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history if it were not valued. Moreover, even the majority of our Legislative Counsel respondents-who generally do not draft legislative history and most of whom said their preference was to include details in enacted text-told us that legislative history was an important tool for legislative drafters and courts alike.W28
Related to this point, we note here what we elaborate upon in the compan- ion Article: our respondents were not purposivists. The findings we relay in this Part should not be understood as their endorsement of that theory, even though in academic circles purposivism is associated with the use of legislative history.
Our respondents' emphasis on the utility of legislative history did not map onto a vision of judicial interpretation that looked like Justice Stevens's or Justice Breyer's. Rather, most of our respondents opposed the idea of purposive, for- ward-looking, or even pragmatic interpretation, and viewed legislative history as a tool that limited-rather than expanded-judicial discretion.
Finally, this series of questions drew out many of the same broader themes as did our questions about the other canons. In particular, the centrality of the committee system, the importance of the legislative process, and the relevance of personal factors about different drafters came to the fore. In addition, it was in this series of questions that a new theme-the significance of the nonparti- san congressional drafters in the Offices of Legislative Counsel-began to emerge.
A. Legislative History-Specific Delegation Concerns About Staff and
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draft statutory text. As we elaborate in the companion Article, our respondents repeatedly suggested (this point was volunteered more than sixty times throughout the survey) that a great deal of actual statutory language is drafted by the professional, nonpartisan drafters in the Offices of Legislative Counsel, and not by committee staff or staff who work for individual members. Ordinary staff may devise the policy concepts, or broad outlines, or "bullet points," but the Legislative Counsels typically turn those ideas into statutory text.
Moreover, it appears to be the case that ordinary staff generally do draft legislative history, and not the Offices of Legislative Counsel.220 This means that it is the legislative history, much more than the text, that is most likely drafted by staff who are accountable to elected members. Our respondents also emphasized that ordinary staff, and not Legislative Counsel staffers, are the subject-matter experts. These findings suggest another important disconnect that may be relevant to the debate over legislative history: legislative history appears to be drafted by staffers with more subject-matter expertise than the professional staffers who often draft statutory text.
Second, although it is true that legislative history is not formally voted up- on by all members of Congress, some respondents told us that members are more likely to vote (and staffers are more likely to advise their members) based on a reading of the legislative history than on a reading of the statute itself.22 1 To press this point, we note a little-known fact shared with us by our respond- ents: in a number of committees, including the Senate Finance Committee and the House Budget Committee, statutory text is never actually voted on. Rather, those committee members vote based on a "conceptual" document-a form of legislative history-that describes in layman's terms what the statute is trying to do.2 2 2 It is based on that conceptual document-and not on legislative lan- guage-that the committee reports out the bill to the rest of Congress. Of course, when Congress ultimately votes, it votes on the text; but as political science literature has illustrated, members of Congress often defer to the com- mittee vote as a proxy for doing their own in-depth research.22 3 As such, the
220. The legislative history of appropriations legislation offers an intriguing and im- portant exception. See infra note 275 and accompanying text.
221. Q83; accord James J. Brudney, Congressional Commentary on Judicial Interpre- tations of Statutes: Idle Chatter or Telling Response?, 93 MICH. L. REv. 1, 28 (1994) (quot- ing members of Congress on the "importance of committee reports to their own understand- ing of statutory text").
222. Eight respondents made this point, after which we confirmed it with several of our respondents on those committees via confidential e-mails. For examples of the Finance Committee markup documents, see Search for Senate Finance Committee Markups, U.S.
SENATE COMMrITEE ON FIN., http://www.fmance.senate.gov/legislation (last visited May 2, 2013) (search for "markup").
223. See OLESZEK, supra note 219, at 88 (arguing that members generally "defer[] to the committee's decisions" because "[c]ommittee members and their staffs have a high de-
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fact that at least some committees appear to rely extensively on legislative his- tory in their own voting processes undermines the emphasis that formalists place on the ultimate vote on the text of the statute.
Third, it is evident that the other kind of nondelegation argument that has been made-raising concerns about delegations of lawmaking authority to the committees-likewise applies equally to text. Our respondents made clear that committees play a central role not only in drafting legislative history, but also in formulating statutory policy and, along with the Offices of Legislative Coun- sel, in drafting most statutory text.
If our findings are generalizable, then the textualists' constitutional argu- ment boils down to a very spare formalism. Enacted text becomes the only source that courts may consider not because it is the source least likely to be delegated away from elected members, or because it is the document on which members rely when they cast their votes, or because it is a more "reliable" doc- ument-that is, protected from intervention by the "sneaky staffer." Nor do our findings comport with another functional, delegation-based argument, namely, that judicial reliance on legislative history encourages law elaboration outside of the formal, constitutionally prescribed process.224 As discussed below, our findings indicate that judicial resistance to legislative history consultation is un- likely to prevent Congress's production of and reliance on it.
What seems to remain is the argument that enacted text derives its rele- vance for judges from the sole reason that the text is what is being voted upon by all members. Textualists tend to ground this argument in theories of ac- countability-that it is fair to hold members accountable for that on which they vote-but in reality, members may not be basing their votes on the text. Con- cerns about judicial competence may offer a better justification-a clear line may be needed because the legislative process is too messy for legal doctrine to capture-but this rationale is rarely pressed into service to carry the entire weight of textualism's defense.
We note again a particular irony of this debate. If one were to construct a theory of interpretation based on how members themselves engage in the pro- cess of statutory creation, a text-based theory is the last theory one would con- struct. Our respondents emphasized that members participate in drafting only at a high level of generality and rarely at the granular level of text itself. It is a dif- ferent question, and one that our study cannot shed light upon, whether mem- bers actually would want courts to interpret statutes in ways that reflect mem- ber participation. Members might prefer a text-based interpretive approach for reasons that are unconnected to the level of attention that members themselves give to statutory text.
gree of expertise on the subjects within their jurisdiction, and a bill comes under its sharpest congressional scrutiny at the committee stage").
224. Eskridge, supra note 88, at 677; Manning, supra note 215, at 706.
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B. A Textualist Approach Is Not Likely to Diminish the Production or