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):
- 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 (click here)
- Subsequent or Prior Unrelated, but Conflicting Legislation (click here)
- Recorded Votes
[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.
