A central debate in the field of legislation has asked: how reliable are the different types of legislative history? Yet there has been no understanding, throughout this debate, of who inside Congress drafts this legislative history. This is surprising, given the common intuition that authorship is a key indicator of reliability.
In response, this Article presents the results of an original empirical study—one that illuminates this unknown dimension of Congress, uncovering the actors and processes that produce modern legislative history. For this study, the author conducted interviews with congressional staffers drawn from both parties, both chambers of Congress, and numerous committees. Through the study, the Article discovers that different types of legislative history are drafted by very different actors within Congress—actors with fundamentally different competencies, motivations, and job descriptions.
Based on these findings, the Article urges statutory interpreters to adopt a new hierarchy of legislative history materials. Unlike the prevailing hierarchy, this new approach allows interpreters to prioritize legislative history drafted by those in Congress who possess the capacity, and the institutional motivation, to predictably generate reliable documents.
The interviews conducted for this Article also provided numerous additional discoveries about the inner workings of the modern Congress. The Article reports these discoveries, and it examines their implications for ongoing debates about democracy, legislative process, and statutory interpretation.
Jesse Cross, Legislative History in the Modern Congress, 57 Harv. J. on Legis. 91 (2020).