Legislation
Class Notes
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.
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.
[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.