Nicholas J. Wagoner

Top 21 Sources of Legislative History: Statements and Submissions by Lobbyists (No. 19)

In this post I explain why “Statements and Submissions by Lobbyists” ranks 19^th on my list of the “Top 21 Sources of Legislative History.” Click here for a brief overview of the basis for these rankings.

19. Statements and Submissions by Lobbyists: According to data retrieved from the Senate Office of Public Records, the lobbying industry spent an estimated $2.6 billion on promoting various legislative agendas to federal, state, and local lawmakers in 2010.[1] This discrete industry is largely funded by “companies, labor unions, and other organizations [that] spend billions of dollars each year to lobby Congress and federal agencies” to support favorable legislation.[2]

In some cases, lobbyists merely push their agendas by promoting a proposed bill (drafted by actual members of Congress) as it travels through various committees, debates, and voting. When this is the case, lobbyists have less to do with the meaning behind the statute's language, and more to do with its popularity in the House and Senate. In other cases however, a bill’s language may have been researched, drafted, packaged, and pitched to members of Congress by lobbyists. When this is the case, the policies and agendas pushed by the lobbying firm that successfully pitched the bill to members of Congress are extremely relevant in determining the intended meaning of that bill’s language, which is why this legislative source is ranked higher than “Subsequent or Prior Unrelated, but Conflicting Legislation.”

In fact, some judges believe that lobbyists--who are not politically accountable unlike elected representatives--exert too much influence over the policies and terms incorporated into particular statutes. As a result, a number of judges outright refuse to rely on this source of legislative history to determine intent, which is why I have ranked this source low on my list. Particularly, “legislative history can be highly misleading because it is written by staff members, or worse, by lobbyists, with axes to grind, and because much of it is not even considered by those voting on the legislation.”[3]

An article recently featured in Fortune entitled “Washington Watch: The Big Political Player You’ve Never Heard Of” illustrated this point.[4] The article reported that an organization known as the American Legislative Exchange Council, or ALEC for short, “conceived” an astounding 826 bills introduced by state lawmakers, of which 115 were passed.[5] ALEC also helped create Arizona’s controversial anti-immigration bill and statewide tort reform in Mississippi.[6] In fact, the article also reports that ALEC was responsible for drafting the Virginia healthcare law that served as the basis for a federal judge’s recent decision to strike down certain provisions contained in President Barack Obama’s Patient Protection and Affordable Care Act (PPACA).[7]

Clearly, statements and submissions by lobbyists can have a significant impact on the meaning and wording of a particular statute. However, I have ranked this source of legislative history relatively low due to its susceptibility to manipulation. Additionally, documents and statements carefully crafted by lobbying firms, as opposed to members of Congress, offer little insight into how members of Congress intended the statute’s language to be construed.  As a result, this source is of little importance in determining congressional intent.

The following lists the “Top 21 Sources of Legislative History” (1 = most important; 21 = least important):

1. Conference Committee Reports
2. Committee Debates and Bill Mark-ups
3. Committee Reports
4. The Status of the Person Speaking—Sponsor, Committee Chairman, Floor Leader, Etc.
5. Accepted and Rejected Amendments
6. Floor Debates
7. Planned Colloquy
8. Transcripts of Discussions at Committee Hearings
9. Prepared Statements on Submission of a Bill, in Committee Hearings, and at the Time of Floor Debates
10. Revised and Amended Statements
11. Actions on and Discussions About Separate Bills on the Same Topic
12. Prior Relevant Administrative Action or Judicial Decisions, with or without Congressional Acknowledgement
13. Executive Branch Messages and Proposals Whether from the President, Cabinet Secretaries, or from Independent Agencies
14. Analysis of Bills by Legislative Counsel
15. Analysis of Bills by Relevant Executive Departments
16. Related Statutes, Provisions, and Terms (click here)
17. Dictionaries (click here)
18. Statements by Executive Branch Administrators (click here)
19. Statements and Submissions by Lobbyists
20.  Subsequent or Prior Unrelated, but Conflicting Legislation  (click here)
21. Recorded Votes (click here)

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[1] Ctr. for Responsive Politics, Opensecrets.org.

[2] Id.

[3] Ernest Gellhorn, Symposium, Justice Breyer on Statutory Review and Interpretation, 8 Admin. L.J. Am. U. 755, 758 (1995).

[4] Tory Newmyer, Washington Watch: The Big Political Player You’ve Never Heard Of, Fortune, Jan. 17, 2011, at 21.

[5] Id.

[6] Id.

[7] Id.

 

Top 21 Sources of Legislative History: Subsequent or Prior Unrelated, but Conflicting Legislation (No. 20)

In this post I explain why “Subsequent or Prior Unrelated, but Conflicting Legislation” ranks 20^th on my list of the “Top 21 Sources of Legislative History.” Click here for a brief overview of the basis for these rankings.

20. Subsequent or Prior Unrelated, but Conflicting Legislation: This source of legislative history is primarily relevant where a litigant claims that its efforts to comply with one statute resulted in the violation of another statute. In other words, the litigant is arguing that a conflict exists between the statute that it allegedly violated and a prior- or subsequently-enacted statute. In the finite number of cases where this argument is relevant (hence, its low ranking), courts may look to the legislative intent behind the conflicting legislation to determine whether Congress, in crafting the more-recent Act’s language, intended to pursue a policy interest at odds with its former law.

In addition to the miniscule number of cases in which courts must determine whether unrelated legislation is relevant to its interpretation of a statute, I have ranked this source 20^th out of 21 because courts are more likely to attribute such conflict to inadvertent error rather than legislative design. With frequent turnover in Congress,[1] and an estimated +4,000 federal crimes in the U.S. Penal Code alone,[2] it’s not hard to fathom the Legislature enacting a law that inadvertently treads on older legislation. As a result, courts recognize “a strong presumption against one statute repealing or amending another by implication.”[3]

I have ranked “Subsequent or Prior Unrelated, but Conflicting Legislation” higher than “Recorded Votes” because courts have consulted the legislative history of the former in a few notable cases, whereas the latter has received almost no attention from courts. One such notable case involved a prisoner—having otherwise accumulated enough “good-behavior-time credits” to purchase his early release if not for the prison’s decision to cancel his credits—who wished to challenge the fairness of his confinement in federal court.[4]

The prisoner attempted to bring his challenge directly into federal court under the broad language of 42 U.S.C. § 1983 rather than exhaust the remedies available to him at the state level first, which would have allowed him to bypass the prolonged appeals process that would accompany his case if brought in state court. Although the Supreme Court conceded that § 1983 “seem[ed] literally to apply”[5] to the prisoner’s case, it rejected the prisoner’s use of the statute as an end-run around the state court system because such a result would conflict with Congress’s more-specific habeas corpus laws requiring prisoners to exhaust “state remedies as a condition precedent to the invocation of federal judicial relief.”[6] To avoid interpreting § 1983 in a manner that would undermine (i.e., conflict with) Congress’s legislative purpose behind its narrower habeas corpus laws, the Court relied on the legislative history of a seemingly unrelated piece of legislation (i.e., federal habeas corpus laws) to decide that § 1983 should not be read literally in the prisoner’s case.[7]

In the rare instances where courts find that Congress intentionally enacted two unrelated statutes to advance conflicting policies, courts may rely on several canons of construction to reconcile the conflict. The National Conference of Commissioners on Uniform State Laws crystallized these canons into the following model statute:

SECTION 10: IRRECONCILABLE STATUTES OR RULES.

(a) If the statutes appear to conflict, they must be construed, if possible, to give effect to each. If the conflict is irreconcilable, the later enacted statute governs. However, an earlier enacted specific, special, or local statute prevails over a later enacted general statute unless the context of the later enacted statute indicates otherwise.

(b) If an administrative agency’s rules appear to conflict, they must be construed, if possible, to give effect to each. If the conflict is irreconcilable, the later adopted rule governs. However, an earlier adopted specific, special, or local rule prevails over a later adopted general rule unless the context of the later adopted rule indicates otherwise.

(c) If a statute is a comprehensive revision of the law on a subject, it prevails over previous statutes on the subject, whether or not the revision and the previous statutes conflict irreconcilably.

(d) If a rule is a comprehensive revision of the rules on the subject, it prevails over previous rules on the subject, whether or not the revision and the previous rules conflict irreconcilably.[8]

The following lists the “Top 21 Sources of Legislative History” (1 = most important; 21 = least important):

1. Conference Committee Reports
2. Committee Debates and Bill Mark-ups
3. Committee Reports
4. The Status of the Person Speaking—Sponsor, Committee Chairman, Floor Leader, Etc.
5. Accepted and Rejected Amendments
6. Floor Debates
7. Planned Colloquy
8. Transcripts of Discussions at Committee Hearing
9. Prepared Statements on Submission of a Bill, in Committee Hearings, and at the Time of Floor Debates
10. Revised and Amended Statements
11. Actions on and Discussions About Separate Bills on the Same Topic
12. Prior Relevant Administrative Action or Judicial Decisions, with or without Congressional Acknowledgement
13. Executive Branch Messages and Proposals Whether from the President, Cabinet Secretaries, or from Independent Agencies
14. Analysis of Bills by Legislative Counsel
15. Analysis of Bills by Relevant Executive Departments
16. Related Statutes, Provisions, and Terms (click here)
17. Dictionaries (click here)
18. Statements by Relevant Executive Branch Administrators (click here)
19. Statements and Submissions by Lobbyists (click here)
20. Subsequent or Prior Unrelated, but Conflicting Legislation
21. Recorded Votes (click here)

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[1]  See Jennifer E. Manning et al., Cong. Research Serv., Leaving Congress: House of Representatives and Senate Departures Data Since 1989 (2010).

[2] See Julie R. O’Sullivan, The Federal Criminal “Code” is a Disgrace: Obstruction Statutes as Case Study, 96 J. Crim. L. & Criminology 643, 648–49 (2006).

[3] Ely v. Velde, 451 F.2d 1130, 1134 (4th Cir. 1971).

[4] Preiser v. Rodriguez, 411 U.S. 475 (1973).

[5] Id. 

[6] Id.

[7] Id.

[8] Uniform Statute and Rule Construction Act § 10 (1995).

 

Top 21 Sources of Legislative History: Recorded Votes (No. 21)

Black’s Law Dictionary defines the term “legislative history” as “[t]he background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates,” and notes that it is “sometimes recorded so that it can later be used to aid in interpreting the statute.”[1] This definition is somewhat misleading however, as judges have relied on a wide variety of historical sources to aid them in interpreting statutes, extending far beyond recorded hearings, reports, and debates.

As legal scholars have discovered, not all sources of legislative history are created equal.[2] Given the medley of legislative sources from which litigants may cite in support of their desired interpretation of a statute, judges are often forced to “rank” one source over the other in cases where the legislative history offered by one side paints a different picture of congressional intent than the legislative history offered by the other side. As a result, courts have “worked out a rough hierarchy of [historical legislative] evidence to resolve conflicts” that is “based upon the comparative reliability of each source.”[3]

I have identified twenty-one distinct sources of legislative history and ranked them in order from most important to least important[4] to determining the legislative intent behind any given statute. I will discuss each source individually in a separate post, explain why I believe the featured source is more important than the source immediately below it, and less important than the source immediately above it.

In this post I examine why “Recorded Votes” is the least important source of legislative history to determining congressional intent.

21. Recorded Votes: There is little, if any, insight to be had from a mere “yay” or “nay” vote aside from verifying the obvious—that the statute being interpreted passed Congress and was signed into law. Courts generally do not care about who voted on a bill, nor do they care about how many members of Congress voted a particular way. Moreover, courts recognize that the number of supporting votes a particular bill garners is sometimes less a product of congressional intent than one of political bargaining and compromise.  Acts frequently contain dense, loosely related laws; in some cases it’s clear that the congressional representatives who throw their support behind particular pieces of legislation are not even familiar with its details. As such, recorded votes offer little insight to courts trying to divine meaning and intent from the ambiguous words and phrases that often find themselves at the center of litigation.

The following lists the “Top 21 Sources of Legislative History” (1 = most important; 21 = least important):

1. Conference Committee Reports
2. Committee Debates and Bill Mark-ups
3. Committee Reports
4. The Status of the Person Speaking—Sponsor, Committee Chairman, Floor Leader, Etc.
5. Accepted and Rejected Amendments
6. Floor Debates
7. Planned Colloquy
8. Transcripts of Discussions at Committee Hearings
9. Prepared Statements on Submission of a Bill, in Committee Hearings, and at the Time of Floor Debates
10. Revised and Amended Statements
11. Actions on and Discussions About Separate Bills on the Same Topic
12. Prior Relevant Administrative Action or Judicial Decisions, with or without Congressional Acknowledgement
13. Executive Branch Messages and Proposals Whether from the President, Cabinet Secretaries, or from Independent Agencies
14. Analysis of Bills by Legislative Counsel
15. Analysis of Bills by Relevant Executive Departments
16. Related Statutes, Provisions, and Terms (click here)
17. Dictionaries (click here)
18. Statements by Executive Branch Administrators (click here)
19. Statements and Submissions by Lobbyists (click here)
20. Subsequent or Prior Unrelated, but Conflicting Legislation (click here)
21. Recorded Votes

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[1] Black’s Law Dictionary 911 (7th ed. 1999).

[2] See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 636 (1990).

[3] Id.

[4] For purposes of this ranking, a legislative source is deemed more or less important based on its degree of reliability, persuasive power, susceptibility to manipulation, and frequency with which courts have cited the particular type of source as persuasive authority. I acknowledge that the level of importance of a source may vary depending on the unique circumstances of the statute in which the source is being used to interpret. 

 

A Modern Approach to Researching Legislative History in Texas

The following is a modern step-by-step guide to researching legislative history in Texas. Of the various tools available to advocates practicing law in Texas, legislative history is perhaps one of the most underrated. When used effectively, legislative history may convince a judge to interpret and apply a statute beyond the literal meaning of its language. Cynics might argue that judges are inclined to cite legislative history when a literal application of a statute conflicts with their general notion of fairness.

Maybe it’s a well-kept secret among a select few practitioners, or maybe it’s because doing so requires slightly more research than typing a phrase into “Google” or “Westlaw,” but too few attorneys cite to legislative history in Texas. Even appellate courts have, in some cases, failed to consult the legislative record before interpreting a statute.[1] Nevertheless, in Texas, “The fundamental rule governing the construction of a statute is to ascertain the intent of the legislature in enacting the statute.”[2] As part of the separation of powers, courts are obligated to enforce the intent of the legislature “even though it may not be entirely consistent with the strict letter of the statute.”[3]

Where one attorney argues that the letter of the law should be strictly applied in a particular case, a well-researched opponent might rely on the statute’s (1) bill analysis, (2) study-group reports, (3) legislative-council reports, and (4) floor debates to demonstrate why construing the statute in such a manner would violate the legislature’s intent.[4]

Before the Internet became a prevalent medium for conducting legal research, the Texas Court of Criminal Appeals provided attorneys with a guide to researching legislative history in Texas.[5] The following step-by-step guide is a reproduction of the Court of Criminal Appeals' original guide, which I have “modernized” by incorporating steps for using the Internet to locate legislative material made freely available online by the Texas Legislature.

Click the following link to download the guide in its entirety:  Download Amodernapproachtoresearchinglegislativehistoryintexas.

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[1] See, e.g., Dillehey v. State, 815 S.W.2d 623, 624 n.2 (Tex. Crim. App. 1991) (noting that, although the court of appeals “did not research into the legislative history of the bills” at issue, “this was an appropriate case in which to do so”).

[2] Id. at 625 (citing Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989)).

[3] Id.; see also Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892) (“[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.”).

[4] Dillehey, 815 S.W.2d at 625 (citing Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990)).

[5] See id. at 623–29 app. A.

 

Comment, Honest-Services Fraud: The Supreme Court Defuses the Government's Weapon of Mass Discretion in Skilling v. U.S.

I recently wrote a legal commentary discussing the Supreme Court’s 2010 decision in Skilling v. United States and its impact on the honest-services fraud statute, which was selected for publication in the summer 2010 issue of the South Texas Law Review (51 S. Tex. L. Rev. __). 

The most recent version is available for download at SSRN.* 

• Top Ten Downloads: Political Science Network: Legislative Policy & Procedure (1/13/11)
• Top Ten Downloads: White Collar Crime eJournal (1/15/11)
• Top Ten Downloads: Political Institutions: Legislatures eJournal (1/17/11)
• Top Ten Downloads: Legal Scholarship Network: Legislation & Statutory Interpretation (1/18/11)
• Top Ten Downloads: Legal Scholarship Network: Rights & Liberties (1/28/11)
• Top Ten Downloads: Law & Society: Legislation eJournal (2/11/11)

*Special thanks to the following websites for helping promote my Comment:

• CrimProf Blog 
• National Association of Criminal Defense Lawyers

Abstract: For over two decades federal prosecutors wielded a weapon of mass discretion in their fight against corruption: the honest-services fraud statute. Although prosecutors welcomed the statute's ambiguous text, judges, defendants, and scholars struggled for more than two decades to answer a number of difficult constitutional questions arising from the honest-services fraud theory. In 2010, the Supreme Court used Skilling v. United States - a case that chronicles the events that led to the epic collapse of former energy giant Enron - to defuse the Government’s “weapon of mass discretion” by limiting honest-services fraud to cover only schemes involving bribery or kickbacks, thereby placing more subtle forms of dishonesty, such as undisclosed self-dealing, outside the statute's reach.

This Comment discusses the case’s impact on the fallen Enron CEO’s fight for freedom, in addition to its impact on two other petitioners who successfully challenged the honest-services fraud statute in 2010. I also examine the rights of the defendants whose convictions or plea agreements were premised on an application of the statute now declared unconstitutional, as well as analyze the decision’s impact on pending and future cases of honest-services fraud. 

Finally, I explain why Congress will likely supersede Skilling by amending § 1346 to expressly criminalize schemes involving an individual’s failure to disclose their self-dealing; analyze the proposed “Honest Services Restoration Act” (HSRA), which was drafted to accomplish this goal; and conclude that, although not perfect, the proposed language contained in the HSRA adequately addresses the major constitutional concerns surrounding the use of honest-services fraud to prosecute undisclosed self-dealing.

 

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