by Jessica Wigent
Every bill, no matter the content, has a few things in common: each has numbered sections and each has at least one amending clause.
The amending clause is not only an important tool, it’s also the bill sponsor’s friend. It announces how a bill plans to change the law and illustrates how the bill adds new language, strikes and deletes previous language, or repeals entire portions of law. A bill isn’t a bill, and it’s definitely not sitting on Capitol Hill, without it.
Here’s how amending clauses work:
Let’s say a bill sponsor wants to amend an entire section of law that’s in the Colorado Revised Statutes. The amending clause would look like this:
SECTION 1. In Colorado Revised Statutes, amend 1-1-1101 as follows:
The language following the “as follows” specifies what the bill and its amending clause are up to:
SECTION 1. In Colorado Revised Statutes, amend 1-1-1101 as follows:
1-1-1101. The above amending clause amends an entire section of law. (1) Within the section that the bill is amending, the changes it makes to the law are illustrated in two ways:
(a) In small caps; or
(b) In strike type.
(2) If a bill adds new provisions to the law, the new language is shown in small caps.
(3) If a bill repeals provisions of the law, the language is shown in strike type When amending, a bill can both add and remove language in the same provision.
This is a nifty way to change the law, but maybe the bill sponsor still hasn’t found what she’s looking for. Let’s try it another way:
SECTION 2. In Colorado Revised Statutes, 1-1-1102, amend (1)(b) as follows:
1-1-1102. The above amending clause amends a specific provision of the law. (1) Sometimes a bill sponsor doesn’t need (or doesn’t want) to amend an entire section of the law. When that happens:
(a) The bill will specify the provision the sponsor wants to change in the amending clause; and
(b) The bill will make changes to that section subsection of the law only.
Maybe amending isn’t in a bill sponsor’s plans. But creating new law is:
SECTION 3. In Colorado Revised Statutes, add 1-1-1103 as follows:
1-1-1103. The above amending clause adds a new provision of law. (1) Sometimes the bill sponsor will want to add a brand new section of law to the Colorado Revised Statutes.
(2) When a bill does this, all language in that section will be shown in small caps.
(3) A bill can add new articles, new parts, new sections, and new subsections.
Now that we’re on a roll, what if the bill sponsor wants the bill to eliminate not create law?
SECTION 4. In Colorado Revised Statutes, repeal 1-1-1105 as follows:
1-1-1105. Use the above amending clause if to the bill doesn’t add to or change a law, but instead removes it from the books entirely.(1) There are two ways a bill can repeal this section 1-1-1105.
(2) The example shown here shows all of the language that was currently in law in strike type.
(3) This is how most repeals are drafted, so that legislators and the public can see exactly what provisions are removed from the law.
Sometimes a bill won’t show the repealed language in strike type because it’s removing the equivalent of 30 pages of law from the Colorado Revised Statutes, and the bill really doesn’t need to be that long. That’s when the bill sponsor might want to use what we in the drafting-amending-clauses-biz call a “straight repealer,” which announces that the provision of law the bill is amending is la fin; it’s over and out of the statutes, without showing the removed language in strike type:
SECTION 4. In Colorado Revised Statutes, repeal 1-1-1105.
The bill sponsor is in it to win it now, but maybe the bill should be even more specific:
SECTION 5. In Colorado Revised Statutes, 1-1-1104, amend (1) introductory portion and (1)(a); repeal (2); and add (3) as follows:
1-1-1104. The above amending clause is good at multitasking. (1) Sometimes a bill sponsor does not want to amend an entire section:
(a) Amending an entire section leaves the entire section open to additional amendments that fit under the title of the bill during the legislative process.
(b) This is something a sponsor should consider when deciding how to change the law.
(2) We should all just give up now, it’s getting too complicated.
(3) Put the amending clause to work. In this example, the bill sponsor wanted to leave (1)(b) alone (to not make any changes to it). So the sponsor only amended, repealed, and added very specific subsections in this section.
Okay, you say. But what if a bill is amending nearly every provision of a section, part, or article? Is there anything we can do besides use our trusty amend direction? But of course. Here’s where a bill sponsor might choose a different kind of amending vehicle—the R&RE or “repeal and reenact.” To illustrate: Instead of repealing section 1-1-1105 (Section 4 of the bill in the earlier example), let’s repeal and reenact it:
SECTION 4. In Colorado Revised Statutes, repeal and reenact, with amendments, 1-1-1105 as follows:
1-1-1105. Repealing and reenacting a provision of law has its pros and cons. (1) On the PRO side, it can be complicated and confusing to extensively amend a section; at some point the reader might have no idea where the strike type starts and the small caps begin. That’s when repealing and reenacting can be useful.
(2) In the first SECTION for example, subsection (1) read “There are two ways a bill can repeal this section 1-1-1105.” However, because we’re repealing and reenacting this section, we’re removing all the existing language and replacing it with the new and newly arranged—so everything’s in small caps.
(3) The potential issue with the R&RE is that legislators and the public can’t see, on the page, how 1-1-1105 used to read, which might make it difficult for them to know exactly how the bill is changing the law without dusting off their Colorado Revised Statutes and comparing the original version to the new one.
We’ve only just scratched the surface of amending clauses. But it’s clear that a well-crafted bill uses amending clauses (and strike types and small caps) wisely.
In drafting their bills, legislators should work with the drafters to ensure that their fellow legislators, the public, and especially their constituents, can clearly see how the bill is changing the law.