Legislation
Class Notes
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.
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?