRAD provide policy expertise and financial
modeling and forecasting services when requested.
B. Role of Agency’s Legislative Counsel
PBGC employs about one hundred attorneys in its two legal offices: the Office of the General
Counsel (OGC) and the Office of Chief Counsel (OCC). OGC provides legal advice and counsel for
the Director and the PBGC departments on both ERISA and general law matters, decides
administrative appeals of agency decisions concerning benefit coverage and other determinations,
and administers the disclosure and other requirements of the Freedom of Information and Privacy
Acts. OGC also serves as the gatekeeper for all legislative drafting requests, while OPEA serves as
the point of contact and coordinator.
When a technical drafting request is made and accepted, OGC assigns the request to a drafting
attorney. OGC’s Office of Legal Policy is responsible for this activity but may bring in experts from
across the agency depending on the subject matter. If necessary, these attorneys will coordinate with
the policy personnel in OPEA. Once the OGC and OPEA staffs have completed their review and
assistance, the proposed legislation with comments is returned to the General Counsel and Deputy
Chief Policy Officer for final review and returned to the congressional requester.
C. Role of Agency’s Policy, Regulatory, and Other Personnel
The PBGC’s policy and legislative affairs personnel are part of the Office of Policy and External
Affairs (OPEA). The OPEA, led by the Chief Policy Officer, oversees and directs interactions with
Congress and Executive Branch agencies and manages the development, analysis, and review of
legislative and policy proposals and regulations (though the actual drafting is done by attorneys in
the Office of General Counsel).
Policy matters are the responsibility of the OPEA’s Policy, Research, and Analysis Department
(PRAD). Policy activity encompasses legislative and regulatory analysis and proposal development
related to benefit guarantees, employer liability, plan reporting requirements, and payment of
premiums. Research addresses particular pension plan attributes and trends in private sector defined
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benefit pension plans, and actuarial and financial issues to support policy development. PRAD’s
research and technical assistance involve modeling and forecasting the future financial condition of
PBGC’s insurance programs and future pension contribution requirements of plan sponsors. PRAD
employs mostly actuaries and economists and operates the Pension Insurance Modeling System
(PIMS). The agency’s statutory responsibility is narrow and covers only Title IV of ERISA, not the
other labor and tax code provisions of ERISA, which are administered by the Department of Labor,
and by the Department of the Treasury and the Internal Revenue Service. Moreover, the private
sector pension funding requirements and PBGC premium rates are set by Congress through
legislation, not by the agencies.
D. Role of Office of Management and Budget
Unless a technical assistance request from Congress is channeled to PBGC through the Office
of Management and Budget (OMB), OMB generally plays no role in technical assistance or in
modeling. In practice, the PBGC notifies OMB when it is performing modeling and providing
significant technical drafting assistance for proposed legislation. When the drafting is complete,
OGC will attach a disclaimer to the draft stating that it does not reflect the official policy position of
the agency or the Administration.
III.

Technical Drafting Assistance as Part of Appropriations Process

The PBGC receives no funding from general tax revenues. Its operations are financed by
insurance premiums set by Congress and paid by sponsors of defined benefit plans, investment
income, assets from pension plans trusteed by PBGC, and recoveries from the companies formerly
responsible for the plans.
IV.

Effective Practices and Features Implemented at the Agency
1. Expert Modeling Assistance: Unlike most other agencies, the PBGC’s main technical
assistance to Congress involves providing economic modeling of proposed
legislation. This is an invaluable resource to Congress, and other agencies with
empirical analysis resources may want to consider providing similar technical
assistance in the legislative process to improve legislative outputs and to strengthen
the agency’s relationship with Congress.
2. Formal OMB Processes: The PBGC has an established OMB Circular A-19 compliance
process overseen by the Office of General Counsel. Employees throughout the
agency are instructed to direct all incoming and outgoing communications related to
legislative drafting through the OGC, so that the OGC can serve as an effective
gatekeeper to ensure that the agency meets its obligations under Circular A-19.

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3. Policy/General Counsel Coordination: The PBGC has a Chief Policy Officer with whom
the Office of General Counsel confers when drafting legislation; this step assures
that the relevant stakeholders are aware of proposed legislation while also giving the
policy expert an opportunity to give input on the technical drafting assistance
provided by the OGC.

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