Legislation
Class Notes
A
word about computers…they’re valuable, and he’s happy to have them used in
class and on exams. But he doesn’t want
them used for Minesweeper, Solitaire, shopping online and that kind of thing. So don’t
do it!
So
far, we’ve been focusing on the proceduralist
aspects of legislation and how they might affect statutes. There are at least four major procedural
aspects of the legislative process that are worth bearing in mind.
The critical role of
committees
This
is the most influential single factor.
The longest single rule of any of the Senate rules deals with committee
procedure. Up to 80-90% of bills that
are introduced die in committee. The
committee report is the key explanation of what’s happened. It’s read by members and their staffs. It serves important functions in the “legislative
enterprise”.
Be
aware of how important the filing of a report is: the Senate will basically
never take up a bill unless a committee report has been written and filed. Even during floor deliberation, the committee’s
role is central. The chair of the
committee and the ranking minority member will manage the bill on the floor.
Conference committee
When
you have a bill that’s been passed by both houses and it’s not in the same form
in both houses, yet neither body is willing to accede to the other house’s
version, you need to appoint a group to iron out the differences. In practice, the committee chair has the
power to appoint the members of the conference committee even though this power
is technically in the hands of the Speaker of the House and President of the
Senate.
The
conference committee either accepts the bill or rejects the bill, all or
nothing. They can’t just stick in
language. Why not? What’s the policy justification? The conference isn’t meant to be a
super-legislature that can override things that have been agreed to by the two
big houses. We want the other members
who aren’t in conference to be able to sleep at night knowing that their work
won’t be messed with in an unexpected way.
Then
the conference committee issues a conference
report.
The importance of presidential
involvement
Why
is it so important? What does the administration
contribute to the legislative process?
They help set the agenda and draft the legislation. Kennedy initiated the civil rights Bill. It was a weak bill, but at least he got the
conversation going. Or, for example,
when Bush introduces immigration reform, it’s significant even if the exact
measures his administration wants don’t get passed by Congress.
Also,
Kennedy delayed the markup of the civil rights bill in the House because he wanted
a tax bill to get going. He basically
knew the civil rights bill would take a long time, so he wanted to get other
stuff out of the way first.
The
president is the only elected official who speaks for, and directly to, the
whole public.
The variety of “death traps”
Bills
can be killed lots of ways. They can
also be stuck on the House calendar.
Bills can be brought up and gutted by floor amendments. There are bills that pass in both houses but
never get out of Congress because they don’t get out of conference.
For
example, campaign finance reform kept getting passed both in the House and
Senate, but it kept dying in conference.
If
everything goes well in Congress, the president can still veto the bill. If it gets vetoed, you need a two-thirds
supermajority to override.
The
miracle isn’t that we have a legislative
process, but it’s that any bills actually get passed given the complexity of
the process.
The power of the legislative
agenda
Chairs
and party leaders have control over the agenda and thus control over bills. They are the gatekeepers! Nothing gets into or out of committee unless
they want it to, and nothing gets done on the floor unless they want it to.
For
example, the Senate in the early 90’s had a Democratic majority that was
reporting out a lot of bills that were “pro-regulation”. There’s a wing of the Democratic Party, the
Southern Democratic senators who were unhappy having to vote on so many bills
that their constituents didn’t like.
What they did in response was to go to the leader and tell him that “You
can’t make us vote on all these things. If
you do, we won’t get reelected.” The
Senate leadership hears this and will change the agenda.
What
is the nature of the disagreement between the majority and the dissent?
Duke
Power has five departments. The Labor
Department is by far the lowest-paying of the five. Before 1955, company policy allowed
African-Americans to work only in the Labor Department. After 1955, company policy allowed
African-Americans to work in other departments, but employees had to have a
high-school diploma in order to get promoted to other departments.
After
1965, Duke Power created an alternative method of promotion: equivalency tests.
13
African-American employees brought suit against Duke Power. The claims of three of them are moot. Six others had no high school diplomas and
were hired before 1955. The Fourth
Circuit rules in their favor because whites in their department had been promoted without diplomas and
these African-Americans had not been allowed to be promoted without diplomas
ever. They win, and we no longer need to
be concerned with them.
So
we’re left with four employees hired after 1955. Boreman, writing for the majority, says that
these people don’t have a claim under Title VII. Sobeloff says that the conduct of the company
towards these employees is a
violation of Title VII. Sobeloff was the
solicitor general under Eisenhower and he argued Brown v. Board of Education along with Thurgood Marshall.
What
conduct does Boreman think the statute prohibits? What does Title VII ban in Boreman’s
view? What is it that is illegal? Boreman’s view of Title VII is that it bars
only intentional discrimination, in
other words, conduct where the conscious
aim is to discriminate against a protected group.
How
are the testing requirements justified?
The testing requirements must have a genuine
business purpose and no intent to
discriminate.
Sobeloff
wants to go further. He’s not only
concerned with practices that have a conscious intent to discriminate, but with
any conduct that functions in a
discriminatory manner. But “function”
isn’t a “law word”. To be precise,
Sobeloff says that the statute forbids practices that are “fair in form but
discriminatory in substance”. In other
words, conduct is forbidden if its consequence,
though not its intent, is to exclude
African-Americans.
We
know whites fair overwhelming better than African-Americans on these
tests. These tests aren’t allowed unless
the tests have some relationship to performance
on the job.
The
majority feels that the statute is aimed at intentional
discrimination. The dissent says
that the prohibition is much broader than
that and Congress had something else
in mind. The employer must prove that the diploma has a significant
relationship to performance on the job.
This is a significant burden
on the employer and a significant
difference between the “intent-oriented” view and the “result-oriented”
view of Title VII.
Here’s
an example: you had to be 5’6” to be a cop in
Compare
this to Griggs: Boreman would say height
requirements are permissible because there’s no intent to discriminate. Sobeloff would say that’s not enough: the
requirement is having the impact of
excluding women, Hispanics, and Asians.
In order for this to stand under Title VII, the requirement must tie in
to actual job requirements.
On
the face of the language of § 703(a)(1), does it look like “intent” language or
“consequence” language? Looks like “intent”
language. What about in § 703(a)(2)?
§
703(a)(2) –
To limit, segregate, or classify his employees…in any way which would deprive
or tend to deprive any individual of employment opportunities[1]
or otherwise adversely affect his status as an employee, because of…
The
language that says “deprive or tend to deprive” has the ring of the language of
consequences rather than intentional behavior. It looks “effects-oriented”. How about “otherwise adversely affect”? It sounds like Sobeloff’s view.
Note
there’s no comma between “opportunities” and “or otherwise”. What do the words “otherwise adversely affect”
modify? What makes more sense
grammatically? If we have two consequence-related
formulations, this section begins to look more consequence-oriented.
Here’s
an important point: Why would Congress add superfluous language? If § 703(a)(2) means the same thing as § 703(a)(1)
and it’s all about intent, why have a § 703(a)(2)? There’s at least an argument that there’s something else going on in the other
provision.
Intentional
conduct is the more guilty misconduct and there can be no defense for it.