Legislation Class Notes 1/9/04


More on the sex discrimination amendment


We started talking about Cellar’s arguments as the floor leader against Smith’s sex discrimination amendment.  Cellar tried to claim that sex discrimination was different in kind than racial discrimination.  But this was not uncontested within the party.  Griffiths claimed that white women would be the most disfavored group if the bill passed without the sex discrimination amendment.


Another argument is that an alternative strategy is coming up: the “equal rights amendment”.  Cellar also made an argument in the form of a “parade of horribles” that would follow from the sex discrimination amendment.  It actually turns out that many of the horribles became Supreme Court cases in the coming decades.  He was anticipating a variety of challenges that would actually come to fruition as a result of including gender discrimination as an issue in American law.


But are these sincere arguments on the part of Cellar, or is he just trying to kill a “poison pill”?


Cellar has entered into a pact with the Republicans.  They have agreed that no amendments will be approved without the prior approval of House Republicans.  Smith is trying to “gum up the works” by offering what appears to be a pro-civil rights amendment that will embarrass the floor manager.


Who do you trust?


Should Cellar’s views on the legal implications of the amendment be given special weight given that Cellar is the floor manager[1] for the bill?  What’s the tension in his position?  As the floor manager, you can assume that the average legislator will look to him for guidance and leadership.  So the statements of the guy in charge will be authoritative with respect to the rules of the body.  The problem is that Cellar is not supporting this amendment which appears to be consistent with the goals of the bill.


Think about the “winners and losers” question: in theory, the supporters of a bill or amendment that eventually passes may offer insincere arguments during the congressional debate just like opponents of the bill.  So is there some reason to trust the statements of supporters more than one trusts statements of opponents of a certain bill or amendment?


If you study a rule from case law, you’ll give more weight to the majority opinion than the dissenting opinion.  This is true by definition.  Whoever wrote the opinion is commanding the legally authoritative side of the court.  Because of that, what the majority opinion writer is saying is what most members of the court found to be persuasive.  Dissents may “stutter with rage” about how wrong the majority is.  But sometimes dissents are exaggerated.  “The majority has just eliminated free speech in this country!”  Majorities cannot engage in this kind of loose talk.  If a majority opinion went really off the rails, the author of the opinion would lose all credibility with his colleagues.


Do we trust Cellar’s statements about this amendment?  Are there any similarities between the relationship between judges on a court and the relationship between legislators?


Any institution that involves repeat players involves an element of trust.  Legislators must be able to trust that they’re voting for what the floor manager says they’re voting for.  If you’re supporting a bill, you don’t have the license to engage in loose or cheap talk if you’re trying to persuade people why they should vote for something.  If people are relying on you, they won’t rely on you again if you violate their trust.


If you’re a key member of the enacting coalition, and you tell people it’s fine to vote for a bill, your reputation is damaged.  People spent decades in Congress developing the ability to persuade their colleagues and be respected as colleagues.  You damage your credibility if you pull a bait-and-switch on your colleagues.


If you’re a dissenting justice or you’re not in the enacting coalition, you can pretty much say anything you want.  You can engage in rhetorical overkill because you want to have everyone know how upset you are that you lost.  To the extent that you are in the enacting coalition, you have more restrictions on your ability to make those sorts of statements.


This is a very unusual case because the whole amendment was developed openly on the floor.


The Smith problem


Consider the problem of Smith: what might get in the way of this flagrant strategic behavior going on today?  How would Smith’s constituents feel about his actions?  What’s different today is that we’re in an instant media message age.  Talk radio and nightly news television would rip Smith apart!  He wouldn’t be able to get away with this today because people pay more attention.  Consider what would happen if someone who is pro-choice offered a pro-life amendment to try to kill a bill.


That doesn’t mean that strategic behavior doesn’t go on.  One thing that does go on is that people offer “motherhood and apple pie” amendments that are very difficult to oppose, but that are also unworkable as law.  For example: there was a reauthorization of a simple set of aging programs.  Sen. McCain proposed an amendment that would index Social Security benefits to the CPI.  This would have bankrupted the federal government in a matter of three years.  Arguably, this is grandstanding and we don’t want to allow a bill to go down based on this.  It ended up that they stripped the amendment out in conference.


There’s another reason: all votes can be electronically recorded now, so it’s always a matter of public record.  As a result, the tendency is not to miss votes.  Members don’t want to be recorded as “absent”.  One of the first truly effective attack ads was by McConnell against Sen. Huddleston of Kentucky saying that he was absent from voting a bunch of times.  Members of Congress want to avoid being absent from votes at all costs.


This is a highly unusual situation: that’s one reason it’s a highly educational thing to look at.  We’ll see as we go through the semester that this is not the norm.  Things usually don’t proceed in so spontaneous a fashion.


One of the things we’ve been dancing around is the issue of legislative intent.  The only reason we’re debating legislative history is that we’re trying to figure out just what Congress meant.


Assume that we have a legislature of nine people.  Four want a broad civil rights bill, four want no bill, and one wants a moderate bill.  Whose intent should the court examine in construing the bill?  Do we give any weight to the people who were opposed?  Whose views created the enacting coalition?


What do we mean by intent?  Intent has been attacked as a concept that’s not so easy to unpack.  Is it what a legislator hopes the words of a statute to mean?  Is it what a legislator thinks the words of a statute mean?


“Effective upon enactment”


If a law is declared “effective upon enactment”, just what do we mean?


1.     Does it apply immediately to all pending cases?

2.     Does it apply only to cases filed after enactment?

3.     Does it apply only to conduct occurring after enactment?


There are roughly 10,000 cases pending under Title VII at the time the 1991 Civil Rights Act is enacted.  This “effective upon enactment” language could thus impact up to 10,000 cases and over 10,000 litigants.


There’s also a statute of limitations issue.  If there is a two or three year statute of limitations, cases could be filed after enactment that concern conduct that occurred before enactment.  Are there ex post facto or due process issues here?  Ex post facto is primarily related to criminal statutes.


But what if Congress is telling the Supreme Court that they were wrong?  Shouldn’t they be set right as soon as possible?


What if there were several groups of voters that formed the enacting coalition, and each had a different idea of what “effective upon enactment” meant?


Why should we potentially care more about the floor manager’s understanding of this language?


Part of what’s going on is that there is a mass of people who don’t speak, yet vote for the bill.  Who do we think they rely on?  How can we know?  The rational legislator who hasn’t otherwise expressed himself but is voting for the bill will tend to rely on the floor manager.


Should we pay more attention to a spoken statement than a written statement?  But what’s true about a spoken statement?  People have the chance to respond to it.  If we’re trying to construct a sense of what the body understood it was voting for, we can look at speakers and credit them more because they created the opportunity for a response or debate.


Similarly, suppose we have a statement that says “I’m going to vote for this because I think it’s right” as opposed to someone who says “I’m going to vote for this because these are the results I think will follow”.  Which of these will we give more weight to?


These are all factors we will spend a lot of time studying.  What’s important to recognize in each of these examples is whether legislative history (including floor statements and committee reports) would have been understood by colleagues who had to vote on inconclusive text.  The more “advertisement” there is of the committee’s position, the greater the chance that the rank-and-file members will know just what they’re voting for.  When we look at legislative history, we give more weight to authoritative figures and positions supported by argument.  We give less weight to things like strategic arguments.


Back to Class Notes

[1] The floor manager is in charge of shepherding the bill through to passage.  The floor manager will recognize speakers in a certain order and also recognize friendly amendments.