Legislation in Congress

How Congress legislates

·   Introduction/first reading: This is the formal introduction of a bill. There is no debate or vote. A significant proportion of legislation is presidential initiative, and will be introduced by the highest-ranking member of the president's own party on the relevant committee. The introduction is a pure formality. There is no debate and no vote. In the House, it involves nothing more than placing a copy of the bill in a ‘hopper’ — a tray — on the clerk’s desk. In the Senate, the introduction involves reading out the title of the bill on the Senate floor. Bills are then numbered, printed, circulated and sent on to the appropriate standing committee.

In a typical Congress, anything between 10,000 and over 14,000 bills are introduced. Of these, only around 2–4% actually make it into law. 

·   Committee stage: First, the Speaker decides which committee to assign a particular bill to, and the committee chair then assigns it in turn to a sub-committee.This is the most important stage.  Far more bills fail here than at any other stage. Hundreds of bills are referred to each of the standing committees in both chambers in each Congress. This is far more than they can handle. A significant number are pigeon-holed — put to one side, with no action taken on them at all, no hearings and no vote. It is those with significant support — from members of Congress, the White House, the administration or interest groups, that are given hearings. 

 The standing committees have full power of amendment; the sub-committees will hold hearings with witnesses (who are chosen by the sub-committee chair, often to support their own position) and carry out line-by-line consideration (mark­up') of the bill, The amended bill then returns to the whole committee for further consideration (committee members tend to defer to the judgement of the sub­committee), after which it goes back to the floor of the chamber (it is 'reported out').

·   Timetabling: In the House, the House Rules Committee decides the legislative priorities of bills waiting to come to the floor and the rules for debate. By the time Congress has been in session for a few months, a huge number of bills will be waiting to come to the floor of both chambers for debate and vote on passage. While there are dozens of committee and sub-committee rooms, there is only one floor in each house which creates a bottleneck, with bills queuing for their turn on the House and Senate floors. Each house has its own procedure for dealing with this potential problem.

The Senate deals with it through what is called a unanimous consent agreement. This is, in effect, an agreement between the Senate majority and minority leaders on the order in which bills will be debated on the Senate floor.

The House of Representatives deals with it through the House Rules Committee. The ‘prioritising’ role of the House Rules Committee makes it a legislative ‘gatekeeper’ — allowing some bills through but holding others back. If the Rules Committee fails to give a rule to a popular bill, House members may resort to the discharge process. A discharge petition must be signed by an absolute majority of House members — 218. 

·   Floor debate/second reading: This is the first opportunity for most members to debate the bill. Passage of the bill requires a simple majority, although increasingly in the Senate a majority of 60 is needed., further amendments can usually be made. Votes are taken both on amendments and on the whole bill at the end of the debate. Simple majorities are required. Votes can be either by voice vote or by recorded vote. In the former, members merely call out ‘aye’ or ‘no’: this is used mostly for non-controversial bills. In a recorded vote, a record of each member’s vote is made. In the House this is done electronically; in the Senate by a roll-call vote with the clerk alphabetically calling the roll of the 100 Senators. Both procedures take 15 minutes.

In the Senate, there is the possibility of a filibuster taking place, by which senators exercise their right of unlimited debate to delay a bill.

·   Conference committee: This stage is required to reconcile differences between House and Senate versions of the same bill. Not all bills will go through a formal conference committee; in the case of the Affordable Care Act, for example, the House was forced to abandon its own version and adopt the Senate's version. Conference committees have declined in use over the past 20 years. In the 104th Congress (1995–97), 37 conference reports were adopted, but by the 113th Congress (2013–15) that number had fallen to just two.

in 1995. In place of the   conference committees, the Republicans began to use a more partisan, leadership-driven approach whereby one chamber was simply asked to endorse the legislation passed by the other chamber, in a system not dissimilar to what occurs in the UK Parliament. — ‘ping ponging’ — where the bill from one chamber is offered on a take-it-or-leave-it basis to the other chamber. The result of this is to greatly reduce the possible input from minority party members and thereby further to increase the partisanship seen in Congress.

·   Final approval: Both houses are required to approve the conference version; no amendment is possible, only approval or rejection.

·   Presidential approval: The president has to approve legislation before it finally becomes a law. The president can either approve or veto legislation. If he chooses to veto, the bill is sent back to Congress with an explanation, and Congress then has the option of either abandoning it or overriding the veto with a two-thirds vote in both houses. If the president chooses to approve, and it is legislation he is keen to identify himself with, there will be an elaborate public signing ceremony. If the president is less keen to identify himself with the legislation, the signing is carried out behind closed doors.      The Veto 


Four key features of the legislative process

·    Initiation Presidents can dominate the political agenda, but leaders in the House or Senate —and individual members of Congress — regularly initiate policy. Congress may be more active in setting an agenda if the president's party has recently lost control of Congress in a mid-term election or if bipartisan control exists.

·    Compromise The separation of powers and the checks and balances, including the co-equal legislative power of the House and Senate, make compromise between parties or chambers necessary. Successful legislation will usually be a result of huge concessions and additions to a bill. Legislation does not pass in a linear manner, travelling from president to House to Senate. A proposal may travel through both chambers at the same time, with the House and Senate then producing alternative versions of a law, which they then have to reconcile. This can be done through a conference committee, in which members of both chambers try to come to an agreement.

Weak parties and party leaders Due to the separation of powers and federalism, parties tend to be weak, with many factions. Party leaders also have limited power over their own party, with ineffective patronage and whipping. As a result, parties do not act as a single unit in passing legislation, making it difficult to pass laws. The rise in partisanship can help the passage of legislation through Congress, but this is of little use if the presidency is controlled by a different party or the House and Senate have split control (as in 2010-14). Here partisanship can cause high levels of gridlock, where president, House and Senate fail to agree and legislation cannot be passed.

·    Obstacles to success It is far easier to prevent change than to bring it about. Here are some of the main impediments to passing laws.

,     Senate and House roughly share power and have equal law-making powers. Each chamber may have different legislative priorities due to differing term lengths. There may also be differences in party majority, leading to major legislative conflict.

,     Legislation has to pass through several congressional committees, each of which can amend or obstruct a bill. Many committees are policy-based and will make decisions regarding the efficacy of a proposal. All bills requiring spending also have to pass through an appropriations committee, which determines whether there is sufficient funding. Separate committees cover the same or similar functions in each chamber.

Overriding a presidential veto requires a supermajority of two-thirds in both chambers.

Some differences in legislation between House and Senate

In the House, bills go to a Rules Committee, which decides how long and under what rules the bill will be debated. The speaker of the House effectively controls this committee, so has great power over the legislative agenda of the House. The Rules Committee can determine a closed rule, where a bill can be discussed but no amendments can be offered. This is unusual, but can speed up passage of a bill. The Senate does not do this; all bills are fully debated.The Senate is much less structured than the House, does not have a Rules Committee and gives unlimited debate time for a bill. The Senate also often uses a process called unanimous consent, where all Senators involved agree on a decision being made. A member of the Senate requests permission to proceed in a certain way on the Senate floor; if no one objects, the process can begin. Unanimous consent is used, among other things, to agree rules for debate on legislation, which can determine the time spent or waive certain points of order, such as the need for a full reading. Unanimous consent agreements are often negotiated ahead of a debate.

Another difference is the filibuster - a Senate rule that lets individual Senators insist on continuing to debate, to prevent a vote taking place. Filibusters can be used to stop or delay legislation or presidential appointments. The record for the longest filibuster belongs to Sen. Strom Thurmond of South Carolina, who spoke for 24 hours and 18 minutes against the Civil Rights Act of 1957. In 2013, the Senate used the so-called 'nuclear option, voting 52-48 - with all Republicans and three Democrats voting against - to eliminate the use of the filibuster on executive branch nominees and judicial nominees other than to the Supreme Court. In 2017, the Republican-held Senate extended this, ending the use of the filibuster for Supreme Court nominations after Democrats filibustered Trump's nomination to the Supreme Court.

Sixty votes are now typically needed in the Senate to pass legislation. This is because a filibuster can be ended with  60 votes in support of a motion of cloture. Their use, alongside the use of filibusters, has increased hugely in recent years. In 2010 The DREAM Act, having passed the House, failed to gain the 60 votes needed to overcome a Republican filibuster.