Legislation Class Notes 1/8/04


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 United States at the time.


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.


Back to Class Notes