Legislation
Class Notes
More on Griggs
At
the end of class, we focused on why we need to have § 703(a)(2) at all if we
have a § 703(a)(1). This suggests that
the legislature was trying to say two
different things, thus two different bits
of statute. We figure if the legislature
bothers to write something into the U.S. Code, they probably meant to do
it. This may be a “benign fiction”, but
it’s necessary. All of this can be contested.
In
looking at a statute, always start with
the text. That doesn’t mean that
people don’t spend a lot of time on “context”, but it’s all built on the text itself. Today, the Supreme Court is very focused on text.
The
majority relies on this speech to support its position. But think of the circumstances of Tower’s
speech. He was probably speaking to an
empty chamber with no C-SPAN. He was sort
of just talking to himself, but not entirely.
We can be reasonably confident that there are always staff members on
the floor to make sure that things don’t run amuck. The speech will also go into the Congressional
Record in any case.
How
do we decide how much weight to give to Tower’s amendment and Tower’s
speech? His amendment eventually does
become part of the bill. However, the
dissent mentions that there were several versions of the amendment, the first
of which was defeated.
Does
this amendment immunize intelligence
tests?
The
floor managers want a strong civil rights bill.
The senator from
Sometimes
people will run to the floor to make a statement when nobody’s there because
they want to make a statement that won’t
get challenged.
But
the thing is that Tower didn’t actually get what he wanted. This is Sobeloff’s view, and it’s what
finally prevails in the Supreme Court.
Sobeloff’s dissent is essentially made law.
If
we think about the amendment as being part of a deal, how does that affect our
understanding of the final codified version?
Note
that the Motorola stuff took place in
The importance of procedure
Why
are we spending so much time on this proceduralist stuff? Two reasons:
1. Brudney wants us to see how
the process of making laws is different from making court decisions. When 535 lawmakers deliberate and negotiate,
it’s a very different process than when appellate judges sit down, hear an
argument and issue an opinion. Different
does not mean incoherent, however.
2.
Pluralism
Political
outcomes are viewed as accommodations among interest groups. There are both optimistic and pessimistic
pluralists.
Those
who think pluralism is good believe that we have a diverse society leading to
interest group formation and in turn the dispersal of powers among the social,
economic, and political fabric of our society.
Interest groups are frequently in conflict, and government is the arena
where interest group conflict gets played out.
How can this be good from a
public policy perspective? It is argued
that there is a “marketplace of ideas”, and if people peacefully compete to
promote different ideas and public policy alternatives then it follows that the
groups will successfully work out conflicts.
The suggestion is that we can resolve our argument if we get everyone at
the table.
Why
do some think pluralism is bad? There
are issues of whether interest groups are broad-based and representative. Small groups of rich people will tend to be
better organized and more powerful. Better
organized groups will win out over less well organized groups, and small groups
tend to hold themselves together better.
Public choice theory
This
is an economic approach to public institutions.
Public choice theories are pretty pessimistic about pluralism. They believe interest groups are out to help
themselves and not the public. They
believe “political goodies” are rationed according to wealth and power.
Say
we have three groups of legislators who are trying to offer amendments that
will resolve a controversy between A, B, and C.
Their preference rankings are (A, B, C); (B, C, A); and (C, A, B). With this preference ordering, agenda-setting
power (the order of the votes) and strategic voting based on superior
information will carry the day. This looks
like game theory! If you want to win,
you better not be part of the first vote.
You’ll
see this in the Senate: there will be some gamesmanship to assure that amendments
get to the floor at their preferred time.
The
point is that sometimes strategic voting leads to insincere voting. I suspect
the question is: how does this affect statutory interpretation in the courts?