Legislation
Class Notes
The House Judiciary
Committee version
At
the end of class yesterday we had just turned to result of the Judiciary Committee’s
deliberations. Who is covered under this
bill? Which employers are covered? The House Judiciary Committee version of
Title VII establishes the EEOC. How does
it define “employer”? It defines
employer as a business that employs more than 25 employees.
The
original Republican bill prohibited discrimination on the part of any business
that got federal money or contracts. Is
this the same group of employers? This
version affects the entire private employment universe as long as you have more
than 25 employees. This is a pretty big
expansion of who will be protected by the non-discrimination provisions of
federal law.
What
about the mechanisms for enforcement? How
does this differ from the Administration’s bill or the House Republican
version? The Administration’s bill was
fluff. The House Republican bill allowed
the cancellation of federal contracts.
Under this bill, the
Commission has the authority to bring suit in federal court. The old Commission could only make
administrative investigations. Sometimes
agencies have the exclusive right to enforce statutes in court, sometimes
individuals have that exclusive right, and sometimes an agency gets the first “crack”
but then individuals have a shot to go forward.
These are big expansions.
The
point is that the House committee has built a considerably stronger bill. Why did this happen? Why would the House Democrats report a bill
out of committee that goes further than either the Administration or the House
Republicans wanted? The Democrats want
to make it as strong as possible so that if it gets watered down it will still
be worth something.
Who
cared about this bill in the 60s? There
are important partisan things going on here.
We have an emerging group of voters in big cities: African-American
voters. Who will they regard as the
champions of their interests? Can
Republicans get African-American votes? They
weren’t saddled with a group of Southern legislators committed to suppressing
civil rights. On the other hand, Northern
Democrats and Western Democrats didn’t want to become a minority in their own
region.
There’s
also a moral aspect to this: somebody has to take on the Southern wing of the
Democratic Party. It’s been the dominant
wing of the party on civil rights since Reconstruction. It’s up to liberal Democrats to force their
party to take a morally defensible stance on the biggest social issue in the
Committee reports
Committee
reports are a key stage in the
process of making legislation.
There
are two main parts of a committee report:
1. The general statement or “background
and need”: this tends to explain or justify why the committee is engaged in
trying to enact this legislation. What’s
the gap or social evil in existence that leads us to address this matter? This can be a long section. It wasn’t long in this case, since civil
rights demonstrations were at TV every night.
The country was riveted by this and there was no long explanation
necessary.
2. The sectional analysis or “committee
views”: this gives you a sense of how the bill works, broken down part-by-part.
There
are some other parts that you’ll often see:
1. Additional majority views –
sort of like concurring views
2. Additional views – more like
dissent
3. Minority views
Does
anyone read these committee reports?
Maybe the other legislators or their staffs will read these reports. Legislators take a lot of time raising money
and doing other junk, so they need to know what’s going on back in
Congress. If you’re in the Judiciary
Committee, you don’t have time to keep up with the Commerce Committee, for
example. Not only do you want to know
what’s up, you also delegate your staff to find out what you need to know.
Sometimes
debate is not allowed to start until a certain senator has seen the committee report. If you can’t see the report, you can’t see
what deals were made in your absence.
Starting in the House versus
starting in the Senate
The
bill started in the House rather than the Senate. There were lots of obstacles in the
Senate. Southern Democrats were stronger
there. What makes it easier for a
determined minority to cut or thwart legislation? The House has a Rules Committee that’s
charged with setting up the terms of the debate on the House floor. For any bill that’s being reported out of a
substantive committee, the Rules Committee comes up with guidelines on how that
bill will be debated. For example, they
might limit the number of amendments, how much time is spent on each amendment,
or how much time is spent total. The
Rules Committee is an important and powerful “traffic cop” for debates in the
House.
The
Senate has no such committee. You can
offer any amendment that you want unless there is unanimous consent to keep
amendments from coming up. A single senator
can prevent unanimous consent. Each
senator has a lot more power as an individual than each House member does.
The
House is more hierarchical and orderly.
Historically, this was done because it’s hard for 435 people to do
business as 435 independent sources of power.
Some say the same is true for 100 people, but these rules are old and
reflect when there were fewer states.
Say
I’m a lobbyist pushing a bill in both houses.
Is there any way that it would be better to start in the Senate instead
of the House? Maybe if you’re worried
about losing 20-30% of what your best bill would be, maybe instead of losing 5-10%
in the House and 5-10% in the Senate, you try to get your best in the Senate
first.
The
first house will be the house where there is more uncertainty. You might try the Senate first if you have
the element of surprise on your side.
In
the late 80’s and early 90’s, when the Democrats were pushing fairly
controversial legislation, they moved it in the Senate first. They had the element of surprise, and they
could recoup if they lost too badly in the Senate in a house where they knew
they could structure the rules.
When
the Republicans got the majority in the House and Senate, they pushed legislation
through the House first because Gingrich was there. They moved 8 or 9 major bills through the
House in 14 days. But when the bills got
to the Senate, the opposition was a little more prepared.
Another
issue worth noting is the issue of outside interest groups and how they affect
members’ reactions and votes. Organized
labor, civil rights groups, and church groups did a lot of “heavy lifting” in
order to persuade “swing voters” to support the bill.
State
and local governments are not traditional lobbying groups, but they are
powerful interest groups, too. If you
oppose a bill that prominent state or local officials want, you’ll get negative
publicity among your constituents.
The sex discrimination
debate
The
House resolved itself into the Committee of the Whole for the whole duration of
the floor debate. The Committee of the
Whole has more flexible quorum requirements.
It lets you get together with a smaller number of members, which makes a
big difference. Many members from out
West are only on the Hill in the middle of the week.
You
can have more limited debate on amendments under the rules of the Committee of
the Whole. You can thus get through a
lot more business faster. That’s what
was going on here.
The
entire legislative history of how sex discrimination became part of our law is
in front of us. That’s it! It was never discussed in a committee report
or in the Senate.
What
are Smith’s motives in putting in this amendment where it is? Is Smith “very serious about this amendment”? No, and how do we know? People are laughing hysterically as he’s
saying this. Also, Rep. Green says that
Rep. Smith was against the equal pay bill.
Say
this amendment was offered for strategic purposes. Many people, however, sincerely wanted
it. The amendment never would have
passed on its own; it needed strategic voters who thought the amendment was a “poison
pill”. Is this “less law” than the race
discrimination provisions of Title VII?
What counts as “text”? The word “sex”
was inserted in to be covered by the same set of prohibitions as the other
categories. Just because we have
duplicitous motives here doesn’t change the fact that the text is how it is.
This
language isn’t clear. What if you refuse
to hire someone because they’re pregnant?
Should this legislative history matter when we interpret the statute in ambiguous
cases? Should we give the word “sex” a
narrow view or a broad view? We could
look at the statements of the sincere supporters in regard to “historically or
systemically disadvantaged” people. On
the other hand, the insincere supporters don’t contribute to such a broad
reading.
Say
Smith had said one of two things: either (1) “I hate this bill and everything
that’s in it, but I’m adding ‘sex’ to the list of prohibited factors because if
it does pass I want to keep white women as well off as black women” or (2) “I’m
adding ‘sex’ to make you see how dangerous and silly this bill is, and it’s
time to put a stop to this whole debate”.
Are these statements relevant to the debate? Should we give different weight to the two
statements?
Smith
voted against final passage of the Civil Rights Act. Should this make a difference in our interpretation? Should we take losers’ statements differently
than winners’ statements?
Courts
tend not to credit legislative history statements from losers as much as they
do from winners. That’s not a hard and
fast rule, but we’ll pursue that a little more soon. Think about why that might be true as a
general proposition.
Cellar
couldn’t have been all that shocked. He
was well-prepared for Smith’s gambit.
Cellar argues that adding “sex” will cause a bunch of complications in
the law. Cellar argues that sex
discrimination is different than racial discrimination and should be treated
differently.
Look
for two other arguments that Cellar has raised against adding this
amendment. Then we’ll get into the “winner/loser”
debate and why courts care more about what winners have to say in the legislative
history context.