The positive political theory of legislative history: new perspectives on the 1964 Civil Rights Act and its interpretation.

• Author: Rodriguez, Daniel B.

INTRODUCTION I. LAWMAKING PROCESSES, STATUTORY DESIGN, AND THE THEORY OF LEGISLATIVE RHETORIC A. Principles of Positive Political Theory B. A Typology of Statutory Coalitions C. Strategic Elements in Communicating Legislative Intent D. Lessons for Statutory Interpretation II. THE POLITICS OF THE CIVIL RIGHTS ACT OF 1964 RECONSIDERED A. The Central Legislative Obstacles Preventing Passage B. The Civil Rights Coalitions Within Congress 1. Republican Opportunities and Dilemmas 2. A Closer Look at the Coalitions C. The Enactment Process 1. Passage in the House 2. Passage in the Senate 3. Reconciling the House and Senate Versions D. The Pivotal Role of Senator Dirksen and the Republicans 1. The Innocuous Dirksen Thesis 2. The Indispensable Dirksen Thesis 3. The Architecture of Compromise: Analyzing the Amendments a. The contents of the amendments b. Evaluating these changes E. Lessons from the Senate Battle over Civil Rights III. TRANSLATING LEGISLATIVE INTENT INTO PUBLIC POLICY: THE ROLE OF STATUTORY INTERPRETATION A. Reconstructing the Bargain Through Judicial Interpretation 1. Employment Testing and Griggs a. Disparate impact theory and historical justification b. The legislative debate over employment testing c. A missing piece of the puzzle: scienter and section 706(g) 2. Seniority Arrangements and Employment Discrimination: Selective Use of History in Franks and Teamsters 3. Affirmative Action and Weber B. Statutory Meaning Revisited IV. STATUTE MAKING AND STATUTORY INTERPRETATION VIEWED THROUGH THE LENS OF POSITIVE POLITICAL THEORY A. Perspectives on Statutory Interpretation and Legislation B. Perspectives on Contemporary American Social Policy CONCLUSION A. Politics of the Civil Rights Act of 1964 B. Supreme Court's Use of Legislative History in Major Civil Rights Cases INTRODUCTION

A central issue in the contemporary debate about how statutes ought to be interpreted is the proper role of legislative history. (1) The use of legislative history in statutory interpretation is often seen as problematic, in part because the legislative process, involving many different legislators with different points of view, provides contradictory information about a statute's meaning. Scholars of very different normative stripes--including textualists, (2) purposivists, (3) and those who eschew reliance on legislators' will altogether (4)--raise questions about the historical reconstruction of legislative intent. Indeed, a common conclusion in the literature on statutory interpretation is that legislative history can be used to rationalize any point of view, (5) leading some to conclude that it is useless to the enterprise of statutory interpretation.

In this Article, we revisit this enduring conversation about the proper place, if any, of legislative history in statutory interpretation. Our perspective is distinct from traditional arguments in that it relies on a different underlying theoretical foundation and, significantly, a positive political theory of statute creation. This theory, in turn, provides both a theory of legislative rhetoric and of statutory interpretation.

To summarize the basic theory: Legislation is the product of choices made by legislators pursuing strategic aims within the structure of legislative institutions, rules, and norms. (6) The principle of majority rule requires that legislators collect a majority of votes to transform their hopes into law. For most contemporary social legislation, this democratic imperative is hard to achieve. (7) On important legislative issues, ardent supporters and ardent opponents can fulfill their objectives only by collecting enough support from moderates and undecided legislators--legislators whose support is pivotal to the final outcome. As a price of this support, ardent supporters must typically accept compromises to their legislative vision. Although these compromises typically leave the bill with less than they had originally sought, ardent supporters nonetheless accept the compromise because they judge it superior to no legislation at all. (8) Moreover, it is these negotiations that transform the initial legislative proposal--one that cannot pass--into a bill that becomes law. (9)

This conclusion may perhaps seem so commonplace as to approach a truism, yet, as we show below, its implications for statutory interpretation are not commonly understood. First, it implies that legislation is the product of coalitions of legislators with different views about the legislation. Second, it yields a theory of legislative rhetoric: different legislators typically say different things about the legislation. Ardent supporters, for example, usually emphasize expansive readings of the legislation; moderates, by contrast, typically focus on the compromises necessary to garner their support, a focus which may narrow the scope of the legislation or restrict it in various ways.

Our theory of legislative rhetoric helps explain why the legislative record yields contradictory accounts of the legislation and hence its meaning. Because legislator preferences and aspirations about the legislation differ, the legislators create a record reflecting these disagreements. Of necessity, therefore, the legislative record for complex acts contains multiple and conflicting views.

The theory of legislative rhetoric also explains how these contradictions in the legislative record grant judges a degree of freedom in interpretation. To rationalize expansive readings of the act, judges emphasize the evidence provided by the ardent supporters; to rationalize narrow readings, judges emphasize the evidence provided by the moderates. Hence, Judge Harold Leventhal's well-known aphorism has it exactly fight: aspects of statutory interpretation are akin to a judge looking over a crowded room and picking out his friends. (10)

Our fundamental claim is that the nature and scope of the bargain struck by the ardent supporters with the coalition of pivotal legislators is central to the meaning of the statute. (11) When supporters alter the legislation to gain the pivot's support, these changes become part of the legislation. Unfortunately, these changes are often ignored when the courts focus largely on the legislative champions, who typically are ardent supporters. Put another way, we do not privilege the pivot by virtue of her being the last to join the support coalition. Rather, the focus on the pivot is in part an accounting device to focus attention on the changes in the legislation that got her on board. By virtue of transforming legislation from a proposal that would not pass into a bill that did pass, the changes as well as the resulting text are part of the law and should be considered such by the courts.

To resolve legislative ambiguities, courts often turn to those who write the legislation for an understanding of the legislation's meaning. Yet this approach can be misleading, as the bill's authors are typically ardent supporters who have strategic incentives to expand the meaning of the act--in part by speaking to courts in their interpretive role--and to minimize the impact of the changes necessary to gain the moderates' support. Because the ardent supporters' proposed legislation would not pass, this version cannot be considered the law; the moderates' support typically requires legislative compromises integral to the legislation and hence to its meaning.

Another implication of our theory, then, is that contradictions in the legislative record do not imply that reliance on legislative history is hopeless and necessarily arbitrary. Our theory provides a means for understanding the logic of the contradictions and hence for steering through the thicket of contradictory evidence. It is from the vantage point of the pivotal legislators and the views they communicate via the statute's legislative history that we can critically examine judicial interpretations of the statute.

We apply our approach to reading legislative history to the passage and interpretation of the Civil Rights Act of 1964 (the Act). (12) The history of the Act is interesting in its own right; (13) by any measure, this statute represents one of the landmark pieces of modern social legislation and a major effort by the national government to address racial injustice in twentieth-century America. Further, the Act is an excellent vehicle for the consideration of our analysis of statute making, legislative rhetoric, and the relevance of our views to the current normative debate over statutory interpretation. (14)

Standard accounts of the Act's history properly emphasize overcoming the Senate filibuster by southern Democrats as the central dilemma underlying the bill's passage. (15) The basic legislative dilemma was this: A vote of cloture to end the filibuster required sixty-seven votes in the Senate. Although there were sixty-seven Democrats in the Senate, twenty were from the solid South and thus ardent opponents of the legislation. Thus, at most forty-seven Democratic votes were available for cloture. This basic legislative arithmetic helps explain why Congress failed to enact significant civil rights legislation during the nearly one hundred years following Reconstruction. (16) To pass the bill in 1964, then, northern Democrats needed at least twenty of the thirty-three Senate Republicans to vote for cloture. Although there were, in the early 1960s, some liberal and moderate Republicans, there were not twenty of them. As demonstrated below, the median Republican was more conservative then every northern Democrat and nearly as conservative as the median southern Democrat. (17) This simple fact of Senate life in the 1960s implies that the conservative Republicans were the political pivots. Without their support, no civil rights legislation could become law. (18)

But how would the support of pivotal Republicans be won? Most standard histories are schizophrenic on this question. Nearly all scholars emphasize the fight over...