Seton Hall Law
Prof. Bill Baroni
Fall 2009
Legislation by Eskridge
Legislative Process
Players:
Legislators (House = 2 year terms, senate = 6 year terms)
i. Self interest: getting reelected, getting elected to higher office, prestige, fame, importance, money and influence current and future, rent-seeking.
ii. Multi-headed actor, compromise and division of labor are essential {comity}
iii. Strategic voting: compromise, logrolling, omnibus bills
iv. Supposedly a moderating force due to deliberation and proceduralism
v. Apparently mostly motivated by constituent interests
1. pork barrel politics
2. committee appointments to enable rent-seeking
Executive: president & agencies
i. President exerts substantial influence over the political agenda.
ii. But President has less control over what happens to ideas once he sends them to legislators
iii. Bargaining Resources: The veto; agency favors; party & campaigning favors; agenda-related resources; information generation, money, pardons, commission seats.
iv. President is a unitary actor
Courts, especially Supreme Court à INTERPRETATION
Interest groups and their lobbyists and members; diffuse or narrowly focused
i. Grassroots
ii. Corporations
iii. Coalitions
iv. Voters with shared interests, like women, minorities, Christians
v. Manufacture of and Distribution of Information
vi. Provide lawmakers with funds and possibility of future jobs
Press
i. can be policy entrepreneurs,
ii. can generate interest in new issues,
iii. Can affect reception of issues by voters.
Voters
1. Badly informed, manipulable
2. Single vote is of limited impact à equality concerns
3. Can convey their opinions of their representatives
4. Can mobilize through grassroots or initiative/referendum campaigns
Term limits, e.g.
Four fundamental ideas about legislatures:
1. legislatures create machinery of government and define missions of agencies
2. legislatures respond; they seldom lead {cf. direct democracy—Progressive era leading change}
a. [so who does lead?]
3. legislatures are designed to divide and share workload and to create consensus from which decisions emerge
a. individual legislators have to be willing to
i. acquiesce or compromise
ii. respect division of labor and not upset the work of other committees or they will overturn the balance that gets things done
4. the legislature’s job is to express public policy in the words of a bill
5. Legislation is a series of sequential actions recorded in documents that are used to send signals to people at various stages of the process and to signal constituents and interest groups.
Inertia principle of bills
o Bills are inert—they are kept bottled up in committee until an outside force gets them moving:
1. public demand
2. lobbying
3. effective sponsor
4. meritorious or clearly needed legislation
o Once a bill starts moving it will keep moving unless stopped or amended by another force.
o As a bill gets closer to passage, its momentum makes it harder to kill or amend
· Energy spent early in the process is more efficient that energy expended late in the process.
· Advantage of early lobbying à fewer legislators involved, so fewer people to persuade
Limits on Legislative action
Bicameralism requirement—laws must be approved by both chambers
i. Revenue bills must originate in House–Origination Clause
Presentment requirement—laws must be signed by president or veto overridden
Constitutional limits
i. Due process & Equal Protection
ii. Federalism
iii. Separation of powers & delegation
iv. Time and Manner clause for elections
v. First Amendment freedom of speech
vi. Equal protection
Veto gates in legislature
Chamber rules—determine how bills are treated
Election and fundraising needs
Interests of constituents
Theories of Legislative Process
v Proceduralist theories—procedures through which bill is passed
Ø New law must pass through procedural hurdles to get passed
§ Vetogates: result from constitutional provisions, from rules adopted formally by a legislative body, from informal norms or practices.
Ø Vetogate Obstacles:
§ Most durable—constitutional (presentment, bicameralism—Art I, §7; required supermajority votes—veto override, expelling member; appropriations bills have to originate in House).
§ Less durable—Chamber rules (supermajority voting requirements, filibuster, committee consideration requirement)
· Can usually be changed by majority vote of relevant house
· Usually no outside enforcement mechanism if chamber violates its own rules
§ Least durable—folkways (seniority—senior members can block bills even if the majority want them; norms of courtesy and bipartisanship)
Effect of proceduralism on legislative deliberation.
Republican theory: procedures encourage public debate
i. Deliberation shapes and changes public preferences on issues; allows lawmakers to modify, amend, or discard proposals as thinking changes; facilitates development of civic virtues in citizens.
ii. Problem: citizens don’t like the long deliberative process; they want the bills to get passed.
But, procedures to not guarantee that lawmakers will deliberate or that their deliberation will be sound. They just provide opportunity for deliberation. [Mow Sun Wong]
i. Often most important deliberation is informal, private
1. raises questions for judicial interpretation of legislative history since public deliberation may be just for show
2. Raises questions about democratic process since most important deliberation may occur in secret and/or with special interests.
ii. Fullilove v. Klutznick: race-based set asides. Stevens dissent, [p. 37]
v Interest group theories—pivotal, perhaps disproportionate, role of organized groups
Ø Interest group: a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of the citizens, or to the permanent and aggregate interests of the community. {Federalist 10—normative and negative view}
· Assumes that the interests of the whole are actually good for them—what about environmental groups that espouse policies that might hurt some but overall would help everyone?
§ More positive view: interest groups are any group that pursues contested political or policy goals, and that is widely regarded by the public as being one contending interest among others.
· But what is The Public if not a group of special interests? Is there a Platonic Public?
Ø Interest Group Liberalism—pluralism as positive force in politics
§ We rely on interest groups to play large role in politics (parties, unions, special interests)
§ Active, diverse, prevalent interest groups = sign of political health.
· Ideal system: where interest groups adequately represent all sectors of life, so that each group checks the others
But minority interests can capture vetogates or use regulatory agencies to their own purposes.
¨ Client politics: (distributive) concentrated benefits, distributed costs. Interest groups will support and will band together to ensure passage. A lot of logrolling will occur and may lead to omnibus bill with lots of goodies (Christmas tree bill). Opposition likely to be weakly organized. Legislators may tend to overproduce this kind of law.
¨ Interest group politics: (redistributive) concentrated benefits, concentrated costs à battle of well-organized interest groups. We would expect these to fail since groups can block proposals at vetogates.
· Suggests reforms: get public-regarding interest more power; clearly identify losers so that interest groups will fight each other.
· Problems with the model: treats lawmakers as puppet of whatever interest group will get him reelected. But lawmakers seem to vote mostly according to the preferences of their constituencies—the inattentive public.
Ø Interest group influence seems ex post rather than ex ante: groups don’t buy politicians to vote as they want, but rather favor politicians who share their interests and give money to retain that interest.
§ Interest groups most successful at blocking legislation and at influencing low visibility issues whose objectives are narrow and technical.
§ Coalitions are more successful than individual groups alone
§ Support of media and policy entrepreneurs improves chance of success
§ Interest groups most successful when they have developed long-term connections with lawmakers and become part of the inner decisionmaking circle and can influence ideas at an early stage
v Institutional theories—relationships among various political institutions and the effects of broad governmental structures on policy
Ø Social choice theory—Effects of institutions on decisionmaking
§ Political outcomes under majority-voting schemes will be incoherent, will not necessarily reflect the preferences of the majority, and thus will lack legitimacy.
§ Majority voting leads to strategic voting to prevent vote cycling and substantially satisfy preferences—think about Powell v. McCormack voting pattern.
§ Suggests inevitable trade off between democracy—(and chaos b/c of vote cycling) and stability—(and unfairness b/c majority desires not really met).
§ Crucial issue: identify mechanisms to avoid vote cycling and to order decision-makingà focus on institutions: procedures, deliberative process
· Lesson for statutory interpretation: be wary of reliance on legislative history b/c only finished products of full legislative process have legitimacy. Justification for strict formalist interpretation.
Ø Positive Political Theory—game playing among political actors reacting to each other.
§ All political actors are goal oriented and act rationally
§ They know others will act and influence outcomes, so they act strategically in order to ensure they get an outcome they like
§ Institutions structure choices that can be made and how players can interact
· And players structure institutions to help them meet their goals
§ Problem: treats preferences as stable, but they are influenced by course of decision-making process. Assumes players have perfect information.
Passing Bills
1. Proponents convince legislator to introduce a draft bill
President is main agenda-setter by proposing or drafting important legislation
2. Bill is sent to one or more committees by presiding officer of legislative
