Nicholas J. Wagoner

Top 21 Sources of Legislative History: Related Statutes, Provisions, and Terms (No. 16)

In this post I explain why “Related Statutes, Provisions, and Terms” ranks 16^th on my list of the “Top 21 Sources of Legislative History.” Click here for a brief overview of the basis for these rankings.

16. Related Statutes, Provisions, and Terms: In his article on the nature of legislative intent, Professor Richard I. Nunez discusses two instances in which litigants must hunt for legislative intent. According to Professor Nunez, the first such instance arises “when an administrator or court cannot read the statute and grasp its simple meaning because of shoddy draftsmanship or language errors.”[1]

Legislative intent might also be necessary to resolve a case “when the statute is understandable but the case at hand was not anticipated at the time the statute was enacted.”[2] The article continues, “It is possible for a legislature to have a clear and discernable intent concerning the social policy and the general purpose of the statute, and yet not have devoted a single moment of thought to the specific meaning of a word or phrase.”[3] Where this is in fact the case, litigants may argue for their desired interpretation by referring to the court’s construction of related statutes, provisions, or terms.

For example, in Bailey v. United States, the Supreme Court grappled with the proper meaning of the term “use” as used in a statute criminalizing the “use” of a firearm while trafficking drugs.[4] The case involved a routine traffic stop, which led officers to discover several undelivered bags of cocaine in the defendant’s car.[5] After arresting the defendant, police then discovered a loaded pistol in the man’s trunk.[6] Although the defendant had apparently taken the liberty to wrap his gun in a paper bag and tuck it away in his trunk, he was nevertheless convicted of “using” that firearm while trafficking drugs.[7]

On appeal, the defendant successfully challenged his conviction for "using" a gun during a drug-related offense by pointing out that Congress had passed related gun laws expressly prohibiting the mere “possession” of a gun under similar circumstances. Therefore, his argument went, the fact that Congress used the term "use" to describe the conduct prohibited under some gun laws, but used the term "possession" to describe the conduct prohibited under other gun laws suggested that Congress did not mean for the two words to be used interchangeably. Based on this distinction, the defendant argued that he merely possessed the gun that he kept in his trunk while making his rounds, but that he certainly did not violate the statute's ban on using a gun while trafficking narcotics.

The Court agreed. Writing for the majority, Justice O’Connor illustrated the utility of turning to related statutes for meaning by asking the Court to “[c]onsider the paradoxical statement: ‘I use a gun to protect my house, but I’ve never had to use it.’ [Explaining,] ‘Use’ draws meaning from its context, and we will look not only to the word itself, but also to the statute and the sentencing scheme, to determine the meaning Congress intended.”[8] After examining the meaning of the word “use” as defined or construed in related gun laws, the Court determined that the term “must connote more than mere possession of a firearm.”[9] It supported this conclusion by listing a string of separate, but related, gun statutes that expressly prohibit mere “possession” of a gun.[10]

Based on Congress’s incorporation of the terms “possession” in some gun laws and “use” in others, the Court held that Congress intended the term “use” in the statute at hand to refer to “active employment of the firearm”—something the defendant had not done by simply placing the gun in his trunk.[11] In reaching this holding, the Court reasoned, “We assume that Congress used two terms because it intended each term to have a particular, nonsuperfluous meaning.”[12]

The Court further supported its interpretation of the word “use” by pointing out that § 924(c)(1)’s sister provision, § 924(d), “provides for the forfeiture of any firearm that is ‘used’ or ‘intended to be used’ in certain crimes.”[13] The Court noted that § 924(d)(1) applies even if the defendant merely intends to use a gun in his possession (and, even if he ultimately abandons his plan to use his gun), whereas § 924(c)(1) only proscribes the “use” of a gun. After pointing out this distinction between these related provisions, the Court explained that the latter provision must be construed to prohibit only actual use to avoid rendering the former provision’s intended-use language superfluous. The Court arrived at this conclusion by noting that “[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme,”[14] adding, “The difference between the two provisions demonstrates that, had Congress meant to broaden application of the statute beyond actual ‘use,’ Congress could and would have so specified, as it did in § 924(d)(1).”[15]

As illustrated above, related statutes, provisions, or terms may help clarify the intended meaning of another statute, provision, or term that might otherwise seem ambiguous in isolation. Although relevant, I have nevertheless ranked this interpretive aid low on my list because my research suggests that cases like Bailey--in which the Court relied almost exclusively on related legislation rather than direct statements of legislative intent to define an otherwise ambiguous term--are relatively uncommon. Instead, decisions that venture into the realm of legislative intent typically do so by exploring more direct sources of legislative history, such as transcripts of floor debates, committee hearings, etc. As a result, “Related Statutes, Provisions, and Terms” finds its place on my list of the "Top 21 Sources of Legislative History" at number sixteen.

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 Legislative Counsel
15. Analysis of Bills by Relevant Executive Departments
16. Related Statutes, Provisions, and Terms
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 (click here)

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[1] Richard I. Nunez, The Nature of Legislative Intent and the Use of Legislative Documents as Extrinsic Aids to Statutory Interpretation: A Reexamination, 9 Cal. W. L. Rev. 128, 128 (1972).

[2] Id.

[3] Id. at 130.

[4] 516 U.S. 137, 138–39 (1995) (citing 18 U.S.C. § 924(c)(1)).

[5] Id. at 139.

[6] Id.

[7] See 18 U.S.C. § 924(c)(1) (2006).

[8] Id. at 143.

[9] Id.

[10] Id. (“Had Congress intended possession alone to trigger liability under § 924(c)(1), it easily could have so provided. This obvious conclusion is supported by the frequent use of the term ‘possess’ in the gun-crime statutes to describe prohibited gun-related conduct. See, e. g., [18 U.S.C.] §§ 922(g), 922(j), 922(k), 922(o)(1), 930(a), 930(b).”).

[11] Id. at 144.

[12] Id. at 146.

[13] Id. (emphasis added).

[14] United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988).

[15] Bailey, 516 U.S. at 146.

 

Top 21 Sources of Legislative History: Dictionaries (No. 17)

In this post I explain why “Dictionaries” rank 17^th on my list of the “Top 21 Sources of Legislative History.” Click here for a brief overview of the basis for these rankings.

17. Dictionaries: In 1994, the Harvard Law Review published an article that chronicles the dramatic rise of dictionaries as interpretative aids to the Supreme Court over the last century.[1] The article points to the 600+ dictionary references by the Supreme Court over the last two centuries as proof of this phenomenon. This trend shows no signs of slowing either; a recent study published in the Marquette Law Review (here) reveals that since 2000, the Supreme Court has used a dictionary in 225 separate opinions to define a total of 295 words.

A. The Rise of the Dictionary in Judicial Opinions

The popularity of dictionaries as a source for interpreting legal terms of art and other words found in statutes may be due, in part, to their availability and ease of use (it’s a lot easier to pull a dictionary off the shelf and flip through alphabetized words than it is to parse through reams of legislative documents when selecting an acceptable definition). Others claim that the wide variety of dictionaries published each year (e.g., Oxford’s English, Merriam–Webster’s, Black’s Law Dictionary, etc.) provide an enticing platter of competing definitions from which those tasked with defining  a statutory term may “cherry pick” the definition that best supports their desired outcome. As Adam Liptak of the New York Times pointed out in a recent article:

In May [2011] alone, the justices cited dictionaries in eight cases to determine what legislators had meant when they used the words “prevent,” “delay” and “report.” Over the years, justices have looked up both perfectly ordinary words (“now,” “also,” “any,” “if”) and ones you might think they would know better than the next guy (“attorney,” “common law”).

Finally, dictionaries are persuasive because they allow judges to avoid the appearance of judicial activism. Whereas merely defining a statutory term based on common sense or some general notion of fairness may seem arbitrary, using a dictionary definition to reach the same outcome creates the appearance of objectivity.

B. The Dictionary Act

Although less popular than its commercial counterparts, Congress’s Dictionary Act does provide an authoritative, but limited, set of default definitions for certain words commonly used in other statutes.[2] For example, where Congress writes a statute that applies to all “persons,” but fails to define who (or what) exactly qualifies as a “person,” the statute's silence on the matter suggests that its drafters intended for the Dictionary Act's definition of the term to apply. (The Dictionary Act defines "person" as including not only living, breathing human beings, but also legal "persons" such as corporations.[3])

C. The Inadequacy of Dictionaries as an Interpretive Aid

Despite the recent rise in popularity of dictionaries as an interpretive aid, dictionaries remain relatively unimportant for several reasons. First, dictionaries are no more likely to accurately reflect the meaning intended by the Legislature than the statute’s actual legislative history. The editor at large of the Oxford English Dictionary noted, “I think that it’s probably wrong, in almost all situations, to use a dictionary in the courtroom,” adding, “Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.”

Judge Learned Hand expressed a similar concern when he wrote, “It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945).

Finally, the meaning of a word is shaped over time by the context in which people use it. Dictionaries merely reflect the popular use of a given word at that particular period in time. But this context can, and often does, change over time. If one were to consult a dictionary to help make an educated guess about Congress's intended meaning of a particular statutory term, logically, the definition in a dictionary published around the same time that the statute in question was drafted would more accurately reflect the term's intended meaning than a definition plucked from a subsequent edition. Yet, in Buckannon Board & Care Home v. West Virginia Department of Health & Human Resources this was not the case. Here, the Court was asked to interpret the term “prevailing party” as used by Congress in its civil rights legislation passed during the 1960s and '70s. 

In drafting these laws, Congress might have referred to the 1968 revised 4th Edition of Black’s Law Dictionary when it placed the term “prevailing party." According to this edition, a prevailing party is “one of the parties to a suit who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of his original contention.” [4]

Yet, when tasked with defining this term of art, Chief Justice Rehnquist instead relied on the 7th Edition of Black’s Law Dictionary, which was published decades after the statutes at issue were enacted--1999. This led to a peculiar result: “prevailing party” was given a much different meaning than the one that existed when the term that was originally drafted into the law. The 7th Edition defined “prevailing party” as:

“[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded (in certain cases, the court will award attorney's fees to the prevailing party).—Also termed successful party.” This view that a “prevailing party” is one who has been awarded some relief by the court can be distilled from our prior cases.[5]

In short, dictionaries have emerged as an easy, popular tool for interpreting undefined terms found in statutes. Dictionaries nevertheless rank relatively low on my list because (1) they are just as susceptible to abuse as traditional sources of legislative history; (2) they are not written by or for a legal audience; and (3) the meaning of words change over time, meaning definitions plucked from a different time period than the one in which the relevant statute was drafted do not accurately reflect the intended meaning of that term. As a result, dictionaries rank 17th on my list of sources of the top 21 sources of legislative history.

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 Legislative Counsel
15. Analysis of Bills by Relevant Executive Departments
16. Related Statutes, Provisions, and Terms (click here)
17. Dictionaries
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 (click here)

 

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[1] Note, Looking It Up: Dictionaries and Statutory Interpretation, 107 Harv. L. Rev. 1437 (1994). An extended version of this Note written by Kevin Werbach is available here.

[2] 1 U.S.C. § 1 (2006).

[3] Id. (defining the term “person” as including “corporations” and various other legal entities “unless the context [of the Act] indicates otherwise”).

[4] Parker v. Matthews, 411 F. Supp. 1059, 1063 (D.C. Cir. 1976) (quoting Black’s Law Dictionary 1352 (rev. 4th ed. 1968)).

[5] Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Human Res., 121 S. Ct. 1835, 1839 (2001) (alterations in original) (quoting Black's Law Dictionary 1145 (7th ed. 1999)).

 

Top 21 Sources of Legislative History: Statements by Executive Branch Administrators (No. 18)

In this post I explain why “Statements by Executive Branch Administrators” ranks 18^th on my list of the “Top 21 Sources of Legislative History.” Click here for a brief overview of the basis for these rankings.

18. Statements by Executive Branch Administrators: Over the past century, referring to federal administrative agencies as the “fourth branch of government” has become somewhat cliché.[1] This phrase, of course, refers to the increasingly prominent role that government agencies play in shaping our nation’s laws and policies. Such prominence is due in large part to the deference given by courts to statements of intent made by agency administrators when interpreting otherwise ambiguous statutes drafted by Congress.

Despite the Judiciary’s historical deference to Executive Branch administrators, a string of recent decisions urge judges to scale back the Executive and Judicial Branch’s influence over the lawmaking process, citing the Separation of Powers Doctrine. Accordingly, I predict that over the coming years courts will, with increasing regularity, disregard statements made in committees by Executive Branch administrators when trying to decide the intended meaning of an unclear statute, which is why I have ranked this source relatively low on my list of important sources of legislative history.

A. The Separation of Powers Doctrine

The Framers created a system of checks and balances designed to ensure that power did not become too concentrated in any one person or group within our government. To achieve this goal, the Constitution delegates the power to create laws to the Legislative Branch,[2] the power to enforce laws to the Executive Branch,[3] and the power to oversee the just application of laws to the Judicial Branch.[4]  In more formal circles, this is referred to as the Separation of Powers Doctrine.

Judges who wish to preserve this separation of power will frequently restrict their inquiry into the intended meaning of a law to statements and documents produced by the branch responsible for creating the law in question: the Legislature. However, with the recent proliferation of administrative agencies, Congress has delegated much of its lawmaking power to regulators who typically take orders from the Executive Branch. Additionally, an agency will often bear responsibility for adjudicating disputes that arise from the rules and regulations it creates and enforces. These disputes frequently turn on questions of whether an agency’s interpretation of a particular law—in carrying out the will of the Executive Branch—was reasonable. As a result, “the Executive branch exercises powers that are both legislative and judicial in nature” through its influence over administrative agencies.[5]

B. Judicial Deference to Administrative Agencies

Over time, courts became increasingly willing to entertain arguments for a particular interpretation of a statute based on statements made not by members of Congress, but by relevant Executive Branch administrators, thereby blurring the traditional lines drawn by the Framers through the Separation of Powers Doctrine. In fact, one article points out that Congress frequently consults executive departments when drafting bills, and that “their opinions about bills they have drafted or supported are often noted in the Supreme Court’s discussion of legislative history.”[6]

Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., which has been cited an impressive 11,467 times by federal courts,[7] provides a perfect example of the Court’s willingness to substitute administrative intent for legislative intent.[8] In Chevron, Congress had enacted a statute requiring builders to obtain permits before constructing new pollution-generating factories, which the statute ambiguously referred to as “stationary sources.”[9] The administrative agency tasked with overseeing Congress’s new law—the Environmental Protection Agency (EPA)—clarified this term by creating a regulation limiting the scope of “stationary sources” to pollutant-emitting “building[s], structure[s], facilit[ies], or installation[s].”[10] Rather than making up its own definitions for the ambiguous terms found in Congress's eco-friendly law, and rather than relying on statements of intent made by individual members of Congress, the Court deferred to the EPA's definition of "stationary sources." 

From this decision emerged the "Chevron two-prong test," which was designed to help courts determine when deference to statements of legislative intent made by Executive Branch administrators in interpreting a law is appropriate. The Chevron two-prong test requires courts to first interpret a statute consistent with Congress's stated intent where such intent is clearly conveyed. The second prong applies in the event that Congress’s intent as to the “precise question at issue” is not clear, in which case courts must give “controlling weight” to the administrator’s statements of intent “unless they are arbitrary, capricious, or manifestly contrary to the statute.”[11] Although such deference to the “fourth branch” of government muddles the Separation of Powers Doctrine, courts “have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.”[12]  

Although in Chevron, the statements of intent made by the administrative agency were delivered through a federal regulation, courts similarly defer to statements made by Executive Branch administrators elsewhere. For instance, when the Senate Committee on the Judiciary held a hearing in 2006 on the “Wartime Executive Power and the National Security Agency’s Surveillance Authority,” Senator Arlen Specter questioned then-Attorney General Alberto Gonzalez, which served as “the framework for [Congress’s] discussion” on how certain legislation concerning national security should be interpreted.[13] Illustrating the Executive Branch’s influence over certain pieces of legislation like the Foreign Intelligence Surveillance Act, Senator Specter noted that “the beauty of our system is the separation of powers, the ability of the Congress to call upon the administration for responses, the response of the attorney general in being willing to come here today, and then the Supreme Court to resolve any conflicts.”[14]

C. Renewed Respect for the Separation of Powers Doctrine

Despite the significant deference given to administrative statements of statutory intent in recent years, courts appear to be moving back towards the traditional separation of power envisioned by the Framers. As a result, in the coming years statements made by Executive Branch administrators are less likely to persuade judges to interpret ambiguous statutes in a manner consistent with the Executive Branch’s intended meaning. Courts will instead look exclusively to Congress to determine the meaning of a statute when its text is unclear.

D. State of Florida v. United States Department of Health & Human Services 

Federal Judge Roger Vinson’s 78-page ruling in January 2011, which declared President Obama’s “Patient Protection and Affordable Care Act” unconstitutional, provides a perfect example of the reemergence of the Separation of Powers Doctrine.[15] The opinion, which opens with a quote plucked from James Madison’s Federalist No. 51 extolling the virtues of the Separation of Powers Doctrine,[16] cites a number of instances in which members of the Executive Branch clearly expressed their policy goals for legislative healthcare reform.[17] Although the court acknowledged that these policy goals were noble and clearly conveyed, it nevertheless struck the Act down, stating: “It is Congress that should consider and decide these quintessentially legislative questions.”[18] Because I believe this is only the first of many similar decisions to come that will wrestle power away from the Executive Branch, I have ranked “Statements by Executive Branch Administrators” relatively low on my list of important sources of legislative history.

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 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
19.  Statements and Submissions by Lobbyists (click here)
20. Subsequent or Prior Unrelated, but Conflicting Legislation  (click here)
21. Recorded Votes (click here)

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[1] During the New Deal Era, President Roosevelt created a Committee on Administrative Management to study the organizational structure of the federal government. In its report, the committee referred to the increasingly prominent independent regulatory commissions as “a headless fourth branch of the government” characterized by its “haphazard deposit of irresponsible agencies and uncoordinated powers.” Report of President’s Committee on Administrative Management (Washington, D.C., U.S. GPO 1937). 

[2] U.S. Const. Art. I, § 1.

[3] U.S. Const. Art. II, § 1.

[4] U.S. Const. Art. III, § 1.

[5] Cindy G. Buys & William Isasi, An “Authoritative” Statement of Administrative Action: A Useful Political Invention or a Violation of the Separation of Powers Doctrine?, 7 N.Y.U. J. Legis. & Pub. Pol’y 73, 89 (2003).

[6] William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 632, 633 & n.44 (1990) (citing a long list of Supreme Court opinions that refer to testimony given to Congress by administrators regarding various bills).

[7] This number was generated by performing a “Shepard’s Summary” on LexisNexis for Chevron and then limiting the results to citations by federal courts. 

[8] 467 U.S. 837 (1984).

[9] Id. at 840 n.1 (quoting 42 U.S.C. § 7502(b)(6)(a)(6)).

[10] Id. at 840 n.2 (quoting 40 C.F.R. §§ 51.18(j)(1)(I), (ii) (1983)).

[11] Id. at 844.

[12] Id.

[13] Hearings before the Senate Committee on the Judiciary, 109^th Cong. 2d session, Wartime Executive Power and the National Security Agency’s Surveillance Authority (Feb. 6, Feb. 26, & Mar. 28, 2006) (S. Hrg. 109–500). 

[14] Id.

[15] State of Florida v. U.S. Dep’t of Health & Human Servs., Case No. 3:10-cv-91-RV/EMT (Jan. 31, 2011).

[16] Id. The beginning of the opinion reads:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

James Madison, Federalist No. 51.

[17] See, e.g., State of Florida v. U.S. Dep’t of Health & Human Servs., at 68 (“In speech after speech President Obama emphasized the legislative goal was ‘health insurance reform’ and stressed how important it was that Congress fundamentally reform how health insurance companies do business, and ‘protect every American from the worst practices of the insurance industry.’” (citing Remarks of President Obama, The State of the Union (Jan. 27, 2009))).

[18] Id. at 74.

 

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.

 

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.