Patricia A. O'Malley
Social Policy & Programs Consulting ~ Community Matters
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Social Policy & Programs Consulting
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Where Do Our Laws Come From?
The Legislative Process
April 23, 2018
Laws control much of our behavior. Where do they come from? Who decides what laws we’ll have, and what they’ll say? Here's the federal legislative process. State and local legislatures are all very similar.
This is a very basic description of the process. The Constitution gives each chamber – House and Senate – the power to make its own rules of procedure. Those rules can be very technical and confusing and always affect the process.
It begins with a bill – the draft version of a law before it passes. Congressional staff members write the first draft of a bill with input from legislators, other staffers, bureaucrats, and lobbyists. Legislators themselves don’t write the actual bills. They don’t have time, and the others usually have more expertise in the subject matter. A bill may go through several drafts before a legislator agrees to introduce it.
Next, a legislator introduces the bill by placing a paper copy in the box, called the Hopper,
on the House or Senate clerk's desk. That legislator is the bill’s sponsor. The clerk assigns
a number to the bill, for example HR (House of Representatives) 101, or S (Senate) 222.
Any member of the chamber (House or Senate) may co-sponsor any bill. The president
cannot introduce a bill to Congress. S/he must ask a member of Congress to do it.
If no member agrees to introduce it for the president, it doesn’t go anywhere.
Then, the clerk assigns the bill to the appropriate committee. Sometimes several committees have authority over a single bill. This is where most of the work happens. There are 20 House committees, 21 Senate committees, four joint committees, and several Select Committees. The committee chairs are all from the political party holding the majority in that chamber. At present, the Republicans hold the majority in both the House and the Senate. The committee chair may assign the bill to a subcommittee. The committee may hold hearings to get comments and testimony from experts and interested parties on the subject. This is what you see on the news when a panel of Representatives or Senators question government officials. Members of the House/Senate may offer amendments to the bill now, or at any future point.
If the committee is satisfied with the bill, it may markup the bill for consideration by all members on the House/Senate floor. If they table the bill, it dies. The committee chair can table a bill without ever looking at it or discussing it with anyone.
After markup, the Speaker of the House or Senate Majority Leader decides whether to schedule a vote by all members. This is why the people in these positions are so powerful. If they refuse to markup or to schedule a vote, the bill dies. Rep. Paul Ryan (R-WI) is the Speaker of the House. Sen. Mitch McConnell (R-KY) is the Majority Leader. For example, Mitch McConnell recently said that he will not permit a Senate floor vote on any bill prohibiting the president from firing FBI Special Counsel Robert Mueller. Yes, he can do that.
Once introduced, the president can lobby the members, just like anyone else, but has no authority over when or whether the bill comes to a vote. If a vote is scheduled, the Speaker/Leader allows time for debate. Members often offer amendments at this point. After debate, the members vote on the bill. If the bill passes, it moves on to the other chamber. If not, it dies. A House bill goes to the Senate, and a Senate bill goes to the House. A bill needs a majority of vote to pass. That’s 218 votes in the House and 51 in the Senate.
Despite popular myth, the Senate does not require 60 votes to pass a bill. Any senator can filibuster a bill to prevent a vote. It takes 60 votes to end a filibuster, called cloture. But when they vote on the actual bill, they only need 51 votes to pass it, except for three instances defined in the Constitution.
SEND TO OTHER CHAMBER
The bill goes to committee when it arrives in the new chamber. Then the process starts again. The second chamber may vote on the bill or table (kill) it. They may also amend it. If the second chamber passes the bill, it goes to the President.
Similar bills are often introduced to both chambers at the same time. For example, education bills may make their ways through the House and Senate Education Committees, pass floor votes, and each bill goes to the other chamber. When this happens, Congressional leaders appoint a Conference Committee. The committee reviews both bills and recommends changes to work out the differences. The differences usually involve money. Once the committee is satisfied, the bill goes back for a final vote by each chamber. If both chambers pass the conference committee version of the bill, it goes to the president.
SIGN OR VETO
The president may accept (sign) the bill or reject (veto) it. If s/he signs the bill, it becomes a law. If s/he vetoes the bill, Congress may try to pass it again. Then it needs a 2/3 majority of each chamber to override the veto. That’s 290 House and 67 Senate votes. If Congress overrides the veto, it becomes a law whether the president likes it or not. President George W. Bush often added “signing statements” to bills when he signed them. In these statements, the president claimed that he doesn’t have to follow the law if he doesn’t want to. There is no provision in the Constitution for signing statements and they are illegal.
Laws are usually very general statements of what Congress wants. Once the bill becomes a law, it is the executive branch (president’s) responsibility to make it work. The appropriate government agency – Department of Education, Agriculture, or whatever – writes regulations to control exactly what will happen under the law. The agency publishes proposed regulations in the Federal Register and the public may comment on them for a period of time. After that, the agency decides whether to adjust the regulations according to the comments it received.
This is a very brief description of the process. The founders didn’t want this to be easy. Some call it the “dance of legislation”. There’s endless lobbying and bargaining and legislators’ priorities, personalities, and politics all play roles in real life. Between the politics and the rules, any bill can be stalled, detoured, rushed through, or killed at any time.
Lobbying is not what the politicians and media tell you it is. “Giving buckets of money to legislators" is not lobbying. Lobbying is the act of trying to convince elected officials to support or oppose legislation and policies that you care about. Lobbying adheres to Isaac Newton’s Laws of Motion:
Nothing moves in government unless someone pushes it.
2. Force equals mass times acceleration.
The harder you push, the more it can move.
3. For every action, there is an equal and opposite reaction.
Be prepared for people to push back.
If you want something from Congress, learn how to lobby.
Sometimes this is better than a soap opera. For the really juicy stuff, watch C-Span. If you want to follow a particular bill, go to congress.gov. For state and local bills, look at those websites.
For more information
Read the Constitution
State, Local, and Tribal Governments
Community Matters: Lobbying