In this post I explain why “Statements and Submissions by Lobbyists” ranks 19th 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):
- Conference Committee Reports
- Committee Debates and Bill Mark-ups
- Committee Reports
- The Status of the Person Speaking—Sponsor, Committee Chairman, Floor Leader, Etc.
- Accepted and Rejected Amendments
- Floor Debates
- Planned Colloquy
- Transcripts of Discussions at Committee Hearings
- Prepared Statements on Submission of a Bill, in Committee Hearings, and at the Time of Floor Debates
- Revised and Amended Statements
- Actions on and Discussions About Separate Bills on the Same Topic
- Prior Relevant Administrative Action or Judicial Decisions, with or without Congressional Acknowledgement
- Executive Branch Messages and Proposals Whether from the President, Cabinet Secretaries, or from Independent Agencies
- Analysis of Bills by Legislative Counsel
- Analysis of Bills by Relevant Executive Departments
- Related Statutes, Provisions, and Terms (click here)
- Dictionaries (click here)
- Statements by Executive Branch Administrators (click here)
- Statements and Submissions by Lobbyists
- Subsequent or Prior Unrelated, but Conflicting Legislation (click here)
- Recorded Votes (click here)
[3] Ernest Gellhorn, Symposium, Justice Breyer on Statutory Review and Interpretation, 8 Admin. L.J. Am. U. 755, 758 (1995).
