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Legislative History “genres”

In my last post I mentioned that the technical/mechanical tools for working with legislative materials (at least at the federal level) have lately become much more accessible and, if not intuitive, at least not so much of an actual barrier to research. This has in fact been the general trend in legal information, and therefore legal research — improvements in interface design, and the alignment of law-specific information-seeking with online search and retrieval techniques we use elsewhere in our lives have removed much (not all!) of the sheer mechanical and ‘interface level’ obstacles from specialized research. This is not to say that learning particular tools and interfaces is now unimportant. I, for one, still think every legal and/or scholarly researcher would benefit greatly from an understanding of controlled-vocabulary indexing, for example, and “Google-syle” search can certainly be done either well or poorly.

But it does seem that the mere mechanics and process of research have become accessible to a degree that proportionately more of our attention can be devoted to the other difficulty of being a good legal researcher; that of simply knowing enough of the institutional structures, law-making activities, and written work-product of the governing institutions you are concerned with that you have an adequate knowledge of what it even is that you are looking for.

In terms of the federal legislature, this means a familiarity with Congress, with the basic civics of “how a bill becomes a law” (along with a recognition of the actual real-world wrinkles common to the simplistic textbook process), and, critically, with the written/published material that is generated at each step of that process. For the materials generated at each step, you must understand the relative value that material is likely to have in understanding the thinking of Congress. This knowledge is critical both to understand how arguments and information are processed, at least as a formal matter, within the legislative process as well as for understanding already-enacted legislation. It is therefore important to have some knowledge of the materials that are fodder for legislative history research regardless of how (or whether) courts and judges accept legislative-history arguments as bearing on judicial interpretation of statutes.

Preliminary: Session Laws

First, it needs to be clear that “legislative history” refers to the legislative steps taken on a specific legislative project which, if successful, results in enactment into law of a specific text at a specific historical moment.

That is really just a long way of saying that legislative history is something that happens to session laws. By “session law” we mean the product of a specific individual enactment — the particular text that is converted from “bill” to “law” by the process of enactment. Such an enactment may well, either implicitly or explicitly, amend or alter some previous aspect of the body of statutory law. But that specific historical enactment is the event that has a “legislative history.” (Thus each later amendment of major legislation also likely has significant legislative history.) The type of session laws that Congress produces and that we are concerned with for our purposes here are called Public Laws.

This is in contrast to codes or compilations — in Congress’s case, the United States Code. The Code is a subject-ordered complilation of all of Congress’ extant legislation, regardless of when first enacted. Except in connection with an obscurity (“positive law codification”) that is a topic for another day, Codes don’t have “legislative history” as Codes. Only specific individual Congressional enactments were produced through a legislative process, and therefore have a history of consideration within that process.

Process in a Nutshell

To become law, federal legislation must be passed through both the House and the Senate. Once identical legislation has passed both houses of Congress, the bill may be signed, vetoed, or ignored by the President. The simplified, textbook, way of thinking of this is to imagine a bill introduced, always by a member, in either the House or the Senate. If in the House, it is a House Bill and assigned a number in the format “H.R. ##.” Or, if in the Senate, a Senate Bill denominated “S. ###.” Because any member can introduce a bill on his or her initiative, for any reason, this step is actually the end of the road for many of them. But if the leadership is interested in moving legislation forward, the new bill will generally be referred to one or more committees. While expeditious methods of having immediate-term consideration by the full House or Senate exist, the overwhelming majority of legislation is a product of the committee process.

While multiple committees may be involved, especially, with complex legislation, the simplified model that is easy to visualize (and here is a pretty good visual “map” of the process) is to picture the bill moving into a single committee as part of a linear process. Committees are where the legislative history happens. Floor activity is occasionally important, but the main consideration of a legislative project happens in, and almost always the only evidence of any kind of “corporate” intention regarding the bill will come from, the committee process.

Once a bill is referred to a committee, that committee (or subcommittee) may or may not take action upon the bill. The committee is likely to hold hearings on a bill it has taken up for consideration, and hearings consist primarily of the testimony of witnesses who may be experts from outside of government, officials in the executive branch, or legislators (such as important sponsors of the legislation). The committee will then proceed to consider the bill and likely amend it. If the committee (possibly following a subcommittee recommendation) approves a version of the bill it will be “reported out” — essentially, recommended by the committee for passage by the fully body. A written report accompanies this step, and, as discussed below, committee reports are usually the single most important part of legislative history.

Assuming a bill is reported out favorably the full House or Senate then considers it. The process is more complicated in the House than in the smaller Senate, but in both cases debate proceeds under rule-bound, even stylized, terms. Of the most significance for legislative history research, bills may be amended on the floor (i.e. after leaving committee and after any committee reports).

The House of Representatives and the Senate must pass identical legislation. The process of adopting language common to both the House and the Senate will either involve one of the two passing the others’ language without changes or (less commonly) through the rectification of differences in a Conference Committee. (Even when one house or the other ultimately passes the bill developed in the other, the two are in reality likely to have done substantial simultaneous work (including hearings and reports) on bills that are broadly part of the same over-arching legislative project. For the researcher, this means that all of the documents you care about might not be “attached” to the ultimately-successful bill number.) When a Conference Committee is used, it includes members from both the House and the Senate; a successful Conference Committee issues a written report that resembles (and is distributed in a similar manner to) the reports that accompany bills reported out of committee in either chamber’s own procedures. Each chamber must still pass the conference draft of the legislation.

Key Materials

Bills

Copies of bills are prepared and published at several stages in the legislative process. Particularly important are the printings when a bill is introduced; when it is reported (out of commitee) in each Chamber; the Engrossed Bill printed upon passage in one Chamber; and the Enrolled Bill which has passed through Congress and awaits only Presidential signing to become law. Other versions may be ordered to be printed publicly after amendment. The Government Printing Office’s FDSys web portal includes a collection of Bills (in digitally-signed PDF) back to the 103rd Congress (1993-1994). Older bills can be more challenging to locate — in some cases, especially accompanying amendments, they can be located in the Congressional Record and at other times included within Committee Reports in the Serial Set. Sarajean’s guide to legislative resources in the library also includes details on microfiche collections back through the 98th Congress. Proquest Legislative Insight also includes all printed versions of bills for those legislative history compilations that it includes; as the collection grows the publisher claims this will ultimately include more than 18,000 compiled histories for legislation from 1929 to the present.

Hearings

Legislative hearings conducted by Congressional committees (and sub-committees) are a legislative-history resource (Congressional committees conduct hearings on matters other than pending legislation, as well. Those are not the subject of this paragraph.) Many hearings are (and have long been) published by GPO and distributed to depository libraries and others. But, unlike Reports, hearings are not programmatically published in a universal series or set. Each (published) hearing is essentially published as if it were its own independent “book,” and they will be most easily found if you think of them in this way. Most libraries (including ours) catalog whatever hearings they receive individually, so once you have identified a particular hearing of interest a library catalog search (such as on the title of the hearing) tends to be an effective approach to locating a copy of that hearing. However, hearings are also available on FDSys. Selectively, but fairly frequently, these are included from the 104th Congress (1995) forward; and a few are very spottily available from earlier than this. In the world of commercial databases, Proquest Congressional contains the text (not PDF) of many hearings, particularly from more recent years. Proquest Legislative Insight appears to include PDF hearings for those compiled legislative histories that it includes.

Reports

Congressional committee reports are, for most purposes, likely to be at the heart of your inquiry. Reports are produced by congressional committees as a result of their consideration of new legislation, and are produced when bills are “reported out” for consideration by the entirety of the Chamber. You can think of a Report as that committees explanation of and justification for the proposed legislation: it is essentially the committee majority’s argument (for passage) to the rest of the Congress. Reports also typically discuss the expected/intended effects of the legislation and will touch upon its proposed interactions with other law.

Such a report is obviously not a full statement of Congressional intent — nothing other than the new Act itself will ever represent a corporate statement of all of the Congress, as voted by majority. But as a shared argument coming from a committee, Reports are the closest thing outside of Acts themselves to a corporate or collective statement from a body of Congress about the legislation proposed. Everything else — from a witness statement in a hearing, to a member’s statement in the Congressional Record, to the materials gathered into Committee Prints and Committee Documents — is at most the statement of a particular individual member who can only speak to his or her individual reasoning in promoting (or opposing) the legislation.

Congressional Committee Reports are unlike hearings in that they have, for a very long time, been published in a systematic, comprehensive, manner. Congressional Reports have always been included in the United States Serial Set. The Serial Set itself has been in production since the 15th Congress, in 1817. (Pre-1817 materials are included in a “companion” of sorts, entitled American State Papers, that was compiled and published in the mid-19th Century.) This means that all Reports, so designated, are published/released and fully available, going back a long way through time. It also means that rather than search, as through library catalogs, for the specific Report as a discreet entity, you may be better off simply looking for the Serial Set, either in print or in one of the several places where you can find portions of it online.

Reports from the 104th Congress forward are (like other Serial Set documents) available from the GPO through this FDSys collection. Many Serial Set documents from prior to the 64th Congress (1915-1917) back are available online through the Library of Congress’s American Memory Project: A Century of Lawmaking. For online access in the (long, important) interval, you will need to turn to subscription online resources. A couple of online information vendors have competed to retrospectively digitize the Serial Set: the Ben C. Green Law Library subscribes to this through Proquest (formerly Lexis) and our Serial Set content is integrated into the Proquest Congressional legislative-history platform/interface, which will be discussed in the next installment of this series.

Committee Prints and Committee Documents

Committee Prints are:

…publications issued by Congressional Committees that include topics related to their legislative or research activities, as well as other matters such as memorial tributes. The prints are an excellent resource for statistical and historical information, and for legislative analysis. The subjects of the Committee Prints vary greatly due to the different concerns and actions of each committee. Some basic categories of Congressional Committee Prints are: draft reports and bills, directories, statistical materials, investigative reports, historical reports, situational studies, confidential staff reports, hearings, and legislative analyses.

Many recent Prints are available through FDSys. Prints do not usually appear in the Serial Set.

Committee Documents, however, are along with Reports a core constituent of the Serial Set. Documents commonly include reports of executive branch agencies (printed as part of the Serial Set due to their consideration and usage by Congressional committees) or may include Prints so denominated (to cause them to be included in the Serial Set). Documents are available on FDSys from 1995 forward (and some earlier Senate Documents are available). Both print and online repositories of the Serial Set, if complete, should include a sought-for Document.

Congressional Record

Most of the discussion of the Congressional Record will wait for a later installment. For the moment, suffice it to say that while the Congressional Record is well-known, and has a portentous title, it is not as central a source regarding the legislative process and legislative history as you may think. That said, the Congressional Record can indeed include important materials, especially surrounding legislation that is amended after leaving committee.

The next installment of this series of posts will focus on tools for conducting legislative-history and related research. We’ll look at bill-tracking tools, like the Library of Congress’s free Thomas. And we’ll focus primarily on the newest breed of commercial legislative history databases.