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Legislative Process- Professor Sowle- Spring 2009

Introduction to the Legislative Process and Statutory Interpretation


A. The Civil Rights Act of 1964 in Congress
1. Title VII
a. Prohibits job discrimination on the basis of race, sex, religion, or
national origin
a. "It shall be an unlawful employment practice for an employer: to
fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or national
origin; or to limit segregate, or classify his employees or
applicants for employment in any way which would deprive or
tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of
such individual's race, color, religion, sex, or national origin."
Employer is defined as a person engaged in an industry
i.
affecting commerce who has 25 or more employees for
each working day in each of 20 or more calendar weeks in a
calendar year. Doesn't include US or Indian tribe, etc.
Various exemptions/defenses- where hiring is based on
i.
bona fide occupational qualifications.
a. A person claiming to be aggrieved may not file suit herself, but
should file a charge with the EEOC asserting violation of Title VII.
Then EEOC tries to correct the unlawful practice informallyi.
if it is unable to obtain voluntary compliance, it notifies the
aggrieved and she can bring a lawsuit in federal court
within 30 days.
a. EEOC was an engine of change: EEOC key players believed that
racial inequality in employment was the result of structural
factors, not just intentional discrimination. By the end of the
Johnson era, EEOC interpreted Title VII to bar employer practices
"which prove to have a demonstrable racial effect." Why? An
effects-based approach better served the statutory purpose.
A. The Civil Rights Act of 1964 in the Courts
1. Griggs v. Duke
a. The SC reversed lower court and held that a facially neutral
employment practice that was not demonstrably discriminatory
in purpose was nonetheless unlawful if it had the effect of
excluding a group on the basis of race and without a strict
showing of business necessity.
Basically: the tests that companies used to discriminate
i.
blacks- If those tests cause an imbalance in the workplace,
the employer can continue to use those tests only if can be
shown as a business necessity.
Weber
1.
a. Issue was whether or not Title VII bars private employers/unions
from voluntarily agreeing on affirmative action that accord racial
preference in light of a specific state plan to combat traditional
patterns of racism.

Legislative Process- Professor Sowle- Spring 2009

a. Difference between this case and Griggs: Griggs involved a

classic application of Title VII (do the practices violate Title VII's
anti-discrimination provisions). In this case- how far can
employers go to try to take aggressive affirmative steps to
remedy past discrimination by preferring black employees in
some situations over white employees (why should this white
employee suffer to remedy past discrimination).?
a. Does Title VII prohibit employers from voluntarily doing things to
advance racial balance in the workplace? They're not required to
do this. But are they prohibited from doing it if they decide they
want to?
Court says no, this is OK.
i.
"We therefore hold that Title VII's prohibition against racial
i.
discrimination does not condemn all private, voluntary,
race-conscious affirmative action plans."
1. Johnson
a. Held that consideration of the sex of applicants for skilled craft
jobs was justified by the existence of a manifest imbalance that
reflected underrepresentation of women in traditionally
segregated job categories.
a. Why?
The Agency appropriately took into account as one factor
i.
the sex of Diane Joyce in determining that she be promoted.
This kind of plan, which represents a moderate, flexible,
i.
case-by-case approach to effecting a gradual improvement
in the representation of minorities and women in the
Agency's work force, is fully consistent with Title VII.
A. Common Law vs. Statutory Law
1. Common Law
a. Judges make the law.
a. Incremental lawmaking: evolution
a. Initiated by private citizens- the parties
Unequal access to legal system means some concerns are
i.
prioritized and others ignored
a. Judiciary is often insulated.
May be good because a judge eyeing re-election might
i.
decide cases in favor of the majority and leave the rest
without recourse.
1. Statutory Law
a. Legislature makes the law.
a. Global lawmaking: revolution (so more efficient in addressing an
immediate, large-scale need such as the financial crisis)
a. Initiated by public figures (can address issues that affect all
portions of society)
a. Not insulated- legislators answer to their constituencies.
A. Theories of Legislative Representation
1. Public policy is created by the representatives of the people
1. Descriptive Theory

Legislative Process- Professor Sowle- Spring 2009

a. A representative may be viewed as descriptive of the larger

group (a microcosm of the collective).


Acts exactly as the people would act.
i.
a. Descriptive theory retains a robust constituency today,
especially in thinking about the representation of minority
groups
a. Would favor proportionate representation (each important
segment of society is represented)
1. Agency Theory
a. A representative may be viewed as the agent of the people who
selected her
Glorified mouthpiece for the opinions of his or her
i.
constituents
a. Would favor frequent elections
a. Agency supporters like special interest groups.
See the prevalence, strength, and diversity of interest
i.
groups as a sign of political health.
It allows constituents to signal the intensity of their
i.
preferences in a way voting under a one-person, one-vote
rule cannot. Politicians can consider the information
provided to them by interest groups and adopt policies that
balance a myriad of interests appropriately.
a. Agency supporters favor term limits.
a. View citizens as rational actors who need government to achieve
cooperative goals and to resole differences among themselves.
a. Against everything that would limit the voice of the people.
a. Like logrolling
OK with log rolling: logrolling helps get things done
i.
(expediency); good for minority groups to get the issues
they are passionate about on the table (so democracy will
be healthier in the long run)
Trustee
Theory
1.
a. A representative may be viewed as the trustee of the interests of
her constituents- she should exercise her own conscientious
judgment on issues.
Exercises independent judgment.
i.
a. Trustees of the public trust who exercise independent political
judgment about what is in the public interest as a whole, even if
it isnt to the narrow advantage of his/her constituents
Voters should see their job as electing wise people to public
i.
office who will make high quality policy decisions.
a. Trustees argue that lawmakers should deliberate about the
public good in a process that considers constituent views, but is
not driven by them.
a. Would eschew frequent elections in favor of a system that would
keep qualified people in office for a long time.
a. Trustees do not like special interest groups.

Legislative Process- Professor Sowle- Spring 2009


The overrepresentation of business interests takes place at
the expense of groups representing broad public interests
and groups representing the less advantaged.
a. Trustees do not favor term limits.
a. Trustees favor the single-subject rule.
It may improve deliberation.
i.
Rules that reduce the number of omnibus bills and require
i.
the title to reflect all the contents of the proposal increase
the chance that lawmakers will know what they are voting
on.
Against
everything that would keep a legislator from exercising
a.
good judgment.
a. Favors single-subject: they want bills to be judged on their
independent merit so that legislators arent put in the position of
having to vote yea or nay on bills that mix up different things
(that they may or may not agree with; Logrolling places political
expediency over political integrity; the hallmark of the
democratic process is compromise (logrolling circumvents that).
1. Maybe the ideal representative democracy would be one in which the
representatives broadly resemble the entire citizenry and thus
naturally reflect the informed preferences of the majority, which
happen to coincide with the best course of action for society as a
whole.
A. Structures of Legislative Representation
1. What do the three theories above imply for thinking about what the
legislator is supposed to be doing once elected?
1. Agency theory suggests that the representative should mirror the
view of her constituents.
1. Trustee theory says the rep should use her own judgment to advance
the common good.
a. This may be a false dichotomy because a representative
necessarily acts in a dual capacity most of the time- acting for
her constituents, but on matters about which they know little
about. Also, what the rep thinks is right and what the people
want will coincide most of the time- when they fail to, there is a
reason.
1. "Representative government is most legitimate when it both
promotes the public interest and responds to the people's desires
over time."
1. Representative government should be broadly responsive to, but not
specifically directed by, private preferences. Government should
sometimes seek to further the public interest and transform private
preferences.
a. Criticism- IS there such a thing as the public interest? If so, how
can it reliably be determined?
1. Both agency and trustee theories emphasize the importance of
legislative deliberation- and both consider it illegitimate if it is
corrupt. It is corrupt if it is tainted by monetary bribes, physical
coercion/threats, or other cheating.

i.

Legislative Process- Professor Sowle- Spring 2009

A. How A Bill Becomes a Federal Law


1. Introduction of Bills
a. 200,000+ bills introduced in the 50 state legislatures and around
10K in each Congress. Only legislators can introduce bills, but
they do not always come up with the ideas or draft them- the
executive does this, so do private groups.
a. Pres exerts substantial influence over the shape of the political
agenda (the list of subjects or problems to which government
officials, and people outside of government closely associated
with those officials, are paying some serious attention at any
given time).
a. 4 aspects to policymaking: setting the agenda, specifying
alternatives from which a policy choice is to be made, choosing
among the alternatives, and implementing the decision.
1. Committee Consideration
a. Committee jurisdiction is akin to a property right over political
issues, so lawmakers work hard to place important legislation
within the jurisdiction of committees on which they serve.
a. The most important power of committees is the power of
negation- the vast majority of bills referred to committees never
emerge for consideration. The key player is the committee chair,
who can prevent the committee from hearing the bill.
a. Overall- committees are congressional players with great
influence over the agenda and legislative outcomes.
a. Committees allow members to specialize and accumulate
expertise in a substantive area. Committees are part of an
efficient congressional organization, necessary in an increasingly
complex world. (Informational role theory).
a. Distributive theory- describes committees as the engine of rentseeking, or the distribution of unjustified benefits to interest
groups. Members partly self-select committees and can therefore
try to join committees with jurisdiction over interests of
themselves/their constituents.
Rent-seeking
i.
1. The attempt to obtain economic rents (i.e. payments
for the use of an economic asset in excess of the
market price) through government intervention in the
market.
a. A third theory- committees are primarily the tools of the majority
party.
a. Once a committee marks up a bill, it drafts a report on the bill
that will be circulated to the other legislators. The committee
reports contain the procedural and substantive language of the
reported bill, the exact language of the bill, and a section-bysection analysis of the bill.
1. Scheduling Legislative Consideration
a. House has 3 primary calendars.
Union Calendar- virtually all bills are placed on this calendar.
i.

Legislative Process- Professor Sowle- Spring 2009


House Calendar- contains few bills, mostly special rules
from Rules Committee, changes in House rules, ethics
resolutions, some constitutional amendments.
Private Calendar- contains private bills.
i.
There
are 2 more calendars to which bills on the 3 main ones
a.
may move.
Consent Calendar- bills involving spending of less than $1
i.
million that a member anticipates will be passed by
unanimous consent.
Discharge Calendar- motions to discharge bills that are
i.
pending in committee.
a. Bills can also be called up and considered by the House under a
process called suspension of the rules.
a. In the House, legislation can be expedited when a committee
requests a special order, or rule, from the Rules Committee. The
RC can propose a rule, refuse to grant a rule, decide whether to
grant an open, closed, or modified rule, decide when a bill is to
be considered, and how much time to allow for debate.
a. Senate has only 2 calendars:
Calendar of General Orders and the
i.
Executive Calendar for treaties and executive nominations.
i.
a. No Rules Committee in Senate, expedited consideration is
accomplished instead by a unanimous consent agreement- a
roadmap for the bill's consideration.
a. States
Most state legislatures have only 1 calendar. The actual
i.
order of consideration is determined in one of two ways:
state legislatures with strong party caucus systems tend to
have their agendas set by the majority leader/majority
party caucus. State legislatures in which parties are weak
typically vest agenda control in calendar committees, rules
committees, or informal mechanisms.
1. Floor Consideration: Debate, Amendment, Voting
a. 3 important aspects of congressional decision-making occur
during floor consideration: debate, amendment, and vote.
a. Debate- severely limited by general or special rules. Few votes
seem to be altered by floor debate. Mainly strategic. Cloture now
only requires 60 votes, except for changes in the rules
themselves.
a. Amendment- major bills on controversial subjects will attract
numerous proposed amendments. A first-degree amendment
changing the text of the bill is a perfecting amendment. When
amendments are proposed to correct minor problems or
generate more support for the bill, the amendment is often
called a saving amendment.
Killer amendments- like Smith proposing "sex" to the Civil
i.
Rights Act.

i.

Legislative Process- Professor Sowle- Spring 2009

a. Vote- votes on amendments or bills may be taken in 1 of 4 ways:

voice vote, division of the house, tellers, and roll calls


(increasingly by use of electronic devices).
The number of votes needed to adopt an amendment or
i.
pass a bill is normally a majority of those voting in each
house. 2/3 supermajorities are needed for Congress to
propose a constitutional amendment, to override a
presidential veto, to expel a member, or for the Senate to
concur in a treaty.
The
Reconciliation
Process: Conference Committee
1.
a. Need "meeting of the minds" b/t House and Senate.
a. Sometimes House and Senate send bills back and forth several
times to reconcile different versions.
a. The last chamber to disagree can request a conference- any
compromise adopted in conference must be approved by a
majority of the conferees from each chamber.
Conferees are only authorized to consider matters about
i.
which the bills passed by the 2 chambers are in
disagreement.
a. Recently- legislative path has become more unorthodox, more
like the CRA of 1964.
a. Another modern phenomenon is the use of summits b/t
congressional leaders and the executive branch to work on
compromise legislation concerning controversial topics. Budget
summits- one example. Summits tend to take place in secrecy,
making compromise easier. Summitry is a response to a
legislative situation where stalemate is unacceptable.
When a bill goes to a conference committee rather than a
i.
summit, the chamber that did not request the conference
has the option to adopt the conference bill, reject it, or
recommit it to conference (killing the bill). If the conference
bill is adopted, it goes to a vote- if both chambers agree, a
copy is presented to the Pres or Governor for a signature.
1. Presentment for the Presidential or Gubernatorial Signature
a. Laws must be approved by 2 legislative chambers (bicameralism
requirement) and the chief executive (presentment
requirement).
If Pres signs it, the bill becomes law.
i.
If he returns it without signature, it is not law unless 2/3
i.
majorities of each chamber vote to override his veto.
1. If he does not sign OR return it within 10 days and
Congress remains in session, the bill becomes law as
though he had signed it.
a. If Congress adjourns during the 10-day period, the bill does not
become law and the Pres has pocket vetoed the proposal.
a. Omnibus legislation- legislation that addresses numerous and
not necessarily related subjects, issues, and programs, and
therefore is usually highly complex and long.

Legislative Process- Professor Sowle- Spring 2009

a. President must accept or reject the entire bill. His only options
are to veto or pocket veto the entire bill.

a. State governors typically have more options- they can veto

specific provisions in bills (items) presented to them.


a. Congress tried to grant this power to the President, but the
Supreme Court struck down the federal line item veto in Clinton
v. City of New York.
1. Vetogates
a. Vetogates- term that refers to various steps in the legislative
process where a bill that is attempting to work its way through
Congress can be stopped, for a period of time or for good.
a. At each stage in the legislative process, a proposal can be
changed or halted, new coalitions must be formed, and
opportunities for logrolling, strategic behavior, and deliberation
are presented. Because those who control each of these choke
points have the ability to kill a proposal, some political scientists
have termed them vetogates.
Eligibility to Serve in Congress
A. Congressionally-Imposed Qualifications
1. House Requirements: must be 25, U.S. citizen for 7 years or more,
and inhabitant of the state from which they are elected.
1. Senate Requirements: must be 30, U.S. citizen for 9 years or more,
and inhabitant of the state from which they are elected.
1. Are the requirements set to seek office the floor, or only the baseline
requirements for someone wanting to seek office?
1. Powell case- Senate tried to prevent his seating due to allegations
that he was corrupt. Went all the way to the SC. Do Constitutionally
mandated requirements set exclusive standards or can Congress say,
no, you need some certain ethical standards too before taking your
seat- is that legitimate for the House to do that?
a. No- the Constitution leaves the House without authority to
exclude any person who meets all the requirements for
membership expressly prescribed in the Constitution.
a. Justiciability
Similar to jurisdiction (where). A broader concept (what
i.
types of disputes are proper for ANY court to consider at
all).
1. Whether the claims presented and the relief sought are
of the type which admit of judicial resolution. Pretty
vague. Sometimes courts think a case is inappropriate
for ANY court to resolve. Hurt feelings might be
considered non-justiciable.
1. Is this the kind of issue where SC feels it has the
authority to tell Congress it can't do something- or is it
a different kind of issue where SC should say they have
no authority to tell Congress what to do- i.e. it's a
political question?
Court holds that expulsion is a political question- SC won't
i.
second-guess why Congress votes to expel a sitting

Legislative Process- Professor Sowle- Spring 2009

member. The constitution gives Congress that power


without having courts review their decision.
But exclusion is NOT like that!
i.
1. In our democracy- the PEOPLE are the sovereign. "We
the people."
1. Resolving ambiguity in favor of the people who elected
their representatives. Power of the people to elect
(limited only by 3 elements people chose to put in
Constitution). Ceiling as well as floor- meant to be an
exhaustive list.
Congress CAN exclude- on age, citizenship, residence. If the
i.
issue had arisen from one of these elements, it would have
been a political issue that SC didn't have the ability to
interfere with. But that's not the argument here.
1. Thornton case- State's adoption of term limits for federal officials.
Does the U.S. Constitution permit this?
1. Differences in two cases- whose interests are at stake, whose
interests might be infringed? Don't think simply about the individuals.
Who else? Are voters' interests being infringed- in the first case, the
voters elected a guy the House may not seat. In the second case, the
voters may want to give the rep another term, but earlier the voters
tied their own hands and said that wasn't permissible.
A. Qualifications Imposed by States
1. By 1994- 22 states had passed legislation limiting the terms of office
of their Reps and Senators. They hoped to rid Congress of
"professional politicians" because they believed that such lawmakers
inevitably acted in ways that were contrary to the public interest.
1. At the time of Thornton, a number of states had term limits. OK to
impose at STATE level- governor, etc. T\
1. This case established that it is NOT ok for states to impose term limits
on representatives to the federal legislature.
1. Pro term limits
a. entrenched incumbency
a. less voter accountability- become detached
a. Captured by special interests
a. You either to continue to vote in entrenched incumbents or are
forced to vote for the opposing party, the one you don't like
1. Against term limits
a. Con: restrict choice
a. Why need? If they don't like, they don't have to re-elect.
a. Expertise/experience
a. Lame duck
a. Fundraising
Regulating the Legislative Process
A. Single Subject Rule
1. 42 states have requirements that limit bills to one subject. The single
subject must be expressed in the title of the bill. The idea? To
minimize logrolling and Christmas tree bills.

Legislative Process- Professor Sowle- Spring 2009

a. Logrolling
Vote-trading: A will trade her support for a dam that B
i.

wants, in return for B's willingness to support A's tobacco


subsidy. Vote trade may occur even if neither A nor B thinks
the other project worthwhile.
Agency advocates support logrolling, negotiation, and
i.
political compromise and deal-making.
1. Agency advocates against
a. Dislike because legislative process works best when groups can
bargain across issues, better for minority rights (can get some of
what they want by exchanging votes and merging issues)
1. Trustee advocates for
a. Makes each legislator more accountable for her vote
A. Line Item Veto
1. 43 states give their governors the power to veto items in
appropriations bills- some in all bills.
a. In 38 of these states, the veto can be overridden only by
supermajority votes.
1. Main purpose? To supplement state balanced budgets.
1. Broader purpose? To ameliorate logrolling.
1. The item veto gives the governor more options when responding to
legislation because she has a scalpel-like tool that can carve out
particular provisions while allowing her to enact the majority of an
appropriations law.
1. Item defined as something that may be taken out of a bill without
affecting its other purposes and provisions.
1. Federal Line Item Veto
a. The Federal Line Item Veto Act
a. In 1996- Congress passed; granted the President the power to
cancel certain spending programs.
a. Different from governor's power: the President had to enact the
entirety of the bill before exercising his power of cancellation.
a. In first year, Clinton cancelled 82 items in 11 laws. Congress
reinstated 38 of the provisions over the President's veto.
1. Justifications
a. Reduces pressure on a chief executive to accept provisions she
finds repugnant in order to enact the bulk of a law she supports.
a. Reduces logrolling because the governor can unravel deals by
vetoing only part of the bargain.
One
limitation:
the line item veto does not threaten programs that
1.
the chief executive supports.
1. Agency advocates do not support
a. Limits the voice of the people
a. Makes deal-making difficult
Trustee
advocates support it
1.
a. Powerful tool to balance budget
a. Minimize logrolling
A. Regulation of Corruption

Legislative Process- Professor Sowle- Spring 2009

1. Bribery
1. Anti-bribery statutes might serve 3 different purposes:
a. to protect the integrity of the public servant's decision-making
process, so that decisions are made to advance the public
interest and not the decision-maker's private agenda
a. to avoid the appearance of unfairness and abuse of office
a. to assure equal access of all citizens to the services of public
servants
1. Most cases fall along the spectrum between clearly legitimate
arrangements and patently corrupt deals.
1. The trustee advocate might view logrolling as bribery, as well as
campaign contributions that carry a commitment by the legislator to
vote in specified ways on future issues.
1. The agency advocate would want to limit bribery prosecutions to
those cases where the representative benefits personally and not to
prosecute in those cases where the representative is merely making
political tradeoffs that serve the interests of her constitutents.
A. Campaign Finance Regulation
1. Structures of Campaign Finance
a. Tillman Act of 1907- prohibited all corporations and national
banks from making money contributions in connection with
federal elections. Extended to AL contributions by the Corrupt
Practices Act of 1925.
a. Taft-Hartley Act of 1947- prohibited unions from making
contributions in connection with federal elections.
a. Federal Election Campaign Act Amendment of 1974- set limits on
campaign contributions and expenditures in presidential and
congressional election campaigns and established the Federal
Election Commission (FEC) to administer and enforce the law.
Contribution Limitations: FECA prohibited individuals and
i.
most groups from contributing more than $1,000 per
candidate for each primary election and more than $1,000
per candidate for each runoff or general election.
Individuals could not contribute more than a total of $25 K
per year.
Expenditure Limitations: FECA limited expenditures by
i.
individuals and groups relative to a clearly identified
candidate during a calendar year to $1,000. Other
provisions limited spending by candidates from their
personal or family funds and limited overall expenditures by
candidates to differing amounts depending upon on the
office they sought.
1. The Court has upheld the contribution limitations while
STRIKING DOWN the expenditure limitations in Buckley
v. Valeo
1. Expenditure limits, under Buckley, are subject to strict
scrutiny (anything deemed to infringe upon a First
Amendment right has to be justified). B said

Legislative Process- Professor Sowle- Spring 2009


limitations on expenditures subject to the highest
level- strict scrutiny- need a compelling state interest.
Reporting and Disclosure Requirements: FECA said political
i.
committees had to keep records of
contributions/expenditures- had to disclose every C/E over
$200. Also, the person has to file a report with the
Commission.
1. The Court upheld these provisions in Buckley.
2002 Regulations
i.
1. In 2002- Congress passed sweeping amendments to
FECA. Bush signed it into law.
1. Included:
1. Ban on soft money- national committees of a
political party can neither receive nor spend soft
money. Neither can PACS. Local and state
committees of political parties can't spend soft
money on federal elections, but they can for
state/local races.
1. Ban on candidate solicitation of soft money.
1. New law raised most of the hard money limits.
1. Limitations on expenditures for electioneering
communications- commercials, pretty much.
Political parties and candidates can only fund
these ads with hard money.
a. Republican and critical theorists consider the political
advantages of wealth in an unregulated political system to be as
corrupting as bribery.
Agency advocates think the Court has already been too
i.
lenient in upholding any campaign finance regulation other
than disclosure.
1. They also argue that money can only be displaced and
rechanneled, not evaporated completely- so limits on
one area of campaign financing will beget fundraising
and spending by other sources.
a. The substantial inequities of campaign financing have hindered
the quest for political equality and have worried concerned
Americans since the beginning of the 20th century.
a. Trustee advocates support CFR because money warps
independent decision-making
Reform should guarantee fairer and more equal
i.
representation of all citizens
Reform should improve deliberation by reinvigorating public
i.
participation in democracy
Reform should enable all Americans, regardless of their
i.
wealth or connections, the opportunity to run for office
Rationale
for Regulation
1.
a. The traditional justification for campaign finance regulation is
connected to notions of corruption of the political system.

Legislative Process- Professor Sowle- Spring 2009

a. Quid pro quo corruption: wealthy individuals and interest groups

1.

1.

1.

1.

donate large amounts clearly seeking influence, access, and


favorable legislation.
a. A political system is corrupt if it systematically undermines
voters' ability to vote competently.
a. One argument: any system that requires legislators to spend
much of their time raising money is a corrupt one.
a. Another: a system is corrupt if wealthy special interests and
individuals have more political influence solely because of their
wealth.
Fixing It
a. Some theorists have suggested a radical egalitarian reform:
everyone gets special money- red, white, and blue dollars that
can be contributed to candidate campaigns to signal support of a
group of voters for an idea or candidate.
a. Another idea: instead of mandating disclosure, we should make
ALL contributions anonymous so that no one can buy
favors/legislation anyone can claim to have voted for a certain
candidate, but the candidate would never know where the
money came form.
PACs
a. Political Action Committees- first one established in 1943.
A PAC is a political committee that receives contributions
i.
and makes contributions to federal candidates.
Required to register with and report information to the FEC.
i.
Limitations: PACS can contribute 5K to a candidate per
i.
election and 15K to a national committee of a political party.
FECA encouraged PACS.
i.
Largest category of PACS characterized as corporate.
i.
People criticize PACS- a lot of wealth, influence the
i.
legislative process most numerous in highly regulated
industries.
1. But research shows that PAC contributions are less
important influences on legislative votes than the
legislator's personal philosophy, political party, etc.
a. Bundling- individual corporations are presented as a group to a
candidate in a way that makes it clear that the contributions
were organized through a collective effort.
a. Stealth PACS- when political entrepreneurs began to use taxexempt entities to evade campaign finance disclosure laws and
contributions limitations.
Hard vs. Soft Money
a. Hard money- money spent in connection w/ federal candidate
and therefore regulated by FECA
a. Soft money- any money left unregulated by FECA. Used to fund
direct mail campaigns, issue advertisements, etc. Use of soft
money to evade federal restrictions increased in the 90s.
Issue Advocacy after Buckley

Legislative Process- Professor Sowle- Spring 2009

a. The court in Buckley upheld disclosure requirements only on

independent expenditures that are used for communications


which expressly advocate the election or defeat of a clearly
identified federal candidate.
"Magic words" test- vote against, defeat, reject, cast ballot,
i.
etc.
a. Issue ads arose after Buckley- political speech that did not meet
the test for express advocacy, but that often mentioned specific
candidates or parties. Seen as more negative in tone.
a. Disclosure might be least problematic form of regulation and
only kind likely to work.
In Buckley, the Supreme Court held that the Act's
i.
provisions requiring the disclosure of contributors to a
political group were constitutional on their face, but might
conceivably be unconstitutional as applied to a given group.
Plus it is expensive to small groups with limited money
resources.
Direct Democracy
A. Introduction/Popular Lawmaking and the Constitution
1. The two major methods of providing the people with lawmaking
authority that resulted from Progressive reform are: the initiative and
the referendum. A third, recall, allows voters to remove elected
officials from office before the expiration of their terms.
1. Initiative- certain % of electorate may petition to have a proposed
statute or amendment to the state constitution.
a. Direct- issue goes on ballot automatically after requisite
signatures are collected
a. Indirect- submitted to legislature first who can approve or
disapprove the measure. If legislature fails to pass or passed a
really different version, proposed statute in its original form is
placed on the ballot.
1. Referendum- electorate may approve or disapprove of a law proposed
by or already enacted by the legislature.
a. Popular- upon collection of requisite signatures, a law already
passed by the legislature is subject to approval or rejection by
the electorate.
a. Legislative/submitted- legislature places before the electorate a
proposed law for approval or disapproval or for the electorate's
advice
27
states
provide for initiative, popular referendum, or both.
1.
1. Recall- a certain % of the electorate by petition may force the
continued service of an elected official to be put to a vote.
1. Only 1/3 of states have statewide recall provisions, more frequently
used at the local level.
1. Direct democracy may be in tension with the conception of
representative government.
a. Critics of it argue that ballot measures proposed/passed by the
people tend to weaken representative institutions and
undermine the ability of lawmakers to govern.

Legislative Process- Professor Sowle- Spring 2009

1. Trustee viewpoint
a. The legislature gets co-opted by interest groups, when it does,

citizens should be allowed to go around the legislature and pass


important legislation themselves; only use it when the
legislature is clearly not doing its job; limited scope tool; up or
down on merits
a. Another view: no point in using it because it is subject to the
same special interest group politicking that the legislative
process is (possibly even more so)
1. Agency viewpoint
a. Don't like it because issues are voted up or down purely on the
merits, no allowance for negotiation and logrolling, limits voice
of the minority.
a. Some support modest use because interest groups can distort
the process and make legislators ignore the interests of the
constituents, so this allows the constituents to stay involved.
A. Criticisms
1. Direct democracy provides no check on the people's tendency toward
a short-sighted politics of passion, punishment, and partiality
(Madison's argument in Federalist No. 10).
A. The Importance of Money
1. Initiative process is dominated by $$$ interests- merely another way
for the wealthy to unduly influence public policy?
1. Money is a sufficient condition for ballot access. The groups with
funds will determine which issues are placed before the people.
1. Studies suggest that money spent to defeat initiatives and
referendums is more effective than money spent to pass them.
1. The Supreme Court has consistently held that the First Amendment
forbids states from limiting the amount of money spent in support of
or in opposition to a ballot measure.
1. Are voters sufficiently informed about the issues they are asked to
decide?
1. Voter competence- if a voter casts the same votes she would have
cast had she possessed all available knowledge about the policy
consequences of her decision.
a. Under certain circumstances, just knowing which group supports
or opposes an initiative may be enough to vote competently.
1. Indirect effect of direct democracy- political actors use initiatives to
pressure state lawmakers to pass a new law. To be successful, a
group must: have sufficient resources to attract legislative attention,
must have something legislators want, and the legislators must be
electorally vulnerable.
1. Another interaction: many initiatives must be implemented by
elected and appointed officials (people who resisted the policy in the
first place).
A. Interest Groups
1. Do we really want our politics to be dominated by groups of people
who may have the influence they do only because of the amount of
money they have to contribute to campaigns? Do we want our politics

Legislative Process- Professor Sowle- Spring 2009

dominated by groups pursuing a narrow, but passionately felt,


agenda that may or may not mesh well with some broader
understanding of the general public good?
1. What about the role of business/industry? Industry lobbies? Easy to
criticize their agendas as narrow, economic, self-interested: not
interested in the welfare of the general public.
1. IG's have the power to set the legislative agenda in a significant way.
1. Agency advocates reply that this is a "narrow view" of what IG's dosome IG's clearly act in the public's best interest (clean energy, etc.)
1. IG's will always happen because it's natural- people gather with likeminded people to work on issues that are important to them.
1. IG can be defined as any group that, on the basis of one or more
shared attitudes, makes certain claims upon other groups in the
society for the establishment, maintenance, or enhancement of forms
of behavior that are implied by the shared attitudes.
a. Another def: any group that pursues contested political or policy
goals, and that is widely regarded by the public as being one
contending interest among others.
Statutory Interpretation and Implementation
A. Theories of Interpretation
1. Introduction and Historical Background
1. Legal Process Theories
1. Statutory Interpretation Theories
a. New Textualism
Refers to position most commonly associated with Scalia; in
i.
interpreting a statute we should primarily look to the text of
the statute.
1. (Plain meaning)- court's role is to give statutory text its
plain or best meaning
1. Default rule in statutory interpretation is plain
meaning, which is the meaning an ordinary
speaker of English would draw from the statutory
text- the alpha and the omega of statutory
interpretation.
1. Can use dictionaries, common sense, but should NOT
use legislative history.
1. The only object of statutory interpretation is to
determine the meaning of the text and the only
legitimate sources for this inquiry are text-based
or linked sources.
Everybody
is a textualist to some degree. Other
1.
categories won't ignore the text. Pretty extreme theory
that comes close to saying, only consult the text- don't
update the statute, look at legislative history, etc. Text
or text-based types of canons. Real rejection of
legislative history- committee reports, hearings, floor
comments, etc.
1. Why this school of thought? Practical arguments:

Legislative Process- Professor Sowle- Spring 2009

1. Unreliability of legislative history, don't rely

i.

because it is not a reliable guide to figure out


intent, purpose, etc. Legislative history seductive,
but misleading and easily manipulated. If you're
looking at legislative history to determine intent
of legislature, that is highly misleading because it
is impossible to ascribe an intent to 535 different
people and it makes no sense analytically to
ascribe an intent to the legislature as a whole, to
Congress as a whole. Also, what if legislative
history is conflicted?
1. Pragmatic argument for
1. If courts rejected leg history, judges, attorneys,
and clients would save time. If the Court rejected
the relevance of the enterprise, everyone would
save time and money and congressional
deliberations could return to normal, unaffected
by strategic plants of smoking guns that lobbyists
hope to use in later interpretive battles.
1. But leg history would still be generated and
perhaps manipulated because it could
influence lawmakers during deliberation and
administrative agencies in implementation.
The Scalia effect
1. Scalia is the justice on the SC now with the most
spelled-out viewpoint on how you do statutory
interpretation.
1. He has had some influence on Thomas.
1. But he has NOT persuaded a majority of his
colleagues to follow him on the way to new
textualism.
1. Even though he hasn't persuaded them, studies
have shown that there has been a shift since
Scalia's been on the court in how even the liberals
do statutory interpretation. They much more
frequently will cite the text as being importantmore likely to quote dictionaries- even if they're
not willing to call themselves new textualists.
1. But still, the Court has never completely accepted
the tenets of new textualism.
1. Since 1995- Court has often followed
approach of Breyer and Stevens that is
known as institutional legislative history.
Treats leg pro as a group engaged in
coordinated purposive action- and the court's
interpretation is an effort to carry out the
ongoing institutional project along the lines
laid out in the public presentations of those

Legislative Process- Professor Sowle- Spring 2009


institutional actors charged with developing
the original statute.
1. Now: the text is the central inquiry at the
Supreme Court level. Court frequently
consults dictionary to define statutory terms.
The contextual evidence the Court is
interested in is now statutory more than just
historical. Court will search the whole USC for
guidance on the usage of key statutory
terms/phrases. Court is very interested in
the public law background of the statute
Scalia's "A Matter of Interpretation"
i.
1. Legislative intent should NOT be the key to statutory
interpretation.
1. The apparent plain meaning of a statutory text must
be the alpha and omega in a judge's interpretation of a
statute.
1. A text should be construed reasonably- apparent plain
meaning is that which an ordinary speaker of the
English language would draw from the statutory text.
Criticism
i.
1. Criticism of new textualism: by removing or deemphasizing legislative history (created by and
reflecting the norms of legislators), textualist judges
put more emphasis on the famously malleable
substantive canons of statutory construction (created
by and reflecting the norms of judges)
1. Counterintuitive that an approach asking a court to
consider materials generated by the legislative
process, in addition to statutory text, canons of
construction, and statutory precedents (all generated
by the judicial process) leaves the court with MORE
discretion than an approach that just considers the
latter three sources.
1. If we limit ourselves to text and precedent-based
sources, do we run the risk of creating a "law without
mind"?
1. Shouldn't it make a normative difference that a
statute was enacted by legislators seeking to
solve a social problem in the face of disagreement
and not by a drunken mob of legislators with no
apparent purpose or who had agreed to adopt any
bill chosen by a throw of the dice?
a. Old Textualism
Old textualists are willing to look to leg history at least
i.
SOME of the time. TVA- good example of this. Primary
emphasis on text, but Burger's opinion also goes into the
leg history in an attempt to double-check interpretation of
the text.

Legislative Process- Professor Sowle- Spring 2009


Text is primary, in some cases may be all you need to look
at.
1. Look to the text- if the language seems plain, apply
that language.
1. If not, you can wade into legislative history.
Basically followed one of the canons of interpretation about
i.
plain meaning: if there is a plain meaning, you should not
consider leg history at all. If there is no plain meaning and
an ambiguity, it is fine THEN to look at leg history.
Judges who primarily look to the text, but are willing to
i.
consult legislative history. Not a huge difference between
OT and intentionalism.
1. Difference one of degree. OT's emphasize the text and
text-based rules of thumb more than so-called
intentionalists.
Use soft plain meaning rule
i.
1. The existence of an apparent plain meaning is not
dispositive, because something deeper is going on
when statutes are interpreted.
a. Intentionalism
Similar to OT, but without the presumption that we should
i.
always prefer the textual interpretation.
1. They'll look at the text, legislative history, general
social/political context in which legislation was crafted,
anything that might be relevant. If the legislature that
adopted this statute could answer our question (how
should statute apply to these facts), what would they
say? That's what we should do.
1. "Specific intent" approach. Method that says, we have
a question- ambiguity in statute- how to resolve:
imagine if we could bring the legislators forward in
time, how would they want us to resolve it? Answer in
the way we think the legislature would have answered
had they specifically addressed it at the time of bill
formation.
1. Look for specific intent of legislators- how they
actually decided a particular issue of statutory
scope or application.
1. Criticism
1. Whose intent should the interpreter
reconstruct?
1. Sometimes rely on legislative history quite extensively.
1. Court's role is to give the statute the meaning most
consistent with the intentions of the enacting
legislature.
1. Looking for a specific intent amid different sources (leg
history, etc.). Goal is to divine leg's specific intent with
respect to issue we decide today- bring them forward

i.

Legislative Process- Professor Sowle- Spring 2009


in time, ask them to look, think about how they would
interpret.
a. Purposivism
To really do justice to overriding purpose, we should adopt
i.
the following interpretation. We know more now than the
enacting legislature did then. Modest amount of updating
statutes. Arbitrary distinction between intent and purpose?
Look at pretty much same range of materials as
intentionalists. Will look for and use specific intent. If they
are not convinced they can divine a specific intent- at that
point, they are willing to move up a level in generality.
"General intent" approach. Something like mischief rule
i.
becomes important- what was the mischief, the problem,
the legislature was trying to resolve? We can answer that Q
by taking into account changed circumstances. Broad social
purpose?
1. Less concerned about legislators at the time of
enactment; allows for a broader interpretation of the
underlying intent of a statute, sometimes the purpose
of the statute will be different today than the original
legislators intended (e.g. voluntary affirmative action
cases)
Court's role is to attribute to the statute the meaning most
i.
consistent with the general reasons why the enacting
legislature believed the statute should be adopted.
More abstract. Will very likely follow a specific intent if one
i.
can be found. Likely to reach same result as intentionalist if
specific intent can be found. Where they will differ: what if a
specific intent can't be found? At that point, become more
abstract in inquiry. Will feel less bound by the whole
concept of specific intent. Will look at mischief legislature
was trying to attack and the broad purpose of the
legislation- then will be willing to update the statute in the
way that an intentionalist won't. Take broad leg purpose and
ask: how can we best serve that purpose in light of what we
know today? May be different from what leg knew when it
enacted the statute.
Purposivist interpreter will try to discover what the lawi.
maker meant by assuming his position
Most purposivists will interpret statutory language in ways
i.
that will lead to the most sensible result given what we
know today.
Purposivism attempts to achieve the democratic legitimacy
i.
of other intentionalist theories in a way that renders
statutory interpretation adaptable to new circumstances.
Ask, What was the statute's goal? Not, what did the drafters
i.
specifically intend?
Criticism
i.
1. Which goal or purpose?

Legislative Process- Professor Sowle- Spring 2009

1. Purposivism does not yield determinate answers when

there is no neutral way to arbitrate among different


purposes.
a. Dynamic Statutory Interpretation
Interpretation can be viewed as an honest effort by
i.
an agent to apply the principal's directive to
unforeseen circumstances. What could cause
interpretation to change? Changes in social context.
New legal rules and policies. New meta-policies.
Eskridge is at pains to say that he is not saying that
i.
courts should feel free to rewrite a statute due to
changed circumstances any way they want- not an
assertion of judicial supremacy. Rather, use as your
touchstone what you think the legislature would
have done if they could have interpreted this
changed circumstance. In certain crucial situations,
you are actually being more true to the general
legislative purpose by rewriting the legislation- you
have taken the trouble to understand the underlying
purpose of the legislation, crawl into the legislative
brain if they knew then what we know now, they
would have done the same. Also, inertia- hard to get
a legislature to revisit an issue after it is said and
done and decided.
Method that doesn't apply in all situations; applies in
i.
rare, but important, situations. This concept is
entirely the creation of Eskridge. Sometimes you
have to be rather aggressive in updating a statute.
Example- should Title VII extend to cases with
unintentional discrimination (imbalance in
workplace)? SC decided on more expansive
interpretation. Changes over time to reflect
changing times. Very controversial. Really a subset
of purposivism. On steroids.
Statutory interpretation as a practical inquiry
i.
For a dynamic statutory interpreter- dynamic
i.
interpreter sometimes will be willing to update the
statute even if there's a contrary specific intent.
Most purposivists will not take that step.
a. Ex Ante and Ex Post
Ex ante: when we interpret statutes, enforce meaning that
i.
statute held at the time of enactment.
Ex post: interpret statutes in order to do justice to parties
i.
that currently dispute the meaning of the statute in court.
Lots
of
judges resist being pigeonholed in a particular categorya.
some draw from different modes of thought as they believe
appropriate.
1. Economic Theories of Statutory Interpretation

Legislative Process- Professor Sowle- Spring 2009

a. Economic theory assumes that individuals are rational actors

who seek to maximize their utilities through actions reasonably


designed to do so.
a. Ex post decision-making: judge creates rules and standards that
are fair in the particular case, but often have excessive social
costs.
a. Ex ante: evaluate a rule or decision based on whether it sets up
a rule that will be good for the average case and provides proper
incentives for the citizenry.
a. The best approach to statutory interpretation is one that
reassures citizens, interest groups, and legislators that statutory
deals will be respected and enforced.
a. Public choice theory: the application of economic principles to
actions by the state.
a. 2 styles of statutory construction
Remedial statutes are to be liberally construed.
i.
Statutes in derogation of the common law are to be strictly
i.
construed. Statute treated like contract.
1. Pragmatic Theories of Statutory Interpretation
a. Introduction
Legalistic theories of statutory interpretation- claim that law
i.
is an autonomous discipline that can reach neutral
interpretations through application of plain meanings,
following precedent, reasoning by analogy, and the like.
Pragmatic theories- admit that law is not entirely separate
i.
from politics and that interpretation carries with it discretion
and policy choice.
Interpretation will often depend upon political and other
i.
assumptions held by judges.
When statutory interpreters make their interpretive choices,
i.
they are normally driven by multiple values. Web of beliefs
metaphor.
None of the interpretive threads can be viewed in isolation,
i.
and each will be evaluated in its relation to the other
threads.
An interpreter will look at a broad range of evidence and
i.
form a preliminary view of the statute. Then develops that
view by testing various possible interpretations against the
multiple criteria of fidelity to the text, historical accuracy,
and conformity to contemporary circumstances and values.
As she comes to accept an interpretation, she considers
supporting arguments. As interpreter moves up the funnel
of abstraction, a broader range of arguments is available
because the inquiry is less concrete and more abstract.
a. The Funnel of Abstraction
The funnel of abstraction is a descriptive theory of statutory
i.
interpretation: this is how the judicial mind goes about
deciding statutory cases.

Legislative Process- Professor Sowle- Spring 2009


Funnel of Abstraction: not that useful, to professor. From a
piece by Eskridge. Meant to be descriptive of practice of
many, if not most, judges. SO much variability- not sure if it
helps as a guide to how someone actually does statutory
interpretation.
Idea: engage in SI in the following kind of way. First start
i.
with the MOST CONCRETE INQUIRY- starts with the text.
Then, if you still have an interpretive problem after looking
at the text and applying a plain-meaning rule, maybe some
textual canons of interpretation- THEN you start looking at
other sources that get more abstract.
Think about where the different stat interpretation theories
i.
BAIL OUT on the funnel of abstraction.
A. Doctrines of Statutory Interpretation
1. Canons- rules of thumb for interpreting statutes. Rules of thumb that
courts have developed about how to interpret certain types of
statutory language. They are only rules of thumb. Even among judges
who rely on canons, the canons are not binding, not written into
statute, rules of thumb developed over long periods of time. Some
more or less likely to use them. Shortcuts to trying to divine
legislative intent- aim at trying to guess accurately at determining
legislative intent.
a. Textual
set forth inferences that are usually drawn from the
i.
drafter's choice of words, their grammatical placement in
sentences, and their relationship to other parts of the
statute. Sometimes called intrinsic aids because they assist
the interpreter in deriving probable meaning from the four
corners of the statutory text.
a. Substantive
presumptions about statutory meaning based upon
i.
substantive principles or policies drawn from the common
law, other statutes, or the Constitution. Example: rule of
lenity (presumes that criminal statutes do not outlaw
behavior unless the activity clear comes within the sweep of
the statute).
a. Reference
extrinsic aids; presumptive rules telling the interpreter what
i.
other materials might be consulted to figure out what the
statute means.
1. Textual Canons
a. Starting Point
Read the text carefully
i.
a. Maxims of Word Meaning and Association
Ordinary and technical meaning of words: typically, courts
i.
will assume that the legislature uses words in their ordinary
sense. What would these words mean to the ordinary
reader? Judges may consult dictionaries, or just rely on own
linguistic experience/intuition.

i.

Legislative Process- Professor Sowle- Spring 2009


Ordinary meaning- everyday understanding
Literal meaning- narrow understanding of word used, strict
construction
Linguists suggest starting with the prototypical meaning:
i.
what is the CORE IDEA associated with a word or phrase?
If the statue is old, judges sometimes consult
i.
dictionaries/other evidence from that era.
When statute deals with a technical, specialized subject,
i.
courts tend to adopt the specialized meaning of words used
in the statute (unless that leads to an absurd result).
When Congress uses terms that have accumulated settled
i.
meaning under either equity or the common law, a court
must infer, unless the statute otherwise dictates, that
Congress means to incorporate the established meaning of
these terms.
Noscitur a sociis: it is known from its associates; words
i.
travel in packs. Light may be shed on the meaning of an
ambiguous word by reference to words associated with it.
Ejusdem generis: of the same kind, class, or nature: where
i.
general words follow specific words in a statutory
enumeration, the general words are construed to embrace
only objects similar in nature to those objects enumerated
by the preceding specific words. When specific words follow
general ones, doctrine similarly applicable.
Expresso unis: words omitted may be just as significant as
i.
words set forth. Negative implication: enumeration of
certain things in a statute suggests that the legislature had
no intent of including things not listed or embraced.
a. Grammar Canons
Punctuation rule: punctuation canon in America has
i.
assumed at least 3 forms
1. adhering to the strict English rule that punctuation
forms no part of the statute
1. allowing punctuation as an aid in statutory
construction
1. looking on punctuation as a less-than-desirable, lastditch alternative aid in statutory construction.
1. Last approach seems to have prevailed as the
majority rule.
Referential and Qualifying Words: The Last Antecedent Rule.
i.
Referential and qualifying words or phrases refer only to the
last antecedent, unless contrary to the apparent legislative
intent derived from the sense of the entire enactment. A
proviso applies only to the provision, clause, or word
immediately preceding it.
1. Last antecedent rule can be trumped by the
punctuation rule. Can also be negated by other
statutory context. Some courts have developed an
"across the board" rule- special exception to LA rule:

i.
i.

Legislative Process- Professor Sowle- Spring 2009

i.

i.

i.

i.

i.
i.
i.

when a clause follows several words in a statute and is


applicable as much to the first word as to the others in
the list, the clause should be applied to all of the words
which preceded it.
Conjunctive vs. Disjunctive Connectors: And vs. Or Rule.
Terms connected by OR are often read to have separate
meanings and significance.
1. Not( A and B) means Not A OR Not B
1. Not (A or B) means Not A AND Not B
Mandatory vs. Discretionary Language: May vs. Shall. When
a court sues mandatory language (shall instead of may),
courts often interpret the statute to exclude discretion to
take account of equitable or policy factors. Ordinary usage
sometimes makes them interchangeable.
Singular and Plural Numbers, Male/Female Pronouns. Unless
the context otherwise indicates, words importing the
singular include and apply to several persons, parties, or
things; words importing the plural include the singular.
Same with male/female- both pronouns include the other.
Golden Rule (Against Absurdities): Golden rule is that
interpreters should adhere to the ordinary meaning of the
words used, and to the grammatical construction unless
that leads to any manifest absurdity or repugnance, in
which case the language may be varied or modified, so as
to avoid such inconvenience, but no further. An "absurd
results" exception to the plain meaning rule. Scalia doesn't
think there should be an absurd results exception to the
plain meaning rule.
1. Bock Laundry is the classic example.
1. But think about the difference between an absurd
result and an unreasonable one- one the judge
disagrees with and truly believes right-thinking people
would find unreasonable.
Scrivener's Error
1. Courts should be willing to revise scrivener's errors.
Nietzsche Rule: consider how other people use language; be
helpful to the project rather than hypertechnical.
Whole Act Rule
1. Any attempt to segregate any portion or exclude any
other portion from consideration is almost certain to
distort the legislative intent. Interpreter presumes that
the legislature drafted the statute as a document that
is internally consistent in its use of language and in the
way its provisions work together.
1. Assumes legislative drafting coherence
1. Posner criticizes the whole act rule because it imputes
omniscience to the legislature and assumes that a
statute is written as a whole, internally coherent
document

Legislative Process- Professor Sowle- Spring 2009

i.

Title

1. Traditional English rule is that title could not be used

i.

i.

i.

i.

i.

for interpretive purposes. Today, title cannot control


the plain words of the statute, but in case of ambiguity
the court may consider the title to resolve uncertainty
in the body of the act or for the correction of obvious
errors.
Preamble
1. Traditional English rule gave great weight to statutory
preambles. American courts following whole act
approach have declined to give the preamble any
greater weight than other parts of the statute.
Provisos
1. Provisos restrict the effect of statutory provisions or
create exceptions to general statutory rules. If any
doubt about interpretation, supposed to be narrowly
construed.
Rule to avoid redundancy:
1. presumption is that every word and phrases adds
SOMETHING to the statutory command. No provision
should be construed as to be entirely redundant. At
odds with legislative frantic drafting process when
words are added/deleted last minute.
1. Assumption that legislature does not needlessly repeat
itself. If you have two different terms or provisions and
one way of interpreting them would make them mean
the same thing and the other way would make them
mean two different things, then you should prefer the
second interpretation because we don't like to assume
that the legislature repeats itself. If it writes 2 terms,
working assumption is that each has its own meaningreject interpretation that would have them mean the
same thing. One recent example: phrase "pain and
suffering." Always assume pain means something
different from suffering, if they were the same, one
term would have sufficed- why repeat yourself?
Presumption of consistent usage and meaningful variation:
reasonable to presume that the same meaning is implied by
the use of the same expression in every part of the act.
Further presumption that a change of wording denotes a
change in meaning.
Rule Against Interpreting a Provision in Derogation of other
Provisions: one provision of a statute should not be
interpreted in such a way as to derogate from other
provisions of the statute.
1. Operational conflict- citizen cannot obey provision 1
without violating provision 2.
1. Philosophical tension- provision 1 is in tension with an
assumption of provision 2

Legislative Process- Professor Sowle- Spring 2009

1. Structural derogation- provision 1's interpretation

might be at odds with the overall structure of the


statute.
Chevron Doctrine
i.
1. When a court is reviewing an action by an
administrative agency and the ad agency is
interpreting a statute it has implemented authority for,
a reviewing g court should give deference to that
administrative agency's interpretation of the statute.
Hesitate to second-guess an agency interpretation of a
statutory provision, even if court on its own would have
opted for a different interpretation. Defer as long as it's
reasonable. NOT RESPONSIBLE FOR THIS ON EXAM.
1. Substantive Canons
a. Avoidance Canon
Avoidance
i.
1. Avoidance canon: when 1 interpretation of an
ambiguous statute would be unconstitutional, choose
another one that would pass constitutional muster.
When 1 interpretation raises constitutional difficulties,
choose the one that would not. When 1 interpretation
presents constitutional difficulties, do not impose it
unless there has been an affirmative indication from
Congress that it is required
1. Courts should decide constitutional issues only when
necessary.
1. If a case can be disposed on another ground, do it
instead.
a. Rule of Lenity
One justification for the rule of lenity arises from the
i.
constitutional notion that a legislature cannot penalize
people who are wholly passive and unaware of any
wrongdoing, based upon a vague criminal prohibition.
Ambiguities in criminal statutes should be construed to
i.
the benefit of the defendant.
1. Justifications
1. Due process
1. Equal protection
Courts will construe criminal penalties narrowly enough
i.
so that there is no question of the statute's
constitutionality, as construed.
Rejected
proposal
rule: interpreters should be reluctant to read
a.
statutes broadly when a committee, a chamber, or a conference
committee rejected language explicitly encoding that broad
policy
a. Remedial statutes are to be construed broadly.
a. Statutes in derogation of the common law are to be construed
narrowly.
A. Legislative History

Legislative Process- Professor Sowle- Spring 2009

1. Background/History
a. Statutory history- the entire circumstances of a statute's creation
and evolution

a. Legislative history- used in a narrower sense to refer to the

internal legislative pre-history of a statute. One issue: how to


carry out legal research that will reveal all the components of a
statute's legislative history. Then, what stuff counts toward
interpretation and how much weight should each relevant
component receive?
1. Support for Using
a. A moderate position would be that legislative history should be
consulted only if it is readily available to the average lawyer,
relevant to the precise interpretive question, and reliable
evidence of consensus within the legislature that can be
routinely discerned by interpreters at reasonable cost.
a. There may be a tradeoff between reliability and usefulness of
legislative history.
Committee reports and sponsor statements confirming the
i.
apparent plain meaning of a statutory text are usually more
reliable (most likely to reflect the legislative deal) but are
not very useful (they just confirm what the interpreter
already "knows").
Committee reports and sponsor statements that take
i.
positions on issues not clearly resolved by the statutory text
are useful (they help decide the case), but may be less
reliable- as may have been the case in Holy Trinity.
Committee
Reports (and an Introduction to the Great Legislative
1.
History Debate)
a. Most judges and scholars agree that committee reports should
be considered as authoritative legislative history and should be
given great weight.
a. Committee reports represent the best-informed thought about
what the proposed legislation is doing- also, they are accessible
and often speak to relevant issues.
Committee reports are the most useful legislative history,
i.
as reflected in Holy Trinity.
Limitations
on usefulness: there is sometimes NO committee
a.
report for a particular bill or an important provision in the bill,
because it has been added as part of the floor debate.
Sometimes the committee report is as ambiguous as the statute.
Finally, sometimes lobbyists and lawyers maneuver endlessly to
persuade staff members or their bosses to throw in helpful
language in the reports when insertion of similar language would
be inappropriate or infeasible for the statute itself- SMUGGLING
IN LANGUAGE.
a. Committee reports can take a variety of forms in state
legislatures
regular reports of standing committees or conference
i.
committees, like those produced in the U.S. Congress

Legislative Process- Professor Sowle- Spring 2009


Staff analysis of a pending bill, which is in many states the
main document which is actually distributed to legislators
and
reports of special committees created to investigate and to
i.
resolve important problems expeditiously or to investigate
problems, as well as reports of collections of experts who
have drafted legislation adopted in the state.
a. Committee reports considered to be most reliable form of
legislative history
a. Helpful in figuring out what one or another chamber thought of
the bill.
a. Textualists think committee reports can be manipulated. There is
also a quasi-constitutional argument: the only thing that gets
presented to the President is the text of the bill itself, not the
other legislative history. So interpretation of the text should be
limited as well.
To Scalia and Easterbrook, statutory text is the alpha and
i.
the omega of statutory interpretation because it is the only
matter that is enacted as authoritative law under our
constitutional role of recognition.
a. Another side- Congress obviously considers the reports very
seriously, so why shouldn't they court?
a. Most judges use leg history, but are careful when using themand rely on committee reports the most.
Conference committee reports, further, are considered the
i.
most authoritative of the reports because they come last.
1. Statements by Sponsors or Drafters of Legislation
a. After committee reports: most persuasive legislative materials
are explanations of statutory meanings and compromises
reached to achieve enactment, by the sponsors and floor
managers of the legislation.
a. Statements by sponsors are given deference because they are
the most knowledgeable legislators about the proposed bill.
1. Legislative Deliberation: Hearings, Floor Debate, Rejected Proposals,
and Dogs That Didn't Bark
a. Statements made during committee hearings and floor debates
have traditionally received less weight in evaluating legislative
intent.
Statements by mere supporters are not very reliable
i.
because the supporter has not assumed a leadership role
for the enacting colaition.
a. Failure of dog to bark
This canon says that it may be significant that an intense
i.
congressional debate does not even mention an issuesuggesting that the statute contained no unusual departure
from the status quo against which Congress was legislating
1. Presidential Signing or Veto Statements

i.

Legislative Process- Professor Sowle- Spring 2009

a. Presidents sometimes make statements about the bills they sign

into law- sometimes the statements address important policyrelated issues of statutory meaning.
a. Some reluctant to give them much weight because they are
dubious about "subsequent legislative history."
a. Federal judges rarely mention presidential signing statements
and almost never give them dispositive weight.
a. Courts WILL sometimes rely on the President's veto statement. If
Congress overrides the President's veto, an interpreter might
infer that Congress rejected the President's preferences. If
instead the bill is modified and enacted with the President's
signature, the veto statement may provide a good
understanding of the nature of the new bill.
a. Might be considered subsequent legislative history
Highly disfavored for rule of law and policy reasons
i.
1. Funnel of Abstraction
a. From the bottom of the funnel up:
a. MOST AUTHORITATIVE to LEAST AUTHORITATIVE:
Committee reports
i.
Sponsor statements
i.
Colloquy on floor and in hearings
i.
Rejected proposals
i.
Nonlegislator proponents or drafters
i.
Subsequent history
i.