5. Courts assume the OLRC version is faithful to the original. This allows overwriting original legislative intent.

Some might wonder what is so bad about letting judges create a common law of statutory drafting conventions and word meanings. After all, our legal system is, at bottom, a common-law system, and judges have long been in charge of establishing common-law definitions for legal concepts such as “fraud,” “negligence,” and the like. Indeed, Black's Law Dictionary derives many of its definitions from caselaw.241 This is a counterargument that is more appealing at first blush than upon closer inspection. The problem with letting judges dictate one-size-fits-all definitions for terms used in statutes--as opposed to letting them establish definitions for legal concepts like “fraud” that courts themselves created through the incremental lawmaking process that is the common law--is that judges are not the drafters, or originators, of statutory words and phrases. Congress is. And Congress, unlike common-law judges, enacts individual statutes to address specific social problems; it does not engage in incremental rulemaking or carefully seek to harmonize new statutes with older ones already on the books. Moreover, Congress's drafting choices are political--often taken from proposals provided by interest groups242--and are influenced by the need for political compromise and coalition building. So when judges insist, without any legislative-record support, that two statutes enacted under different political conditions should be presumed to use specific words and phrases consistently, they are not being “faithful agents” of the legislatures that drafted those statutes. Rather, they are imposing the distinctly judicial goals of coherence, elegance, and logical consistency onto a political product that is messy, chaotic, and full of often-contradictory compromises.

Notably, judges who externally impose coherence across disparate statutes are behaving inconsistently with textualists' own repeated exhortations that each statute's text is the product of a finely *142 wrought political compromise: Textualists often emphasize this point in arguing that interpreters should attend carefully to each statute's precise wording rather than its overall purpose, on the theory that the statute's final words are the result of political bargains and reflect “a decision to go so far and no farther.”243 But if this is so--if the precise wording of each statute reflects a delicate political compromise following a messy “legislative battle among interest groups, Congress, and the President”244--then that suggests not only that interpreters should “hew closely to the semantic meaning”245 of the enacted text, but also that the bar should be very high for gauging similarity between different statutes enacted after different legislative battles producing different political compromises.246

Finally, there are reasons independent of judicial competence or “faithful agency” concerns for questioning the tenability of a judicially forged common law of drafting presumptions. Specifically, the way that statutes are codified in the U.S. Code can make it difficult for judges--or anyone else--to obtain a clear picture of how different statutes enacted at different times relate to each other. As recent work by Jesse Cross, Abbe Gluck, and Jarrod Shobe explains, most laws enacted by Congress are broken up and codified at various locations throughout the U.S. Code by lawyers who work in the nonpartisan Office of the Law Revision Counsel (OLRC), rather than by congressional members or their staff.247 OLRC makes decisions about how to split up different sections of a public law, placing some provisions in one section of the U.S. Code and other provisions in other sections, leaving some parts of the enacted text out of the Code altogether, and relegating some enacted text to the notes that accompany the codified sections of the statute.248 Moreover, OLRC codifies some statutes in “nonpositive law” titles that are not themselves the law, but *143 merely collections of statutory material, or even restatements of the law, arranged by OLRC.249 Thus, if and when the Court draws comparisons between different parts of the U.S. Code rather than referencing the Statutes at Large (which contain the original versions of statutes enacted by Congress),250 it may (1) miss provisions enacted by Congress that OLRC has decided to leave out of the Code; (2) ignore clarifying provisions that have been relegated to the notes by OLRC; or even (3) focus on organizational or structural choices that were effectuated not by Congress but, rather, by OLRC.251