Learning to research and understand legislative history is an important part of any legislator’s job. Legislative history includes the official reports that are generated in Congress throughout the course of the legislative process, such as committee reports and joint statements.

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When researching case law, be aware that court decisions can frequently include the use of the term “conference report” in order to refer to joint statements of managers. Reports and joint statements should be used with caution.

Joint statements are actually more authoritative than reports. This is because a joint statement is prepared by both chambers, but it must also be voted on and adopted by both chambers. As a result, the joint statement is the only form of legislative history that is produced by and considered by both chambers of Congress.

A committee report is considered to be inferior to a joint statement in two significant ways. First, the committee report is the product of only one chamber. Second, the committee report is produced and considered earlier in the process.

The legislative history also includes statements that are made by members within the course of official proceedings, such as floor debate. Individual statements only reflect the views and motives of that individual member. Consequently, individual statements are less authoritative than committee reports, and they will be disregarded if they conflict with a committee report or joint statement. Individual statements will also be disregarded if they conflict with history and context. Due to this, individual statements typically only carry weight when there is no other legislative history available. Whenever two or more individual statements are in conflict, the Court gives slightly more weight to a statement that is made by a member who is in charge of the bill. This would include a committee chairman or the sponsor of a bill.

The Court gives very little weight to a statement that is made by any opponent of a bill. Whenever individual statements on the House side conflict with individual statements of the Senate side, the Court will give greater weight to those from the chamber that actually originated the provision.

To learn more about researching legislative history, consider TheCapitol.Net’s 1-day course How to Research and Compile Legislative Histories, and the 1/2-day course How to Find, Track, and Monitor Congressional Documents.

Reference: Legislative Drafter’s Deskbook, by Tobias Dorsey, Section 3.75 Report Language, and Section 3.76 Individual Statements.

For more information about drafting legislation and statutory construction, see these resources from TheCapitol.Net:

• Legislative Drafter’s Deskbook, by Tobias Dorsey
• Congressional Deskbook: The Practical and Comprehensive Guide to Congress, by Michael L. Koempel and Judy Schneider
• Statutory Construction and Interpretation
• Live courses in Washington, DC:
  • Drafting Effective Federal Legislation and Amendments
  • Writing to Persuade: Hone your persuasive writing skills
  • How to Research and Compile Legislative Histories
  • How to Find, Track, and Monitor Congressional Documents
  • Research Tools and Techniques: Going Beyond Google
  • Capitol Hill Workshop
• Capitol Learning Audio Courses:
  • Drafting Effective Federal Legislation and Amendments in a Nutshell
  • Statutory Construction: A Primer on How to Read and Understand Statutory Text
  • Tips, Tactics & Techniques for Writing Congressional Testimony
  • Preparing for Congressional Oversight and Investigation

When an enrolled bill becomes law, it is then sent to the Archives of the United States. If the bill becomes law by legislative override of an executive veto, Congress sends the bill to the Archives. If the bill becomes law through any other method, such as a pocket approval or signature approval, the White House sends the bill to the Archives.

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Once a bill arrives at the Archives it is assigned a public law number by the archivist. Numbers run in sequence from the beginning of a Congress. Since 1957, the prefix indicates the number of the Congress (see Terms of Congress).

The first official publication of a law is in a pamphlet that contains only that law. This pamphlet is known as a slip law. Every slip law is prepared and published by the Archivist of the United States through the Office of the Federal Register. A slip law will contain the text of the new law as well as quite a bit of other new information such as the public law number, the date of approval of the President as applicable, the designation and the number of the underlying bill, the volume of the Statutes at Large in which the new law will appear, marginal notes and a reference guide to the legislative history of that new law. The reference guide will indicate whether any presidential statement or committee report was printed in relation to the legislation. If so, the reference guide will provide the appropriate citations. The guide will also provide information regarding the dates on which the legislation passed the House and the Senate.

The marginal notes will provide additional reference information along with other explanatory material. The marginal notes appear in the actual margins of the slip law. In addition, anytime the text of the new act refers to any other provision that already possesses a United States Code citation, there will be a marginal note that will indicate information about that Code citation.

The second official publication of the new law occurs as part of the United States Statutes at Large. This is an extensive collection of slip laws for each session of Congress. They are arranged by sequence of the public law numbers. The Statutes at Large are published in bound volumes by the Archivist of the United States through the Office of the Federal Register.

To learn more about drafting effective legislation, consider taking TheCapitol.Net’s 2-day Legislative Drafting Workshop.

To learn more about legislative history, consider taking TheCapitol.Net’s 2-day How to Research and Compile Legislative Histories.

Reference: Legislative Drafter’s Deskbook, by Tobias Dorsey, Sec. 2.60 Publishing the Law.

For more information about drafting legislation and statutory construction, see these resources from TheCapitol.Net:

• Legislative Drafter’s Deskbook, by Tobias Dorsey
• Congressional Deskbook: The Practical and Comprehensive Guide to Congress, by Michael L. Koempel and Judy Schneider
• Live courses in Washington, DC:
  • Drafting Effective Federal Legislation and Amendments
  • Writing to Persuade: Hone your persuasive writing skills
  • Strategies for Working with Congress: Effective Communication and Advocacy on Capitol Hill
  • Capitol Hill Workshop
• Capitol Learning Audio Courses:
  • Drafting Effective Federal Legislation and Amendments in a Nutshell
  • Statutory Construction: A Primer on How to Read and Understand Statutory Text
  • Tips, Tactics & Techniques for Writing Congressional Testimony
  • Preparing for Congressional Oversight and Investigation

Legislative history involves the proceedings in Congress that relate to a law before it was actually enacted. This can include official reports prepared by congressional committees as well as official statements that are issued by members of Congress.

photo credit: Moyan Brenn

Legislative history may also include testimony given at legislative hearings, and different versions of the text of a bill as it was shaped through the legislative process.

While legislative history can provide a wealth of information, it can also be problematic when it is used as evidence of legislative intent. One of the reasons for this is that a committee report only provides the view of a few legislators that belong to one chamber. Furthermore, an individual statement only offers the view of that single member.

Due to the number of problems that can arise from legislative history, a court typically only uses legislative history as a guide to intent when it must make a decision between multiple possible plausible meanings.

Courts sometimes look to legislative history even if there is only one possible meaning. This can sometimes occur for the purpose of confirming the plain meaning. The Supreme Court has been consistent in saying that legislative history can be used as evidence for legislative intent, provided that it is not used for the purpose of overturning a plain meaning.

What is the meaning of “plain meaning”? The plain meaning of a statute refers to the “ordinary or natural meaning.” Natural meaning refers to a meaning that is not literal but is instead the common sense meaning. The ordinary meaning of a statute refers to the meaning in terms of an idiomatic sense or the same way that an ordinary person might commonly speak.

When the Court uses legislative history as evidence of legislative intent, it is usually for the purpose of reinforcing or confirming plain meaning. The Court typically understands that the views that are expressed by certain members of Congress are not the views of Congress as a whole. With that said, the views of some members of Congress can help to shape the views of others and even influence votes. As a result, legislative history can be important not because of what was previously written or said by lawmakers, but because it was read or heard by other lawmakers.

To learn more about legislative history, consider TheCapitol.Net’s 1-day course, How to Research and Compile Legislative Histories; Searching for Legislative Intent, and their publication Statutory Construction and Interpretation.

Reference: Section 3.72 Legislative History: Why It is Problematic, in Legislative Drafter’s Deskbook, by Tobias Dorsey.

More

• Drafting Effective Federal Legislation and Amendments
• Writing for Government and Business: Critical Thinking and Writing
• Legislative History Reference and Research Tools
• How to Research and Compile Legislative Histories – Research Workshop: Legislative History