Inside agency statutory interpretation.

• Author: Walker, Christopher J.
• Position: III. Legislative History B. Purposes of Legislative History through Conclusion, with footnotes, table, and figures, p. 1038-1067

2. Purposes of Legislative History

   Regardless of the extent to which the structuring of an agency may separate the legislative history experts from the rule drafters interpreting the statute, the rule drafters surveyed still emphasized the importance of legislative history in their statutory interpretation efforts. In particular, three in four (76%) agreed that, in general, legislative history is a useful tool for interpreting statutes; another 13% chose "other" (as opposed to the binary yes/no) to qualify their answer as "sometimes" or "it depends." (187)

   To put that number in perspective, of the twenty-two interpretive principles included in the survey, legislative history (at 76%) had the sixth-highest response for use in interpretation. The only tools above it were Chevron deference (at 90%), the whole act rule (at 89%), the ordinary meaning canon (at 87%), the Mead doctrine (at 80%), and noscitur a sociis (at 79%). (188) Contrast that finding with the use of dictionaries as an interpretive tool, which came in at 39%. (189) By comparison, Bressman and Gluck found for their congressional respondents that "legislative history scored above both the textual and substantive canons, with roughly 70% of respondents stating that courts should use those canons when determining congressional intent, compared to 92% favoring legislative history." (190)

   This question on legislative history also attracted the most comments- from one in five respondents (21%). (191) Many commenters attempted to qualify the usefulness of legislative history. For instance, one remarked, "In general, the legislative history can be a helpful tool to obtain insight into the purpose and motivation for certain provisions when the legislative history is robust. But, when the history is not as robust, it is not as useful a tool." (192) Another echoed this sentiment by explaining that "[i]t can be [useful] to the extent that Congress actually explains what it is trying to achieve." (193)

   Another rule drafter, by contrast, seemed to channel Justice Scalia but with a pragmatic qualification: "It needs to be considered, because of the significance it may have with courts. However, the only thing all the members of Congress agreed upon was the words that actually made it into the statute." (194) In response to a different question about the reliability of legislative history, however, another rule drafter expressly harkened to Justice Scalia but asserted that legislative history may well be more helpful to an agency interpreter than a judicial interpreter:

   Although Justice Scalia would not be persuaded by any of these categories of legislative history, they are sometimes the only source an agency has to discern legislative intent and apply its discretion in a way that is consistent with legislative intent. In that regard, these types of legislative history can be more valuable to an agency than they would be to a court. (195) A number of rule drafters also commented on the decreasing usefulness of legislative history. One explained that its usefulness "seems less so today, since so much legislative history is in electronic e-mail format that is unpublished and committee reports are less useful." (196) Another bemoaned the lack of "real legislative history' : "In many cases, the so-called legislative history just restates the statutory language in slightly different terms. That's not helpful. I don't know why staffers bother with such non-substantive 'explanations.'" (197) And yet another suggested the rise of the modern administrative state may have caused the fall of legislative history:

   Legislative history is sometimes useful, but it is becoming less so. Congress puts less time into drafting legislative history that is useful to interpretation of the statute and leaving more of that work to the agencies. The administrative rulemaking process is taking on a larger role in shaping the rules that actually apply to the country. (198) The agency rule drafters also addressed the purpose of legislative history--being provided with the list used in the Bressman and Gluck study, which includes "the conventional judicial and scholarly assumptions" about purposes of legislative history. (199) Figure 7 presents these findings, descriptively comparing them to those from the Bressman and Gluck congressional respondents. (200)

   As in the Bressman and Gluck study, the conventional understanding-that legislative history helps explain the purpose of the statute-was the purpose most identified by the agency rule drafters (at 93%), with four in five (80%) also seeing legislative history as important in explaining the meaning of particular statutory terms. (201) In contrast to the congressional respondents, however, the agency rule drafters did not seem to embrace as fully a number of other main purposes. For instance, only 39% of agency rule drafters indicated that legislative history is used to facilitate political "deals" that resulted in enacting the statute, whereas 92% of congressional respondents so indicated. (202) Similarly, only 47% of rule drafters agreed that legislative history is intended to shape the way the statute will apply to unforeseen future developments (compared to 78% of congressional respondents), and only 49% of rule drafters agreed that it is intended to indicate a disagreement over the meaning of a particular term or provision (compared to 77% of congressional respondents). (203)

   With respect to its use as a guide for agency statutory interpretation, 65% of rule drafters indicated that legislative history is intended to shape the way agencies will interpret deliberate ambiguities. (204) This is lower than the 94% of congressional respondents who so indicated. (205) One explanation may be that the higher percentage comes from the principal who delivers the message, whereas the lower comes from the agent who is trying to make sense of that message. One rule drafter's comment reflects this potential explanation: "[I]n my experience, legislative history hasn't been particularly helpful in addressing ambiguities." (206)

   Similar to the congressional respondents (at 55%), only 54% of rule drafters agreed that a purpose of legislative history was to indicate a decision to leave a deliberate ambiguity in a statute. (207) Resistance to the notion that legislative history is used to signal deliberate ambiguity may have more to do with a disagreement about (or at least distaste for) the idea that Congress deliberately creates ambiguities, much less confesses to them in legislative history. One rule drafter keyed in on this point in a comment to another question:

   The idea that congressional drafters intentionally create ambiguities that they expect agencies to interpret is often naive. In many cases there are ambiguities because legislators can not agree on issues but can compromise by accepting ambiguous language. Probably most often, ambiguities are the result of drafters not anticipating issues that the language presents. The latter observation is based on having drafted legislative as well as regulatory language. (208) Although the rule drafters surveyed may have been less receptive to the agency-specific purposes for legislative history than their congressional counterparts, that should not distract from their overall embrace of legislative history as a useful tool when engaging in agency statutory interpretation. Indeed, 76% indicated that legislative history is a useful tool, and over 80% agreed that its objectives include explaining the purpose of the statute and the meaning of particular terms in the statute. For interpreters, those uses of legislative history are critical for resolving statutory ambiguities. One rule drafter nicely summed up this takeaway: "Legislative history can help to clarify Congress's purpose in enacting particular provisions, which in turn can help the Agency resolve ambiguities in a way that is consistent with legislative intent." (209)

3. Reliability of Legislative History

   In proposing a rules-based approach to using legislative history in statutory interpretation that focuses on the time, place, and manner in which legislative history was created, Nourse has observed that some law professors have demonstrated "a stunning lack of knowledge about Congress's rules," resulting in both their own and the average lawyer's ignorance about how to read the congressional record and about how to use legislative history generally. (210) One would expect better from an agency rule drafter, who has extensive, daily experience in statutory interpretation and whose agency plays a substantial role in the legislative process. To gauge their understanding, the rule drafters were asked fifteen questions about the reliability of legislative history--almost all of which were also asked verbatim to the congressional respondents in the Bressman and Gluck study. (211)

   1. Reliability of types of legislative history

      Figure 8 reports how the agency rule drafters ranked a variety of the most common types of legislative history in terms of reliability. (212) The order of the reliability rankings is virtually identical to that of the congressional respondents in the Bressman and Gluck study. (213) The agency rule drafters, however, generally indicated that each type of legislative history is less reliable than was indicated by their congressional counterparts. For instance, 71% of congressional drafters ranked conference reports as very reliable compared to 59% of agency rule drafters; 69% to 37% for committee reports in support; 29% to 22% for committee reports in opposition; 20% to 13% for hearing transcripts; and 12% to 1% for floor statements by party leadership. (214)

      The main takeaway is similar to that of the congressional respondents in the Bressman and Gluck study: committee-produced legislative history is the most reliable, though not per se reliable. (215) This point was driven home by one of the rule drafters: "Assuming a...