Life Between 0 and 1

So few Americans understand, let alone even know, the lengthy and bureaucratic process that is followed attempting to make laws in the United States.  Given the complicated process this is, I’ll do my best to make it understandable, meaning in some cases parts of the process may be simplified for the sake of sanity.  I’m not an expert and there are thousands of resources on this 240 year old process.

After having spent a 2 weeks on this post, I can honestly say that I would *not* want to go into public service as a politician.  It definitely takes a certain type of person to work with this kind of bureaucracy, one that has endured the test of time up to this point and one that I hope continues.

POST SOURCE:  Congressional Legislative Process
*some of the content below is paraphrased directly*

There are several sub-steps under each category and depending on which chamber brings up a bill or resolution to discuss.  Each chamber has their own set of procedures they must follow in order to vote on a considered bill.  As is the case with government, there are nuances and exceptions at every step that can alter the defined path in the info-graphic above, but the majority of bills introduced will follow this general process.

Introduction & Referral of Bills

Both chambers submit legislation by introducing them in the form of a Bill or a Joint Resolution.  Bills and joint resolutions may become law if enacted during a two-year Congress in which they were introduced.  Two other forms, called Simple resolutions and concurrent resolutions, are measures that cannot make law, but can be used to publicly express governing rules for processing introduced legislation.  Prior to submission, there is an internal chamber process, run by the bill author, to garner co-sponsors for the bills being introduced to help move it along during later stages of the bill.  All submissions accepted are listed on the congress.gov website for public review and research.  Submission is completed when the bill is dropped into a wooden box called the hopper (House of Representatives) or submitted to clerks on the Senate floor.  Upon introduction to the respective chamber, they are given a designation based on the chamber of introduction.

• H.R. – House Bill
• H.J.Res – House Joint Resolution
• S. – Senate Bill
• S.J.Res – Senate Joint Resolution

Once a bill is introduced and accepted, it is sent the respective committee(s) that have jurisdiction over provisions within the bill.   The primary committee (provision majority) is generally considered to have jurisdiction over the bill and is responsible for all actions on the bill.  The House of Representatives and the Senate have similar processes on both sides and the differences between the chambers isn’t drastic enough to expand on in this context.  The committee(s) is now tasked with discussing the provisions detailed within the bill.

Committee Consideration

The influx of bill referrals over the course of a Congress is far more than any one committee can handle in any kind of detail.  The committee chair sets the agenda for the committee and decides which bills or issues will be addressed formally through hearings and/or markups.  The chair of a committee is a rather powerful position to hold as they are the gatekeeper as to what is reviewed and what isn’t.  As an example, a Republican chair could immediately reject a bill proposal from a Democrat if there are no Republican co-sponsors.  Given the amount of bills that are referred to some committees, sub-committees may be formed with specific members so that additional focus can be given to a particular policy or issue.  It is important to note that only full committees may report legislation to the chamber.  The simplified steps followed at this stage include:

• Conducting a hearing (committee members and the public)
• Inviting relevant comments from agencies, industries, groups representing interested citizens
• Submission of comments from invited witnesses to be included with the bill
• Committee markup – Formal step committee takes for the bill to advance to the floor.  Markup will not take place unless it is known there is already a potential majority.
• Markup concludes when committee agrees to content by majority vote
• Report of referred bill (markup to original) or Report of clean bill re-written to include markups

Calendars & Scheduling

After a committee reports a bill it is placed on the calendar of that chamber.  It’s literally a list of bills that are eligible but not guaranteed actual floor consideration.  If during a two-year Congress a bill is never considered, it is essentially stopped.  The process for each chamber is:

House – majority party leadership decides which bills to consider and in what order.  The leader can consider expedited floor consideration or push it to the Rules Committee to start the process of bringing it to the floor, which is usually a lengthy process.  Additional detail on this will be discussed in House Floor below.

Senate – majority party leader makes a motion to proceed on taking up a bill for floor consideration.  Once a motion is made to proceed, the debate on the floor starts with members present on whether to grant the motion.  A majority vote is required on the motion to allow the Senate to start considering the bill being presented.  There is an alternative process, not often used, of asking for unanimous consent of the Senate for certain bill considerations, however if even one person is believed to object (put a hold on the bill), it will revert to the standard process.  Both chamber party leaders keep their membership informed of the schedule using several methods and chamber clerks will post updates to congress.gov.

House Floor

If you’ve stuck with me this far, congratulations, this isn’t exactly the easiest to understand and I had to tap other resources while writing just to make sure I had it straight in my head.  Again, as I’ve stated before, there are nuances at this stage that I won’t be touching upon as they’re not typical.  Most bills introduced to the House that made it through the previous step are considered under what is called “suspension of the rules” procedure.  It limits debate to 40 minutes, does not allow amendments and requires two-thirds majority of members voting to agree.  A bill introduced that is known to not have super-majority support is not considered using the “suspension of the rules” procedure.  Now it gets complicated.

Bills that aren’t introduced for “suspension of the rules” procedure get considered instead with the adoption of a simple House resolution called a special rule.  The House Rules Committee (from the previous step) reports the special rules ahead of bill consideration that include selections of the text to be considered, limitation on debate and limits on the amendments that can be offered.  The House procedures already place certain limitations on amendments unless a special rule overrides them.  amendments must meet certain standards and be precise on the subject of what is being considered.

The House at this point collects a voice vote once all steps are completed to obtain approval to move forward.  The minority party has an opportunity to propose their own amendments after voting on a motion to recommit that can extend the process further.  Now they vote, most often by electronic means that records the individual position of each member who voted.  Rarely are votes taken by voice unless there is knowledge of super-majority or higher support in advance of consideration.

Senate Floor

As stated before in a previous stage, we’re assuming the bill has passed a motion to proceed and the bill will be considered.  The House and Senate differ in process greatly on this one point.  Reaching a final vote on a matter raises potential difficult because a motion to proceed, proposing amendments or voting on the bill are not subject to any debate limits.  There are really no rules in place to provide a simple way to cut off a debate on any issue brought to the floor.  Senators can threaten to, or start, a filibuster essentially extending debate to delay or prevent a final vote on all motions.  This is the reason that most bills in the Senate are blocked for reasons discussed shortly.

Oddly, as is the case in the House, there are no rules provided that limit the amendments proposed to a bill.  I’m sure there is a good reason why this is the case, however without looking into this further I’m not able to expound on it.  Amendments in the Senate also do not have to be on the subject of the bill being considered as is the case in the House.  Debates on the floor can often be unpredictable and digress into a wide-ranging debate that fosters divisiveness between Republicans and Democrats.  Senate rule XXII (cloture rule) is available to Senators to propose that allows a super-majority to limit debate on bills, amendments or motions.  A cloture on a bill can even limit the number of amendments that can be added as well.  A cloture motion is, to put it simply, a complex set of rules and it’s defined quite well in paragraph 4 here if you wanted to read it for yourself.

Far more common though, the Senate will act using unanimous consent agreements that can be tailored to each bill that comes to the floor for consideration, similar to the special rule in the House.  This allows the Senate to act more efficiently without having to rely on cloture rules.  Since all Senators have agreed to these agreements in advance, the Senate is much more effective and efficient conducting it’s business while protecting the rights of the Senators.

Executive Business in the Senate

The Senate has additional responsibilities provided to them by the U.S. Constitution.  The two responsibilities are:

• Power to confirm certain Presidential nominees to the federal judiciary and certain executive branch positions
• Power to approve treaties

Presidential nominations go to the relevant committee with jurisdiction to conduct a review and vote.  A simple majority vote is all that is required, but nominations are almost always debatable and usually carry a cloture rule imposed to limit the amount of debate and reach a vote in a reasonable amount of time.  Nominations to the U.S. Supreme Court require a three-fifths of the Senate where other nominees only require a simple majority.  Cloture use to reach a vote usually takes significant time on the floor.  The process to approve treaties follows the same process used for bills (see Senate Floor), but needs a two-thirds majority in order for the treaty to be ratified.

In the coming months, there is going to be at least one nominee for the U.S. Supreme Court by President Trump that the Senate will have to debate and ultimately vote on.  Also, with the number of wars that we currently have going on, it wouldn’t be out of the question that a few treaties aren’t sent our way to have the Senate debate and vote on either.

Bicameral Resolution (Resolving Differences)

In order for a bill to be considered for Presidential Action, it needs to be agreed by both chambers before it can be presented.  Any bill with revenue provisions must be a House bill as required by the U.S. Constitution.  A bill is engrossed (official form) once it passes in one chamber so that it can then be passed to the second chamber for agreement.  A majority of bills, from either chamber being sent to the other chamber, are generally accepted and agreed upon with exact text.

What tends to delay and lengthen the legislative process at this stage is when the second chamber, through their internal processes, decides to add amendments to the engrossed bill creating an alternative form of the original.  Once the alternative bill is debated, voted and engrossed, it is passed back to the originating chamber for a review of changes and debate.  As is the case in legislation where the Senate can add amendments that don’t match the subject matter of the bill, the House will almost certainly reject the changes and reject the alternative bill.  This process is called amendment exchange (aka ping-pong) and for it to have any chance one chamber must agree to what the other chamber has sent.

A third resolution that can be used is called a conference committee, which is temporary, setup with member from both the House and Senate from committees that have jurisdiction over the bill.  The committee is tasked with resolving the differences between the two versions of the bills that are in contention preventing the other chamber from accepting.  A majority of committee members from the House and the Senate is required to prepare a negotiated proposal contained within a conference report.  The conference report is subject to the procedures in each chamber that a standard bill would be subject to and in order for it to become law, both chambers must agree to the conference report without changes.

Presidential Actions

It’s not ironic that the last step of the legislative process is the simplest when compared to all the other previous stages of the process.  As both Chambers reach an agreement on a bill, it gets prepared into final form before being presented to the President.  Midnight on the closing day of the presentment, there are 10 days, excluding Sundays, that the President can either sign or veto the bill.  At the moment the President signs the bill, it becomes law.  Alternatively, if the President decides not to act on it in any way, the bill becomes law without a signature.

When the President decides to veto the bill, it’s returned to the chamber where it originated (H.R. to the House, S. to the Senate) giving them a chance to override the President’s veto.  A successful veto override requires support of a majority two-thirds of those voting.  A successful veto vote in one chamber then requires the other chamber to make a decision whether or not to attempt its own veto override, which also requires a two-thirds majority of those voting.  There have only been 110 veto overrides out of 2,572 total vetoes in U.S. history, the latest one overriding the President Obama’s veto on the 9/11 Victims Bill.

Bills enacted into law are published in the United States Statutes at Large housed at the Office of the Federal Registrar at the National Archives.