Legislative Process Outline PDF

[Introduction 3](#introduction) [Why Do We Have Statutory Interpretation? 3](#why-do-we-have-statutory-interpretation) [Why Do We Have Democracy? 3](#why-do-we-have-democracy) [Constitutional Provisions In Legislation 3](#constitutional-provisions-in-legislation) [The Theory And Practice Of Federal Lawmaking 4](#the-theory-and-practice-of-federal-lawmaking) [The Civil Rights Act Of 1964 4](#the-civil-rights-act-of-1964) [How A Bill Becomes A Law 5](#how-a-bill-becomes-a-law) [Bicameralism 5](#bicameralism) [Presentment 6](#presentment) [Introduction and Referral of Legislation 6](#introduction-and-referral-of-legislation) [Committee Consideration 6](#committee-consideration) [Floor Scheduling 7](#floor-scheduling) [Floor Consideration 8](#floor-consideration) [Conference Committees 9](#conference-committees) [Presentment 9](#presentment-1) [Potential Vetogate Opportunities 9](#potential-vetogate-opportunities) [Unorthodox Lawmaking 10](#unorthodox-lawmaking) [Political Theory 10](#political-theory) [Proceduralism 10](#proceduralism) [Pluralism 11](#pluralism) [Public Choice Theory 11](#public-choice-theory) [Statutory Interpretation In Context 11](#statutory-interpretation-in-context) [Contemporary Issues In Federal Lawmaking 12](#contemporary-issues-in-federal-lawmaking) [Selected Topics 14](#selected-topics) [Single Subject Rule & Other Substantive Limitations on the Legislative Process 14](#single-subject-rule-other-substantive-limitations-on-the-legislative-process) [Veto Powers 17](#veto-powers) [Appropriations 18](#appropriations) [Enrolled Bill Doctrine 18](#enrolled-bill-doctrine) [Direct Democracy 20](#direct-democracy) [Initiative 20](#initiative) [Referendum 20](#referendum) [Recall 21](#recall) [Eligibility To Serve In Congress 22](#eligibility-to-serve-in-congress) [Constitutionally And Congressionally Imposed Qualifications 22](#constitutionally-and-congressionally-imposed-qualifications) [The Difference between exclusion and expulsion 22](#the-difference-between-exclusion-and-expulsion) [State Imposed Qualifications And Ballot Access 23](#state-imposed-qualifications-and-ballot-access) [Legislative Ethics: Selected Issues 24](#legislative-ethics-selected-issues) [Legislative Immunity 24](#legislative-immunity) [Money In Politics 25](#money-in-politics) [Corruption 27](#corruption) [Theory And Practice Of Statutory Interpretation 28](#theory-and-practice-of-statutory-interpretation) [Historical Background 28](#historical-background) [Intent And Purpose 29](#intent-and-purpose) [Changed And Unanticipated Circumstances 30](#changed-and-unanticipated-circumstances) [Stare Decisis 31](#stare-decisis) [Plain Meaning And Textualism 31](#plain-meaning-and-textualism) [Purpose-Textualism Debate 31](#purpose-textualism-debate) [Pragmaticism 32](#pragmaticism) [Contemporary Debate 33](#contemporary-debate) [Tools And Doctrines Of Statutory Interpretation 33](#tools-and-doctrines-of-statutory-interpretation) [Textual Cannons - Maxims of Word Meaning and Association 33](#textual-cannons---maxims-of-word-meaning-and-association) [Ordinary Meaning 33](#ordinary-meaning) [Corpus Linguistics 33](#corpus-linguistics) [Noscitur a Sociis 34](#noscitur-a-sociis) [Ejusdem Generis 34](#ejusdem-generis) [Expressio Unis 34](#expressio-unis) [Whole Act Rule 34](#whole-act-rule) [Rule Against Surplusage/Rule Against Redundancy 35](#rule-against-surplusagerule-against-redundancy) [Presumption of Consistent Usage and Meaningful Variation 35](#presumption-of-consistent-usage-and-meaningful-variation) [Rule Against Interpreting A Provision In Derogation Of Another 35](#rule-against-interpreting-a-provision-in-derogation-of-another) [Textual Cannons -- Grammar Cannons 35](#textual-cannons-grammar-cannons) [Punctuation Rules 35](#punctuation-rules) [Last Antecedent Rule 36](#last-antecedent-rule) ["And" Versus "Or" 36](#and-versus-or) ["May" Versus "Shall" Rule 36](#may-versus-shall-rule) [Singular And Plural Numbers/Gender Rule 36](#singular-and-plural-numbersgender-rule) [Extrinsic Sources, Whole Act Rule, And Context 36](#extrinsic-sources-whole-act-rule-and-context) [Common Law 36](#common-law) [Statutory And Regulatory Context 37](#statutory-and-regulatory-context) [Whole Code Rule & In Pari Materia 37](#whole-code-rule-in-pari-materia) [Legislative History 37](#legislative-history) [Inaction & Subsequent Legislative History 38](#inaction-subsequent-legislative-history) [Substantive Cannons 39](#substantive-cannons) [Rule Of Lenity 39](#rule-of-lenity) [Avoidance Cannon 39](#avoidance-cannon) [Major Questions Doctrine 39](#major-questions-doctrine) [Cases And Their Cannons 40](#cases-and-their-cannons) [Statutory Interpretation Quick Guide: The Whole "Cable" 50](#statutory-interpretation-quick-guide-the-whole-cable) [Key Terms 51](#key-terms) Introduction ============ Why Do We Have Statutory Interpretation? ---------------------------------------- Why Do We Have Democracy? ------------------------- - Legitimacy - Representation Constitutional Provisions In Legislation ---------------------------------------- - Article I: The Legislative Branch - Art. I, § 2, cl. 2 House Requirements - 25 years of age, citizen of the United States for at least 7 years, inhabitant of the State in which they are elected. - Art. I, § 3, cl. 3 Senate Requirements - 30 years of age, citizen of the United States for at least 9 years, inhabitant of the state in which they are elected. - Art. I, § 5, cl 1&2 Each house can make their own rules & punishment procedures - Art. I, § 5, cl. 3 The Journal Clause - Possibly where Committee Reports come from - Art. I, § 7 cl. 1 **All bills for raising Revenue shall originate in House; Sena**te may propose or concur with Amendments as on other bills. - Art. I, § 7 cl. 2 Presentment & Veto power - Art. I, § 8 Congress' enumerated powers - Art. I, § 9 Various limits on Congress' powers - Art. II: The Executive Branch - Art. II, § 3 Take care clause - U.S. Const. amend. I: Establishment clause, free speech clause (etc.) The Theory And Practice Of Federal Lawmaking ============================================ The Civil Rights Act Of 1964 ---------------------------- - Timeline/Highlights 1. 1954: *Brown v. Board of Education* is decided, doesn't affect private discrimination 2. 1960: Kennedy is elected on the platform for stronger civil rights issues 3. 1963: Spring, civil rights movement gained traction 4. 1963: June a. Kennedy announces a new civil rights bill drafted by the department of justice, contains weak employment related provisions b. Bill is introduced in both houses of congress, even though the push was only for the House of Reps where civil rights momentum had been stronger c. Bill is referred to the House Judiciary Committee, chaired by Celler (D), who refers the bill to his own subcommittee (dominated by civil rights supporters, like ranking member McCulloch) 5. 1963: July d. Hearings (first round of negotiations, cant let the Senate water down the bill, give republicans credit) 6. 1963: August e. Markups are delayed for fear of losing a tax reform bill f. MLK gives "I have a dream speech" 7. 1963: September g. Mark-up occurs (Cellar pushes for even stronger bill, included employment provisions) h. Bill is voted out of the subcommittee 8. 1963: October i. Republicans and Admin. agree to weaken the bill, because a weaker bill is more likely to pass (employment provisions remain) 9. 1963: November j. Bill goes to Rules committee, chaired by Judge Smith (southern dem., staunch foe) k. **Kennedy is assassinated** 10. 1963: December l. A hearing on the bill in the Rules committee is demanded 11. 1964: January m. Bill is reported out of the Rules committee 12. 1964: February n. Foor debate/amendments in the House i. Enormous resources expended to ensure people are responsible for knowing certain aspects of the bill to explain during floor debate, answer questions o. Judge Smith proposes the **inclusion of sex** to Title VII p. Bill passes the House q. Work is postponed in the Senate until after a tax bill is completed r. Senate majority leader Mike Mansfield moves to have the bill placed on the calendar without going through judiciary committee (chaired by foe), the motion prevails (but some would-be supporters are unhappy with the move) 13. 1964: March s. Mansfield delays bringing the bill up for floor debate until a farm bill is complete (negotiation on who becomes floor leader during debate) t. Southern Dems. Filibuster for 14 days on motion to consider the bill, but civil rights supporters threated to object to all committee hearings until the bill is considered. Filibuster is broken, and the merits debate begins 14. 1964: April u. Dirksen, whose support is critical to passage, demands payback for his support and proposes 40 weakening amendments, specifically to Title VII. These are trimmed down to 10 15. 1964: May v. Dirksen is unable to secure passage of his amendments. (attempt to present amendments in the form of substitute bill, but fails, and publicly announces support in the form of unchanged language from House). 16. 1964: June w. Negotiations are made to form cloture, after a 58 day filibuster (534 hrs. of debate, first time filibuster has been broken on a civil rights bill). x. Bill is referred back to Smith's rules committee, but national politics makes stalling impossible and it is reported out after only one day 17. 1964: July y. House passes the Senate version of the bill. President Johnson signs on the same day. How A Bill Becomes A Law ------------------------ **Constitutional Requirements for a Bill** ### Bicameralism - The same bill must get approval from both the House and Senate - Article I, Section 7, Clause 2 ### Presentment - The law must receive approval from the President - Article I, Section 7, Clause 2 - 2 kinds of Vetoes: 1. **Pocket Veto -** If the President does not sign or return a bill within 10 days, and Congress is still in session, the bill becomes a law (no action = action). If Congress adjourns during the 10-day window, the bill does not become a law (pocket veto). 2. **Regular Veto** -- the President tells the House why he does not approve of the bill. Congress then has the opportunity to an override, which requires a 2/3 vote from each house. VERY RARE. ### Introduction and Referral of Legislation - Only members of the House or Senate may introduce legislation - Occasionally a member introduces legislation by request of the President (See Civil Rights Bill) - The **President is the sole agenda setter.** The President proposes/drafts a lot of the legislation considered by Congress. - Why? Because he has the means to bring attention to it (speeches, news, etc.) ### Committee Consideration - \(1) The presiding officer of the legislative chamber (Speaker of House or Senate Majority Leader) refers bills to the committees. - It is typically referred to the committee(s) in the chamber with jurisdiction over its elements. - **In the House**: If multiple committees are involved and receive the bill, each committee may work only on the portion of the bill within its jurisdiction. - **In the Senate**: the bill is referred to only the committee with jurisdiction over the issue that predominates in the bill. - \(2) The **Parliamentarian** decides which committee should receive the bill first based on a "weight of the bill test". - \(3) The committee's chair has the chief agenda-setting authority for the committee; the chair identifies the bills or issues on which the committee will try to formally act through hearings/markups. a. **Committee Hearings:** a forum where committee members and the public can hear about the strengths and weaknesses of a bill. People who drafted the bill or sponsors of the bill will testify about the bill. b. **Committee Markup:** a committee's drafting session where members consider amendments and rewrite bills. - \*\*\* Leadership positions (Speaker, Majority Leader, Parliamentarian, Committee Chair, etc.) play a very important role because they each have a large impact over what bills are heard, when, how, etc.\*\*\* **Power of Committees** - The most important power of committees is the **power of negation**. c. If the chair refuses to schedule hearings for a bill or refer the bill to a subcommittee, the bill will usually die, even if most committee members favor the bill d. BUT House Rule XI and Senate Rule XXVI permit a majority of the committee to compel the chair to place the bill on the agenda. +-----------------------------------+-----------------------------------+ | Pros and Cons of Committees | | +===================================+===================================+ | **Pros** | **Cons** | +-----------------------------------+-----------------------------------+ | - **Efficiency** -- allows a | - **Capture:** interest groups | | smaller group of people to | develop relationships with | | get together and evaluate the | politicians. In effect, the | | bill | politician places the | | | interest groups needs above | | - **Expertise**: Committee | those of the people. | | members specialize in a | | | certain substantive area, and | e. Interest groups/lobbyists | | it is better to have people | can influence legislation | | with knowledge work within | at a deeper level. | | their field. | | | | - **Rent-Seeking**: | | - Allows for **more detailed | distribution of unjustified | | debate** and dialogue | benefits to interest groups | | | | | - Representatives can join | f. Committee = engine for | | committees that reflect their | rent-seeking because | | interests. | members can self-select | | | assignments and seek | | - Checks and Balances | appointments to | | | committees that cover | | - A need for gatekeepers to | areas that their | | **filter the large number of | constituents have intense | | bills coming through.** | preferences about. | | | | | - Information from outside | g. Law-makers tend to | | witnesses about the bill | specialize in areas that | | (executives, professionals, | allow them to provide | | sponsors, etc.) | benefits to their | | | constituents and | | | interests groups to | | | attain re-election. | +-----------------------------------+-----------------------------------+ ### Floor Scheduling - After a committee reports a bill, it is placed on one of the respective chambers' calendars (list of bills eligible for floor consideration) h. The bills on the calendars are **not guaranteed floor consideration**. - **House**: i. More structured, using special rules and sometimes limited debate j. **The Rules Committee**: where a resolution (the rule) governing floor debate is prepared. Determines the amount of time to be allowed for debate, how the time for debate will be allocated, and the scope of permissible amendments. i. Often constitutes a substantive consideration of the bill, and it presents an opportunity to derail a bill before the House itself has a chance to consider it. ii. In essence, they set up the rule for how the bill will be considered and the House has to adopt the Rule. k. Majority party leadership decides which bills the House will consider, and in what order. l. Budget and appropriations bills are privileged matters that **can be brought to the floor at any time** - **Senate**: m. Does not have procedures like those in the House for bringing bills to the floor. iii. One way the Senate can take up a bill is by **agreeing to a motion to proceed to consider it**. Once a Senator makes such a motion that the Senate proceed to a certain bill, the Senate can then normally debate on the motion to proceed. If the Senate then agrees to the motion by a majority vote, they can then begin consideration of the bill. iv. **Unanimous Consent Agreement**: Also, the majority leader can ask unanimous consent that the Senate take up a certain bill. If no one objects, the Senate can immediately begin consideration of the bill. ### Floor Consideration - **(1)** After a bill passes consideration onto the floor, legislatures begin voting. - (**2) Debate**: Very few votes are influenced by floor debates. n. **House:** Debate is more limited o. **Senate**: Debate is much less structured and can go on indefinitely. - **(3) Amendments:** Major bills on controversial subjects generally receive amendments. p. **Perfecting Amendments**: modify the text for improvement q. **Substitute Amendments:** replace the entire text r. **Riders**: add unrelated provisions; often controversial s. **Killer Amendments**: aim to undermine the bill by adding unacceptable provisions. - **(4) Vote**: Usually taken in 1 of 4 ways: (1) voice vote, (2) roll calls (3) division of the house (4) tellers) t. Normally need a majority to pass a bill u. **2/3 needed to propose a constitutional amendment, override veto, expel a member, or to concur in a treaty.** ### Conference Committees - Resolves differences between House and Senate versions of a bill, because the chambers need to pass identical language. - **Process**: v. Committees from both chambers meet to reconcile differences v. The chair and ranking minority member of each relevant committee choose who is appointed to the conference committee 1. this gives committees even more power to influence legislation. w. The conference report must be **accepted or rejected in full** by both chambers vi. **Any compromise at all** must be voted **on** again, *i.e.* the bill **cannot be amended any further**, the vote is either yes or no. x. Significant power here, often shapes the final content of major legislation. - Options for a congressional chamber who receives a conference committee bill: y. Adopt, reject, recommit to conference (in other words, kill the bill) z. If the bill is adopted, it goes to vote in the other chamber, then it is presented to the governor or President. ### Presentment - Article I, Section 7 says that the President has 10 days (not including Sundays) to sign or veto a bill. If the President vetoes, the bill returns to Congress, where it can be overridden by 2/3 vote of each chamber. If the veto is overridden, the bill becomes a law without signature. - If no action is taken by the President, the bill becomes a law unless Congress adjourns during the 10 days (pocket veto) ### Potential Vetogate Opportunities - Each step of law making is a vetogate (a place where opponents can veto legislation even when it has majority support) 1. Kill the bill through committees 2. If committee approval cannot be avoided, stop the bill before full chamber consideration 3. If full chamber consideration occurs, kill the bill there by filibustering it in the Senate, by amending it to death, or by outright defeating it on the chamber floor. 4. If one chamber has approved the bill, exploit the veto opportunities in the other chamber to prevent it from passing an identical measure. 5. If the other chamber produced a similar but not identical bill, amend or defeat it at the conference committee stage or in an interbranch summit. 6. If all else fails, persuade the President to veto it and then work against any congressional effort to override the veto. ### Unorthodox Lawmaking - **Rise of party leaders** a. Speaker of house, senate majority leader, and president now assume larger roles in drafting bills, working out compromises, and managing proposed legislation - **The Pervasive Filibuster:** b. There is an increased use in the filibuster I. Technically not a filibuster since no one talks. They determine if there will be 60 votes to stop a filibuster before one even happens. c. New system = no floor debate in house & too much in senate - **Hastert Rule & Tyranny of the Majority Caucus** d. **Hastert Rule**: Speakers are not supposed to allow measures to come to the house floor unless a majority of its own caucus supports it. e. **[OR]** when there is a democratic speaker = private sessions of large bills for majority party members only. (Nancy Pelosi does this). - **Important role of budget institutions and processes** f. CBO scoring system where bills cannot increase the projected budget deficit determined by the CBO. g. **Reconciliation**: process by which bills relating to the budget fast track in both chambers with no filibuster. - **Omnibus Legislation** h. The increase in the use of a bundle of variety of measures (often including budget measures) into 1 package. Political Theory ---------------- ### Proceduralism - The vetogate theory: deals with internal process and the vetogates that come with it - Proceduralism justifies rules, decisions, or institutions by reference to a valid process, as opposed to their being morally correct according to a substantive account of justice or goodness. - It asserts that the process itself---how laws are debated, amended, and passed---ensures fairness and accountability, even if the substantive outcomes vary. - If you can control the hurdles (vetogates) you can control the law - **Pros and Cons of Vetogates** - Pros: - Promotes deliberation -- good laws and legitimacy - Minor voices are heard - Stability - Cons - Too much deliberation may make people think that they cannot be heard - Not responsive to rapid change/emergencies - Alienates voter and leads to a less democratic system ### Pluralism - The spread of political power across many political actors, social, economic, and identity groups that need to coexist peacefully - Laws are the result of compromise and negotiation among these groups, after open communication, reflecting the diversity of societal interests. - More power when working together, but groups alone have power proportional to their numbers - View that legislation has more of a chance of enjoying system-wide legitimacy and stability - If interest groups can come together and support each other's wants, then maybe this can reach the public interest. - Log-rolling: aka vote trading can sometimes be positive in a pluralist setting. ### Public Choice Theory - Actual political choices are determined by the efforts of individuals and groups to further their own interests - "Interest groups have things they want out of the legislative process and they will find a way to get it done" - Applies economics to the legislative process, viewing everyone as a rational actor seeking to maximize their own utility - View the legislative environment as a political market, that has supply and demand - demanders are the interest groups and the public - legislators are the suppliers of "governmental largesse" - The issue is that this may move us away from the public interest and towards the interest of interest of interest groups - Collective Action Problem: it would be in everyone's interest to get together and do something, but it is too difficult. We would all be better off if we did it together, but it is too difficult to get everyone organized and on the same page. Statutory Interpretation In Context ----------------------------------- - Agency rules and orders are subject to judicial review, to determine whether they are "arbitrary or capricious" - Agency guidelines, opinion letters, press releases, and the like are not binding authority, but can be used to inform the reviewing court - *Griggs v. Duke Power* - Example of "cable" approach early on - **Facts**: Duke Power Company (historically segregated company) required a high school diploma or passage of an intelligence test as a condition on employment or promotion in the company. The requirements themselves weren't necessarily related to employment, and a group of black employees brought suit under Title VII. The **issue** was whether Title VII barred employment tests that had little relationship to work while also having a disparate impact, but no bad intent. - **Holding**: The court looked at the language of Title VII, specifically § 703(a), which makes discrimination a ULP, and § 703(h)\*, which allows the use of any professionally developed ability test, provided that it is not designed, intended, or used to discriminate. The **majority** took a purposivist approach (like the dissent from the circuit court decision), in saying that Title VII is meant to protect against not only overt discrimination, but also practices that are discriminatory in *operation*. The language of the statute was ambiguous, so the majority looked to the overarching purpose. Furthermore, § 703(h) is meant to apply to *job related* testing, which this was not. - **\*703(h)** is also known as Senator Tower's amendment, there was a great discussion between his intent and its purpose (to protect general intelligence testing), the proceduralist compromises made over it to get added in agreeing to pass the CRA, and language from Senators Clark & Case, sponsors of the CRA, who articulated that § 703(h) was to protect *bona fide* qualifications tests. Contemporary Issues In Federal Lawmaking ---------------------------------------- - Modern trends - Hyperpolarization, consistent gridlock since the 1998 Clinton impeachment centered around party leaders - No more traditional vetogates, committees have become less of a forum and more - Modern cloture is just going straight to 60 votes or killing the bill - Rise of omnibus legislation - \*all was in *full bloom* when Obama took office and passed the ACA - Affordable Care Act - 2008 Elections: - Democrats secured a strong majority in the House: 257-199, gaining 21 seats. - In the Senate, Democrats picked up eight seats, resulting in a majority of 57-41 (plus two Independent senators who caucused with Democrats). - With 59 votes, Democrats were one vote short of the 60 needed for a filibuster-proof supermajority. - Key Political Shifts: - On April 28, 2009, Republican Senator Arlen Specter switched to the Democratic Party, giving Democrats their 60th vote. - On August 25, 2009, Senator Ted Kennedy (D-MA) passed away, reducing the Democratic count to 59 seats. - On September 25, 2009, Paul Kirk was appointed interim senator from Massachusetts, restoring the 60th vote until the January 19, 2010, special election. - Initial Legislative Votes: - House Vote (November 7, 2009): - Passed an ACA version 220-215. - One Republican voted in favor; 39 Democrats opposed. - Senate Vote (December 24, 2009): - Passed the ACA with a 60-39 vote. - Senator Jim Bunning (R-KY) did not vote. - Unexpected Twist: - On January 19, 2010, Republican Scott Brown won the Massachusetts special election, leaving Democrats with 59 votes in the Senate---**[no longer filibuster-proof.]** - Legislative Strategy: - With no ability to revise the Senate's ACA bill, House Democrats chose to pass the **[exact version]** of the Senate bill. - **[\*\*\*Budget reconciliation\*\*\*!]** - Final House Vote (March 21, 2010): - Passed 219-212. - No Republicans supported it; 34 Democrats voted against. - Presidential Signature: - President Obama signed the ACA into law on March 23, 2010. - Aftermath: - Republicans criticized the process, citing the lack of bipartisan support and narrow margins. - Democrats defended the urgency and importance of healthcare reform. - Reconciliation - Budget reconciliation is a special legislative process in the United States Congress that allows for the faster passage of tax and spending changes (skirts filibuster) - People want this process because it makes sure the government is still funded. Budget bills are considered must-pass legislation. - There must be a congressional resolution that instructs committees in the chambers to draw up legislation - The budget resolution sets the first parameter for what can pass - Congressional Budget Office helps to produce projections - The final bill must reduce or increase the federal deficit no less or more than the amount specified in the resolution - The provisions in the reconciliation bill must then somehow change federal spending or revenue - *Cant* include - Social security - Anything projected to increase the federal deficit after 10 years - Things that don't affect federal spending/revenue - Effect on spending or revenue must be more than incidental to their policy impact - Technically limited to one budget bill/yr Selected Topics =============== Single Subject Rule & Other Substantive Limitations on the Legislative Process ------------------------------------------------------------------------------ - Generality requirements - Most state Constitutions have provisions regulating the tendency of government to distribute benefits to special interests/private parties at the state's expense - Ex. public purpose requirements, requirements that the bill serves the public rather than private; rules against special legislation, ex. lists on subjects not permitted for legislation - IL Constitutions specifically prohibits special or local law when a general law is available. - Uniformity - State requirements that laws apply uniformly across the state - Tax Laws - 16 states require supermajority votes to pass certain kinds of tax increases - The Single Subject Rule - "All bills must be limited to one subject," in practice says the enactment of the Bill was unconstitutional (state constitution) - 41 states have SSR requirements, usually requiring the subject to be expressed in the Bill's title - Some states adopt a more "rational basis" deference to legislature - Purpose: - minimize logrolling (by limiting to one subject) - prevent bad public policy (helps legislators be more informed, encourage deliberation) - **Read the state constitutional provision before** determining what the SSR is for that state, because they differ: +-----------------------------------+-----------------------------------+ | **Illinois** | **Iowa** | | | | | *Wirtz v. Quinn* | *LC Power Midcontinent LLC v. | | | State* | +===================================+===================================+ | IL Const., Art. IV, § 8(d): | IA Const., Art. III, § 29: "Every | | "Bills, except bills for | act shall embrace but one | | appropriations and for the | subject, and matters properly | | codification, revision, or | connected therewith; which | | rearrangement of laws, shall be | subject shall be expressed in the | | confined to one subject. | title. But if any subject shall | | Appropriation bills shall be | be embraced in an act which shall | | limited to the subject of | not be expressed in the title, | | appropriations." | such act will be void only as to | | | so much thereof as shall not be | | - AKA: ***items in a piece of | expressed in the title." | | legislation need a natural, | | | logical connection.*** | \*Note that there is both a | | | single subject requirement *and* | | | a title requirement | +-----------------------------------+-----------------------------------+ | "An Act Concerning Revenue" | A bill originally as an omnibus | | contained a range of provisions, | appropriations bill ended up | | from legalizing/taxing video | containing a right of first | | gambling, to creating a pilot | refusal to incumbent electric | | program for lottery tickets | companies, added in the 11^th^ | | online, to increasing sales tax | hour of legislative process. The | | of soft drinks. The court | bill was titled "An Act relating | | determined that even though the | to state and local finances by | | title was broader, everything in | making appropriations, providing | | the bill related to some kind of | for legal and regulatory | | "capital project." Even the | responsibilities, providing for | | provisions that do not directly | other properly related matters, | | raise revenue are till related to | and including effective date and | | the overall subject, in that they | retroactive applicability | | help to implement the other | provisions." This title was not | | provisions. The court | only "remarkably general" but | | distinguished the addition of | also gives no *notice* of the | | items from regular logrolling | ROFR provision. Furthermore, the | | because it was an attempt to | legislative process on the ROFR | | compile all necessary | was littered with manipulation. | | improvements to the goal of | | | capital projects. | As for the single subject rule, | | | the bill contained both | | The Court also emphasized that | substantive *and* corrective | | the legislative process was clean | provisions. The legislators | | of manipulation, which spoke in | themselves were confused on what | | the bill's favor (unlike *Johnson | they were voting on, the bill was | | v. Edgar*, a case referenced in | brought in at 1:33 A.M. on the | | the opinion), even though this | final night, and the floor | | bill went from 5 pages to 280 | manager could not produce bill | | pages. They said this was "good | history & falsely represented it. | | logrolling" because it is more | | | likely to serve the public | Court's problems with the bill: | | interest than the *Johnson* | | | version. | 1. No Deliberation -- came in at | | | the last minute | | - \*\*\*Emphasized that the | | | single subject rule is not | 2. Transparency -- the newbies | | meant to be a strict barrier | and consumers would want to | | that hampers the legislative | know about this bill before | | process, but rather a | it was passed | | safeguard against sneaky | | | practices\*\*\* - Shapiro | 3. Misrepresentation in the | | | title | | | | | | 4. Logrolling -- in this case, | | | the rent-seeker is the | | | incumbent transmissioners and | | | the rent is the ROFR. | +-----------------------------------+-----------------------------------+ | In Practice: (1) each provision | In Practice: (1) each provision | | must relate to *each other,* | must relate to a sufficiently | | espouse some broad theme, not | narrow title, (2) failures move | | necessarily relayed in the title, | to strike only the violative | | and (2) usually moves to strike | provision (severability). | | the entire bill. | | | | | | - Note: Can be disruptive to | | | everything else in the bill | | | that maybe would be in the | | | public interest for it to | | | pass. | | +-----------------------------------+-----------------------------------+ - *See also*: *Department of Education v. Lewis* (FL -- SSR) - **Facts**: Legislature banned as part of appropriations bill public schools from giving assistance or providing meeting facilities for any group that recommends/advocates sexual relations among persons not married. **Art. 3 of FL Constitution** says that appropriation laws shall contain provision on no other subjects. - **Holding**: Relied on precedential *Brown v. Firestone* and said a bill that (1) changes existing law on any subject other than appropriations, or (2) is not directly and rationally related to the purpose of the appropriations to which it applies, cannot be added to an appropriations bill. This law failed both. - *See also* *Johnson v. Edgar* (IL -- SSR): - The bill started as "An Act in relation to prisoners' reimbursement". Then it went to the house and came out as "an act in relation to crime" (includes child molestation stuff and says that prisoners must pay for their incarceration). Then it goes to the conference committee, where it essentially went behind closed doors and no one had an opportunity to stand up and say it was a bad idea (NO meaningful deliberation). Then comes out as "An Act in Relation to Public Safety" and allowed employers to eavesdrop on employees. **CHRISTMAS TREE BILL**. Remedy: Court strikes down the whole thing. Veto Powers ----------- - The Line-Item veto allows state governors to veto specific items in appropriations bills, rather than vetoing the entire bill. This power is mainly used to control government overspending and reduce budget deficits. - There is **no federal line item veto** (tried via federal statute, declared unconstitutional in *Clinton v. NY* on separation of powers/textualism Art. I, § 7), but various states have various provisions - 44 states provide for a right to veto "items" in **appropriations bills**. - A few extend to *all* bills - 39 of the 44 LIV's can be overridden with 3/5 majority - Purpose - Facilitate state abilities to balance their budgets - Ameliorate logrolling (appropriations bills are popular for logrolling) - Can be more focused than the SSR, especially when it does not apply to appropriations bills. - Iowa Example: *Rush v. Ray* - Facts - Iowa enacted 5 appropriation bills, all containing a provision saying something about any funds appropriated by the act *shall not be subject to transfer or expenditure for any purpose other than the purpose specified* - The governor vetoed this provision, and the question was whether this was an "item" subject to the line item veto power. - Holding - The *conditions* on funds are not "items," and therefore cannot be stricken under LIV powers - An "item" is identified using the **scar tissue test:** whether removing the provision will create "scar tissue" (damage) to the rest of the provision/bill. - *i.e.* if you can "lift" a provision out of a bill without affecting the rest of it, it will be allowed. - Therefore the IA constitution gives the governor only the power to disapprove any **item** in an appropriations bill, except those that are inseparable from the bill (scar tissue), and because the qualification vetoed here was inseparable, this was an unconstitutional use of the gubernatorial line item veto. - Illinois L.I.V., other gubernatorial options - IL Const., Art. IV, § 9: So long as the changes proposed by the amendatory veto do not change the **fundamental purpose** of the legislation and are **neither so substantial nor so expansive as to render use of the power violative of constitution**, governor can **use amendatory veto** to make changes above minor/technical error revision. - IL Governor (under § 9) can: - Sign - Veto (can be overridden by 3/5 majority in each house) - Line item veto *appropriations bills* - Provisions not vetoed become law, vetoed provisions go back to the GA to be voted on for 3/5 majority - Reduce amounts in *appropriations bills* - Item goes back to GA, where members may restore original amount by majority vote; if no majority, it becomes law at governors proscribed amount. - Can send *any bill* back for **specific recommendations** - Requires only a simple majority to accept, but if no majority, or majority without governor's certification, goes to house in which it originated as a vetoed law (requiring 3/5 override). - Known as the amendatory veto - *Continental Illinois v. Zagel* - **Facts**: Taxpayers sought to declare unconstitutional a gubernatorial "reduction" veto to an income tax provision (reduced corporate increase from 2.85% to 2.5%), because it involved more than a "minor or technical" change, and thus was unconstitutional. - **Holding**: So long as the changes proposed by the amendatory veto do not change the fundamental purpose of the legislation and are neither so substantial nor so expansive as to render use of the power violative of constitution, governor can use amendatory veto to make changes above minor/technical error revision. The court looked at the historical purpose of § 9(e) and found that when the amendment was proposed in a form limiting it to only correcting technical errors, the voters rejected this reading and opted for a broader role. Thus, §9(e) is not meant to just be a proof reading device, and this is allowed. Appropriations -------------- - \[seemingly did not cover independently\] Enrolled Bill Doctrine ---------------------- - The Enrolled Bill Doctrine generally prevents judicial review of legislative procedural errors once a bill is properly signed and recorded. - However, several states have developed exceptions allowing courts to review compliance with procedural rules. - Legislative enactments enjoy a heavy presumption of constitutionality, (see *Friends of the Park*) *i.e.* if it is law, it's *really hard* to undo that on purely procedural grounds. - For states that have enrolled bill Constitutional provisions, evidence of legislative history through journals or even beyond can show evidence of relevant procedures. - Modern technology allows for better records to be kept - *United States v. Munoz-Flores* - **Facts**: Art. I, § 7, cl. 1 says that all bills for raising revenue must originate in the House (chamber "closest to the people"), and a federal criminal statute requiring criminals to pay a special assessment to a criminal fund originated in the Senate. - **Holding**: revenue generated by the statute is *incidental* to the purpose, and therefore not bound by § 7. Revenue bills are those that levy taxes in the strict sense of the word. Also hinted at mechanical aspects of the legislative process being non-justiciable. - *D&W Auto Supply v. Department of Revenue* - **Facts**: A bill regarding anti-litter programs and requiring a portion of payment to be made from those companies who are part of the litter problem was passed, but **did not receive the majority of votes as required by the KY constitution**. - **Holding**: There is a prima facie presumption that an enrolled bill is valid, but such presumption may be overcome by clear, satisfactory and convincing evidence establishing that constitutional requirements have not been met. Here there was a clear violation to overcome the large deference granted to the legislature. The Court underwent a lengthy discussion of the EBD, its purposes and drawbacks, and felt it was time to re-examine certain aspects (see ASP slides for a deeper dive if necessary) - *Friends of Parks v. Chicago Park Dist.* - **Facts**: Plaintiffs sued seeking to declare a provision of the IL Sports Facilities Authority Act unconstitutional for failing to meet IL's three readings rule (among other things, see ASP slides) "A bill shall be ready by title on three different days in each house." IL Constitution, Art IV, Sec 8(d)). The provision allowed the Bears stadium to be built with public funding. - **Holding**: The court did not invalidate the law based on the three readings rule, felt it was the legislatures responsibility for setting/following their own procedures. Once a bill is enacted/signed by both houses, court operates under presumption that it is procedurally valid. Did scold the legislature for failing to do the requisite readings. - Could argue that this is rent-seeking since it benefits the owner of the Bears so much. - But could also argue that the public purpose is that it will benefit the city of Chicago in the long run. Direct Democracy ---------------- ### Initiative - Allows a certain percentage of the electorate to petition to have proposed statute or state constitutional amendment put on the ballot for a vote of the electorate - **Direct initiative**: issue goes on the ballot automatically after a certain number of signatures - **Indirect initiative**: after the amount of signatures, the proposed statute is submitted to the legislature which is given a period of time to pass the measure, or one similar, and they are both placed on the ballot for a vote - *Nat'l Pride at Work, Inc. v. Governor of Michigan* - **Facts**: Supreme Court of Michigan granted leave to appeal to consider whether marriage amendment stating that "the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose" prohibits public employers from providing health insurance to same-sex domestic partners. Provision had been passed by initiative put on ballot by particular group that was well-funded and its supporters publicly told people it wouldn't affect health benefits, but it did. The attorney general issued an opinion that the amendment prohibited the health insurance for same sex partners, and Nat'l Pride challenged the interpretation. - **Holding**: The plain language is clear, it refers to marriage "or similar union," and by recognizing same sex couples as a domestic partnership for purposes of health insurance is included in that "similar union." The court did not consider extrinsic evidence, only considered the plain meanings. - **Dissent**: The voters did not understand their voting would reach to healthcare (looked to intent and public understanding) ### Referendum - A method whereby the electorate may approve or disapprove a law proposed or already enacted by the legislature - Popular referendum: upon the collection of the requisite signatures, a law passed by the legislature is subject to approval or rejection by the electorate - Legislative/submitted referendum: the legislature places before the electorate a proposed law for approval or disapproval (binding leg. referendum), or for the electorate's advice (advisory leg. referendum) - 26 states have this, U.S. does not have a national referendum (one of the only major democracies to not have) ### Recall - A certain percentage of the electorate, by petition, can force the continued service of an elected official to be put to a vote - Only 19 states have this, IL is not one of them. +-----------------------------------+-----------------------------------+ | Pro's | Cons | +===================================+===================================+ | - Offers a way for democracy to | - Ordinary voters might not | | work more efficiently in the | have the requisite | | face of partisan lockup | understanding, especially | | | marginalized communities | | - Keeps citizens engaged | | | | - Tension with concept of | | - Promotes democratic | representative government | | conversation | | | | - Weakens representative | | - Reduces possibility for | institutions and undermines | | corruption | the ability of lawmakers | | | | | - More transparency | - Can be a tool for the | | | majority to enact laws | | - Takes some risk away from | targeting minorities | | career politicians | | | | - Easier to manipulate voters | | - Dealing with reform issues | | | that legislatures don't want | - Those with more money have | | to deal with | more influence (expensive!!) | +-----------------------------------+-----------------------------------+ - Interpretation of direct democracy: - Courts traditionally use the same or similar techniques for direct democracy as they do regular statutes, but the question is whether they *should* - Various *proposals* for direct democracy cannons have been made: - Propositions that disadvantage groups subject to the hostility of the majority should be interpreted narrowly - Initiatives that break through self-interest legislative gridlocks and seek to enhance the legitimacy of government should be interpreted more liberally - Ambiguous provisions should be interpreted narrowly - Ballot initiatives should be interpreted to reflect the will of the median voter - To discern intent from the populus, perhaps consider the news surrounding the legislation (was not considered in *Nat'l Pride*) Eligibility To Serve In Congress ================================ Constitutionally And Congressionally Imposed Qualifications ----------------------------------------------------------- ### The Difference between exclusion and expulsion - Congress CANNOT ADD to the Constitutional qualifications necessary to be a member without going through a formal amendment process (**exclusion**): - **House:** Article I, § 2 requires members of the House be at least 25 years old, U.S. citizens for 7 years, and inhabitants of the states from which they are elected (citizen). - **Senate:** Article I, § 3: must be 30 years old, a U.S. citizen for at least 9 years, and inhabitant of the state to be elected from (resident). - Congress does have the power to **expel** members, by virtue of their ability to create internal procedural rules: - **Article I, § 5:** "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members" "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two third, expel a Member..." - Congress does not have the authority to change a constitutional provision without going through the amendment process; member qualifications are written in the Constitution. - **Congress has authority to expel members per the Constitution**, but it does not have the authority to *usurp voting authority* of the people, by exclusion members who have been duly elected. - *Powell v. McCormack* (1969) - **Facts**: Powell was elected to serve in the House for NY, but a House resolution prevented him from taking his seat (exclusion) because of formal investigation revealed deceit. Powell sued certain Congress members based on him meeting the Constitutional requirements to take his seat (age, citizenship, residence), but not being allowed to do so. - **Holding** 1: Congress cannot add, edit, or change to the qualifications specified in the Constitution without amendment. - **Holding** 2: Congress cannot claim to have voted on expulsion when it actually voted on exclusion (because we do not know if it would have come out the same way). The vote to exclude Powell passed the required number of votes for expulsion (2/3 majority) but because the vote was for exclusion which is limited to Art. I, §2 requirements, and because Powell was properly elected, this was improper for expulsion. - Arrow's Impossibility Theorem The court could not "assume" Congress would have similarly voted for expulsion because of vote cycling +-----------------------------------+-----------------------------------+ | **Exclusion** | **Expulsion** | +===================================+===================================+ | **Exclusion:** One has not | **Expulsion**: One has already | | administered the oath and are | administered the oath but are | | prevented from taking a seat in | required to give up their | | congress | congressional seat. | | | | | - Not mentioned in the | - Can address the House | | Constitution | | | | - Participate in debate | | - Do not get to speak before | | | the House | - Defend yourself before the | | | House | | - No opportunity to defend | | | oneself | - Cross-examine other members | | | | | - Requires a majority vote and | - Requires 2/3 concurrence of | | CAN ONLY BE for 1 of the | the House to expel a member | | constitutionally enumerated | | | reasons | - U.S. Constitution Article I, | | | § 5. | | - Age, citizenship, | | | residency | Here the Congressman can stand up | | | for themselves before a vote that | | - Courts have shut down | would render their seat vacant by | | exclusionary rules because it | using the above procedures but is | | may lead to Congress making | still being used as a tool of the | | qualifications that favor one | majority (*Ex*. Trans Rep. Zoey | | party. | Zephyr from MO was almost | | | expelled, punished to sit outside | | | the chambers). | +-----------------------------------+-----------------------------------+ State Imposed Qualifications And Ballot Access ---------------------------------------------- - Term Limitations - *U.S. Term Limits, Inc. v. Thornton* (1995) - **Facts**: Arkansas adopted, via a ballot initiative, term limits on their *federal* House and Senate representatives. - **Holding**: Qualifications on Congress are fixed by the Constitution, and powers to add qualifications are not within the original powers of the states, and thus not preserved by the Tenth Amendment. The court cited to *Powell* in saying that the only qualifications for Congress are found in Art. I of the Constitution. Even with respect to Arkansas' counter argument that they were merely trying to control what was on their *ballot*, the court found this unpersuasive because it had the same practical effect. - Congress has tried to enact a constitutional amendment for term limits but it lacked the requisite votes. It is unlikely that Congress would impose limits on itself unless they themselves are a part of a historically underrepresented ideological political faction, or voter dissatisfaction is strong. +-----------------------------------+-----------------------------------+ | Advantages of Term Limits | Disadvantages of Term Limits | +===================================+===================================+ | - Helps eliminate incumbent | - Lack of consistency | | advantage | | | | - Higher turnover → less | | - Keeps fresh perspective | experienced officials | | | | | - Makes sure people aren\'t in | - Longer time in office fosters | | office for decades | connections which may be lost | | | | | - Give people a sense of | - After 1 position, legislators | | accountability | need to find a new job and | | | may be focused on just that | | - Promotes efficiency - limited | | | time to get things done | - Longer time in office helps | | | legislators know how things | | - Forces legislators to do what | get done = more effective | | they think is best over what | | | their constituents want | - Longer time in office helps | | | legislators know what their | | - Legislators will be focused | constituents want | | less on re-election | | | | - Shifts power to executives | | | and lobbyists | +-----------------------------------+-----------------------------------+ Legislative Ethics: Selected Issues =================================== Legislative Immunity -------------------- - Legislative immunity applies to legislators and staff when they perform **legislative activity**, anything that is an integral part of the deliberative and communicative process by which members participate. - Comes from the Speech and Debate Clause: Art. I, § 6, cl. 1 "for any speech or debate in either House, they shall not be questioned in any other place." - Now extends to even state, regional, or municipal legislators. - Why? (*Gillock*) - Avoid intrusion from co-equal branches (separation of powers) - Protects legislative independence - *Reeder v. Madigan* - **Facts**: Reporter from IL News Network, part of IL Policy Institute, was denied press credentials by IL legislature because IPI was registered as lobbyist org at the time, and media guidelines expressly say those affiliated with lobbyist orgs can't get credentials (maintain decorum, safety of legislators, etc.). In 2014, IPI didn't register as lobbyist organization, created IPA, then had reporter try again. Still denied, so challenged the action as violation of freedom of speech, equal protection, and due process. - **Holding**: Court said no right to sue because legislative immunity applies to legislators and staff when acting in a legitimate legislative activity and **denial of press credentials constitutes legitimate legislative activity**. Money In Politics ----------------- - Campaign Funding; - Political donations and spending are forms of political expression and political association which is protected by the 1st Amendment. - Therefore, strict scrutiny applies -- regulation must be in support of a compelling government interest and must be narrowly tailored to serve that interest - **Quid Pro Quo Corruption** - Refers to the direct exchanges of money for political favors - Possible reason to limit direct campaign contributions. - The prevention of quid pro quo corruption or its appearance is a compelling state interest that justifies regulating contributions. - Just making the congressman answer the phone, AKA giving access, does not affect the process or interfere enough to make a difference). ***Access* is not quid pro quo corruption.** - Leveling the playing field is not a compelling governmental interest -- - *i.e.* if someone is super rich and putting a bunch of money into their campaign, the other person cannot ask for more money/lower contribution limits. - **Contribution Limits**: federal level and many states have these for some donations, but there are no aggregate limits. - **Pros:** - Increases voter competence. Large contributions help to inform voters about candidates/policies - Promotes electoral competitiveness, which is a hallmark of election legitimacy - **Cons** - Equality concerns and corruption. There are people with enough money to donate to politicians and have access to policymakers that ordinary citizens are denied. - **Hard Money vs. Soft Money: Federal distinction** - Soft Money: money spent separately, not coordinated with the campaign, completely unregulated. - Unregulated by the FEC - Unregulated donations to political parties for general "party-building" purpose, not - Hard Money: money spent in connection with federal candidates. - Only individuals who are US citizens or legal permanent residents can donate hard money - Cooperations cannot donate hard money since they cannot donate directly to their candidate. - **PACs (Political Action Committees)** - Receive contributions from more than 50 people and contribute to at least 5 candidates - Tax-exempt 527 organization that pools campaign contributions from members and donates those funds to campaigns for or against candidates, ballot initiatives, or legislation. - Receives or spends more than \$1,000 for the purpose of influencing a federal election, and registers with the Federal Election Commission (FEC). - Contributions to PACS from corporate or labor union treasuries are illegal, though these entities may sponsor a PAC and provide financial support for its administration and fundraising. - **Super PACs** - Unlike traditional PACs because they may raise unlimited amounts from individuals, corporations, unions, and other groups to spend on. - For example: ads overtly advocating for or against political candidates - However, they are not allowed to either coordinate with or contribute directly to candidate campaigns or political parties. - Super PACs are subject to the same organizational, reporting, and public disclosure requirements of traditional PACs. - *Buckley v. Valeo (1976) -* - **Facts**: addressed the constitutionality of the Federal Election Campaign Act (FECA) amendments of 1974. These amendments-imposed limits on political contributions and expenditures, introduced disclosure requirements, and created a public financing system for presidential elections. The case centered on balancing the government's interest in preventing corruption against First Amendment rights to free speech and association. - **Holding 1**: **Contribution Limits** -- upheld as a valid way to prevent quid pro quo corruption or its appearance. These limits were deemed a minimal intrusion on 1^st^ Amendment rights. - **Holding 2**: **Expenditure Limits** -- struck down as an unconstitutional restriction on free speech. The Court reasoned that expenditure limits directly curtailed the quantity of political expression and public debate. Unconstitutional except in exchange for public financing -- meaning that there cannot be a limit on what they spend their money on. - NOTE: This is why superPACs can do what they do. They do not donate to candidates; they spend on their own behalf. As long as the spending is not coordinated with the campaign, corporations and superPACs can spend as much as they want. - **Holding 3:** **Disclosure Requirements** - upheld, as they served important public interests in transparency, deterring corruption, and aiding enforcement of contribution limits. - **Holding 4:** **Public Financing** -- Upheld as constitutional because it promoted equal participation and reduced the influence of private contributions. - **NOTE: 1^st^ Amendment Argument:** - Is it speech or not? If the law is too restrictive, then it can turn into a restriction on speech. - Justice Thomas has a money is speech view. - Justice Stevens has a money is not speech view. It is more like a loud speaker. Corruption ---------- **Corruption Considerations** - Does the exchange include an **[exercise of power]**? - Yes? Then it is more likely corruption than just deal making. - Needs to be more than just a lunch or hosting an event, it needs to include the prompted use of governmental power (*McDonnell*). - Does the exchange include a **[pending decision]**? - Yes? Then it is more likely corruption than just deal making. - Is the exchange **[public]**? - Yes? Then it is LESS likely to be corruption. - Is the exchange **[private]**? - Yes? Then more likely corruption. - *People ex rel. Dickinson v. Van De Carr* - - **Facts**: Relator, a NY City Alderman, offered to support funding id an employee was reinstated. Letters evidenced the agreement to exchange the vote for personal/political gain. - **Holding**: Section 72 of the Penal Code broadly prohibits any agreement by a public officer to influence their vote or official action in exchange for benefits, including personal or political favors. Reinforces that even non-monetary benefits, if used to influence public office, constitute corruption. - Took a broad interpretation of bribery, saying that it includes agreements for personal or political benefits, not limited to money/property. - *McDonnell v. United States -* - **Facts**: Governor McDonnell accepted gifts/loans to help a company gain access to state officials. Allegations involved hosting events, arranging meetings, and encouraging research for a product. - **Holding**: Narrow definition of "official act" under federal bribery law (18 U.S.C. § 201). Routine political acts, like arranging meetings, do not qualify unless tied to formal governmental decisions. - "Official Act" = a formal exercise of governmental power. Routine political activities do not meet the threshold. - Avoids penalizing everyday political activities that do not involve formal governmental power. Theory And Practice Of Statutory Interpretation =============================================== Historical Background --------------------- - There is sometimes difficulty in understanding a statute simply by parsing its language - Treatise writers sought to systemize the "Anglo-American" practice by developing cannons for interpretation. - Original theories - Legislative intent - Purpose-based approaches - Purposivists argue "that legislation is a purposive act, and **judges should construe statutes to execute that legislative purpose**." Purposivists often focus on the legislative process, taking into account the problem that Congress was trying to solve by enacting the disputed law and asking how the statute accomplished that goal (proceduralism). They argue that courts should interpret ambiguous text "in a way that is faithful to Congress's purposes." - As one purposivist judge has said, "\[w\]hen courts construe statutes in ways that respect what legislators consider their work product, the judiciary not only is more likely to reach the correct result, but also promotes comity with the first branch of government." - Ordinary meaning/new textualism - In contrast to purposivists, textualists focus on the words of a statute, emphasizing text over any unstated purpose. Textualists argue courts should "read the words of that \[statutory\] text as any ordinary Member of Congress would have read them." They look for the meaning "that **a reasonable person would gather from the text** of the law, placed alongside the remainder of the corpus juris \[the body of law\]." - Textualists care about statutory purpose to the extent that it is evident from the text. Many textualists decline to use legislative history under most circumstances. Instead, textualist judges generally seek to discover "the shared conventions" that are inherent in the statutory language, asking what "assumptions \[were\] shared by the speakers and the intended audience." - Examples of original cannons - The Mischief Rule - Ask (1) what was the common law before the Act, (2) what was the mischief and defect for which the common law did not provide, (3) what remedy the parliament hath resolved and appointed to cure the disease of the commonwealth, and (4) the true reason of the remedy - **The Golden Rule** - Take the whole statute together and construe it all together, giving words their ordinary significance unless it creates an **absurdity**, to justify the court in inserting some other meaning - Ex. *Holy Trinity* - The Literal Rule - If the language of a statute be plain, having only one meaning, the legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted, must be enforced even if leading to absurd or mischievous results - Chancellor Kent's Approach - Statutes made for the public good, and general beneficent national purposes, are to receive a very liberal construction, but statutes conferring private benefits should be read narrowly Intent And Purpose ------------------ - Courts, in interpreting statutes, act in two ways - Faithful agent - Enact whatever language Congress set forth - Cooperative partner - Work with Congressional intent to give the statute its purposeful meaning - *Holy Trinity Church v. United States --* Justice Brewer - **Facts**: The Alien Contract Labor Act (Act) prohibited corporations from contracting with aliens who resided outside of the United States to perform labor or service of any kind within the United States. The Church of the Holy Trinity (Holy Trinity) (defendant) was incorporated in the State of New York. Holy Trinity entered into a contract with an English citizen, E. Walpole Warren, to relocate to New York City and serve as Holy Trinity's pastor. The United States (plaintiff) brought suit against Holy Trinity for violating the Act. The Court was tasked with determining whether consideration of legislative intent is permissible during interpretation. - **Holding**: A court may look to Congress's intent when interpreting the text of a statute. The statute's title, the problem the legislation sought to address, the legislative history, and the generally held values at the time may aid a court in determining the legislature's intent. Here, Congress enacted the Act in order to curtail the practice of importing unskilled laborers who would work for lower wages than Americans. A Senate committee report from the time of the Act's passage shows that the committee believed labor or service would be construed as manual labor and manual service. Therefore, the Act does not prohibit Holy Trinity from hiring the reverend. - Justice Brewer thinks about legislative purpose in 2 ways: (1) General Intent -- to keep foreign people from taking domestic manual labor jobs. To keep out the riff raff. Keeping out working class jobs does not keep out the minister. We want brain toilers \(2) Specific Intent -- the specific words we are talking about. Changed And Unanticipated Circumstances --------------------------------------- - Dynamic statutory interpretation - Considers meaning of statutes based on changes in social context, new legal rules and policies, or "meta" policies - *Ex.* "Fetch the soup meat," but what if a study comes out that meat is bad? - *United Steelworkers v. Weber* - *Li v. Yellow Cab* Stare Decisis ------------- - A previous interpretation of a statute will be overturned if there is (1) an intervening development in the law that has rendered precedent irreconcilable with competing legal doctrines or policies, (2) the precedent has become a positive detriment to coherence and consistency in the law, and (3) the precedent has been proven to be outdated and contrary to modern understandings of justice and social welfare - Stare decisis is at its strongest with statutes (rather than Constitutional challenges), because statutes can be frequently updated - Pro's of *Stare* - Statutory law evolves through a process of "reasoned elaboration" by agencies and judges - Predictability, updating stuff, reduces discretion of appellate courts, allows courts to reach a conclusion narrowly - Con's of *Stare* - Relying less on the actual legislation on more on judicial interpretation, rendering statutes nothing more than common law - Encourages ossification of older laws - *Johnson v. Transportation Agency* - *Flood v. Kuhn* - *Stare* is a good example of inter-branch relations, but the emphasis on separation of powers and urging congress to act Plain Meaning And Textualism ---------------------------- - If a word in the text has a plain meaning, the court should apply that meaning, but if the language sufficiently articulates the drafters intent, those intentions must be controlling - The meaning that an ordinary speaker of the English language would give - Perhaps a *more relaxed* version of new textualism - *TVA v. Hill* Purpose-Textualism Debate ------------------------- - A debate about whether to rely only on the plain text, or whether to consider the purpose when there is ambiguity, which is most clearly articulated as the Scalia (textualist) Breyer (purposivist) debate. - *Bostock v. Clayton* - *Hively v. Ivy Tech Community College* +-----------------------------------+-----------------------------------+ | Scalia | Breyer | +===================================+===================================+ | Only the text can govern when | If there is ambiguity, especially | | there is ambiguity, the | to the point that a case reaches | | Constitution gives the enacted | the Supreme Court, there are | | "law" the power, not anything | problems the Court must solve | | else. The law is what went | which requires applying the | | through bicameralism, even if it | statutory language to that goal. | | is silly. | | | | The court should work *with* the | | Look for a reasonable | legislature and help Congress to | | interpretation of the text, can | accomplish their goals. | | sometimes look at other parts of | | | the statute or other statutes | Interpreting a law for its | | using the same word or phrase | purpose is in line with | | (not necessarily strict | democratic accountability, helps | | constructionism), *i.e.* whatever | the statute function for those it | | someone would accept at a | is intended to benefit, and helps | | cocktail party. | Congress draft more efficiently. | | | | | Furthermore, legislative history | Although there is some concern | | is essentially a candy shop that | for substituting judgment, that | | is totally unreliable and invites | is the same for a textualist | | judicial activism. | interpretation (ex. which | | | dictionary/time period to rely | | If the law is *genuinely | on), so its best to use evidence | | ambiguous/ absurd* then the Court | from the drafting body. He says | | can turn to its own precedent or | that Scalia underestimates the | | reasonable agency | amount of internal checks on | | interpretations. He supports | manipulation of legislative | | addressing only obvious | history | | scrivener's errors -- such as | | | clear mistakes in statutory | It is important the judges take | | wording -- but not rewriting | into account the limitations that | | statutes based on judicial | Congress faces. They cannot write | | preferences. | everything down or anticipate | | | everything that will happen in | | The words reflect a product of | the future. Also, Congress | | negotiation (proceduralism), and | sometimes leaves things open to | | the enacted words are what is | interpretation because they | | legitimate. | themselves cannot decide. | | | | | Overseer of Congress. He would | Partner of Congress. More | | probably advocate for | pluralist and approaches | | proceduralism or public choice | legislation as a group endeavor. | | theory. | | +-----------------------------------+-----------------------------------+ Pragmaticism ------------ - Openly admits that law is not entirely separate from politics and that interpretation carries with it discretion and policy choice. - Here, judges will consider a variety of factors in hierarchical fashion to find meaning - From most concrete to least concrete: - Plain meaning - *See Locke, TVA* - Authoritative precedent - *See Flood* - Legislative history - *See Holy Trinity, TVA* - Purpose - *See Holy Trinity* - Legislative evolution - *See FDA Tobacco* - Social norms Contemporary Debate ------------------- - ??????? Tools And Doctrines Of Statutory Interpretation =============================================== Textual Cannons - Maxims of Word Meaning and Association -------------------------------------------------------- ### Ordinary Meaning - Not as narrow as "literal" meaning, Courts assume the legislature uses words in their ordinary meaning - Often judges who follow this approach will consult dictionaries, particularly ones from the era of ratification/enactment - *See Taniguchi v. Kan Pacific Saipan LTD* - Where statutes deal with a technical, specialized subject, courts tend to adopt the specialized meaning of words used in the statute, unless that leads to absurd results. - **Cons of Dictionary Usage**: - Dictionaries define words removed from larger sentence framework whereas statutory language typically involves some context beyond a particular word or phrase and this context/purpose should drive the interpretation (Posner). - Dictionaries use ad hoc and subjective. There is no rhyme or reason for which dictionaries are used (legal v. general), how many, which definition, etc. - Judges tend to use them to cherry-pick definitions in support of results reached largely on other grounds. ### Corpus Linguistics - The study of language through large, structured collections of texts (called \"corpora\") that represent real-world language usage. - In practice, it involves using these text databases to analyze patterns, frequency, and context of word and phrase usage over time - *See Wilson v. Safelite Group, Inc.* ### Noscitur a Sociis - "It is known from its associates" - Idea that light may be shed on the meaning of an ambiguous word by reference to words associated with it. - When two or more words are grouped together, and ordinarily have similar meaning, but are not equally comprehensive, the general word will be limited and qualified by the special word. - *i.e.* the specific controls the general ### Ejusdem Generis - "Of the same kind, class, or nature" - Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding words. - *Ali v. Federal Bureau of Prisons* +-----------------+-----------------+-----------------+-----------------+ | **Cannon** | **Meaning** | **Application** | **Example** | +=================+=================+=================+=================+ | ------------- | \"It is known | The meaning of | Statute refers | | ------ | by its | a word is | to "vehicles, | | Noscitur a So | associates\" | clarified by | trucks, and | | ciis | | the words | motorcycles." | | ------------- | | around it. If a | The term | | ------ | | word is | \"vehicles\" is | | | | ambiguous, its | interpreted as | | -- | | meaning is | motorized | | -- | | inferred from | conveyances, | | | | the context of | excluding | | | | associated | bicycles. | | | | terms. | | +-----------------+-----------------+-----------------+-----------------+ | Ejusdem Generis | \"Of the same | When general | Statute bans | | | kind, class, or | terms follow | "cows, horses, | | | nature\" | specific terms | pigs, and other | | | | in a list, the | animals." | | | | general term is | "Other animals" | | | | interpreted to | would likely | | | | include only | include | | | | items similar | livestock like | | | | to the specific | goats but not | | | | terms. | pets like cats | | | | | or dogs. | +-----------------+-----------------+-----------------+-----------------+ ### Expressio Unis - "Expression of one thing indicates the exclusion of another" - By nature this considers intent and other parts of the act (Whole Act Rule) - This canon is strongest when the items expressed are members of an 'associated group or series,' justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence. ### Whole Act Rule - Requires the court **to read the statute as a whole** on the premise that a provision may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme -- because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law. - The Critical assumption is Coherence. The interpreter presumes that the legislature drafted the statute as a document that is internally consistent in its use of language and in the way its provisions work together. - Consider the title to resolve uncertainty, the preamble/purpose clauses for legislative intent, and the other provisos to restrict the effect and demonstrate exceptions - Beware: "Dubious presumption of coherence" - Assuming the whole act is coherent may be unrealistic\... there are a lot of compromises made during legislative process - Beware: Haphazard drafting - There can be policy anomalies, especially after reconciliation - Beware: Sherlock Holmes cannon - Congress might not have understood they were enacting something that would create unanticipated change if they failed to mention it at any point (also called silent dog) - *Yates v. United States* ### Rule Against Surplusage/Rule Against Redundancy - Under whole act rule, every word or phrase adds meaning, so there should be nothing that is entirely redundant - Plays an important role when in the Supreme Court. \*\*Especially when there is a list\*\* - Counter cannon a "belt-and-suspenders" approach, legislators purposefully include things that are duplicative to make sure goals are achieved ### Presumption of Consistent Usage and Meaningful Variation - Consistent Uses = it is reasonable to presume that that the same meaning is implied by the use of the same expression in every part of the act, that when a word is used for the same subject matter and has a settled meaning, interpreters will follow that meaning - Meaningful variation = there is a presumption that a change of wording denotes a change in meaning, *i.e.* using the term "person" in one section but the term "individual" in another means different things (ex. "person" includes companies as well) ### Rule Against Interpreting A Provision In Derogation Of Another - One provision of a statute should not be interpreted in such a way as to derogate from other provisions of the statute, *i.e.* in a way that creates conflict. - Operational conflict - Philosophical tension - Structural Derogation Textual Cannons -- Grammar Cannons ---------------------------------- ### Punctuation Rules - The court can consider punctuation as an aid to interpretation 1. Punctuation forms *no part* of the statute (the English rule) 2. Punctuation *can* be used as an aid in statutory construction 3. Punctuation is a *last resort* a. \*Majority rule ### Last Antecedent Rule - Referential or Qualifying words or phrases that refer only to the last antecedent, unless contrary to the apparent legislative intent derived from the sense of the entire enactment - *i.e.* unless there's a really good reason to think otherwise, a description usually matches the last thing before it. - However, if it's clear from the rest of the law that this rule would lead to a weird or unintended meaning, the rule won't apply. - *Facebook v. Duguid* ### "And" Versus "Or" - The word "and" generally implies conjunctive, while "or" generally implies disjunctive - Terms connected by "or" are often read to have separate meanings and significance - De Morgan's Rules - When preceded by a negative, "and" means "or," and vice versa - Ex. ??????? ### "May" Versus "Shall" Rule - May is interpreted to mean optional and allows for discretion, shall is interpreted to mean mandatory. - *But* ordinary usage considers them interchangeable. ### Singular And Plural Numbers/Gender Rule - Followed least frequently, "in determining the meaning of any act or resolution of Congress, unless context otherwise indicates, words importing the singular include and apply to several persons, parties, or things; words importing the plural include the singular. - *i.e.* when Congress writes laws, singular words can mean plural things, and plural words can mean singular things, unless it's super clear from the context that they only mean one or the other. - Similarly, male pronouns include female, and vice versa. Extrinsic Sources, Whole Act Rule, And Context ---------------------------------------------- ### Common Law - Consider the meaning of a term in the common law. Statutes in "derogation" of the common law should be interpreted *narrowly*. - When legislature deploys words with established common law meanings, the court will presume those meanings are adopted by congress - *Cook County v. Chandler* ### Statutory And Regulatory Context ### Whole Code Rule & In Pari Materia - Whole Code Rule = Courts will search *the entire U.S. Code* for guidance on the use of key statutory terms and phrases - In Pari Materia = The Similar Statutes Rule - **Other statutes might use the same terminology or address the same issue as the statute being interpreted; where they do, courts should interpret the distinct statutes that address related subjects consistently** - **A version of the whole code rule, but more specifically when statutes were *based* on another** - ***Lorillard v. Pons*** - **Borrowed Statute Rule** - **The borrowed-statutes doctrine is a rule that says if one state copies a law from another state, the courts in the new state must follow any previous court decisions made about that law in the original state** - ***Smith v. Bayer Corp*** - **Rule Against Implied Repeals** - **Courts are very hesitant to interpret a later statute as implicitly repealing an earlier statute, and will only find an implied repeal if the two laws are clearly and irreconcilably inconsistent, preferring to reconcile them if possible** - ***Morton v. Mancari*** ### Legislative History - **Plain meaning can only be determined by placing the statute in the context in which it was passed and in which it operates**. - *King v. Burwell* 1. Committee reports a. If there are committee reports, they are the most authoritative legislative history, given more weight. b. They are carefully drafted by those who are most well informed c. State courts have similar things (ex. regular reports on standing committees) d. \*conference committee reports (when bills are being reconciled) come after the bills are reconciled, shows the compromises were made +-----------------------------------+-----------------------------------+ | Benefits of Committee Reports | Limitations of Committee Reports | +===================================+===================================+ | - Represent the most informed | - Lack of committee reports for | | group opinion on legislative | certain provisions, | | intent | especially floor amendments | | | | | - Provide accessible and | - Reports represent final, | | concise documentation of the | edited summaries, which may | | purpose, problems, and | omit significant discussion. | | solutions outlined by the

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