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Emory Law Journal

Abstract

Prominent judges and scholars have long challenged the use of legislative history in statutory interpretation. Critics point to the privileged role that supposedly unrepresentative committee chairs play in the production of legislative history and a perceived inability to aggregate individual lawmakers’ intentions. These features, the argument goes, cast doubt on the reliability of committee reports, floor speeches, and the like as windows into congressional intent. This critique even comes with a pithy framing: using legislative history to interpret statutes is misguided because “Congress is a ‘they,’ not an ‘it.’”

This widely adopted expression, although appropriate in previous congressional epochs, no longer reflects reality. Drawing on analysis of nine decades of congressional data, a detailed accounting of organizational changes on Capitol Hill, and case studies of bills passed in different eras, this Article synthesizes a set of developments that, taken together, greatly improve the signal quality of legislative documents. In brief, producers of legislative history in the contemporary Congress operate as agents of cohesive coalitions; the majority party selects them for these roles based on their orthodoxy, then decides to engage them to draft some bills and sideline them for others.

In light of these developments, it is time for courts to inter the widespread view that legislative history cannot shed light on an enacting coalition’s collective will. In its place, this Article presents a new paradigm: when determining whether to consult legislative history, judges must consider Congress’s structure and procedures at the time of the relevant statute’s enactment. For laws enacted in recent decades, the conditions are such that legislative history evinces legislative intent.

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