Brian D. Feinstein (University of Pennsylvania – The Wharton School) has posted Congress Is An It on SSRN. Here is the abstract:
Judicial use of legislative history in statutory interpretation has fallen out of favor. Concerns about the privileged role that committee chairs and other supposedly unrepresentative actors play in its production and an assumed inability to aggregate individual lawmakers’ intentions have cast doubt on the reliability of committee reports, floor speeches, and the like as windows into congressional intent. This critique of legislative history even comes with a pithy framing: its use to interpret statutes is misguided because “Congress is a ‘they,’ not an ‘it.’”
Congress has changed considerably since this idea gained wide currency decades ago. For one, it is much more hierarchically organized, with majority-selected party leaders choosing committee chairs, indirectly managing floor debate, and convening conference committees. Simultaneously, the trend towards ideologically cohesive parties has accelerated. Finally, the use of “regular order,” in which legislative history-producing committees play the leading role in bill development, is now merely one of several feasible options for lawmaking.
As a consequence of these developments, producers of legislative history operate as agents of cohesive party coalitions. Committee leaders owe their positions to their party caucus. When they are engaged in bill-drafting—along with the accompanying creation of legislative history—it is because party leaders affirmatively decided to utilize them for the bill in question.
Accordingly, it is time for judges to discard the conventional wisdom that legislative history cannot shed light on an enacting coalition’s collective will. Although legislators voting for a bill may not all agree on the meaning of every provision, virtually all of them agreed—through their consent to Congress’s organizing rules and the selection of party and committee leaders—to delegate interpretive authority to particular individuals as their agents. Lawmakers’ enduring decision to delegate this power reflects collective intent. Courts, therefore, should update their antiquated assumptions about Congress’s composition and organization, recognize that in important respects the contemporary Congress “is an it,” and restore legislative history to a prominent place in their interpretive toolkit.
Important, interesting, highly recommended.