Legislation Class Notes 4/7/04


On the board: “No person at the same time shall be a director in two or more corporations…engaged…in commerce, other than banks, trust companies and common carriers.”


No class tomorrow…we’ll make it up on Monday…wait, no!


Statements in hearings and floor debates have not been given the same kind of presumptive respect as other documents.  Why are witnesses stacked in favor of a bill’s proponents at hearings?  If you’re in the minority, it will be hard for you to get a hearing for a bill you want.  Hearings are usually called by the majority.  The minority has some power, but they would need some allies in the other party.


Floor debates are replete with efforts to sell a bill to colleagues, constituents and C-SPAN viewers.  Members sometimes have ulterior motives.  There may be party politics or presidential politics involved.  There may be some “spin”.  Particularly in the House, you can amend and extend your remarks, which gives you the chance to have things appear in the Congressional Record that weren’t actually said.  Notwithstanding those kinds of risks, the Supreme Court often relies on statements in hearings or floor debates and committee hearings.


Our focus is on the principled methodological stances the various justices take.  But even such stances have their limits.  Scalia and Thomas almost never cite floor debates or committee hearings when they write their own opinions, but they may join in other people’s opinions that seem to rely on extrinsic materials that Scalia and Thomas are opposed to.


So floor debates get more attention if the author appears to be well-informed or seems to represent the views of his colleagues.  Hearings, at times, may provide the best-informed explanation of what legislation is about.  If the administration was instrumental in introducing a certain bill and a member of that administration appears before a committee, their testimony may be given a lot of credit.


The rejection of proposed bills or amendments may also give evidence of the legislature’s intent.


BankAmerica Corp. v. United States


This is a tough case partly because it involves a statute with a double negative in it.  “Nobody can do something except if…”  If the exclusion is broader, then the prohibition becomes narrower.  It’s a prohibition against “interlocking directorates”.  But what the heck does the language mean?  Is it plain on its face?  Do we need guidance someplace else?  They argue about the structure of the Clayton Act.  But Burger isn’t persuaded himself.  This language does not fully resolve the case!  The ambiguity allows the case to be fought out “further up the funnel”.


What about the “Wright Patman letter”?  Should it be given substantial weight?


The interpretation by the Justice Department in 1917 may hold more weight because it’s more contemporaneous with when the bill was enacted.  What about the executive branch’s contribution to the meaning of statutes?  In this instance, when you’re looking at an interpretation contemporaneous with enactment, they may have expertise as to how the law applies to them.


What about Louis Brandeis?  He is an advisor to President Wilson and represents the executive branch.


Representative Mann is angry!  The other guys are happy!  White’s position is that the language is genuinely ambiguous, and a key aspect of the legislative history is the floor debate.  He notes that what Mann and the Webb-Shirley duo disagreed about was whether or not the language prohibited “bank-insurance interlocks”.  What the three members are disagreeing about is just what the House had done.  Has the conference changed the meaning?


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