Understanding Pre-Filing Ahead of the 2021 Legislative Sessions

All 50 state legislatures will convene in 2021 with 43 kicking off sessions in January, including 36 between Jan. 4-14. But in at least 28 state legislatures, 2021 sessions have already technically begun with lawmakers permitted to pre-file bills for upcoming sessions, which presents an opportunity to jumpstart your advocacy efforts.

There’s a catch, of course: in most states, only legislators with secured 2021 seats can pre-file bills, meaning the few bills being pre-filed are generally claims bills from legal rulings against the state filed by state senators not facing re-election in November.

Pre-filing availability expands after the Nov. 3 elections in which all but 1,500 of 7,383 state legislature seats are on the ballot. Only voters in Louisiana, Alabama, Maryland, Mississippi, New Jersey, and in Michigan for its Senate, won’t be electing new members to their statehouses. Voters in 44 states will see 5,875 state representative and state senator seats on their Nov. 3 ballots. 

The pace of pre-filing accelerates after the election, beginning with Louisiana opening its pre-filing period on Nov. 4 for its legislative session that doesn’t begin until April 12. Another six states open prefiling in November, five in December, and one in January, meaning lawmakers will have an opportunity to pre-file in 40 states in anticipation of 2021 sessions.

Pre-filing Specifics

Pre-filed bills are formal proposals that provide legislative staffs time to document, package, and format measures in greater detail and clarity. 

Some states encourage lawmakers to pre-file bills. In Florida, for instance, House members are limited to filing six bills during a regular session with at least two required to be pre-filed no later than the “sixth Tuesday prior to the first day of the regular session.” This year, that would be Jan. 19.

In Louisiana, lawmakers cannot introduce more than five bills that were not pre-filed. In Virginia, there are no restrictions on the number of bills lawmakers can pre-file, but once the session begins, delegates can introduce no more than five bills and senators no more than eight bills.

In many states, between the first year and second year of biennium sessions — the second year being the even-numbered year — legislators have more flexibility in pre-filing bills between the end of one session and the start of the next.

Biennium Sessions

Most states legislative sessions span two years and are referred to as biennium sessions. Some states, particularly in the West, have biennium budgets. State lawmakers convene for a general session during even-numbered first biennium years and consider only fiscal bills during odd-numbered second biennium year budget sessions.

Going into 2021 sessions, as the first year of biennium legislatures, dockets are cleared in 48 of 50 state houses with all pending bills from preceding sessions either dead or dressed for 2021 returns depending on how they are viewed by lawmakers elected in November. Only two states — New Jersey and Virginia — allow carryover legislation from even-year sessions to be considered by lawmakers in the ensuing odd year, the first year of a biennium session.

As newly elected legislatures organizing for 2021 sessions, some kicking off in less than seven weeks from the election, lawmakers and their staffs aren’t the only ones hustling to prepare. Most state budget cycles require their governors and state agencies to submit their budget requests and proposals for regulatory changes in the months before legislatures convene. 

That process in many states is underway now with agencies submitting proposed budgets to governors who then assess those requests when submitting their own proposed spending plan to lawmakers, usually several weeks before legislatures’ convene.

So while the agency budget process may not be directly related to pre-filing — they are proposed appropriations within the eventual budget bill — it is often the source of pre-filed legislation

Pre-filing Advocacy

The pre-filing period provides an opportunity to investigate and comment on proposals, and to contact elected officials to convey support or opposition to specific measures. This is not always possible once sessions begin because bills can move in a blur and the pace can make staying on top of proposals difficult.

Pre-filed bills are numbered and referred to a committee. The committee — always focus on the committee — is where efforts by issue advocates, trade groups, associations, nonprofits, corporations, and law firms are going to have the most impact, especially in informal pre-session gatherings where pending issues can be discussed.

Pre-filing also serves several purposes for bill sponsors and issue advocates. For instance, a bill submitted before a legislative session can test the waters to gauge interest in a possible initiative that may, or may not, gain traction. 

Minority party lawmakers and frustrated issue advocates who know their bills are unlikely to be addressed by partisan legislators in the party that controls their chambers — if they are introduced at all — often use the pre-filing period to draw attention to their priorities. In other words, it’s a good way to make a political point without, necessarily, creating a new law.

Monitoring pre-filed bills gives constituents and advocates an opportunity to understand what is being proposed and to be more proactive in orchestrating strategies and alliances.

FiscalNote provides “daily alerts” when a bill is pre-filed before a legislature convenes as well as tracking its passage through committee before and after lawmakers go into session.