I. Introduction; Models of the Legislative Process

Legislation

(Fall 2013 / Textbook: Eskridge, Cases and Materials on Legislation (4th ed. 2007))

I. INTRODUCTION; MODELS OF THE LEGISLATIVE PROCESS

How a bill really becomes a law

Introduction of bills. Only legislators can introduce bills, but the president is often the person who proposes or drafts much of the legislation considered by the legislature. Private groups also present draft bills to members of the legislature or advise them about amendments to bills proposed by the executive.
Committee consideration. Bills are then referred to standing committees having jurisdiction over its subject matter. The vast majority of bills referred to committees never emerge for consideration by the full body. If the chair refuses to schedule hearings for a bill or refer the bill to subcommittee, or refers the bill to a hostile subcommittee, the bill will usually die. For those bills that are considered, the committee can iron out difficulties and build a consensus in favor of the bill. Once a committee marks up the bill to its satisfaction and votes to send it to the full body, the committee staff drafts a report on the bill that will be circulated to the other legislators. Committee reports set forth the procedural and substantive background of the reported bill, the exact language of the bill, and a section-by-section analysis of the bill. Committee reports are frequently the only documents that most legislators and their staffs read before a vote is taken on the bill.
Scheduling legislative consideration. Bills reported by committee are placed on a calendar of the legislative chamber.
Floor consideration: Debate, Amendment, Voting. Once a bill has been advanced for consideration by the full legislative chamber, the legislators routinely vote “yes,” and the bill is passed. Floor debates don’t often alter votes; members use it to demonstrate their competence in a certain area of policy, to gain publicity for their positions, and to attempt to pack the legislative history. This is also the time when amendments are proposed and considered. There are:
perfecting amendments (changing the text of the bill by striking language, inserting language, or both);
saving amendments (a perfecting amendment that attracts more support for the bill);
riders (amendments seeking to add irrelevant matter to the bill);
hostile amendments;
killer amendments (amendments designed to antagonize the bill’s more moderate supporters);
amendments in the nature of a substitute (amendments that seek to replace the entire bill, striking all after the enacting clause and inserting entirely new text); and
substitute amendment (offered when another amendment is pending, and it changes part of the proposed amendment)

Voting may be done by voice vote, division of the house, tellers, and rolls calls.

The Reconciliation Process: Conference Committee. If the version of the bill passed by the US House differs from that passed by the US Senate, then a conference committee is formed to come to an agreement. The conference committee members come from both chambers.
Presentment for the presidential or gubernatoral signature. Once an enrolled bill is presented to the President, he has ten days to sign it or veto it. If the President vetoes the bill, it is returned to Congress, where the veto can be overridden by two-thirds of those voting in each chamber. If no action is taken within the constitutional ten-day period, the bill also becomes law w/o the President’s signature.

Griggs v. Duke Power Company (4th Cir. 1970), p 42

Facts:
The Duke Power Company’s electrical generating plant at Dan River Stream Station in Draper, North Carolina had 95 employees in 1966, including 14 African Americans. Employees were divided into five departments: (1) operations, (2) maintenance, (3) laboratory and testing, (4) coal handling, and (5) labor (janitorial services). The Labor Department was the lowest paid. Prior to 1955, the company’s policy was to limit African American workers to the Labor Department.
In 1955, the company began requiring that every employee, except those in the Labor Department, had to have a high school diploma. The company also made the diploma a prerequisite for promotion of workers from the Labor Department into any of the others.
In 1965, Title VII of the Civil Rights Act went into effect. Under § 703(a), it is unlawful to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” or to “limit, segregate, or classify his employees . . . in any way which would deprive . . . any individual of employment opportunities” because of the individual’s race, color, religion, sex, or national origin.
In 1965, the company instituted a new policy where employees could be promoted out of the Labor Department by passing one of two high school equivalency tests – either the Wonderlic general intelligence test or the Bennett Mechanical AA general mechanical test.
The plaintiffs are African American workers at Duke Power Company. Six of the plaintiffs had no high school diploma and were hired in Labor before 1955. Four plaintiffs had no high school diplomas but were hired after the company instituted the diploma requirement in 1955. The plaintiffs sought an injunction requiring Duke to discontinue its diploma and testing requirements for promotion.
Duke’s defenses: (1) the high school education requirement would give it some reasonable assurance that its employees could advance into supervisory positions, so it’s not discrimination on the basis of race; and (2) the educational and testing requirements had a legitimate business purpose and were professional developed ability test, as sanctioned under § 703(h) of the Act.
Plaintiff’s argument: the tests must be job-related to be valid under § 703(h).
Statute:
Under § 703(a) of the Civil Rights Act, it was illegal to discriminate on the basis of race.
Under § 703(e), employers can discriminate on the basis of religion, sex, or national origin where that characteristic is a “bona fide occupational qualification.” Discrimination on the basis of race can never be a bona fide occupational qualification.
Under § 703(h), employers can “apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system” provided that such differences are not the result of an intention to discriminate because of “race, color, religion, sex or national origin.” The provision also allows for employers to act upon any “professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex or national origin.”
Held: Judge Boreman held that Duke’s diploma and testing requirements were not discriminatory within the meaning of Title VII.Diploma requirement is acceptable because it gave company reasonable assurance that its employees could advance into supervisory positions. The testing requirement was acceptable because professionally developed ability tests can be used as long they’re professionally developed, they do not have to be job-related.
Language of the statute
The legislation must be specifically geared toward racial discrimination, as the statute disallows race to ever be a “bona fide occupational qualification” under § 703(e)
“Professionally developed” seems to be the equivalent of “bona fide”
The plaintiffs should have seized on the difference in safe harbor provisions in § 703(h). Should have pointed out that the tests were being “used” to discriminate, and that “used” meant something different than “designed” and “intended.”
Legislative history
The plaintiffs’ interpretation that the tests have to be job-related is “clearly contrary to compelling legislative history”
In the Congressional record, Senator Tower, who proposed the original amendment, stated that the amendment was meant to protect the system “whereby employers give general ability and intelligence tests to determine the trainability of prospective employees.” The statement was made in response to an Illinois Fair Employment Practices Commission case where the hearing examiner found that a general intelligence test had denied the applicant an equal employment opportunity because African Americans were a culturally disadvantaged group.

Fallacy of Salience

The tendency to think things are relevant to the case but that aren’t really focused on that issue at all
The fallacy of salience is relevant to the Griggs case in that Senator Tower’s comments are arguably not on point. The comments could be read to support Judge Boreman’s interpretation but it could also be the case Senator Tower assumes the tests are going to be job-related. Indeed, he doesn’t mention whether the tests should be job-related one way or the other.

Pluralism and Its Critics

Descriptive vs. normative theories

Descriptive – theory that purports to describe how the legislative process does in fact work
Normative – one that makes judgments about what’s good and what’s bad.

Elitism

C. Wright Mills = the ultimate describer of elitism. Wrote a book called The Power Elite.
Describes the elites as having more than their fair share of power
Rich people and business had influence in our political process disproportionate to their numbers in the electorate and this was a bad thing

Pluralism

Robert Dahl = captain of the pluralists
Pluralists observe that political power is evenly distributed. It’s not excessively concentrated in the hands of the upper classes, and the balance of group pressure is the existing state of society. Pluralist theory was in part a response to a criticism set forth by communists that affluent people control political power. Pluralists rejected that critique. Pluralists see the role of legislature as ratifying agreements and adjustments worked out among competing groups.
Some pluralists thought the fact that power was evenly distributed was normatively positive and should be celebrated.
Other pluralists viewed the even distribution of power as normatively negative, and those people came to be known as public choice theorists.
Critique of the pluralist model is posed by the elitist model and its argument that certain interest groups are over-represented.

Public Choice (legislation is a balance of supply and demand; rent-seekers demand legislation, and legislators supply it)

Public choice grew out of the pluralism model. Public choice theorists portray legislative action as the mechanical operation of organized interest groups. Interest groups demand legislation, and legislators supply it to get re-elected. As a result, political leadership makes very little difference in the outcome of legislation. Under public choice theory, legislative outcomes don’t advance the public interest or alternatively there is no such thing as the public interest. Public choice theory also suggests that there is very little opportunity for deliberation in a legislative process to play a meaningful role in the shaping of legislation or the reaching of public values. In effect, the legislative process is a microeconomic system in which actual political choices are determined by the efforts and individuals and groups to further their own interests, efforts that have been labeled “rent-seeking.” The basic assumption is that taxes, subsidies, regulations, and other political instruments are used to raise the welfare of more influential pressure groups. In effect, concentrated interests (such as auto makers’ interest in defeating the Clean Air Act) defeat diffuse interests (such as the public’s interest in having clean air).
Public choice theorists are not going to be in favor of clear statement rules. They would say that what often gets a deal enacted is opaqueness (“We can get a majority if we don’t spell out what we’re doing.”).
Public choice theorists don’t necessarily think direct democracy is a better alternative to legislatures.
When it comes to omissions in a statute, a public choice theorist would discourage a judge from seeking out legislative purpose or intent to fill in the omission, because there is no such thing as legislative purpose or intent. As a result, courts should not fill in gaps in a statute.
When it comes to mistakes in a statute, a public choice theorist would argue that it would be impossible to recognize that there even was a mistake. The legislation was simply the product of a deal struck between competing interest groups. Thus, mistakes cannot be fixed.
Proper role for a judge under a public choice view:
1) Passive version: Job of judge is to identify outlines of deal made between competing groups, and enforce the deal. This is the more passive version.
2) Active version: interest groups are seeking benefits for themselves, not for overall benefit of society. So judge ought to have a bias in favor of interpreting statutes narrowly to look for the rent seeking provisions and construe them as narrowly as possible. If we’re not sure if it’s bad, narrow it.
3) Extreme active version: courts ought to refuse to enforce statutes that legislate in the interest of interests groups. Find a way to strike it down.
Critique of public choice model:
The public choice model tends to ignore the presidency. The president has an incentive to try to represent a majority view or at least a view that can command a majority of the electoral college.
The public choice model doesn’t account for the enactment of certain types of legislation. For example, under the public choice model, one would anticipate civil rights and environmental legislation would have a hard time getting enacted, but they do get enacted from time to time. Sometimes ideologies do influence legislation, which is something that public choice theorists don’t account for.
It also doesn’t account for the role of fortuity; sometimes legislation gets enacted for reasons other than interest groups. For example, if John F. Kennedy had not been assassinated, it’s unlikely the Civil Rights Act of 1964 would have been enacted. Lyndon B. Johnson was talented at the legislative process, but he would not have had the opportunity to use those skills had JFK not been assassinated.
The public choice model (and also the interest group model of pluralism) better explains the status quo than changes in legislation. People are more easily organized to oppose a change in legislation and maintain the status quo than they are organized to enact change.
The public choice model is simplistic in that it assumes people fall into only one interest group. In fact, people exist in multiple communities.

Civic Republicanism

Civic republicans believe that the public interest can be identified and that deliberation is capable of producing legislation that serves the public interest. It emphasizes that legislative politics can and should seek to foster a deliberative process that seeks to slow down and improve legislation. Pushes legislators to argue and deliberate before making law, b/c such would tend to create better laws that will help the public. In contrast, public choice theorists hypothesize that people’s interests are fixed and they push those interests on legislators.
Civic republicans are going to like clear statement rules or any judicial rule that requires particular clarity b/c that’s going to force lawmakers to deliberate.
They hate direct democracy.

Ways a CR judge might interpret a statute:
(1) Judge might assume the best b/c he assumes that legislators did their job and deliberated and served public interest. More passive.
(2) Maybe would say it is his job to figure out if Congress did good and, based on this answer, choose to interpret statute narrowly or broadly depending on answer. These judges see themselves as fixing the process (if, wasn’t done well at first). Of course, question arises as to whether judges are competent to do this. More active role.
(3) Middle of the road view. Clear statement rule. Unless the legislative deliberations show either in the statutory language or in the legislative history, I’m not going there unless it’s clear.

Alternative Perspectives

Arrow’s Theorem

Arrow’s work suggests that perhaps, rather than viewing the outcomes of legislative process as a deal that is dictated by the structure of interest groups, one should view the outcomes of legislative processes as essentially arbitrary or random.
When there are multiple issues that the legislature is considering and multiple members, and people have different priorities, then the outcome of the process is actually likely to depend not on who has majority control, but the order in which issues are presented for consideration and control of the agenda that structures that sequencing. In sum, agenda control may yield results in a legislative process that are non-majoritarian.
Under Arrow’s Theorem, a judge would be less concerned with hewing the line of the deal that was struck by interest groups. Instead, he might take one of two approaches:
(1) Make an independent determination of whether statute is product of rent seeking. If so, construe statutes as narrowly as possible.
(2) Determine whether the outcome was dictated by arbitrary agenda control factors as opposed to majoritarian preferences

Institutionalist Theories

Institutional theorists emphasize the importance of institutional structures to constrain and shape behavior. It sees laws as the product of interaction among various institutions and as a reflection of the desires of House, Senate, President, and agency. Institutionalism assumes that political outcomes are dependent on the actions of several decisionmakers, who sometimes act simultaneously and sometimes consecutively. It also assumes that legislators anticipate the judicial response as they draft and produce committee reports and floor debates.
Under the institutionalist view, what constrains a court is what they can get away with without having decisions overridden. So where a present Congress is more liberal or more progressive than an enacting Congress, the court may take a “dynamic” approach to statutory interpretation and conclude that the meaning of a statute can change over time. If the present Congress is perhaps more conservative than the enacting Congress, the court may choose to take a “static” approach to avoid being overridden by Congress. Under the “static” approach, a court will say that a statute has one meaning and that meaning does not change over time.

Vetogates