Legislation Class Notes 1/23/04


Thereís an update!Thereís the Bipartisan Campaign Reform Act and the Supreme Court decision upholding it.Itís freeeeee!


More on Johnson


We ended up last time talking about stare decisis.Scalia believes that statutory meaning should be based on what the statute really meant, and not what the Court wrongly decided it meant earlier.Scalia also thinks that inaction by Congress should not be given any weight.


Brennan, on the other thing, thinks that inaction is highly probative.Everybody knew what the court had said in Weber, yet Congress didnít debate the issue and nothing was proposed to change the result.Brennan also says that Congress had changed Supreme Court results they didnít like in the past.You canít necessarily draw any inference from silence, but when you have (1) a highly publicized and visible decision and (2) a statute that Congress has regularly acted to fix when it didnít like the Supreme Courtís interpretation, you figure Congress is saying that theyíre okay with what the Court did.


So who has the better of the argument?Brennan makes points in regard to this particular statute.


Lawyers argue that, on the one hand, Brennan says that unawareness isnít viable in this context but if Congress had gone through the trouble to try to do things but had failed, then that should be taken seriously as conscious inaction.Lawyers argue a lot about the silences of the legislature in the face of judicial interpretations.


Scalia says that the result in Johnson is okay in terms of political officials, corporate and government employers, and civil rights groups.The only losers, according to Scalia, are poor white males.What are the real world implications of this?Are white males well represented in Congress?Brudney says so.White males have lots of votes.Brudney thinks it doesnít make sense that white males canít protect themselves in the political process.


Recall the Helms ďwhite handsĒ ad from 1990.Did white males give Helms the election?


The Civil Rights Act of 1991


This act has no committee reports of conference reports that relate to this particular version of the bill.Because many of the issues were emotionally charged and had very political overtones, there was a lot of ďjockeying for positionĒ.The Bush Administration drafted memoranda purporting to explain different sections of the compromise.


It looks like they were trying to ďcreateĒ legislative history.They fight on the floor over the significance of various compromise positions.


The interpretive memorandum, in full, is:


ďThe terms Ďbusiness necessityí and Ďjob-relatedí are intended to reflect the concepts enunciated by the Supreme Court in Griggs and other Supreme Court decisions prior to Wards Cove


Do we look to the legislative history of this legislative history provision?Would that be reasonable?


To the extent that this is all about manipulation and strategic behavior and Congress felt so exasperated that it put this in the text, the norm is that this stuff is usually both valued and reasonably honest.In a lot of legislative history, we have focused on hotly-contested, highly controversial moments in congressional debate.But even if some of those statements have to be devalued as not honest or sincere, it seems like Congress in general thinks these statements are presumptively entitled to some weight.


Should the courtsí reliance on legislative history be an all-or-nothing proposition or a more-or-less proposition?Most judges and lawyers think itís more-or-less.


Cheap talk can get you in trouble in the future.


Campaign finance


Letís look at the structural aspects of the legislative process that involve the role of money and interest groups.


These are the only subjects in this semester of which we need to have substantive knowledge.


Know the basics of campaign finance, lobbying, and bribery.


The cost of legislative campaigns skyrocketed starting in the 1970s.Some say that after Watergate, all parties used primaries instead of picking candidates over thin air.


TV ads are effective but expensive.


Incumbents have gained a bigger advantage.The electorate can become familiar through C-SPAN and local news to find out what their incumbent is doing.A challenger must spend a lot of money to tell voters who they are and what they stand for.Itís not easy to get name recognition in a constituency beyond your own.


What do people worry about in terms of the effect of money on the legislative process?


Is the money equivalent to a bribe?Are the contributions a quid pro quo for votes?There is a concern about the appearance of impropriety.


What else is involved in fundraising?Who does fundraising?The candidates do.What do they have to do in order to engage in that?They spend a lot of time on fundraising.Thereís a big argument that there is much less time to do actual congressional work.People spend less time on the floor and less time in committees.


Some people watch C-SPAN.You donít have to have direct access to any major network media feed.You can get information from C-SPAN for the evening news.The images are serviceable for mainstream outlets.


How do you get to $10 million dollars?You have to spend a lot of time talking to people if youíre a candidate or incumbent.Unlike drafting statutes, preparing floor speeches, or giving quotes to the press, itís really the member himself or herself who must do all the fundraising.Big contributors want to talk to the member, not the staff.Most members have offices just around the corner from the House or Senate where they spend 20%-40% of their time making phone calls for fundraising.Itís an unbelievable process.It has driven many members out of office before voters might have wanted them to leave.Itís what members have to do to get reelected.


Is legislative process the pursuit of the common good, or interest group deals?


Public good people tend to regard members as beneficent trustees who are thinking about the public good.They are appalled.


Pluralists are more tolerant of the campaign finance realities.Do they see members as trustees, or something else?What are they?Constituents want their members to be agents to their policy priorities.


Campaign contributions are instructive to legislators as an agent.But thereís also free speech, which is an anchor of the analysis.Thereís a First Amendment.The Constitution is in the back of this book.


Can I send money?Is that pure speech?Does that communicate ideas?Is it conduct?Am I communicating that I really care?Itís like having a megaphone.It communicates more than ideas, but in furtherance of something, like a platform or ideas under the platform.


Before Buckley, you could argue that money isnít speech directly, but rather the amplification of speech.Itís indirect and entitled to constitutional protection, but not core, strong protection.Money is like picketing or using a sound truck which has conduct aspects.


How much protection do we give money?Do we give it the exact same protection that we give to speech?


The decision is really important.We must first have in mind three ways one can contribute to politics in this country:


To individuals, directly Ė 1974 election law placed a $1,000 ceiling.Then the BCRA/McCain-Feingold raised the ceiling to $2,000 per election.Every case we look at exists under the 1974 act.


Well, thatís one way, and there are two more.


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