© Marc A. Triebwasser
The Lawmaking Process
One of the most important functions of Congress is to pass legislation
or, in other words, to make laws. Although this task may seem relatively
simple at first, the fact is that the process through which a bill becomes
a law is an extremely complex one involving many roadblocks and
many places for political influence--some often well beyond the eye of
the general public. As we will see in this section, there are a considerable
number of steps in the lawmaking process, and by far the vast majority
of bills which are introduced into Congress each year never even get so
far as to be voted on by the full chambers, let alone to be passed into
Step 1: Introduction
A bill is first introduced into the House or into the Senate by one
or several representatives or senators. If the bill is introduced into
the House, it is given a number beginning with the letters "HR." If it
is introduced into the Senate, it is given a number beginning with the
letter "S." The number of legislators introducing the bill is important
since the initial sponsorship often has significant political ramifications.
What is also important among the list of a bill's sponsors are the specific
people who support the bill. Often an attempt is made to get the more powerful
members of Congress to sponsor a piece of legislation in order hopefully
to ensure its eventual passage.
Once the bill is introduced into the House or the Senate, it is then assigned to an appropriate committee in that chamber. Within the committee process, it is assigned to a subcommittee for specific consideration. If the subcommittee discusses and approves it, the bill goes on to be discussed by the full committee. If the subcommittee either does not discuss the bill or discusses the bill and decides against it (or "kills" it), the bill "dies" in subcommittee and is never even discussed by the full committee, let alone the full Congress.
If the full committee discussed the bill and approves it, it then may
be ready to be placed on the agenda for discussion by the full chamber.
However, if the full committee never takes up the bill or if it disapproves
of the bill, the bill will "die" in committee and never have a chance to
be discussed by the full House or the full Senate. This is an important
point. The fact is that 90 percent of the legislation introduced into either
the House or Senate never makes it beyond the committee process. Since
committees can effectively block the consideration and passage of legislation--even
if that legislation is popular enough to pass if it ever reached the floor
the specific committee to which a bill is assigned is a very important
matter. If a bill is assigned to a "friendly" committee, it is likely to
be discussed rather quickly and reported to the full body; if a bill is
assigned to an "unfriendly" committee, it may never be discussed, discussion
of it may drag on indefinitely, or it may be voted down in committee.
"Help! (gulp) I Don't Wanna Die!"
In order for a bill to reach the floor, it must be given a place on the agenda. In the House of Representatives such placement on the agenda represents another potentially significant roadblock for legislation.
Since so many bills are introduced each session, many major bills might not be discussed. In order to avoid this, the House Rules Committee must propose a special rule or procedural arrangement by which the bill will be discussed. If the House Rules Committee does not report such a rule, the bill will very likely die without ever being considered. This means that even if a bill is approved by a regular committee, it can still die without being discussed on the floor of the House if it does not receive a rule from the Rules Committee.
Thus, the Rules Committee in the House constitutes a major
hurdle to the passage of any piece of legislation. This Committee,
therefore, is an extremely important one, and is usually made up of the
more senior members of each party. Over the years, ways have been developed
in the House to bypass the House Rules Committee, but these procedures
are difficult at best and rarely used. Since the Senate is made up of far
fewer members than the House, such similarly formal scheduling procedures
are not necessary and the Senate Rules Committee has no similar powers
in the legislative process.
Step 4: Discussion and Vote by the Full Chamber
After a bill is reported out by a committee and receives a place on the agenda, it is ready to be discussed by the full chamber. In the House, bills may be discussed either under an open rule or under a closed rule. If it is discussed under an open rule, it may be amended by any member of the House. On the other hand, many bills are discussed under closed rules. This is usually true with regard to bills which come from such major committees as Ways and Means which deals with tax legislation. In the case of a closed rule, a bill may not be amended except by someone who is a member of the committee which originally reported the bill to the full House. The use of the closed rule procedure is necessary because the 435 membership of the House of Representatives makes extended debate impossible.
The question of whether amendments can be offered on the floor and who
can offer them is an extremely important one from the political perspective.
Often the types of amendments added to a bill can totally change its effect
or effectiveness. For example, a bill which imposes tough federal air and
water pollution standards could be rendered all but meaningless if an amendment
were added directing that these standards be enforced by the states, which
in general do not have adequate budgets or staffs for these purposes. In
fact, there are many bills which are quite popular, and which it is therefore
in the interest of representatives and senators to seem to support.
It may be, however, that these bills are not favored by particular congresspersons
themselves or by their backers. What often happens in these cases is that
those who do not favor the bill will not vote directly against it when
it comes to the floor. Instead, what they will do is to try to make sure
that the bill is originally assigned to a less friendly committee, or that
amendments to the bill are added which make it less effective. What supporters
of a bill want is a piece of legislation with "teeth" in it: that is, with
adequate provisions for enforcement. Those members who do not support a
bill often try to remove such tough enforcement provisions and leave the
bill in a particularly weak state. Ihat is, they allow a bill to
be passed with no "teeth" or effective enforcement provisions in it.
"I Only Got One Tooth Left!"
It is for these reasons that roll call votes on specific pieces of legislation may not always be accurate indicators as to where a specific representative or senator stands. One also needs to know the position that these lawmakers take on debilitating or weakening amendments, or on trying to get the bill killed in committee. Up until the 1970s, however, votes on amendments were not recorded. This made it impossible even for those who would go to the trouble to look up congressional voting records to tell how a congressperson felt, and how he or she voted on a specific bill and its amendments. With the introduction of electronic vote recording in the 1970s, this situation has been altered, and it is now possible to know how a congressperson votes on specific amendments. Nevertheless, the amendment process still continues to have dramatic political overtones.
Let us say, for example, that a bill is discussed on the floor of the House under a closed rule. This means that outside influences or lobbyists do not have that much of a chance to affect the bill during this part of the lawmaking process. However, their chance for influencing this piece of legislation is not lost through such a procedure. The lobbyists were probably already active during the committee process in the House. Furthermore, the lobbyists still have the opportunity to influence the decision of Senate committees when this bill or a parallel one is introduced into that body. They also have the opportunity to influence the bill and to push for amendments when it is discussed on the floor of the Senate. Since the Senate is only made up of 100 members, its rules for discussion and amendment are for more flexible, and a vast array of amendments can often be introduced on the floor of the Senate. Oftentimes, these amendments may change the entire thrust of the bill.
Another use of the amendment process relates to the fact that the President can only veto a bill as a whole. In some states, the Governor has the power of item veto. This means that he or she can veto specific sections or items in a bill, while approving others. The power of item veto does not exist on the national level. A President may either approve or veto a bill in its entirety.
For this reason, Congress may attach a provision for a program which
the President does not favor to a bill supporting other programs which
the President very much supports. The President is then left with the choice
of either approving the programs he or she wants along with those he or
she does not, or vetoing everything including those programs he or she
may very much support. This process of total veto thus also adds
to the political aspect of the amending process.
Step 5: Discussion and Vote by the Other Chamber
If a bill is passed by one chamber of Congress, it must also be passed by the other. Let us say our bill has been passed by the House of Representatives. It now must go through a similar process in the Senate. In this chamber, bills are also assigned to appropriate committees. If they are reported favorably by the subcommittees and committees to which they are assigned, then they are discussed by the full Senate. Remember, in the Senate a bill is automatically assigned for floor discussion once it has been reported out by the full committee. It does not have to go through a Rules Committee process as a bill does in the House.
The discussion of a bill in the Senate is far more wide open than it is in the house. Although time limits for discussion are usually agreed upon, if a senator or group of senators wish to discuss a bill for a long time they may do so. This is usually done for the purpose of preventing a vote to be taken on the bill. They are in effect talking the bill to death. This process is called a filibuster. When this happens the Senate is often forced to move on to other matters, after it is agreed that no vote will be taken on the bill. Thus, a small group of senators--or even a single senator--can prevent the passage of a bill that might even potentially have majority approval.
The Senate may end a filibuster through the cloture process. However, currently this requires the support of three fifths of the Senate--or sixty votes. With neither party usually being able to control this many votes in recent years, a cloture vote of sixty senators is not usually possible to achieve. And so, a minority of senators can potentially thwart the will of the majority.
In addition to this, bills are subject to a vast array of amendments on the floor of the Senate. The amendments may be relevant to the subject of the bill, or they may not. Relevant bills are called germane amendments; irrelevant amendments are called non germane amendments.
If a bill with its various amendments is finally passed by the Senate,
there then remains the problem of whether or not this bill is in exactly
the same language as the parallel bill which has been or may be passed
by the House of Representatives.
Step 6: The Conference Committee
Most of the time, a bill passed by the House is not in the same form as the parallel bill passed by the Senate. However, in order for a piece of legislation to be sent to the President it needs to be passed in precisely the same form by both the House and the Senate. If the House and Senate bills differ in any respect, these differences must therefore be ironed out.
To accomplish this task, a temporary conference committee is established for each bill. This committee is made up of members of both the House and the Senate. It is the job of the members of the conference committee to work out compromises between the House and Senate versions of a particular bill.
It is usually at this stage that the White House becomes particularly
involved in lobbying efforts in an attempt to have the final form of the
bill shaped in a way which the President would find most desirable. At
this point, a President's representative may suggest to the conference
committee members that unless a bill is shaped in a specific form, the
President will likely veto it.
Step 7: Final Passage by Both Chambers
When the conference committee has finished its work, it issues a conference report. This report is sent to both chambers of Congress and represents the final version of the bill. In most cases this report is either accepted or rejected, although on some occasions it may be sent back to the conference committee with some suggestions for change.
If the conference report is accepted by a majority vote in the house
and a majority vote in the senate, the bill, in its final form, is then
sent to the President.
Step 8: Presidential Approval
If both the House and the Senate approve the bill and it is sent on to the President, the President may either approve it, veto it, or do nothing. If Congress is in session, the President has the choice of either signing the bill, in which case it is approved; vetoing it, in which case it is not approved; or not signing it, in which case it is approved by default. If Congress is not in session, the process is somewhat different. In this case the President may sign the bill, in which case it is approved; or the President may veto the bill, in which case the bill is not approved. However, if the President takes no action at all on the bill, the bill is defeated by default. This latter process is called a pocket veto and is operative only when Congress is not in session.
Since Congress often passes many bills in the final days of its sessions,
the President has many opportunities to use the pocket veto procedure and
to defeat bills simply by taking no action at all. In fact, most bills
which have been vetoed by presidents have been disapproved through pocket
Step 9: Possible Veto Override
If a President vetoes a bill and Congress is still in session, the veto
may be overridden by a separate two thirds vote in each chamber of Congress.
This is obviously a difficult vote to achieve, and during the over 200
year history of our government, the vast majority of presidential vetoes
have been sustained.
If a bill is able to get through all of these steps and bypass the many roadblocks encountered along the way, it becomes a law and is assigned a new number beginning with the letter "PL" (Public Law). Obviously, our national lawmaking process is an extremely complicated one. Although some aspects of this process take place in full public view, many others are handled behind the scenes. It is therefore quite easy for well organized special interests to influence a piece of legislation without their influence being subject to much public scrutiny.
Very often these special interests favor the nonpassage of a bill, thus continuing the status quo. Obviously, the complex procedures through which a bill must go in order to become law means that most bills introduced into Congress never make it. In fact, of the thousands of bills introduced into Congress each year, only ten percent make it beyond the committee process, and only two to three percent actually become law. In other words, 90 percent of the bills introduced into Congress die in committee, and another eight percent or so die on the floor. Thus, not even taking the specific content of any particular bill into consideration, we see that the very lawmaking procedure established in Congress is itself strongly biased against change.
The fact that only ten percent of the bills introduced into Congress
ever get past the committee process is an important one to remember. Many
times a representative or senator would like their constituents to believe
that they are being very active, and that they support those positions
which their constituents favor. Such congresspersons may introduce many
pieces of legislation into Congress which they have no intention of supporting,
or which they know do not really have a chance of passage. However, by
introducing a bill into Congress, they can then go home and tell their
constituents how active they have been in introducing such bills. It is,
therefore, important for the intelligent voter not simply to inquire as
to which bills a representative or senator has introduced, but also to
gain some knowledge of what the real chances such pieces of legislation
have of passing and what efforts the specific congressperson is making
toward this end.
Even if a bill does become law, there is still a great deal of question as to whether or not the program it establishes will ever be put into action. The reason for this is that to be effective, any program must be supported by two types of legislation. The first type is known as an authorization bill. This bill establishes or authorizes the establishment of a specific federal program or agency. The second type of law which a program requires is an appropriation bill. It is this latter piece of legislation which approves the spending of federal money necessary to allow the program to operate. Obviously, even if Congress does approve the establishment of a specific program or agency, it is impossible for that program to function unless Congress also approves a budget sufficient to allow that agency to come into existence or to continue to operate.
One might note, for example, that the operation of the Federal Trade Commission was limited at one point not because its existence was disapproved, but simply because it failed to receive the budgetary allowance necessary for it to function. Another example of this process involves draft registration. President Carter had always had the power to revive registration for the draft which had been stopped after the Vietnam War. He was not able to do this for several years, however, because Congress had not approved a budget for this purpose. It was only after Congress voted in favor of the necessary appropriations that the President was able to use his powers to order draft registration--powers which he had technically always possessed.
We thus see that for every authorization bill, a parallel appropriations
bill must be passed. This means that the Appropriations Committees in both
chambers of Congress are particularly powerful ones. They must pass an
appropriations bill, for every authorization bill approved by one of the
substantive committees of Congress. Failure of the Appropriations Committees
to act favorably can in effect kill any bill that has been passed by the
appropriate substantive committee, even if this authorization bill has
been approved by the full Congress as well as by the President.