Why Does Congress Vote on Some Texts But Not Others

Abstract

In Robert A. Katzmann, Judging Statutes (2014), Judge Katzmann argues that because the Constitution authorizes Congress to prescribe its own procedures, judges should pay close attention to the internal nitty-gritty of the legislative process when determining what interpretive fidelity to Congress entails. In particular, he writes that, because Congress treats legislative history “as essential in understanding [statutory] meaning,” a textualist judge who refuses to consult that resource “may... undermine the constitutional understanding that Congress's statute-making should be respected as a democratic principle.” In taking this position, Judge Katzmann joins an array of scholars who want judges to take better account of the impact of congressional rules of procedure, the way legislative staffers understand drafting practices on the ground, and the role norms of legislative behavior play in shaping statutes. This new line of inquiry might be described as a “Legislative Process school,” which tries to link the meaning constructed by interpreters more tightly to the precise means by which drafters generate that meaning. The review essay raises the following question about the Legislative Process school’s position on legislative history: Namely, if legislative history is as central to the legislative process as the Legislative Process school suggests — that is, if the most important forms of legislative history (viz. committee reports) are generated by key legislators to advise other legislators of a statute's meaning, if rank-and-file members base their votes on the legislative history, and if legislative history is more probative of the legislative “deal” than is the statute itself — then why does Congress choose to vote on the dry, technical bill alone, and not on the legislative history or, indeed, on both sets of texts in tandem? Both the bill and the accompanying committee reports are texts; both are generated by the legislative process; both are available before the final vote. So what are we to make of the fact that Congress typically chooses to vote on the bill alone? That question is sharpened, moreover, by Congress's continued failure to put legislative history to a vote three decades into a textualist campaign that has put legislative history on uncertain footing in the federal courts. Absent a convincing answer, one might wonder whether pivotal legislators think it unlikely that they could pass the full complement of legislative history — or even high value items such as committee reports — if they put those materials to a vote instead of, or even alongside, the text.