CongressLine by Congressional Intent

It is not unusual for a Congressional hack like me to drone on about Congress as if it is the only institution in Washington, DC, that counts. This of course is not true, as any elementary school student will tell you; Congress is only one third of the equation when it comes to creating, implementing and interpreting the law. The other two thirds of the equation (the Executive and Judiciary), while certainly not forgotten in this town, must assent to the measure, re-interpret it or strike it down. Since Congress frequently passes legislation that is vague or even contradictory in its intent, these other two branches are all the more important as they are often times the entities that have to try and discern Congress’ intent.

Congress is not very good at being precise. It is understandable that this is the case, as precision is usually the by-product of orderly, well structured processes. The Congressional legislative process is not orderly and is structurally quite convoluted. First there are two chambers, each selected by different constituencies, for different terms, with different rules of order. Combine that with a healthy two-party competitive environment, diverse geographic, cultural and economic interests and a very open legislative process, and you have a recipe for imprecision, and vagueness. The system was designed to be this way in 1789. The more controversial the measure, the more vague the measure will be. Congress is very precise at renaming Post Offices, but is rarely precise in reformulating election law or environmental policy.

After both Chambers pass the same measure, the bill normally does not become law until the President signs it. The President can choose to either sign, not sign, or veto the bill. Usually, the interplay between the White House and Congress during the deliberation of the bill creates a measure the President can sign. A veto, while rare in the current Administration, is not an unusual event historically.

When the President signs or vetoes a measure, the first attempt at interpretation begins. If the President vetoes a bill it is usually sent back to Congress with a veto statement, noting why he is disapproving. Likewise, the President often issues a statement when he signs a measure. These signing statements have, historically, been bland celebratory comments praising the bill and those members who got it passed. They have also allowed the President to offer his interpretation of the law, though sometimes this interpretation may be different than that of some in Congress or the Judiciary. More recently, signing statements have become controversial as the current administration has used them not only to interpret the bill but to state its intent to abide only by its own interpretation, regardless of Congressional intent.

The controversy surrounding signing statements is a very interesting debate raising serious Constitutional questions. It is one of those debates that will continue for ever and ever as there is really no mechanism to resolve it, other than one bill at a time in the judicial branch. One side of the argument says that a signing statement that reinterprets a bill poorly is unconstitutional and breaks down the separation of powers laid out in the Constitution. Of course, who determines that a bill has been interpreted incorrectly by the President? The President, of course, could veto a measure of which he disapproves. The other side argues that the President is merely doing his job in preparing to execute the law as signed (and described in the signing statement) and provides a safe guard against potentially unconstitutional measures as passed by Congress. This is a topic that really should be a subject of a completely separate article.

Once a bill is signed, at that moment the interpretation of the bill begins and this new process can take years, even decades to bring to conclusion. A passed and signed bill, now a Public Law, signed and perhaps interpreted in a signing statement, is sent to the appropriate executive agencies for implementation. This implementation usually takes the form of regulations as much of what Congress does relates to regulating society and the government. (Note: after a bill becomes law, the Law Revision Councel codifies it into the appropriate sections of the US Code)

An executive agency now gets to weigh in on what Congress passed. Sometimes the new law is very easy to decipher and the regulatory process moves quite smoothly. On other cases, especially with the modern U.S. government, the regulatory process is more like Round Two of the legislative process. In other words, if you didn’t like the bill Congress passed, you have a second chance to change it in the regulatory process. Legislation meets regulation in two ways, like soap and water or fire and gasoline.

Once at the appropriate executive agency, the measure is digested with bureaucratic efficiency, literally torn apart and delegated to dozens of people to figure out what needs to be done. The public is informed that this process is beginning through a daily publication called the Federal Register. This publication is one of the most important documents in Washington, DC, and for some highly regulated industries and sectors of the economy, it is the most important document, much more so than anything produced by Congress. For others it is a black hole, so obtuse that it is ignored. People who spend time trying to influence legislation may find that they have reached their limit when it comes to regulations; others cannot afford to be so discriminating.

First, the agencies outline the requirements of the legislation and begin to develop a regulatory form for the measure. Notification of the proposed regulation is made to the world in the Federal Register, whereupon the public is invited to weigh in with their comments and their interpretations. This is quite interesting, something that Congress never did when they were writing the legislation (they assume that they are the public, representing the public). The regulatory process invites anyone to comment on the proposed new regulation. Once commentary is received and accepted or rejected by the agency, it is then made final and the normal regulating and enforcement process begins. This Final Regulation is also published in the Federal Register and ends up ultimately in the Code of Federal Regulations (CFR). (The CFR is interesting bed time reading)

An Agency can also make changes to existing regulations too. The Clean Air Act, passed years ago, needs some revisions in how it is regulated. The Environmental Protection Agency can go back and revise these regulations as they see fit. This is very common and of course another source of conflict as to the original intent of the legislation.

From bill to regulation there can be a big difference. Congress may offer differing degrees of specificity when laying out how its legislative intent and desires vis-à-vis regulatory implementation. Sometimes they purposely leave the details to the executive agency, sometimes they are quite specific. Congress can also insert itself into the regulatory process directly, through its appropriation of the money the agency needs to regulate. Legislative language controlling such implementation may read as follows: “No funds in this appropriation shall be used to _____. (fill in the blank) and in that statement, Congress trumps the regulators much like in a card game.

The law-to-regulation process can take months. A final stage of reinterpretation of legislation can take decades. Any citizen can step in, either while the regulatory process is moving, or afterwards, and make a claim to the judiciary that some interpretation is incorrect. Sometimes the claim is that the bill itself is invalid, or unconstitutional. In most cases though, it is a dispute on the regulatory interpretation of the bill.

The judicial review of legislation and regulations is one of the hallmarks of the Anglo-American form of democracy. An independent judiciary sits in judgment on decisions of the Legislative and Executive branches. (the whole process of judicial review is also another article in itself) But the process interestingly brings us full circle back to the Congress and the legislative process.

When determining the legality of the bill or a regulation, the court employs an interesting process to determine the legislative intent of Congress. This is not an easy task. All Congressional documents are relevant. The bill language, statements made on the floor, or in committee, are all considered. The Conference Report in particular is an important document as it may be the only document that actually passed both chambers. Hearing testimony may play a role, but usually not (see this article). Other items, though outside the legal legislative process, like letters and outside reports, can play a role too. All the speeches on the floor, all the hearings, all the letters and reports, all the amendments, may come back once again 20 years later in the court room thus returning a law back to the legislative process once more. Law firms have spent years developing legislative histories of measures that are used to convince courts as to the intent of Congress. I have seen shelves of bound books covering a single topic of legislation in libraries all over Washington, DC.

Today, I am following a bill in Congress, ten years from now I may have to revisit it all over again when someone wants to try determining what Congress really meant. Sometimes it is like replaying a bad movie, but usually it is what makes the process interesting. I recently was asked to look into a relatively obscure item: The Olympic and Amateur Sports Act of 1998. At the time, Congressional expediency required that this pet bill of Sen. Ted Stevens (R-Alaska) was passed as an afterthought, inserted as a rider in that year’s Omnibus Appropriations bill. At the time, we were all relieved that it was over and everyone could go home. I would not have guessed that nearly ten years later, I would be trying to replay the events of that time and trying to figure out what actually happened and why. It is not an easy process and requires more than a few sophisticated 21st Century tools. Hopefully this series of articles have been helpful in helping you decipher this process, even though there is more to explain yet.

Once a bill passes, all the words of Congress are not over, they just pass to a new dimension and live on in perpetuity and are constantly debated, reinterpreted, and revised. Let’s look at it this way: Congress gives birth to a child when it passes a bill. The President(s) are in-charge of the education of the child, with constant Congressional meddling. And, the courts pass judgment on misbehavior of the child all the way through its life. Like so many other things, life’s metaphors apply here as well.

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