Legislation Class Notes 1/14/04


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.


Griggs v. Duke Power Company


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 Columbus.  But it turns out that the requirement excluded a majority of women, Hispanics, and Asians.  If this requirement was challenged under Title VII, it would have to be proven by the employer that this requirement has a significant relationship to performance on the job.


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.


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[1] Note the lack of punctuation at this point.