Legislation
Class Notes
There’s
an update! There’s the Bipartisan
Campaign Reform Act and the Supreme Court decision upholding it. It’s 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 didn’t debate the
issue and nothing was proposed to change the result. Brennan also says that Congress had changed Supreme
Court results they didn’t like in the past.
You can’t 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
didn’t like the Supreme Court’s interpretation, you figure Congress is saying
that they’re 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 isn’t 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 doesn’t make sense that
white males can’t protect themselves in the political process.
Recall
the Helms “white hands” 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 “jockeying for position”.
The Bush Administration drafted memoranda purporting to explain
different sections of the compromise.
It
looks like they were trying to “create” legislative history. They fight on the floor over the significance
of various compromise positions.
The
interpretive memorandum, in full, is:
“The terms ‘business necessity’ and ‘job-related’
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 courts’ reliance on legislative history be an all-or-nothing proposition or
a more-or-less proposition? Most judges and
lawyers think it’s more-or-less.
Cheap
talk can get you in trouble in the future.
Campaign finance
Let’s
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. It’s 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. There’s 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 don’t 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 you’re a candidate or
incumbent. Unlike drafting statutes,
preparing floor speeches, or giving quotes to the press, it’s 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.
It’s an unbelievable process. It
has driven many members out of office before voters might have wanted them to
leave. It’s 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 there’s also free speech, which is an
anchor of the analysis. There’s 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? It’s 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
isn’t speech directly, but rather the
amplification of speech. It’s 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 – 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,
that’s one way, and there are two more.