Legislative Process

What is a government other than a group of people creating laws to govern society? The philosophy, theory, and ideologies of where that power comes from are sources of constant political debate. But at its core, the function of government is to make laws. Often maligned for its slow and cumbersome nature, the legislative process in which a proposed bill becomes a law in the United States is a nuanced and sometimes complicated system to understand.

Legislative Process: Definition

In the U.S. Government, lawmaking power is held by the Legislative branch, described in Article I of the U.S. Constitution and the guiding directives of Article I Section 7 for the legislative process.

Fig. 1 - The U.S. Capitol Building houses the Senate and the House of Representatives.

The details of the legislative process can be incredibly complex, but its basic concepts are relatively simple. Before a piece of legislation can become a law, it must pass, in identical form, by both the House and the Senate and be signed by the president. If the president vetoes the bill, it can still be passed with a two-thirds majority vote in both chambers.

Legislative Process: Steps

How does the process work, at least based on the established systems in Congress? And, is there more than one process to create a law? Let’s look at what is supposed to happen first; then, we will discuss the other methods of law-making.

The Established Process:

In the early years of the U.S. government, Congress established a system to create laws. Over time, they have tweaked the process and added more steps. The process in its most basic function is described below:

• A member of Congress introduces a bill (any bill relating to budget or taxation must originate in the House of Representatives).

• A subcommittee and committee craft the bill, meaning they write the actual language of the bill.

• Floor action on the bill takes place in the chamber the bill originates from, either the House or the Senate, often called the “first chamber,” when discussing legislation.

• Committee and floor action take place in the second chamber.

• The conference committee works out differences between the House and Senate versions of the bill.

• The floor of each chamber passes the final conference committee version.

• The president either signs or vetoes the final version.

• If the bill is vetoed, both chambers can attempt to override the veto with a two-thirds majority vote in both chambers.

With a bit more detail...

The list above is the nuts and bolts of how the process should work. Let’s take a closer look at the process.

Creating a bill:

The first part of the process, unchanged from the earliest Congresses, is the bill's introduction. Only members of Congress can introduce a bill, either by dropping the proposal into an actual wooden box called the “hopper” in the House or to a clerk of Senate leadership. The leadership of both chambers determines what bills will be added to the agenda of the Congressional session; if leadership feels the bill does not fit the political agenda of the session, it may be tabled.

Fig. 2- Republican members of the House of Representatives announced the CHINA bill in 2005.

Entering Committee:

The next step is to send the bill to the relevant committee. House and Senate rules specify committee jurisdictions, and the bill is matched with the committee that best fits its subject matter. In the House, the bill may be sent to multiple committees, in practice known as multiple referrals, but one of the committees is designated the primary committee.

Fig. 3- The Hosue Financial Services Committee meets to hear testimony from witnesses in 2007.

Once the bill goes to the committee, the committee chair refers it to the relevant subcommittee, where much of the legislative work occurs.

For bills that see some action, the subcommittee holds hearings, calls witnesses and experts, and gathers information necessary to write, amend, and edit the bill. The bill's final language is determined by a collaborative process called “mark up”.

During this meeting, members debate the aspects of the issue and offer amendments to change the language or content of the bill. After markup, a final vote is taken to send the bill to the full committee. The full committee then considers whether to pass the bill to the floor of the first chamber. At this point, the full committee also hold the option to amend the bill, pass it as is, or table it - which effectively kills the bill.

Purpose of Debates in the Federal Legislative Process:

When the bill makes it to the floor, it is placed on one of the various legislative calendars. Bills are removed from the calendar for consideration by the floor under a broad range of rules. When a bill reaches the floor, the majority party and minority party designate a bill manager, who is responsible for guiding the debate.

The debate of bills in the Senate is unrestricted unless there is a previous unanimous consent agreement, meaning Senators may speak for as long as they want and to offer any amendment to the bill, even if the amendment is not related to the bill. Debate may be cut off only if a supermajority of sixty senators agree on a process known as invoking cloture. Therefore, one senator can stop any bill by threatening to talk the bill to death if forty of his or her colleagues agree. This practice, known as a filibuster, strengthens the hand of the minority party in the Senate, giving it veto power over legislation unless the majority party has sixty senators who support the bill.

Fig. 4 - Though often used in the legislative process, the filibuster is used in other aspects and powers of the legislative branch. Senator Rand Paul, above, filibustered the nomination of the CIA Director, which needs Senate confirmation, for 13 hours.

What if the House and Senate Versions of the Bill are Different?

The discrepancies must be resolved if the bill passes the House and Senate in different forms. In cases of minor bills, often one chamber will move to accept the other chamber's version. In other cases, two processes are used to resolve the issues: Amendments between chambers and Conference Committees.

• Amendments between chambers process: One chamber modifies a bill passed by the other and sends it back. These modifications can go back and forth several times before both chambers agree on an identical bill.

• Conference Committee: The most common way to resolve significant legislation differences is through a committee comprised of key House and Senate members. A majority of bills go to a conference committee. Sometimes the conference committee cannot resolve the issues, especially if different parties control the chambers and the bill dies. If the committee agrees on changes, each chamber must pass the conference committee's version, and neither chamber can add amendments.

Role of the President in the Legislative Process:

The bill is then sent to the president. If the president approves and signs the legislation within ten days, it becomes law. If the president objects to the bill, they may veto it within ten days by sending it back to the originating chamber, along with a statement of objections. The bill dies unless the House and the Senate have a two-thirds majority in favour of the bill to vote to override the veto. If the president does not act within ten days and Congress is in session, the bill becomes law without the president’s approval. The bill dies through a pocket veto if Congress is not in session.

Changes to the Established Process:

There are four methods a bill can become law that does not follow the intended method for various reasons.

Legislative Process: Example

Now that we have discussed the established legislative process and its possible deviations, let’s look at a real-world example: The 2017 Tax Cuts and Jobs Act, H.R.1 (House Resolution 1) of that year.

Legislative Process: Significance

The legislative process may be messy, but knowing how laws are made is vital for being an effective legislator and well-informed citizen. Understanding how a bill becomes a law, seeing the various stages of the process, and recognizing the various veto points at which a bill may die all help put into context the often simplistic complaints about gridlock and conflict. With a better understanding of the process, you can evaluate what Congress is doing more substantially.