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I. Introduction
The “legislative history” of a particular law consists of all the documents created by the legislature during the process of the law’s passage. This material often becomes valuable later, when disputes arise from vague or ambiguous statutory language. Although some courts disapprove of using such “extrinsic evidence” to clarify the meaning of a law, the sheer volume of legislation in recent years has resulted in an increasing reliance on legislative history, particularly in the federal court system.
Today there is an abundance of legislative history material published for most federal statutes. All legislative history materials have only persuasive legal authority, although courts consider certain types of documents to be more persuasive than others. Normally, the reports of the congressional committees that considered the proposed legislation and recommended its enactment are considered the best source for determining the intent behind a law. Other documents generated prior to enactment include statements made on the floor of Congress in legislative debate, statements or testimony at committee hearings, and earlier or alternative versions of the bill. Statements made and reports written after enactment are usually found to be less persuasive, and are not considered part of the “legislative history”.
This guide should serve as an introduction to the basic documents and procedures for researching the legislative history of a federal law. Resources available at the Duke Law Library as well as the Perkins/Bostock Library Public Documents & Maps Department are highlighted.
II. Getting Started
All current general and permanent federal legislation is codified in the U.S. Code, which is available in the Law Library’s Federal Alcove (Level 3), as well as online through LexisNexis, Westlaw, and GPOAccess. The language of each Code section is based on the original act that created it and any later laws that amended it. To compile a complete legislative history for a current federal law, it is necessary to locate the documents related to both the creating act and its later amendments.
To begin the process, it is helpful to locate as much as possible of the following information for each act:
- its Public Law (or chapter) number;
- its location in the U.S. Statutes at Large (Federal Alcove; Documents AE 2.111);
- the date of enactment;
- the number of the House or Senate bill that was enacted.
The Public Law number and Statutes at Large citation are easily found with the text of the codified language in the official U.S. Code. This information may also be found in the two commercial versions of the Code which are shelved in the Federal Alcove (U.S. Code Annotated, also available in Westlaw; and U.S. Code Service, also available in Lexis). Each edition of the Code also provides a short note explaining how the amendments changed the existing text. Prior to 1957, each act was given a separate chapter number in the Statutes at Large. Later laws are identified and cited by individual Public Law numbers and by their volume and page location in the Statutes at Large, e.g.:
ch. 347, 61 Stat. 516 (1947)
Pub. L. No. 96-374, 94 Stat. 1367 (1980)
Although it is increasingly easier to find material with only the Public Law number or Statutes at Large location, much information in the official records of Congress is indexed and organized around the bill number. The bill number for a law enacted since 1903 can be found with its text in the appropriate volume of the Statutes at Large. Bill numbers are also published with the full text of the act in U.S. Code Congressional & Administrative News (USCCAN) (1941- present) (Federal Alcove; also available on Westlaw). For very recent acts, bill numbers are included with the slip law (a pamphlet version of the new law, which serves as the official version until the next compilation of Statutes at Large is published). Slip laws are available in the Federal Alcove and full-text via GPO Access (http://www.gpoaccess.gov/plaws/index.html).
Bill numbers for earlier laws can be most easily found through the tables in Eugene Nabors, Legislative Reference Checklist: The Key to Legislative Histories from 1789-1903 (1982) (Ref.KF49.L43). They can also be found through the indexes and tables of the Congressional Record and its predecessors (see section IV, part B, for more information on the Congressional Record).
III. Researching Recent Laws (1970 - present)
When researching recent laws (generally 1970-present), online resources have greatly simplified the process of locating legislative history documents. The Library of Congress provides Bill Summary & Status information (http://library.duke.edu/metasearch/db/id/DUK00841) for the 93rd Congress forward (1973-present), as part of its THOMAS government information service. This site, which is free to the public, links users to the text of legislation as well as related bills, amendments, and committee documents. The “All Congressional Actions” portion is useful for determining what legislative history materials exist for a particular law, and will link to any available reports and debates (generally 1994-present).
Current members of the Duke University and Duke Law communities also have access to other legislative history resources. LexisNexis Congressional, a separate resource from the Law School’s version of LexisNexis, is the online counterpart to Congressional Information Service (CIS). CIS is an index/abstract service and full-text microfiche publisher of congressional documents (print Index/Abstracts in Federal Alcove, Level 3; microfiche in Microforms Room, Level 1). CIS provides detailed and highly specific subject indexing of congressional publications. The CIS index found in LexisNexis Congressional is also available in the Law School’s LexisNexis as the CIS/Historical Index database, or CISHST. Tips for searching the print volumes are below.
From 1970-83, the print service's annual Abstracts volume contains a table of legislative history information for all laws passed that year. The table is arranged by public law number, and provides citations to bills, reports, hearings and dates of consideration on the floor of each house. References are given to each document's CIS accession number (e.g., S183-4), which provides access to its CIS abstract or to the microfiche text. The microfiche service does not include the text of the Congressional Record. However, the dates cited can be used to locate debates in both the daily and permanent editions of the Record.
For the 97th and 98th Congresses (1981-84), CIS, Inc. published a separate Legislative History Service, which provided compiled legislative histories for significant laws, including the full text of the law, reports, bills, debates, hearings, committee prints, and other documents from both the current and previous Congresses (Microforms Room). Beginning in 1984, the CIS annual cumulation includes a volume of Legislative History of U.S. Public Laws, which provides detailed references and abstracts for documents accompanying significant laws. Information on other sources for compiled legislative histories is provided in section V of this guide.
Although the basic CIS service (and the Legislative History tables) goes back only to 1970, the publisher has also developed a number of retrospective indexes of congressional publications, some of which are discussed in later sections of this guide. For pre-1970 laws, or if CIS publications are not available, it is a more complicated process both to determine whether useful documents exist and where they can be located. The rest of this guide discusses research procedures for several common types of legislative history material.
IV. Locating Specific Document Types
A. Committee Reports
Usually the best sources of legislative history are the written reports that accompany a bill from committee to consideration on the floor of the House or Senate. This is because committee reports are written to explain the proposal, as well as its intended effects, by the legislators who looked at the bill most closely. Normally, there are separate House and Senate reports available for each enacted law, as well as a conference report if the final language was developed by a conference committee of legislators from both chambers.
There are separate numbered series of House and Senate reports for each two-year congressional term. Conference reports are numbered within either the House or Senate series. The documents are commonly referred to by a number including that of Congress, e.g., "H. Rep. 97-857" (i.e., the 857th House report issued by the 97th Congress). House reports began this numbering system in 1817; Senate reports in 1847.
Committee reports are published individually in paper and, since 1979, in microfiche. The paper copies normally are not preserved in libraries, however, because they are republished by the government (along with several other congressional documents) in the series of bound volumes known as the “serial set”. Each serial set volume is numbered in consecutive order, from the first volume issued in 1817 to date. The predecessor to the serial set, the American State Papers, contains selected committee reports from 1789-1838 and may be searched electronically at http://memory.loc.gov/ammem/amlaw/lwsp.html. The American State Papers are also available through the U.S. Congressional Documents Library of HeinOnline (http://library.duke.edu/metasearch/db/id/DUK00693 ), the Archive of Americana database (http://library.duke.edu/metasearch/db/id/DUK02202), and in microform at the Law Library.
There is a print version of the serial set in the Perkins/Bostock Public Documents department. The Duke University community also has access to the U.S. Congressional Serial Set Digital Collection (http://library.duke.edu/metasearch/db/id/DUK01413 ). To locate committee reports for a specific law in the print version of the serial set, it is necessary to find both the report number and the number of the serial set volume that contains it. The electronic version allows for a variety of other search options (including report title, author, subject, and bill number); however, not all years of the serial set are yet available online.
Locating Report Numbers
Selected reports are published as part of West's U.S. Code Congressional and Administrative News (USCCAN) (1941 - present) (Federal Alcove); legislative history materials were generally not published in this set before 1947. For most laws, either a Senate or a House report and the conference report (if there is one) are reprinted. In addition to the text of public laws and selected reports, USCCAN, since 1948, has included the numbers of reports it does not publish. This information is also included in volumes of the U.S. Statutes at Large published since 1963, and with the text of each slip law.
For older laws, it is necessary to know the number of the enacted House or Senate bill, and to consult the tables in the Congressional Record (or its predecessors). This information is also available in the Digest of Public General Bills and Resolutions (published 1936-90), shelved in the Documents Collection at LC 14.6 (1978-1990), and also available at Perkins/Bostock (1971-1990).
Locating Serial Set Volumes
After a report number is found, it is necessary to determine in which volume of the serial set the report is located. For the 54th-72d Congress, conversion tables can be found in the Documents Index, published between 1897 and 1933 (Perkins/Bostock Public Documents). Similar tables for the 73d-96th Congress were included in a separate publication called the Numerical Lists and Schedule of Volumes (Perkins/Bostock Public Documents). Similar finding aids are published in the CIS U.S. Serial Set Index (Ref.Z1223.Z9.C65).
The CIS U.S. Serial Set Index provides detailed subject indexing, and tables converting report number to serial set volume number, for reports published between 1789 and 1969. The set is divided chronologically into twelve parts, each with a separate subject index and tables for the period it covers. The subject index provides references to report number, Congress and session number, and serial set volume number. Consequently, if the Serial Set Index is available, both report and serial set numbers can be located directly, without knowing the bill number or going through the Congressional Record.
Other Sources for Reports
Resources marked with an asterisk (*) are available only to current members of the Duke Law community.
GPO Access: 1995 - present (http://www.gpoaccess.gov/serialset/creports/index.html)
LexisNexis*: 1990 - present (CMTRPT file)
Westlaw*: 1948 - present (LH database: 1948-1989 for public laws as published in USCCAN; 1990 - present for all reports, including bills that did not become law)
B. Congressional Debates
Statements made in floor debates have been found useful as sources of legislative intent, but they have only limited value as accurate explanations of a bill's meaning. Remarks made by the sponsor of the legislation or the chairperson of the committee that considered it tend to carry more authority than the opinions of members at large.
Congressional Record
Since 1873, congressional debates have been published in the Congressional Record, which appears first on a daily basis, then is recompiled into annual bound volumes at the end of each session of Congress (known as the “permanent”, or “bound” edition). There are separate Bluebook citation formats (Rule 13.5) for the daily and permanent editions of the Congressional Record; cite to the daily edition only if the material has not yet appeared in the permanent volume.
The best source for locating the text of debates on the floor of Congress is the “History of Bills and Resolutions” table for each annual volume of the Congressional Record. It is necessary to know the number of the bill that was enacted, but the annual table provides page citations to the voluminous text of each Congressional Record. References to dates of consideration for each bill can be found in the Digest of Public General Bills and Resolutions, USCCAN, CIS and the Statutes at Large, but, because those references are published before the daily edition of the Record has been compiled into the permanent bound edition, they include no page numbers.
For laws enacted prior to 1970, the Congressional Record history tables are probably the first place to start researching a full-fledged legislative history, since they include citations to all relevant documents other than hearings. It is necessary to remember, however, that the tables do not cumulate for the entire two year congress. To find all references to action on a bill, it is often necessary to check the annual volume for each year of the congress.
The Congressional Record is available through Lexis and Westlaw beginning in 1985. It is also available on the Web through THOMAS (http://thomas.loc.gov) since 1989; and via GPO Access from 1994 - present. NOTE that the online services do not revise the page numbers once the permanent edition is published; although you should cite to the permanent edition, they contain only the citations to the daily edition. HeinOnline’s U.S. Congressional Documents library (http://library.duke.edu/metasearch/db/id/DUK00693) is in the process of digitizing the bound Congressional Record; currently, the database includes PDF images of the bound edition from 1873-1901/1988-2003, and images of the daily edition from 2003-present. Hein is also developing a search tool which will convert daily edition citations to bound edition citations.
Pre-1873 Sources
The publication known today as the Congressional Record has undergone a number of title changes in American history. Earlier versions are available in the Law Library as well as full-text online through the Library of Congress’ American Memory Project. and HeinOnline’s U.S. Congressional Documents library (http://library.duke.edu/metasearch/db/id/DUK00693)
Congressional Globe (1833 - 1873); Documents X 72-180
http://memory.loc.gov/ammem/amlaw/lwcg.html
Register of Debates in Congress (1824 - 1833); Documents X 43-X 71
http://memory.loc.gov/ammem/amlaw/lwrdlink.html
The Debates and Proceedings in the Congress of the United States (1789-1824);
Documents X 1-42 (labeled on spine as The Annals of Congress)
http://memory.loc.gov/ammem/amlaw/lwaclink.html
C. Committee Hearings
Statements made in testimony before the committee considering the proposed legislation or by committee members have been accepted by courts as evidence of legislative intent. Their usefulness is limited by the large amount of testimony, both pro and con, on many bills and the difficulty in establishing a connection between particular remarks made at the hearing and the final language of the bill. Hearings are not held on all pieces of federal legislation, and not every hearing is published.
Indexes to Hearings
CIS (see Section III) is the best indexing source for post-1970 hearings. The hearings themselves are included in the CIS microforms set. Additional access to hearings is provided by the CIS U.S. Congressional Hearings Index (Ref.KF40.C561981). Published in eight parts, going back to the 23d Congress in 1833, the Index provides subject access, descriptive information on the hearing, and (most importantly for legislative history purposes) an index by bill number, that brings together citations for available hearings on each bill. CIS, Inc. also distributes a microfiche collection of these pre-1969 hearings included in the index; however, this microfiche set is not available at Duke.
The basic index for hearings (and most other government documents) has historically been the Monthly Catalog of United States Government Publications, which began publication in 1895, and is available in the Law Library at Documents GP 3.8 from 1911-2004 (at which point it moved exclusively to http://catalog.gpo.gov ). Along with detailed bibliographic information about each published hearing, the Monthly Catalog includes its Superintendent of Documents (SuDocs) classification number, e.g., Y4.Ed8/1:P92/4, which determines its physical location in most documents libraries. The Monthly Catalog is indexed annually, in various five and ten year cumulations, and in the Cumulative Index to the Monthly Catalog of United States Government Publications 1900-1971 (1973-75) (Documents GP 3.8/10:0 B83).
The Monthly Catalog from July 1976 to the current issue is available to the Duke Law community through Westlaw (GPO-CTLG), and to the public at large through GPO (http://catalog.gpo.gov).
Hearings of both houses are also indexed in the U.S. Senate Library's Index of Congressional Committee Hearings (Ref.KF40.U5). The original volumes cover hearings in the Senate Library published before 1935. A cumulative supplement to the index covers hearings issued between 1935 and 1959. Quadrennial and biennial supplements cover hearings published through 1978. Each provides access by subject, committee name and bill number. Their usefulness is somewhat limited because they do not provide Superintendent of Documents classification numbers for the hearings, but indicate the bound volume where they can be found in the Senate Library. However, the indexes do allow the researcher to verify whether or not a hearing has been published for a particular bill. The subject and committee indexes do provide fairly complete title information for each item and simplify locating its SuDocs number in the Monthly Catalog. The bill number index provides only the Senate Library volume number, but there are published shelf lists through 1971 that serve as tables allowing the user to find the titles of hearings within each library volume. Pre-1935 hearings not held in the Senate Library are indexed in Harold O. Thomen, Supplement to the Index of Congressional Committee Hearings prior to January 3, 1935 (1971) (Ref.KF40.T46).
Electronic Access
Due to the length and volume of published hearings, it can be difficult to locate all but the most recent electronically. The best source for congressional hearings online is LexisNexis Congressional (http://library.duke.edu/metasearch/db/id/DUK00841), which provides PDFs of hearings from 1970-present as part of its digital collection. The full text of selected hearings is available through GPO Access (http://www.gpoaccess.gov/chearings/index.html) from 1994 - present. Hearings related to Supreme Court nominations are also available back to 1971 (http://www.gpoaccess.gov/congress/senate/judiciary/scourt.html). Individual congressional committee Web sites also often make the full text of their hearings available; however, their archives generally do not predate what is available through GPO Access.
Rutgers Law Library is beginning to digitize its congressional documents collection, including hearings, at http://lawlibrary.rutgers.edu/gdoc/search.shtml. Hearings are added on an ongoing basis and will include material from the library’s collection from the years 1970-1998. The Law Library of Congress (http://www.loc.gov/law/find/hearings.html), in a test partnership with Google, has also digitized selected historical hearings related to the areas of immigration, freedom of information/privacy law, and the United States Census.
D. Bills
Frequently, before the final version of a bill is reported to the floor, a committee will consider alternative versions or proposed amendments. Comparing the enacted language with that found in earlier versions of the bill, or in amendments that were not accepted, can better illustrate the intent of the final version. Because of the general unavailability of bills from past congresses, however, this process can be difficult. Comprehensive historical collections are available at the Library of Congress and in the offices of each house, but at few locations outside of Washington.
However, bill texts have become increasingly available online, at least for more recent Congresses. LexisNexis offers the full text of bills dating back to the 101st Congress (1989 - present); Westlaw’s coverage begins with the 104th Congress (1994 - present). THOMAS, the legislative information site provided by the Library of Congress, also provides the full text of bills dating back to 1989 (http://thomas.loc.gov/home/bills_res.html).
Older bills are available on microform, although complete collections are not held by many libraries, and pre-1980 bills will generally require an interlibrary loan request. Congressional bills, resolutions and laws from 1789-1933 have been preserved on microform by the Library of Congress; this material is not available at Duke. CIS has published Congressional Bills, Resolutions and Laws, a collection of bills on microfiche from the 73d-96th Congress (1933-1980); however, this collection is not available at Duke. The Government Printing Office began distributing bill texts on microfiche beginning with the 96th Congress (1980 - present). These are available in the Microforms Room, Level 1, Documents Y 1.4/.
For historical bills, the Library of Congress has digitized selected bills and resolutions through its American Memory Project, at http://memory.loc.gov/ammem/amlaw/lwhbsb.html. House materials are available from the 6th - 42nd Congress (1799-1873); Senate materials from the 16th - 42nd Congress (1819-1873). Note that this archive is not comprehensive.
In addition to the electronic and microfiche sources listed above, it is sometimes possible to locate the bill text reprinted in published hearings or the Congressional Record.
Bills may be located by subject in the annual index to the Congressional Record, the House and Senate journals, the Digest of Public General Bills and Resolutions, and the Commerce Clearing House (CCH) publication Congressional Index. The Congressional Index (Federal Alcove) is a weekly looseleaf guide to current legislation that provides access to House and Senate bills by subject and author, and is the best non-electronic source of up-to-date information on current bills.
E. Other Publications
Other congressional documents, although not usually related to particular bills, may provide useful background for legislative history research.
1. Committee Prints
Many committee studies and reports are published under the general classification: “committee prints.” Committee prints are not usually related to a particular bill, but are often released in support of the committee’s general functions and activities.
Although not widely distributed in hard copy, the prints are available in microfiche in the basic CIS collection (1970-date) and in U.S. Committee Prints on Microfiche, a CIS collection of more than 15,000 prints issued before 1969 (Microforms Room, Level 1). Citations for the post-1970 prints can be found through the general CIS indexes and in LexisNexis Congressional (http://library.duke.edu/metasearch/db/id/DUK00841); access to the older material is through the CIS U.S. Congressional Committee Prints Index, that includes indexes by subject, title, committee and congress, SuDocs number and bill number (Ref.Z1223.Z7C66).
Committee prints are also available electronically via GPO Access (http://www.gpoaccess.gov/cprints/index.html) from 1997 - present. Individual committees may also make these materials available on their Web sites.
2. CRS Reports
Many congressional committee studies are prepared by the Congressional Research
Service (CRS), an office of Congress which prepares nonpartisan research reports meant to help members of Congress understand public policy issues. CRS does not provide the full text of these reports directly to the public, although citizens may request copies through the office of their congressperson.
Many CRS reports are accessible through CIS microfiche. Others can be found in the microfilm publication: Major Studies and Issue Briefs of the CRS, first published in 1977 and supplemented through 1990 (Perkins/Bostock Public Documents has the index from 1976 and the full set from 1986). The material is indexed in a series of individual guides to the base set and its annual supplements.
In addition, a number of organizations have created online archives of selected reports. The most comprehensive is through the University of North Texas Libraries (http://digital.library.unt.edu/govdocs/crs/index.tkl), which attempts to compile available reports dating back to 1990. Its “Related Resources” page links to a number of other subject-based CRS report libraries, on topics such as the environment, national security, and foreign policy. The Open CRS Network (http://www.opencrs.com/) is another excellent source for locating these often elusive reports.
V. Compiled Legislative Histories
Considerable research time can be saved if a legislative history has already been compiled for the law in question. Compiled legislative histories are of two types: those assembled for selected laws by previous researchers, and those issued on a regular continuing basis by commercial sources.
Available compilations of the first type are listed by Public Law number and by Statutes at Large location in Nancy P. Johnson’s Sources of Compiled Legislative Histories: A Bibliography of Government Documents, Periodical Articles, and Books (Ref.KF49.J63 and HeinOnline’s U.S. Federal Legislative History Library, http://library.duke.edu/metasearch/db/id/DUK00693), which includes materials dating back to the 1st Congress. Most sources listed by Johnson provide the actual texts of legislative history documents; some are journal articles or other sources that provide only citations to relevant documents.
Current members of the Duke Law community have access to the Arnold & Porter Legislative Histories collection on Westlaw, which compiles the legislative history documents for a number of major laws. Available compilations include the Americans with Disabilities Act, the Clean Air Act Amendments, the Copyright Act Revision of 1976, the Sarbanes-Oxley Act, and the USA PATRIOT Act. A complete list can be accessed in Westlaw by searching the Directory for arnold and porter.
LexisNexis offers similar compiled legislative histories for important laws, particularly in the areas of treasury appropriations and environmental protection. A complete list may be accessed by following the path: Legal > Legislation & Politics, U.S. & U.K. > U.S. Congress > Legislative Histories.
Two other legislative history services that are no longer published are the CIS Legislative History Service, published for the 97-98th Congresses (1981-84) (Microforms Room) and the Information Handling Service (IHS) Legislative Histories Microfiche Program, that covered selected major laws enacted between the 82d and 93d Congresses, and internal revenue laws back to the 61st (Microforms Room). As noted above, however, since 1984 the annual compilation of the CIS basic set has a separate volume of Legislative History.
VI. Other Sources of Information
Although there is much current journal literature on the uses of legislative history in statutory interpretation, there is no useful current bibliography. The standard American treatise on statutory interpretation is the multi-volume J.G. Sutherland, Statutes and Statutory Construction (6th ed. 2000- ) (Reserve; also available full-text on Westlaw in the SUTHERLAND database). Sutherland provides only a limited treatment of legislative history problems, although a small bibliography is included in volume 4.
Compilation and uses of legislative histories are covered in general texts on legal research, such as Roy M. Mersky’s Fundamentals of Legal Research (8th ed. 2002) (Reserve) and Morris Cohen, Robert C. Berring & Kent C. Olson, How to Find the Law (9th ed. 1989) (Reserve).
Although obviously outdated with regard to new publications and electronic resources, Gwendolyn B. Folsom, Legislative History (1979) is a good introduction to the documents of legislative history and research techniques for pre-1970 federal laws (KF425.F641979).
The standard source of information on government publications is Joe Morehead, Introduction to United States Government Information Sources (6th ed., 1999) (Reference Desk Z1223 .Z7 M665). Detailed descriptive information on congressional documents and procedures can be found in Jerrold Zwirn, Congressional Publications and Proceedings: Research on Legislation, Budgets, and Treatises (2d ed. 1988) (Ref.JK1067Z85).
rev. Jennifer L. Behrens 11/2007