Chapter 22: How Congress Passes Legislation

“[T]he theoretical process of how an idea becomes law is drastically more complicated when one attempts to put the theory into practice.” 

–Trevor Corning, et al (1)

“Legislation intended to assist the needy moves along the slow lane.”

–Michael Parenti (2)

What follows is the textbook version of how a bill becomes a law. Please keep in mind that not only is this a simplified view of the process, but there are many occasions when important decisions affecting your life are made in a fashion that does not resemble the idealized version below. Indeed, the process is often so convoluted that political scientist Michael Parenti referred to it as “the legislative labyrinth.”

Party Leadership

Before we get to the actual bill-passing process, we should note that in each chamber, party leadership shapes the whole legislative labyrinth. The party with the most seats in each chamber gains considerable power—not just from their numerical majority—but also from their ability to select the leadership positions in each chamber. In the House of Representatives, the Speaker of the House is the preeminent leadership position. The Speaker of the House is elected by the majority party and serves as both the House’s partisan and administrative leader. Even though the Speaker typically does not vote, engage in debate, or sit on standing committees, it is the House’s most powerful position. The Speaker articulates and pushes the majority party’s political agenda. They manage the House’s floor business and makes parliamentary decisions—typically to the majority party’s advantage. They are also the House’s business manager, handling everything from procurement to calendaring. The Senate Majority Leader is elected by the majority party and schedules and manages all the Senate’s business. These leadership positions are very powerful, which is why parties are so keen to gain the most votes in each chamber. In addition to having majority votes to pass legislation, if all the members hang together, they get to elect the Speaker and the Senate Majority Leader who can use their powers to their party’s advantage.

The leadership positions described above represent the top of party leadership in the House and Senate, but there are other important positions as well. In the House of Representatives, the majority party selects a Majority Leader and a Majority Whip, and the minority party selects a Minority Leader and a Minority Whip. These positions serve as floor leadership and try to ensure party unity on important upcoming votes. Parties in the Senate also have Whip positions—both majority and minority whips—that serve similar roles as their House counterparts, and the minority party is led by a Minority Leader.

Standing Committees

House and Senate members propose bills in their respective chambers. A clerk assigns the bills a number, for example, HR 1205 or S 683. Only the House can initiate bills that increase federal government revenue, but other bills may originate in either chamber, or they may simultaneously work their way through both chambers. The Speaker of the House refers the bills to standing committees in that chamber. In the Senate the majority and minority leaders negotiate between themselves to decide who refers the bill to a standing committee.

Standing committees—so called because they persist over time—do much work in Congress. The House of Representatives has twenty standing committees, and the Senate has sixteen. In addition, there are about a dozen joint committees in both chambers, such as the Joint Taxation Committee, or there are select committees, such as the Select Intelligence Committee. Most standing committees are organized around topics such as agriculture, defense, foreign relations, taxation, and so on. Committees, in turn, are divided into subcommittees. A bill having to do with gas pricing might be referred to the committee on energy, or to the committee on transportation, or to the committee on foreign relations, or to all three. In the House, the Ways and Means Committee deals with taxing, and the Appropriations Committee handles discretionary spending. In the Senate, the corresponding committees are the Finance Committee and the Appropriations Committee.

Generally speaking, when writing legislation, standing committees go through three stages:

1. Hearings— The committee or subcommittee chairman invites interested individuals to testify. People who commonly testify are executive department heads, technical experts and scholars, and interest-group representatives.
2. Mark-up Sessions—During several meetings, committee members edit the bill’s language. In pre-computer days, congressmen literally marked-up paper bills with pens. Mark-ups often attract lobbyists whose clients pay them to favorably influence the legislation’s wording.
3. Reporting Out—If the committee votes to approve the bill, it is reported out to the main chamber along with a report describing the bill and its rationale. The bill’s supporters and opponents can include their views in the report.

Before getting too far along in describing the legislation process, we should stop here and talk a little bit about getting seats on these standing committees. Congressional members have two main priorities with respect to committee assignments: Generally speaking, they want to be on the more powerful and visible committees, but they also have an interest in being on committees that are most relevant to their states or districts. If a military base is in their district, it would be in a congressman’s interest to be on the House Armed Services Committee or the Defense Subcommittee of the Appropriations Committee. The taxation, appropriations, and budget committees are all-purpose powerful committees. But it costs to get a plumb committee assignment. Joseph Califano, former Defense Department lawyer, as well as Secretary of Health, Education, and Welfare, notes that both the Democratic and the Republican congressional leadership essentially charge “dues” to their congressional members to get committee assignments—the better the assignment, the more money the congressman needs to raise for their respective party re-election committee—the Democratic Congressional Campaign Committee or the National Republican Congressional Committee. Members are advised to spend four hours per day on the phone to raise money to pay these committee-assignment party dues, as well as for their own re-election efforts. (3)

Most bills introduced in Congress die somewhere in the committee process. If a bill does make it through the standing committees, each chamber will debate it on the floor. The overall Rules of the House is a document passed in a new congressional term’s first week that expresses how the majority party wants to conduct business. Often, the incoming majority either adopts or makes slight changes to the existing Rules of the House. For instance, during the Trump impeachment imbroglio, House Republicans complained bitterly about the Oversight, Intelligence, and Judiciary Committee’s closed-door hearings, but Republicans are the ones who originally passed the rules allowing such meetings in 2015 when they had the majority. Indeed, they used the same kind of closed-door meetings to investigate events surrounding the attack in Benghazi, Libya.

House Rules Committee

When a bill comes out of the House committee, the bill must first make a stop at the House Rules Committee, which has been called “the majority leadership’s traffic manager” for floor debate. (4) Like other committees, the majority party has the most seats on the Rules Committee, and these members are very likely to have the trust of party leadership. The Rules Committee attaches a special rule to each bill that specifies the debate’s nature: The rule indicates how much debate-time is allowed and how many amendments can be introduced, and the rule might indicate that only certain portions of the bill can be amended. The Rules Committee can also waive points-of-order against a bill, meaning that procedural challenges against the bill cannot halt its progress. There are four types of special rules:

• Open—allows any congressional member to offer an amendment to the bill on the floor so long as the amendment is germane to the bill’s topic. Appropriations bills are usually considered under open rules, but the amendments offered are restricted to changing funding levels.
• Modified Open—allows any congressional member to offer an amendment to the bill on the floor so long as the amendment is preprinted in the Congressional Record ahead of time. This gives the majority party time to strategize over how best to handle minority-party amendments.
• Structured—allows only certain amendments of which must be approved by the Rules Committee and written into the rule itself. The amendments approved for floor debate are given a certain time-limit during which they can be debated.
• Closed—allows no amendments to the bill on the floor.

You can imagine that the majority party tends to use structured and closed rules on legislation in which it is heavily invested and wants to see pass. This is a tremendous advantage for the majority party. When the bill reaches the House floor, each party is given time to debate it, and each party’s leadership divides up their time-block among the representatives who are best positioned to speak on the bill.

The Senate Floor

While the Senate does have a Rules Committee, it is not really comparable to the House Rules Committee, so both parties’ Senate leadership may try to achieve a result similar to a rule by drafting a unanimous consent agreement for the bill. This agreement would set a debate time, a debate time-limit, and may limit the amendments allowed. To be accepted, however, a unanimous consent agreement requires all 100 senators to agree to those debate rules—and that might not happen.

If the Senate does not pass a unanimous consent agreement to limit the debate, some senators might filibuster a bill to kill it or to gain concessions. A filibuster prevents a bill from passing by dragging out the debate—if the debate does not end, there can be no vote, and without a vote, the bill cannot pass. The filibuster can be when a senator continuously speaks, although this is rare now. The record for a single filibuster is held by South Carolina’s Strom Thurmond, who filibustered the 1957 Civil Rights Act for twenty-four hours and eighteen minutes. A filibuster can also be stopped by a motion of cloture, which is a motion to place a time limit on the filibuster. At least sixty senators must agree to the cloture, and then debate ends and a vote happens on the bill.

Due to filibuster reforms in the 1970s as well as later changes in Senate processes, cloture motions–and thus, filibusters–became routine in the Senate. (5) In the 1940s and 50s, each Congress experienced about five filibusters in a two-year term. But a 2002 study indicated that by that time “roughly half of all major bills encounter[ed] filibuster difficulties, often resulting in either defeat or substantial concessions.” (6) As political scientist Sara Binder stated before the Senate, “From roughly 1920 to 1970, filibusters averaged one a year. In stark contrast, in 2005-2006, there were an average of thirty-four cloture motions filed to end filibusters, and in the 2007-08 Congress there were 139 cloture motions filed, roughly seventy a year.” (7) Now, the mere threat of a filibuster can derail a bill or stymie a presidential nomination. Indeed, legal scholar Josh Chafetz, who argues that the filibuster is unconstitutional, points out how undemocratic the situation has become by writing that “a measure that cannot command the support of sixty Senators is unlikely even to be introduced onto the Senate floor.” (8)

Early in the 113th Congress (2013-14), Democratic senators Tom Harkin, Jeff Merkley, and Tom Udall attempted—but failed—to push through significant filibuster reforms that would have limited the minorities’ ability to stop the will of the Senate majority. (9) In 2013, after Republicans refused to allow President Obama to fill empty seats on the D.C. Circuit Court, Democrats pushed through an end to the filibuster for lower federal court nominations. Then, in 2017, after Democrats filibustered President Trump’s nomination of Neil Gorsuch to fill a Supreme Court seat that Republicans had earlier refused to allow President Obama to fill, Republicans killed the filibuster for Supreme Court nominations as well. As of this writing, the filibuster continues to be a tool of the minority party in the Senate to impede the will of the majority.

Conference Committees

After debate has ended, each chamber takes a floor vote. At this point, an interesting problem can develop. If the House’s version of the bill differs from the Senate’s version, the bill cannot be sent to the president. One of three things can happen: 1) One chamber can just agree to adopt the version of the bill that passed in the other chamber. 2) The two chambers can send the different versions to each other to attempt to get to a compromise. 3) The two bill versions can be melded into one in a conference committee called specifically for that purpose. Conference committees—so important that they are sometimes called the third house of Congress—are composed of both representatives and senators who are chosen by the bill mark-up committee(s) chair and senior leader of the minority party. Conference committees have ranged in size from seven to over 250 members, and there does not have to be an equal number of representatives and senators. If the conference-committee members cannot compromise with each other, the bill is stuck. If a majority can agree, then the conference report, as it is known, is voted on directly in the House and the Senate, with no floor amendments allowed from either chamber. If the conference report fails to pass both chambers, the conference committee can be reconvened. Once both chambers accept the conference report, it can be sent on to the president.

References

1. Trevor Corning, Reema Dodin, and Kyle Nevins, Inside Congress: A Guide for Navigating the Politics of the House and Senate Floors. Washington, DC: The Brookings Institution, 2017. Page 11.
2. Michael Parenti, Democracy for the Few. 9thedition. Boston: Wadsworth, 2011. Page 210.
3. Joseph A. Califano, Jr., Our Damaged Democracy. New York: Touchstone, 2018. Pages 52-56.
4. This discussion of the Rules Committee draws from Trevor Corning, Reema Dodin, and Kyle Nevins, Inside Congress: A Guide for Navigating the Politics of the House and Senate Floors. Washington, DC: The Brookings Institution, 2017. Pages 24-30.
5. In the early 1970s Senate Majority Leader Mike Mansfield introduced “tracks” in the Senate, allowing a filibuster to stop only the bill in question, not all of the Senate’s business. Then in 1975 motions of cloture were dropped from 67 to 60 votes, and requirements to physically speak and occupy the floor were dropped as well.
6. The study is Barbara Sinclair, “The ’60-vote Senate,’” in Bruce I. Oppenheimer, ed., U.S. Senate Exceptionalism. Columbus, Ohio: Ohio State University Press, 2002. This is cited in Eric Schickler, “Institutional Development of Congress,” in Paul J. Quirk and Sarah A. Binder, eds., The Legislative Branch. Oxford: Oxford University Press, 2005. Page 55.
7. Testimony of Sarah Binder, Senior Fellow, Brookings Institution, before the Committee on Rules, U.S. Senate, April 22, 2010. Available here: http://www.citizensforethics.org/policy/entry/filibuster-reform.
8. Josh Chafetz, “The Unconstitutionality of the Filibuster,” Connecticut Law Review. 43(4): May 2011. Available here.
9. David A. Graham, “How Senate Graybeards Killed Real Filibuster Reform,” The Atlantic. January 24, 2013.