Virginia Division of Legislative Services
Number 2 -- September 1999
Prefiling: Overview and Comparison
Virginia A. Edwards
Virginia A. Edwards is an attorney in the Special Projects section of the Division of Legislative Services.
Thirty years ago, the Virginia General Assembly enacted a prefiling statute to allow members to file bills and resolutions in advance of the session. Sponsors of the legislation hoped that it would greatly facilitate the work of the legislature and ease end-of-session logjams. As reported by the Legislative Process Commission to the 1969 Special Session of the General Assembly, the basic reason for authorizing prefiling was to spread the workload of a regular session by getting legislation printed, circulated, and assigned to committee so that legislators and committees could begin their work as soon as the session convened. In addition to the basic purpose, prefiling was also expected to reduce the unintentional introduction of duplicate bills and enable more extensive research to be conducted on the bills being drafted.
The process for prefiling legislation is virtually identical to the process for introducing legislation. It begins when the member or member-elect makes a request to the Division of Legislative Services to prepare the legislation. The request can be made at any time during the year. Once the drafting is completed, the division sends the member the covered copies of the legislation, which are in the proper form for prefiling. The member then signs the covered copies and delivers them to the appropriate clerk during the prefiling period (60 days prior to even-numbered year sessions and 180 days prior to odd-numbered year sessions.) After the legislation is prefiled, it is treated practically the same as introduced legislation. The legislation is assigned a number in the order in which it is received, referred to the appropriate committee, and printed and made available to the press and the public. In addition, prefiled legislation is distributed periodically by mail to each member and member-elect.
Although prefiled legislation is similar to introduced legislation, there is one important difference. The period for adding or removing co-patrons to prefiled legislation is longer and includes the remaining prefiling period and the first seven days of the session. For legislation introduced during the session, co-patron status may only be changed during the first seven days following introduction. The two houses also have different rules regarding co-patrons. In the Senate, House co-patrons cannot be added or removed once the session convenes. The Senate also prohibits the addition or removal of co-patrons if the measure is not in its original form. In the House, the chief patron is the only member who may request the addition or removal of co-patrons.
History of Prefiling in Virginia
In 1968, the concept of prefiling was introduced to Virginia and adopted as an amendment to the Senate Rules. The amendment allowed any Senator or Senator-elect, beginning in 1970, to prefile legislation during the 40-day period prior to the commencement of regular sessions. Also in 1968, the General Assembly established the Commission on the Legislative Process to examine the entire legislative process and make recommendations to improve legislative procedures. The commission looked at why members felt they no longer had "the time, information, or facilities to consider the vastly increased volume and complexity of subjects of legislation in the efficient and effective manner which the people of Virginia have a right to expect and demand." Among the commission's recommendations was the proposal to codify the Senate rule on prefiling and to make it applicable to both houses. It also encouraged members to prefile--especially charter measures. At the 1969 Extra Session, the General Assembly enacted § 30-19.3 as recommended by the commission, and prefiling became an official part of Virginia's legislative process.
After the Constitution of Virginia was revised in 1971 to allow for annual sessions and legislative continuity, the prefiling period was expanded considerably. During the Constitutional debates, members who favored the proposal for 60-day and 30-day annual sessions argued that the short session could be effective with prefiling. In 1973, the prefiling period was extended to its present-day window of 60 days prior to the first regular session following the election of members of the House of Delegates and 180 days prior to other regular sessions. The 60-day period begins after the November general election and ensures that members and members-elect have the same opportunity to prefile legislation. The 180-day maximum period ensures that the computer tapes on the latest Code of Virginia are completed by the contract publisher and are available for integration into the legislative bill drafting process.
In 1981, a prefiling period was created for special sessions. Legislation can be prefiled beginning the day the Governor announces the date of the special session or the day two-thirds of the members elected to each house of the General Assembly make an application to the Governor to convene a special session. In 1983, a change was made to clarify that only bills relating to the stated purpose of the special session and resolutions affecting the rules of procedure or schedule of business of the General Assembly could be prefiled for a special session.
Although prefiling is strictly voluntary in Virginia, there are certain time-sensitive requirements regarding the submission of the budget. In 1992, the General Assembly amended § 2.1-399 to require the Governor to submit on or before December 20 prior to the beginning of each regular session the budget bill(s) to the presiding officer of each house of the General Assembly. By practice, the budget bills are prefiled on the same day in each house. Thus, the budget process is the closest procedure Virginia has to mandatory prefiling.
Calculating the Prefiling Opening Date
To determine the opening date for prefiling, a simple formula can be used. The formula ties the opening date of the prefiling period with the starting date of the next session, which is constitutionally set as the second Wednesday in January. Although in even-numbered year sessions the prefiling period technically begins on a Saturday, the practice has been to accept prefiled legislation beginning on the following Monday--the first regular business day.
Response to Prefiling
Overall, the response to prefiling has fallen short of the expectations of its founders. As expected, prefiling is generally higher for the odd-numbered year sessions, when there is not an intervening election and the prefiling period is three times longer (see Table 1). After a cautious startapproximately 4.9 percent of the bills were prefiled in 1970prefiling gained gradual acceptance and increased to 15.5 percent in 1979 and 15.8 percent in 1981. However, after the peak in 1981, prefiling suddenly fell out of favor, dropping to 1.7 percent of the bills introduced in 1994. In the late 1990s, prefiling began to increase slowly as a result of intensified efforts to raise awareness of the prefiling process and its advantages.
In 1968, 19 states had prefiling in some form. By 1999, according to the Book of the States, almost all states have at least one chamber that permits members to prefile legislation in advance of session. Only North Carolina, Michigan, and Wisconsin do not allow prefiling. Although West Virginia has a permissive prefiling statute, the houses by practice do not allow members to prefile in advance of session. For legislatures that are considered full-time, prefiling serves more as a convenience than as a means to manage the flow of legislation during the session.
The length of the prefiling period varies from state to state. Most states, including Virginia, allow prefiling sometime between the general election and the day before the convening of the next session. During non-election years, some legislative bodies, including Alabama, Louisiana and Florida's House, allow a member to prefile during the entire year. However, most states provide a period for prefiling that is less than the 180 days permitted in Virginia. Like Virginia, most states prohibit the withdrawal of prefiled bills prior to the convening of the session. Indiana and Louisiana are the exceptions to this rule.
A few states require prefiling of certain measures. In Nevada, each Senator must designate four bill drafting requests and each Assembly member must designate two bill drafting requests for prefiling. Prefiling is also required for measures requested in the interim by the chairs of standing committees, interim subcommittees and statutory committees. In Nebraska, a chairperson is designated as the introducer of the Revisor of Statutes' correctional bills, which must be printed prior to the convening of the session. In Colorado, prefiling is tied to the legislature's bill introduction limitation. A Colorado legislator may not introduce more than five bills in a regular session, excluding bills for appropriations and other selected types of bills. Of the five bills, three must be requested by December 1 (December 15 if the member is newly elected). Of these three bills, one must be prefiled five days prior to the commencement of the session and the other two must be introduced on the first day.
Of the five states surrounding Virginia, only three currently allow a member to prefile legislation. Of these, Kentucky had the most legislation prefiled during its last session16.3 percent of the bills introducedfollowed by Virginia, whose legislators prefiled 9.8 percent of their bills (see Table 2). Kentucky's prefiling rate is higher because its prefiling period runs during the legislature's organizational session. (Many states hold an organizational session after the general election and prior to the convening of the next regular session to take care of administrative and procedural matters, such as swearing in members, adopting rules, electing officers, appointing committee members, and introducing some legislation.) Tennessee's requirement that legislators request prefile legislation by the second Tuesday in December explains why its prefiling rate is substantially loweronly .02 percent of the bills introduced were prefiled. Although West Virginia does not technically allow prefiling in advance of session, it does have a special process to facilitate the reintroduction of legislation. At the end of each session, the patrons are contacted by the West Virginia Division of Legislative Services and provided a list of bills that failed during the prior session. The patrons are asked if they intend to reintroduce any of their bills at the upcoming session. Any bill indicated for reintroduction is redrafted and prepared for introduction on the first day of the session.
Prefiling is a procedural tool to enable legislators to manage the increasing volume and complexity of legislation without compromising the institution of the part-time legislature. On its 30th anniversary, it is clear that prefiling in Virginia has not reached its full potential. But neither has prefiling been wholeheartedly embraced in other states. Although acceptance is growing, prefiling still has a long way to go to become the cornerstone of the legislative process that its founders had envisioned. For the 2000 Regular Session, the opportunity to meet this challenge and set an all-time record for prefiling begins November 13, 1999.