Legislation Outline

LEGISLATION OUTLINE

Theories of Legislation

I. Pluralist Theories (the role of interest groups in policy making)

A. descriptive

1. citizens organize into groups for political action (“factions”)

2. interest group politics results in “pluralism”—the spreading of political power across many political actors.

3. politics can be conceptualized as the process by which conflicting interest group desires are resolved.

B. Interest Group Liberalism: Pluralism as a positive political force.

1. Rather than fear factions, we now rely on large, organized groups to play a large role in the political process.

a. Political parties provide a structure for governance and information for voters

b. churchs, unions, may become involved in politics as a secondary matter to improve their members’ lives.

2. Theodore Lowi see the prevalence, strength, and diversity of interest groups as a sign of political health. The groups act as checks against each other. Constituents may use interest groups to signal the intensity of their preferences is a way not possible by voting.

3. Main benefits of Pluralism:

a. Interest groups may protect us from a strong and tyrannical gov’t

b. the result of a robustly pluralist system will be moderate and well-considered policies.

c. Interest groups represent the most meaningful possibility of participation by individual citizens.

C. Public Choice Theory: Interest Groups as Pernicious Political Influences

1. Their may be disparate access to the political process; business voices are overrepresented and the broad public interest and the less advantaged are underrepresented.

Taxonomy of Demand for Legislation Based on Benefits/Costs

I. Distributed benefits/distributed costs (“majoritarian politics”)—little group activity / II. Distributed benefits/concentrated costs (“entrepreneurial politics”)—opposition will tend to be well organized
III. Concentrated benefits/distributed costs (“client politics”)—strong interest group support but weak opposition b/c of the transaction problem. / IV. Concentrated benefits/concentrated costs (“interest group politics”)—continuous organized conflict over distribution of benefits/costs.

Taxonomy of Supply of Legislation Based on Benefits/Costs

I. Distributed benefits/distributed costs—legislature will favor no bill or symbolic action; sometimes delegations to agency regulation. / II. Distributed benefits/concentrated costs—the best legislative solution is to draft an ambiguous bill and delegate to agency regulation, so all sides can claim victory. Regulatory capture could result.
III. Concentrated benefits/distributed costs—distribution of subsidies and power to the organized beneficiaries / IV. Concentrated benefits/concentrated costs—b/c any policy choice will incur the wrath of opposing groups, legislators will favor no bill or delegation to agency regulation.

If you see III on exam – you can argue the statute should be interpreted narrowly to protect the public interest IF the text is ambiguous. Pg 11 notes.

D. Interest Group Theories: Explanation and Critique

1. Public choice theory explains the success of “distributive policies” that pass out goodies to many interests at the same time: such as tax bills that offer loopholes to many groups, defense appropriation bills that send $ to many districts, etc. Here, the “losers” may not even be alive, if deficit-spending is used to put the burden on future generations.

2. Regulatory Policies—these cause groups to fight over a single prize (EX: winning a television channel permit)

3. Redistributive Policies—similar to Redistributive policies, but the classes are much bigger (e.g., rich v. poor)

4. CRITIQUE

a. Not all legislators are “rent-seekers” looking for financial rewards from special interest groups; they have independent beliefs and legislative goals.

b. Interest group $ may be more effective at electing members who share their beliefs than changing lawmakers’ minds

c. Interest groups are better at blocking legislation than passing it, and are more effective w/ legislation that has low visibility than when legislation is well known.

II. Proceduralist Theories (emphasizing the many obstacles a bill must pass to become law)

A. “Vetogates”—determined minorities can kill or maim legislation. Whoever controls these choke points has the power to kill legislation.

1. EX: committees, conference committees, rules

2. Theories of a committee’s purpose

a. Informational role: committees are part of an efficient congressional organization. Monitoring by the general body to ensure that the committee is acting as a faithful agent of the whole is less costly than developing expertise on every issue.

b. Rent-Seeking: the committees distribute unjustified benefits to interest groups. Members are extremist outliers that have strong ties to the area (EX: rural members on the Agriculture Committee) so committees are more extreme than the whole body, and they seek to pass legislation that benefits small and active groups at the expense of the public good.

c. Tools of the Majority Party: the committee organization provides an organization that enables most majority-party members to be reelected and permits the majority party to remain in Congress. (EX: the majority party allows rural Senators to be on the Ag committee, so their constituents are pleased and re-elect them; those member then return the favor.)

3. Generally, it is easier to block legislation in the Senate than in the House, b/c the Senate has less rules (EX: filibuster).

4. Vetogates are critical b/c the cts often rule that the statements that are made by gatekeepers (e.g., committee members) as reflective of the intent of the body b/c their support is critical to passage.

a. But are these statements true, or are speakers shading the truth?

i. Montana Wilderness Association v. U.S. Forest Service—this bill changed the rules for access to all nonfederally owned land within the boundaries of the National Forest System; the question is whether it applied nationwide or just in AK. Cong. Udall (a key controller of several vetogates) said in the record that it applied only to AK. However, it clearly was the intent of Congress to have it applied nationally, and Udall’s amendment to limit the scope to AK was never adopted. Thus, Udall’s statement was an attempt to trick the judiciary, and it worked (for a while).

B. Liberal theory disfavoring gov’t intervention—statutes should be hard to enact.

a. Hamilton, in Federalist Papers #73, said that proceduralism is “an additional security against the [enactment] of improper laws.

b. BUT, some say that this is simply a preference for the status quo regulatory regime (common law) vs. a legislative change (statue); this is not a neutral preference.

C. BUT, this proceduralism will slow good laws as well as bad ones (e.g., the Civil Rights Act)

C. The Deliberative Value of Process—proceduralism is a tool to encourage public deliberation about legislative proposals.

a. Proceduralism slows bills down and offers the opportunity for deliberation, but does not necessarily guarantee it.

III. Institutional Theories (These theories focus on the institutions (instead of the players) that shape the structure of the interactions).

A. The Effect of Institutions on Decision-making

1. “majority vote cycling”—majority rule sometimes cannot resolve the choice among three or more mutually exclusive alternatives that are voted on in pairs.

a. This is solved by “structure-induced equilibria,” aka how the finite votes are set up.

2. The way that the voting is set up can change outcomes, and the cts’ interpretation.

a. Powell v. McCormack—the Sup. Ct. declined to equate a 2/3 vote to exclude Rep. Powell w/ a 2/3 vote to expel, b/c different voting rules applied to each choice.

b. Cts may be wary to trust committee reports which have not been through the required procedures that a bill passed into law was; this supports textualism.

B. Positive Political Theory: Institutionalism and Game Theory—PPT recognizes that other political actors will influence the content and timing of policy. The core assumption is that all relevant actors (such as politicians and judges) act rationally to bring policy as close as possible to their own preferred outcome. Thus, when the chair of a committee drafts a bill, he is anticipating how the other players will act.

1. EX: Udall in Montana Wilderness.

United Steel Workers v. Weber – 86 – pg 7 notes - Kaiser Steel set up an affirmative action program to integrate its workforce. Previously, they only hired craft workers w/ previous craft experience; now, they set up a program to train new craft workers, w/ 50% of the slots for blacks. A white guy sued under Title VII of the Civil Rights Act of 1964 that prohibited racial discrimination in employment.

Brennan majority – institutional (historical) argument - cites Holy Trinity and cites the legislative history to show that ORIGINAL Congress did not intend to ban affirmative action plans.

Blackmun dissent – contextual argument - says that the current situation must be taken into account, not just that of the time when the bill was passed. “Arguable violation” theory (J. Wisdom)—private entities should be allowed to use affirmative action to remedy a past “arguable violation” of Title VII.

Rehnquist dissent – instituational (historical) argument - in his dissent says that you should look at the legislative intent of a statute, which he says is for Weber.

TEXTUAL BATTLE: Kaiser wants to use §703(a)1 or §703(d) b/c the word “discriminate” is used and thus it provides some wiggle room, b/c it is not defined. Weber wants to use §703(a)2 b/c “discriminate” is not used and thus the language must be interpreted more strictly.

Dictionary Useage—if you are arguing about how the word was used at the time the law was passed, you want a dictionary of those times; if you are arguing about how the word is used today, you want a modern dictionary. Problem of Dictionary Shopping.

1. Scalia uses contemporary dictionaries; he doesn’t use a descriptive dictionary like Webster’s Third b/c he says it is too casual.

Kaiser’s Precarious PositionMcDonald held that a white worker could sue for discrimination under disparate treatment. Thus, an employer could feel like it had to have an affirmative action program under Griggs (saying Title VII includes disparate impact theory of discrimination), but that it would be illegal under McDonald although allowed by Weber.

Theories of Statutory Interpretation

I. Three different “norms” for interpretation:

A. the “rule of law” idea that statutory meaning should be relatively predictable and accessible to the citizenry and should be neutrally applied to everyone

B. the democratic legitimacy idea that interpreters ought to defer to decisions made by the popularly elected legislators who enact statutes (as opposed to life-tenured judges)

C. the pragmatic idea that interpreters have an obligation to contribute productively to the statutory scheme and, perhaps ultimately, to the common good (i.e., justice)

I. “Eclectic Approach”

A. Holy Trinity Church - 673 – pg 12 notes – the immigration act says that you can’t bring foreigners to the U.S. to “labor.” The ct says the D, a minister, is technically covered by the words of this statute but “a thing may be within the letter of the statute and yet not w/in the statute, b/c not within its spirit, nor w/in the intention of its makers.” This case used an “eclectic approach.” Here, the “spirit” trumped plain meaning.

1. Brewer’s ecletic approach; he looked to the:

1. title, evil to be redressed,chosen remedy, leg history, spirit
2. two main arguments
3. Mischief Rule (purpose)
4. Protect labor
5. Discourage poor from immigrating
6. Spirit (purpose) – trumps plain meaning/avoid absurd result which was a Christian nation would never pass a statute meant to prohibit ministers

2. Canons supporting/opposing the majority

a. supporting: avoid constitutional questions, interpret criminal statutes narrowly, avoid absurd results

b. opposing: exclusio unius [why weren’t ministers included in the exceptions?], noscitur a sociis [unlike actor, other people covered, a minister is a permenant employee]

II. Intentionalism – pg 14-15 notes – identifying legislative intent is the goal of statutory interpretation

A. Specific Intent—how the legislators actually decided a particular issue of statutory scope or application

1. Roscoe Pound in Spurious Interpretation. Pound says that the point of genuine interpretation is to discover the rule which the lawmaker intended to establish; to discover the intention which the lawmaker made the rule. On the other hand, “spurious interpretation” is to make, unmake, or remake, and not merely to discover. NOTE he assumes that the words have no “plain meaning,” but must be interpreted to get any meaning.

2. BUT, Max Radin. “That the intention of the legislature is UNDISCOVERABLE in any real sense is almost an immediate inference from a statement of the proposition.” What can we know of the “intent” of a group of hundreds? Legislatures exist to pass statutes, not to impose their will on the citizenry.

3. Critics of Holy Trinity and Weber argue that those decisions were contrary to the specific intent of the Congresses that enacted the Alien Contract Law of 1885 and the Civil Rights Act of 1964, respectively.

a. Holy Trinity—an opponent of the bill derided it for arbitrarily applying to professionals like lawyers, sculptors, etc., and arbitrarily exempting artists and lecturers; a supporter countered that perhaps the bill should be amended, but it never was. This shows the specific legislative intent of Congress that importing ANY alien was illegal (unless there was a specific exemption).

b. Weber—Rehnquist, in his dissent, cited speeches from supporters of the bill assuring opponents that that there could be no hiring or firing based on race whatsoever (thus barring affirmative action programs)

4. Negative consequences of violating specific intent

a. it is “undemocratic” and “lawless” for cts not to follow the legislature’s intent

b. If this happened often, Congress might be reluctant to cut the deals needed to pass needed legislation, b/c the deals would not be reliably enforced

c. Disrespect for the rule of law might allow people to believe that they can get away w/ shirking their legal responsibilities.

5. Problems w/ specific intent

a. Problem of Attribution. Whose intent do we use? Is the proponent who gave a speech in Weber a reliable indicator of the intent of both houses of Congress and the Pres?

b. Problem of Aggregation – did majority actually formulate the same intent across both houses? Pg 216 supp.

c. Thus, committee reports are used, which might be manipulated.

d. Positive political theorists say that we should look towards the intent of “pivotal” legislators, but it may be hard to figure out who these are.

e. There might be different interpretations of specific intent; in Holy Trinity, the opponent promised to make exceptions to the law, but did not actually get around to doing that.

f. In Weber, the ct explicitly allows cts to make affirmative action plans; it is unclear whether the legislators actually considered affirmative action for people like Weber.

g. maybe a whole legislature has no intent

h. a legislature is there to pass laws, not impose its will on the people

B. Imaginative Reconstruction—put yourself in the position of the legislature – surroundings and what mischief did they want to cure – and ask what was his intention with respect to the particular controversy. Pg 218 supp.

1. Weberdissent—the sponsors (eastern liberals) and the pivotal voters (Midwest conservatives) agreed to prohibit racial quotas to enact the Civil Rights Act over southern opposition, and their consensus included at least an implicit concession to the conservatives that quotas would neither be allowed or required.

2. Concerns

a. Whose intent should be reconstructed? The pivotal voter? Is this the 51 vote for passage or the 67th vote to stop a veto?

b. maybe more “imaginative” than “Reconstructive”

c. Framing the question can bias the answer.

i. Rehnquist would ask the Midwest conservatives in Weber if “you want to allow voluntary quotas in hiring?” {They’d say No.}

ii. Brennan would ask “Would you allow voluntary preferences if it could be shown that after ten years an employer had less than 2% blacks in its craft force, and that the disparity was likely the result of the continuing effects of past discrimination?” {They’d say Yes}

iii. Alternatively, maybe the conservatives would have asked “do you think that businesses ought to have flexibility to comply with the law in various practical ways, including hiring blacks in order to avoid possible liability?” {They’d say Yes}

d. Still have Problems of Aggregation and Attribution.

C. General Intent, or “Purpose”—what the aim of the legislation was (the majority opinion in Weber, and also Holy Trinity; Blackmun dissent in Bock Laundry). This is the “Legal Process Theory” that the Supreme Court followed for decades.

1. Purposivism attempts to achieve the democratic legitimacy of other intentionalist theories while rendering statutory interpretation adaptable to new circumstances.

2. However, what is the “purpose” of a complex bill?

a. The majority in Weber would say the goal was workforce integration, while the dissent would say that that the central purpose was to make employment decisions colorblind (thus, equality of opportunity, not equality of result).

b. but even if you accept one of these purposes, you could argue either way in Weber (one could argue that there is no equality of opportunity if there are structural impediments preventing minorities from working; or, even if workforce integration in the goal maybe affirmative action is not a good way to get it, b/c companies will avoid black areas where they are compelled to have such a program).

3. Under this theory, it is okay to correct the legislature’s “mistakes”

Shine v. Shine – 700 – This has a made-up canon [unless Congress is clear, family obligations should not be dischargeable]. The couple is married, they separate in ’73, a ct orders support of $250/month for the wife, in ’75 they divorce and the ct does not mention support. The guy goes to bankruptcy ct; can his obligation to his wife be discharged? The ct says yes.

1. in 1978 they amended the statute, and deleted (accidentally?) the section that exempted such property settlements from bankruptcy ct. In ’84 they corrected the “mistake,” the ct cites this to show that it was a mistake, although the amendment technically is not binding b/c it happened after this case started.

2. long standing policy that such a debt could not be discharged

3. here, the “purposive” argument wins, but there are ways to make this look more mainstream (EX: the ct clearly has the rt to fix statutory omissions as “drafting mistakes”)