Legislation Class Notes 1/15/04


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.


Senator Tower’s floor speech


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 Texas seems to want to water down the bill.  The floor managers rejected the amendment.  Then the senator changed the amendment and got it accepted.  That suggests that the final amendment was watered down.


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 Illinois.  That’s also where Senator Dirksen was from.  Dirksen would have wanted the Tower amendment to effectively reverse the decision in Motorola.


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.     Madison promoted some of the proceduralist hurdles.  He wanted them to act as “roadblocks” against tyranny by the majority against the minority.  There are textbook examples of how this works that Madison would be pleased with.  Take, for example, the flag burning debate about a decade ago.  The House rammed through a proposed constitutional amendment, but on the other hand, the Senate held months and months of hearings.  Instead of a constitutional amendment, they passed a statute.  But the Supreme Court invalidated the statute, and by that point the popular fervor had died down considerably.  On the other hand, filibusters aren’t in the Constitution.  The House and Senate rules don’t come from the Constitution.  Skeptics contend that the procedures that flow out of deadlocks and obstacles actually do the opposite of what Madison would have wanted.  The argument is that procedural hurdles will block majority legislation by the veto of the minority, but it won’t block “special interest” legislation with a veto of the silent majority.




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?


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