Statutory interpretation from the inside - an empirical study of congressional drafting, delegation, and the canons.

• Author: Bressman, Lisa Schultz
• Position: Part 2 - II. Unappreciated Structural Influences and Variety - and Their Implications for the Leading Interpretive Paradigms B. Statutes Are a 'They' and Not an 'It,' Too 3. The Congressional Budget Office as a Case Study in Additional Structural Influences through Conclusion, with footnotes and table, p. 763-801

3. The Congressional Budget Office as a case study in additional structural influences

   Our respondents also discussed other significant drafters. We do not dwell on most of these, including individual constituents and academics (each identified by 9% of respondents). (145) We especially recognize that lobbyists and agencies, also mentioned by our respondents, are central external drafters who merit their own sustained treatment. We conclude this Part, however, by highlighting one overlooked actor that 15% of respondents identified without prompting: the Congressional Budget Office (CBO). In particular, this Subpart discusses the importance of the budget "score" that the CBO provides to legislative staff and members estimating the financial impact of proposed legislation. (146)

   The picture that our respondents painted of the centrality of the CBO score offers an excellent example of how the "language" of legislative drafters differs from the language of courts, and not always in ways that would be inaccessible to lawyers if they chose to look. As we have argued, there are certainly aspects of the drafting process that courts could not capture. At the same time, Congress does have its own set of structural cues--some of them, like the CBO score, that are transparent and publicly available--that our drafters told us have a profound influence on the words they select.

   Our respondents repeatedly told us that they routinely change the bill text to bring legislation within a budgetary goal: "In tax and spending programs you live and die by the score. We have a number in advance and we work back and retrofit the policy to the score. We send them draft after draft"; (147) "Anything with a budget impact, we have to repeatedly go back to them to understand ... their reading of the statute and then we have to go back and change it. This is extraordinarily widespread." (148) Popular reports make similar observations. During debates over health reform, for instance, news outlets reported that "the bill's fate hinged on the results" of the CBO budget analysis and that the bill was continuously tweaked to change the score. (149) Both our respondents and other commentators have observed that the centrality of the CBO score has increased since the passage of the statutory Pay-As-You-Go Act, which requires a budgetary estimate of a bill's effects to accompany all covered legislation. (150)

   Our respondents also told us that the budget score affects decisions about how much detail to put in legislation--that is, how much ambiguity to include. This is a critical point from a doctrinal perspective because, in the courts, ambiguity triggers decisionmaking presumptions. For example, in response to our question about whether drafters use ambiguity to trigger deference to agencies under Chevron, one respondent disagreed and focused instead on the budget score: "Legislators have different incentives to leave language ambiguous either because they don't want to answer it or because it would affect the score." (151) Another told us, in response to our question about the expressio unius canon (the presumption that an enumerated list is intended to include no additional elements), that the score affects how he drafts lists. He said he cannot use "catch-all" terms--which trump the expressio presumption--even if the list isn't intended to be exclusive because "catch-all terms cause us CBO problems" by inflating the score. Given that these counsel-respondents took this view, in many instances putting their concerns about the CBO score ahead of concerns about courts, it seems likely that noncounsel staffers would do the same.

   It is a different question whether it would be normatively desirable to apply a presumption that, for instance, ambiguities in legislation be construed consistently with the assumptions underlying the CBO score, even if the score does reflect the congressional understanding of the bill. There may be democracy-promoting reasons why courts might avoid interpretive rules that could further enhance what some consider the CBO's already disproportionate influence or what some view as its lack of neutrality. (153) Our point is simply that within the context of current debates about which interpretive rules reflect congressional bargains, the CBO score has not even been mentioned.

   3. DELEGATION AND DIALOGUE

   Our findings on delegation likewise suggest that current theory and doctrine are focusing on the wrong cues and the wrong relationships. Our respondents viewed Congress's primary interpretive relationship as one with agencies, not with courts. Indeed, they strongly resisted one of the major premises of most current interpretive theories: namely, that Congress is in some kind of dialogue with courts--be it a principal-agent relationship, a partnership, or a rule-of-law relationship focused on shared, system-coordinating rules. Instead, they saw agencies as the everyday statutory interpreters, viewed interpretive rules as tools for agencies, too, and made no distinction, as some scholars have, between agency statutory "implementation" and agency statutory "interpretation."

   We asked our respondents fifty-nine questions designed to elicit their impressions on these matters. Our inquiries ranged from questions about whether our respondents intend to delegate specific questions, like preemption questions, to courts or agencies, to questions about how the consistency of the Court's approach affects legislative behavior. The following Figure summarizes the central findings:

   [FIGURE 5 OMITTED]

   These findings have significance both for current theory and for moves away from it. As an initial matter, Chevron--the central deference doctrine--seems too court-centric. Our findings highlight the fact that Chevron, with its emphasis on text and legal presumptions, seems to assume that Congress is talking to the courts when Congress signals an intent to delegate. In fact, our respondents told us that Congress is communicating with agencies about delegation, and doing so utilizing internal and structural cues, like committee jurisdiction and legislative history directives, that Chevron's text- and court-focused inquiry does not privilege.

   At a broader level, these findings put pressure on current theories of the interbranch relationships. Even the dominant alternatives to the kind of faithful-agent/Congress-reflecting theory that our study challenges are still focused on the Court-Congress relationship. The partnership model assumes a cooperative spirit, but our respondents rejected the idea of courts as partners. The rule-of-law model assumes that shared conventions exist, but our study suggests the absence of such common ground. Even so, our respondents were surprisingly receptive to this way of coordinating with courts, but told us that current doctrine does not perform that function.

   A different approach might be for the courts to move the central weight of the regime to a different interbranch relationship entirely--namely, to the Congress-agency relationship. Some scholars already have advocated that courts allocate even more interpretive authority to agencies. (154) But our study leaves us dissatisfied with such a wholesale delegation-based solution. Instead, we would shift the focus: we emphasize not court-driven transfers of power--which our findings suggest our respondents would resist--but rather how delegation theory and doctrine might look if they were situated in the very context of how Congress and agencies communicate.

   1. Agencies as Statutory Interpreters

      Our drafters saw their primary interpretive relationship as one with agencies, not courts. This theme emerged first in our questions about the canons--questions that we ourselves had designed as court-centric. Many respondents volunteered those interpretive tools as tools of Congress-agency communication. Thirty-seven percent of respondents told us, without prompting, that the canons are useful specifically because they help drafters predict whether and how agencies will interpret statutes. (155) As an example of a typical comment: "If you know the agency will use these interpretive principles they matter absolutely because you want to know how they will be interpreted." (156)

      We are not the first to highlight "agency statutory interpretation." Jerry Mashaw and Peter Strauss did the pathbreaking work, focusing mostly on how agencies might be similar or different interpreters than courts. (157) Mashaw and others also have discussed whether certain canons, including the canon of constitutional avoidance, should apply to agency statutory interpretation. (158)

      Our findings deepen this work. For instance, they lend support to Strauss's argument that agencies are important audiences for legislative history. (159) More than 94% of our respondents said that the purpose of legislative history is to shape the way that agencies interpret statutory ambiguities (almost the exact same number said the same for courts and individuals). (160) Moreover, as noted, 53% of respondents pointed out that legislative history is particularly important in the appropriations context, and 73% of that number explained that its importance derives from the fact that it directs how the appropriated money is to be spent. (161)

      Another nuance we add is how legislative history helps Congress mediate its relationship with agencies after statutes are enacted. Without inquiry from us, 21% of respondents volunteered that legislative history is one means of congressional oversight of agency implementation. (162) The political science literature frequently focuses on congressional hearings and administrative procedures as tools of oversight, but it rarely discusses legislative history for that purpose. Some legal scholars have indeed suggested that postenactment legislative materials might be useful to agencies in maintaining fidelity to Congress and the President over time, (164) even as courts have...