Susan H. Paschell is a Legislative Specialis t at Gallagher, Callahan & Gartrell, P.C., a multidisciplinary law firm with offices in Augusta, Maine, Boston, Massachusetts and Concord, New Hampshire.

Legislative research is a term that encompasses many things, including legislative history and legislative intent. It can mean the research done before and during the passage of a proposed law or it can be the work done later when the intent behind the enacted law is being delved into. This article talks about the latter and specifically discusses researching legislative histories in Maine and New Hampshire.

Legislative histories are required when an examination of the plain language of a statute is ambiguous and when more detail about the intent of the legislature is needed. A thorough and properly prepared legislative history is well worth the effort as it can:

• help state agencies understand the laws they are responsible for implementing
• provide a historical context for lawmakers focused on enacting new laws or amending existing ones
• make the difference in convincing a judge or an administrative body to rule in favor of a particular case

Legislative History — Deconstructing a Law

Putting together a legislative history is all about working backwards — from the enacted law to its various forms during the legislative process, to the idea that a bill sponsor first had in mind when filing a piece of legislation. While the terminology may differ from state to state, most of the steps in the law-making process are the same — just work through them backwards when performing a legislative history:

• A legislator requests a bill (in New Hampshire) or a legislative document, or LD, (in Maine) to be drafted
• The bill is introduced into the House, Senate or Assembly and is referred to a policy or finance committee
• The committee holds a public hearing and hears public testimony
• The committee deliberates and then makes a decision to pass, pass as amended, reject or further study the bill
• The bill is sent to the floor with the committee recommendation and the legislative body as a whole votes on it
• If the bill is not killed, and if the legislative body is not unicameral, the bill is then introduced in the other chamber and the process is repeated
• If the bill is passed in a different form by the other body and the originating body doesn’t agree, a conference committee may be named to work on a compromise
• If the bill or LD makes it through both bodies, it goes to the governor’s desk, where it may be signed into law, allowed to become law without signature or vetoed.

The collection of documents created during the law-making process includes:

• the bill or LD as introduced,
• testimony submitted in committee,
• amendments,
• hearing transcripts,
• subcommittee meeting records,
• the committee report,
• discussion on the floor of the House or Senate,
• speeches and
• roll call votes.

Also, there may be:

• conference committee records,
• press reports,
• court opinions on the constitutionality of a proposal, and
• fiscal notes and economic analyses.

In cases where a bill is held over from one session to the next, there are study committee records and reports. If the governor vetoes a bill, the veto message and the legislature’s response to it are also part of the record.

For more detailed descriptions of the law-making process, see the following web pages:

A Primer of [New Hampshire’s] Legislative Process

Maine’s Path of Legislation (How a Bill Becomes a Law)

While there is much law-making information available via the Internet, performing legislative research online is still limited by the sheer volume of all the documents that are part of each bill’s history and the number of bills considered each year. In Maine during the 2005 session, almost 1800 LD s were considered, and in New Hampshire, close to 1,000 bills were submitted. Creating an online file for each and every proposal, or even just the ones finally enacted, is cost prohibitive for either state. Those web resources that do exist are noted below.

Session Law

The starting point is the session law. This is not the codified law that becomes part of the NH Revised Statutes Annotated or the Maine Revised Statutes. Session laws are all the laws from a given legislative session in the order in which they were passed, and they include special and private acts that never become part of the codified laws. While older session laws are available at the law library, New Hampshire session laws from 1989 are now available online, and Maine session laws from 1996 forward are also online.

Bill Number

Recent session laws help direct you to the bill number, which will guide you through the journals and archived committee files. Prior to 1988 in NH, searching by subject matter in the journals was how one found a bill number. Identifying bill numbers in Maine varies depending on the year.

Committee Records

Committee records are not yet available online in New Hampshire. The New Hampshire Division of Archives and Records Management, however, is currently scanning in the most recent sessions’ committee files, which will eventually allow researchers to access hearing transcripts and testimony via web.

In Maine, the Law and Reference Library, located in the statehouse, stores committee files off-site and retrieves them once a day for researchers.

Statements of Intent

Oftentimes lawyers who ask for a legislative history are looking for the smoking gun: a clear statement of intent about a specific law from the legislature that enacted it. But this is often elusive, especially for laws older than 30 years. Statements of intent from policy committees making recommendations to the full House in New Hampshire became the norm in the 1970s and are included in the House Journals, and recent sessions are available online.

Below is an example of a statement of intent for a 1997 bill that established the electric consumption tax in New Hampshire.

HB 602-FN-A, repealing the franchise tax on electrical utilities and replacing it with a tax on the distribution of electricity. OUGHT TO PASS WITH AMENDMENT

Rep. Avis B. Nichols for Finance: This bill repeals the franchise tax on electric utilities because after de-regulation there will no longer be any franchise. The bill replaces the franchise tax with a tax on electric consumption which will be collected by the provider of electricity. The tax rate is set at .00055 cents per kilowatt hour and is intended to replace existing net franchise tax revenues. This bill should have no impact on electricity rates. Vote 21-0.

When a clear statement of intent doesn’t exist — and it generally doesn’t for laws enacted before the 1960’s — it becomes all the more critical to find and record every single reference to a bill as it went through the process. Even routine parliamentary actions taken on a bill need to be carefully examined for clues to what the lawmakers intended.

Audio Records of Legislative Debates and Committee Hearings

It is also now possible to listen to debates via web on the House and Senate floors in both New Hampshire and Maine, as well as to committee hearings and work sessions in Maine.

Maine Audio Broadcasts

New Hampshire General Court Streaming Audio

New Hampshire State Senate Streaming Audio

Insider Knowledge: Reading Between the Lines

But even if all the records were available electronically, a specialist on the ground in Augusta or Concord who knows the ins and out of the legislative process and is familiar with the drift of each legislative session can make all the difference. Knowing what was going on politically in a given year, in the capital, in the agencies, and in the courts, in addition to the legislature, is often key to providing a really comprehensive legislative history.

Many pieces of legislation overlap and/or are duplicative. There may be, for instance, five bills or LDs on electric deregulation introduced at the same time. Only one becomes law — but all five were heard at the same time by the same policy committee, and all five were deliberated on as one issue. Pieces of all five bills are eventually incorporated into the one bill that is enacted. Compiling a legislative history on just that one bill that passed without also looking into the files and statements of intent on the four that failed would be less than meticulous.

It is also common for a bill that was killed in one place during a session to reappear somewhere else, either as an amendment or as part of the budget bill, for example. Tracking that history and finding all the documents that went into a budget or omnibus bill is not easy without some knowledge about what was happening in the statehouse during that session. The “hot” issues and what made them hot that year may not be recorded.

Finally, nothing much is ever completely new in the legislative process. Most major pieces of legislation take about ten years to become law. A body as large and diverse as a state legislature takes that long to absorb a new concept, refine it and finally adopt it. Looking only at the records for the bill that was enacted and not the earlier iterations of the legislation is a narrow view of why an idea finally became a law.

Summary

Governmental resources are becoming more and more available to the public online, which helps to ensure that citizens can be part of the law-making process. But even with more access to legislative documents on the web, you need a specialist to guide you through the process, find the answers to your specific questions about a law and develop a comprehensive legislative history.

Copyright 2005, Gallagher, Callahan & Gartrell, P.C