Artificial intelligence (AI) is writing law today. This has required no changes in legislative procedure or the rules of legislative bodies—all it takes is one legislator, or legislative assistant, to use generative AI in the process of drafting a bill.
In fact, the use of AI by legislators is only likely to become more prevalent. There are currently projects in the US House, US Senate, and legislatures around the world to trial the use of AI in various ways: searching databases, drafting text, summarizing meetings, performing policy research and analysis, and more. A Brazilian municipality passed the first known AI-written law in 2023.
That’s not surprising; AI is being used more everywhere. What is coming into focus is how policymakers will use AI and, critically, how this use will change the balance of power between the legislative and executive branches of government. Soon, US legislators may turn to AI to help them keep pace with the increasing complexity of their lawmaking—and this will suppress the power and discretion of the executive branch to make policy.
Demand for Increasingly Complex Legislation
Legislators are writing increasingly long, intricate, and complicated laws that human legislative drafters have trouble producing. Already in the US, the multibillion-dollar lobbying industry is subsidizing lawmakers in writing baroque laws: suggesting paragraphs to add to bills, specifying benefits for some, carving out exceptions for others. Indeed, the lobbying industry is growing in complexity and influence worldwide.
Several years ago, researchers studied bills introduced into state legislatures throughout the US, looking at which bills were wholly original texts and which borrowed text from other states or from lobbyist-written model legislation. Their conclusion was not very surprising. Those who borrowed the most text were in legislatures that were less resourced. This makes sense: If you’re a part-time legislator, perhaps unpaid and without a lot of staff, you need to rely on more external support to draft legislation. When the scope of policymaking outstrips the resources of legislators, they look for help. Today, that often means lobbyists, who provide expertise, research services, and drafting labor to legislators at the local, state, and federal levels at no charge. Of course, they are not unbiased: They seek to exert influence on behalf of their clients.
Another study, at the US federal level, measured the complexity of policies proposed in legislation and tried to determine the factors that led to such growing complexity. While there are numerous ways to measure legal complexity, these authors focused on the specificity of institutional design: How exacting is Congress in laying out the relational network of branches, agencies, and officials that will share power to implement the policy?
In looking at bills enacted between 1993 and 2014, the researchers found two things. First, they concluded that ideological polarization drives complexity. The suggestion is that if a legislator is on the extreme end of the ideological spectrum, they’re more likely to introduce a complex law that constrains the discretion of, as the authors put it, “entrenched bureaucratic interests.” And second, they found that divided government drives complexity to a large degree: Significant legislation passed under divided government was found to be 65 percent more complex than similar legislation passed under unified government. Their conclusion is that, if a legislator’s party controls Congress, and the opposing party controls the White House, the legislator will want to give the executive as little wiggle room as possible. When legislators’ preferences disagree with the executive’s, the legislature is incentivized to write laws that specify all the details. This gives the agency designated to implement the law as little discretion as possible.
Because polarization and divided government are increasingly entrenched in the US, the demand for complex legislation at the federal level is likely to grow. Today, we have both the greatest ideological polarization in Congress in living memory and an increasingly divided government at the federal level. Between 1900 and 1970 (57th through 90th Congresses), we had 27 instances of unified government and only seven divided; nearly a four-to-one ratio. Since then, the trend is roughly the opposite. As of the start of the next Congress, we will have had 20 divided governments and only eight unified (nearly a three-to-one ratio). And while the incoming Trump administration will see a unified government, the extremely closely divided House may often make this Congress look and feel like a divided one (see the recent government shutdown crisis as an exemplar) and makes truly divided government a strong possibility in 2027.
Another related factor driving the complexity of legislation is the need to do it all at once. The lobbyist feeding frenzy—spurring major bills like the Affordable Care Act to be thousands of pages in length—is driven in part by gridlock in Congress. Congressional productivity has dropped so low that bills on any given policy issue seem like a once-in-a-generation opportunity for legislators—and lobbyists—to set policy.
These dynamics also impact the states. States often have divided governments, albeit less often than they used to, and their demand for drafting assistance is arguably higher due to their significantly smaller staffs. And since the productivity of Congress has cratered in recent years, significantly more policymaking is happening at the state level.
But there’s another reason, particular to the US federal government, that will likely force congressional legislation to be more complex even during unified government. In June 2024, the US Supreme Court overturned the Chevron doctrine, which gave executive agencies broad power to specify and implement legislation. Suddenly, there is a mandate from the Supreme Court for more specific legislation. Issues that have historically been left implicitly to the executive branch are now required to be either explicitly delegated to agencies or specified directly in statute. Either way, the Court’s ruling implied that law should become more complex and that Congress should increase its policymaking capacity.
This affects the balance of power between the executive and legislative branches of government. When the legislature delegates less to the executive branch, it increases its own power. Every decision made explicitly in statute is a decision the executive makes not on its own but, rather, according to the directive of the legislature. In the US system of separation of powers, administrative law is a tool for balancing power among the legislative, executive, and judicial branches. The legislature gets to decide when to delegate and when not to, and it can respond to judicial review to adjust its delegation of control as needed. The elimination of Chevron will induce the legislature to exert its control over delegation more robustly.
At the same time, there are powerful political incentives for Congress to be vague and to rely on someone else, like agency bureaucrats, to make hard decisions. That empowers third parties—the corporations, or lobbyists—that have been gifted by the overturning of Chevron a new tool in arguing against administrative regulations not specifically backed up by law. A continuing stream of Supreme Court decisions handing victories to unpopular industries could be another driver of complex law, adding political pressure to pass legislative fixes.
AI Can Supply Complex Legislation
Congress may or may not be up to the challenge of putting more policy details into law, but the external forces outlined above—lobbyists, the judiciary, and an increasingly divided and polarized government—are pushing them to do so. When Congress does take on the task of writing complex legislation, it’s quite likely it will turn to AI for help.
Two particular AI capabilities enable Congress to write laws different from laws humans tend to write. One, AI models have an enormous scope of expertise, whereas people have only a handful of specializations. Large language models (LLMs) like the one powering ChatGPT can generate legislative text on funding specialty crop harvesting mechanization equally as well as material on energy efficiency standards for street lighting. This enables a legislator to address more topics simultaneously. Two, AI models have the sophistication to work with a higher degree of complexity than people can. Modern LLM systems can instantaneously perform several simultaneous multistep reasoning tasks using information from thousands of pages of documents. This enables a legislator to fill in more baroque detail on any given topic.
That’s not to say that handing over legislative drafting to machines is easily done. Modernizing any institutional process is extremely hard, even when the technology is readily available and performant. And modern AI still has a ways to go to achieve mastery of complex legal and policy issues. But the basic tools are there.
AI can be used in each step of lawmaking, and this will bring various benefits to policymakers. It could let them work on more policies—more bills—at the same time, add more detail and specificity to each bill, or interpret and incorporate more feedback from constituents and outside groups. The addition of a single AI tool to a legislative office may have an impact similar to adding several people to their staff, but with far lower cost.
Speed sometimes matters when writing law. When there is a change of governing party, there is often a rush to change as much policy as possible to match the platform of the new regime. AI could help legislators do that kind of wholesale revision. The result could be policy that is more responsive to voters—or more political instability. Already in 2024, the US House’s Office of the Clerk has begun using AI to speed up the process of producing cost estimates for bills and understanding how new legislation relates to existing code. Ohio has used an AI tool to do wholesale revision of state administrative law since 2020.
AI can also make laws clearer and more consistent. With their superhuman attention spans, AI tools are good at enforcing syntactic and grammatical rules. They will be effective at drafting text in precise and proper legislative language, or offering detailed feedback to human drafters. Borrowing ideas from software development, where coders use tools to identify common instances of bad programming practices, an AI reviewer can highlight bad law-writing practices. For example, it can detect when significant phrasing is inconsistent across a long bill. If a bill about insurance repeatedly lists a variety of disaster categories, but leaves one out one time, AI can catch that.
Perhaps this seems like minutiae, but a small ambiguity or mistake in law can have massive consequences. In 2015, the Affordable Care Act came close to being struck down because of a typo in four words, imperiling health care services extended to more than 7 million Americans.
There’s more that AI can do in the legislative process. AI can summarize bills and answer questions about their provisions. It can highlight aspects of a bill that align with, or are contrary to, different political points of view. We can even imagine a future in which AI can be used to simulate a new law and determine whether or not it would be effective, or what the side effects would be. This means that beyond writing them, AI could help lawmakers understand laws. Congress is notorious for producing bills hundreds of pages long, and many other countries sometimes have similarly massive omnibus bills that address many issues at once. It’s impossible for any one person to understand how each of these bills’ provisions would work. Many legislatures employ human analysis in budget or fiscal offices that analyze these bills and offer reports. AI could do this kind of work at greater speed and scale, so legislators could easily query an AI tool about how a particular bill would affect their district or areas of concern.
This is a use case that the House subcommittee on modernization has urged the Library of Congress to take action on. Numerous software vendors are already marketing AI legislative analysis tools. These tools can potentially find loopholes or, like the human lobbyists of today, craft them to benefit particular private interests.
These capabilities will be attractive to legislators who are looking to expand their power and capabilities but don’t necessarily have more funding to hire human staff. We should understand the idea of AI-augmented lawmaking contextualized within the longer history of legislative technologies. To serve society at modern scales, we’ve had to come a long way from the Athenian ideals of direct democracy and sortition. Democracy no longer involves just one person and one vote to decide a policy. It involves hundreds of thousands of constituents electing one representative, who is augmented by a staff as well as subsidized by lobbyists, and who implements policy through a vast administrative state coordinated by digital technologies. Using AI to help those representatives specify and refine their policy ideas is part of a long history of transformation.
Whether all this AI augmentation is good for all of us subject to the laws they make is less clear. There are real risks to AI-written law, but those risks are not dramatically different from what we endure today. AI-written law trying to optimize for certain policy outcomes may get it wrong (just as many human-written laws are misguided). AI-written law may be manipulated to benefit one constituency over others, by the tech companies that develop the AI, or by the legislators who apply it, just as human lobbyists steer policy to benefit their clients.
Regardless of what anyone thinks of any of this, regardless of whether it will be a net positive or a net negative, AI-made legislation is coming—the growing complexity of policy demands it. It doesn’t require any changes in legislative procedures or agreement from any rules committee. All it takes is for one legislative assistant, or lobbyist, to fire up a chatbot and ask it to create a draft. When legislators voted on that Brazilian bill in 2023, they didn’t know it was AI-written; the use of ChatGPT was undisclosed. And even if they had known, it’s not clear it would have made a difference. In the future, as in the past, we won’t always know which laws will have good impacts and which will have bad effects, regardless of the words on the page, or who (or what) wrote them.
This essay was written with Nathan E. Sanders, and originally appeared in Lawfare.
Posted on January 22, 2025 at 7:04 AM •
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