Model legislation is not at all confined to conservative causes or nefarious lobbyists; but I have seen the issue in the news lately (see also Indiana Law Blog) with respect to the American Legislative Exchange Council (ALEC). ALEC is an organization through which conservative model legislation is routed.
As I said, there is other model legislation. A prominent organization is the Uniform Law Commission which strives to provide model, non-partisan legislation on a variety of subjects (Indiana’s delegation includes James Bopp and Vi Simpson so, it’s got range in terms of partisanship.) Various institutions and lobbying interests advance their own model legislation.
As a legislative drafter, my primary concern with model legislation was that it created a “magic word” view of the topic. Often, the legislator advancing the model legislation in Indiana wasn’t comfortable making the call on what the bill should or shouldn’t accomplish; they had a general notion, but when it came to addressing particular difficulties, they were uncomfortable modifying the language. So, if the model legislation interacted with existing Indiana law in some troublesome way, it was sometimes difficult to know how to resolve the problem.
A hide-bound devotion to the language itself, sometimes bordering on idolatry, obviously is not a good approach to legislating. You have to grok the idea behind the language so you can make the language serve the idea rather than blindly serving the language as an end in itself. This is more difficult when the legislator is not the one creating the idea or the language. The idea, at times, comes from some group who creates the language and then is not available for consultation when it’s time to modify the language. And that can create a problem.
Good points, Doug. Speaking of Jim Bopp, who has been the chief legal defender of the language of House Joint Resolution No. 6, which would amend Indiana’s Constitution to ban same-sex marriage any anything “substantially similar”, it’s sort of a bit of “model” legislation, too in the sense that it’s been touted as presenting no problems in other states that have used it. For reasons too long for this entry, that is far from true. My point here is that as you seem to realize, legislators are ofen afraid to change “uniform” language, and so are inclined to let very vague terms as “substantially similar” slide, passing it to the same “unelected activist judges” many chastize for “making law”, rather than squarely deciding what they want and don’t want in legislation and, in this case, a constitutional amendment.
I may still be drugged up, but your last paragraph sounds more to me like the problem behind most legislation. “It means what I mean it to mean, not what it says.” If one cannot be clear with the language, it opens loopholes and allows for “interpretation” which may not have been the original intent.
Or, did I just misinterpret what you wrote?
I think the problem is exacerbated when the legislator advancing the model legislation isn’t entirely clear on the details of the underlying intent.
Then, it isn’t “model” legislation, it is something else – less, or worse. If the legislator can’t even be clear as to the intent of something they wish to author, maybe they ought to keep out of the proverbial kitchen?
I guess there are different levels of understanding. They know what the main intent of the legislation is; where they get uncertain is usually around the edges.