Perhaps the greatest hope for establishing constructive principles of legislation lies in the further development of plans that have already been tried, and of these, four deserve particular notice: (1) the preparation of bills by special commissions; (2) the delegation of power to administrative commissions; (3) the organization of drafting bureaus, and (4) the codification of standing clauses.
1:Legislative Commissions for the Preparation of Important Measures. Commissions for revising and codifying laws have been familiar in American legislation from an early period, but the practice of creating commissions for particular measures seems to be of recent date, while in England it has been established for many years. It might be interesting to ascertain which of the principal reform statutes of England since 1830 have been originated by royal commission; in America a similar inquiry would probably show very few instances during the nineteenth century: to judge from the Carnegie Institution Indices of Economic Material, neither in New York nor in Massachusetts were any of the important legislative measures before 1900 (married women, liquor, civil service, ballot reform) preceded by commission study or report.
The most conspicuous instance of the employment of commissions for the preparation of legislation has been in connection with the workman's compensation acts; less generally the same method has been pursued for mining and factory laws and for land title registration. The commission generally holds public hearings, gets opinions in writing, informs itself as to similar laws in other jurisdictions, summarizes its Conclusions and submits a bill. The result is generally a measure well thought out and well formulated. Even where the subject is very controversial the unity of the original draft secures a consistent and coordinated statute.
2: The Delegation of Power to Administrative Commissions. The grant of rule-making powers to industrial commissions, public service commissions, boards of health, civil service commissions, etc., is often advocated mainly for the greater flexibility in enactment or change. From this point of view much may also be said against the practice, since an unstable policy in requirements of any kind is undesirable, and it is doubtful whether powers are likely to be exercised in that spirit. The real advantage, however, of such powers is that the bodies in which they are vested are apt to be better trained and informed and more professional in their attitude than legislative bodies, and that the powers being subordinate in character are more readily controllable by reference to general principles, whether laid down by statute or by the common law. The body will be sufficiently judicial in character to have respect for precedent, and its policy is therefore apt to be less variable than that of the legislature. These factors will tend to make rule-making more scientific than statute-making. There has been too little experience with the working of rule-making bodies in this country to warrant conclusions of much value; the precise line of demarcation between matter to be determined by statute and matter to be left to regulation has not yet been satisfactorily settled, and procedural safeguards for the making of rules have hardly yet been developed. The method of procedure of the Federal Trade Commission is novel, and perhaps especially adapted to the delicate and controversial problems with which it is called upon to deal, but its working will be watched with interest, and it may become a valuable precedent for delegating quasi-legislative powers in order that rules may be gradually developed upon the basis of particular cases after the analogy of the common law. If common law methods can be made applicable to the development of statutory rules so much the better. There is much reason to believe that many phases of standardization (rates, methods of assessment, safety requirements, classification) can be much more readily secured through the constant thought and ruling of an administrative commission than through the necessarily sporadic acts of a legislative assembly. Legislative power can, in other words, be exercised more effectually and more in accordance with the spirit of the constitution through delegation than directly. This consideration should weigh against abstract theories regarding the nondelegability of legislative power.
3:The Organization of Drafting Bureaus. This phase of the preparation of statutes is fully described in a report of the Special Committee on Legislative Drafting of the American Bar Association submitted in 1913. It appears that there are now at least fifteen states that have some provision for assistance to legislators in the technical work of drafting, apart from or in connection with, the supply of reference material. The following is quoted from the report of 1913:
"The Legislative Reference Service, now actually carried on in several states, demonstrates that it is entirely practical to collect, classify, digest, and index, prior to a session of a legislature, all kinds of material bearing on practically all subjects likely to become subjects of actual legislation at the session. This material, where the bureau is well run, includes not only books and pamphlets, such as might be found in an ordinary library, but also copies of bills introduced into the various state legislatures and laws which have been enacted in this and foreign countries, and other printed materials relating to the operation of such laws or the conditions creating a need for them. Indeed, on most subjects of possible legislation, the difficulty is not to find material, but to arrange the large mass of available material so as to make its efficient use practical. That such service has great possibilities of usefulness is evident, especially where the service is directly contributory to the drafting service, a matter to be presently explained. The increasing complication of our industrial, social, and governmental administrative problems renders it necessary, if the discussion of matters pertaining to legislation is to proceed in a reasonably intelligent manner, that systematic effort be expended on the collection and arrangement of material bearing on current matters of public discussion likely to become the subject of legislative comment. A central agency to furnish such service does not take the place of special commissions or committees created to investigate particular subjects and recommend legislation. The object of the central reference service should be to assist such bodies, as well as individual members of the legislature and others desiring information pertaining to subjects of legislation.