Issue Brief

January 22, 2003

The Legislative Process: How Does it Really Work?  

"All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives."

Article 1, Section 1, of the United States Constitution.

Introduction   

“Upon this elegant, yet simple, grant of legislative powers has grown an exceedingly complex and evolving legislative process,” states How Our Laws Are Made, a small handbook of the House of Representatives,

This month will mark the beginning of the 108^th Congress. In trying to understand the legislative process as it functions today, it is useful to review some basic facts about Congress and some of the historical events of the last two centuries, which have made Congress what it is today.

On July 16, 1787, the fifty-five Founding Fathers reached what is commonly called the “Great Compromise.”  The framers of the American Constitution had easily agreed upon the idea of bicameralism (i.e. a two-house legislature), but they struggled mightily over how these chambers should be constituted. The large states wanted population-based representation. The smaller states wanted a “federalist” system whereby the states would be represented equally. The smaller states feared, with some justification, that if representation were based solely on population, the larger states would quickly dominate the new Congress. 

In the end, the framers agreed that the House seats would be apportioned among the states based on population, and Representatives would be elected directly by the people. The Senate would be comprised of two members from each state, and they would be indirectly elected by the state legislature. 

Direct election of Senators did not come about until 1913 when the Seventeenth Amendment to the Constitution was ratified. It was primarily intended to “end corruption in state legislatures” (involving the purchase of Senate seats)... and make Senators directly answerable to the people for their actions and decisions.

The chief function of Congress is making laws, with the Senate having the additional function of advice and consent with regard to treaties and certain presidential appointments.

 Unlike some other countries, both the U.S. Senate and House of Representatives have equal legislative powers with the exception that only the House may initiate revenue bills. (When necessary, the Senate circumvents this limitation by attaching a revenue bill to another bill that has come over from the House and has a house file number.)

Today the House has 435 members and the Senate has 100 members. Although the House and Senate have equal legislative powers, the bodies are different from each other in fundamental ways; therein lies much of the opportunity for creativity and some mischief in the legislative process. 

The Legislative Process in the House 

A proposal is introduced in one of four principal forms:

1. A bill,
2. A joint resolution,
3. A concurrent resolution, or
4. A simple resolution.

This process is the same in each body.

The latter two forms are not particularly important for the average citizen as they deal primarily with internal operations and rules and are not presented to the president for action. For instance, a simple resolution in the House is designated H. Res. followed by its number. A concurrent resolution affects the operations of both the House and Senate and is designated either H. Con. Res. or S. Con Res. depending on where it originated. This type of resolution is used to govern rules for conference committees or other joint actions. The Budget is also reported as a Concurrent Resolution because it is for guidance inside the Congress and not signed by the President.

Joint Resolutions are similar to bills and subject to the same legislative procedure except for a joint resolution proposing an amendment to the Constitution. When this type of resolution is approved by two-thirds of both bodies, it is sent directly to the General Services Administrator for submission to the states for ratification. It is not presented to the President for action.

The most common form of proposal, and the type that will most likely affect health policy decisions, is the bill.  A bill originating in the House will be designated by the letters, "H.R." followed by a number that it will keep throughout its movement through the legislative process. For example, when Congressman Nancy Johnson introduced her proposal for a Medicare Prescription Drug Coverage proposal last June it was numbered H.R.4954. The letters H.R. stand for House of Representatives, and bills that originate in the Senate are designated in a similar manner by the letter "S."

Introducing a Bill 

Any Member of the House can introduce a bill at any time while the House is in session.  He or she merely places the bill in the "hopper" which is a box at the side of the Clerk's desk in the House Chamber.  The only major requirement is that the author's signature appears on the bill.  While most members have their staffs work with the legislative counsel's office and present carefully drafted bills in standard form, it is also possible for a member to handwrite a bill or use an old bill and scribble notes updating and changing its provisions and throw it in the "hopper".  Over the years, there have been some very interesting pieces of paper thrown in that hopper.

The bill is then assigned its legislative number by the Clerk and referred to the appropriate committee by the Speaker with the assistance of the Parliamentarian. Congresswoman Johnson's bill was assigned the number H.R.4954 because it was the 4954^th bill introduced in the House in that Congress. It was referred to two committees, Energy and Commerce, and Ways and Means.

While this is usually a straightforward process, there are times when the appropriate jurisdiction for a particular proposal is not that clear.  Often in those cases the author wants his or her bill to go to a specific committee and when that happens more sophisticated legislators will have their staffs work with the parliamentarian to help get the "right" committee.  And of course, there are some bills that are so controversial or politically sensitive that the Speaker will assign them by his own judgment.  This is one of the more important powers of the Speaker that is often overlooked in the media.

The Committees 

The House established its first standing committee in 1802 when it made the Ways and Means Committee permanent.  (It had earlier been established as a special committee in 1789.)  The Ways and Means Committee handled all money matters until 1865 when the Appropriations Committee was formed to handle the expenditure side of the government. The Senate established its first standing committee in 1816.

Once a bill has been introduced and referred to a committee, the first step is usually a public hearing in which the committee members hear witnesses representing a variety of viewpoints on the proposal. Sometimes committees will hold hearings on an idea before legislation is introduced and bills are later drafted reflecting the things legislators learned in the hearing process.

Committees are required to make public the time, date, place, and subject of the hearings they conduct so interested citizens can observe the process. Most hearings are open to the public unless they are closed for serious reasons such as national security in defense hearings. Closing hearings usually requires a vote of the committee members so it is possible to hold members accountable if they try to do the public's business in private. These requirements, of course, do not apply to private meetings in leadership offices or among groups of members who are working to promote their ideas.

After public hearings are completed, the bill is reviewed in a session commonly called “mark-up.”  This is the time amendments are offered or the committee may change the bill completely and report a new bill altogether. If this happens a “clean bill” is voted out of the committee, and it will have a new number. If the committee reports a bill, it will also provide a Committee Report.  This report describes the purpose of the proposal and the reasons for its recommendations. House Report numbers are prefixed with H. Rept. and then a number telling which Congress. For instance, when Congressman Johnson's bill was reported out of the Ways and Means Committee, it was accompanied by H. Rept. 107-539.

The House Floor

What happens once a bill leaves committee can be simple and straightforward or extremely complicated, difficult, and irritating. 

Sometimes a bill is moved out of committee to meet the political needs of its author but never taken up on the floor.

These rules often include time limits on debate, waivers of Budget Act Requirements so the bill's spending provisions can be dealt with on the floor, and the number and types of amendments that will be allowed. The rule then is considered on the floor before the actual bill can be debated and voted upon. For instance, when the prescription drug bill came to the floor it was debated under Rule, H.Res.465. That rule allowed two hours or general debate and no amendments. Obviously, this was a controversial rule, and it passed on a vote of 218 to 213 with no democrats voting for it and only four Republicans voting against it. 

Debate time is normally divided evenly between proponents and opponents. Usually this breaks down along party lines, but not always. Each side gets to decide who will lead its part of the debate and who will get to speak on the bill. After all is said and done, the bill comes up for final voting and if it passes it is moved on to the Senate for consideration. The bill must be passed in the same form for it to go to the President for signature so if the Senate makes changes in the House-passed version of a bill, it will have to go to a conference committee to resolve the differences between the two versions. 

The Legislative Process in the Senate

The legislative process in the Senate differs from the House in some very fundamental ways, mostly related to the history of the institution.

Senate History

The Senate was deliberately created as a check against egalitarian excess, which was something the founding fathers were wary of.  They did not intend it to be directly representative of the people and that is reflected in their decisions to have two senators from each state and indirect election of the Senate. It quickly changed, however, and became both more representative and more powerful than they had envisioned.

The Senate is unique in the world's democracies in a couple of ways.  Senators have two powers that no other legislators in the world possess.  The first is unlimited debate and the second is the ability to offer unlimited amendments—whether they are relevant or not. 

Because the Senate was so small in the beginning, these powers flourished. Now they are tough to quell and a constant source of challenge to Senate leaders. These two powers provide an opportunity for obstruction and creativity by all individual Senators.

Throughout our first century there was no single Senate leader in the sense that exists today. No single Senator exercised central management of the legislative process as today's majority leader does. Rather there were many senators who were looked upon as leaders in various ways and the process was run largely by unanimous consent.

Records show that Democrats officially elected their first leader in 1920 and Republicans followed suit five years later. Floor leaders received procedural powers over time but they still have very limited formal powers and many of them have referred to their jobs as "akin to herding cats".

From the beginning, the Senate has done much of its business by unanimous consent.  Today, there are two prevalent types of unanimous consent agreements in the Senate.  Simple unanimous consent agreements govern non-controversial matters.  Complex unanimous consent agreements establish tailor-made procedures for taking up a given piece of legislation, much like rules in the House.  The two basic objectives of these agreements are to limit debate and structure the amendment process.  When one realizes that every single member of the Senate must agree to how a bill is going to be handled on the floor, it is easy to understand why it takes so long to get things done in the Senate and why its leaders get so frustrated. 

The Senate Floor - Filibusters and Cloture

The process of introducing bills, hearing them in committee, and marking them up for the floor are similar in the Senate to the House.  When legislation reaches the floor, however, the Senate presents very different opportunities than the House. Since any Senator has the right to filibuster a proposal he or she dislikes, floor management in the Senate is more complicated than in the House.

A filibuster involves either speaking at indefinite length or delaying action by offering numerous amendments and motions in the hopes of convincing the Senate to withdraw the measure. The only way to end a filibuster is to invoke cloture. 

Cloture cannot be voted until two days after it is proposed in a petition signed by 16 Senators. Then it requires the support of three-fifths of the Senate (normally 60 votes) except when cloture is being invoked on a filibuster over a proposal to change rules—then the requirement is two-thirds of the Senate. If a cloture motion succeeds, further consideration of the measure in question is limited to 30 additional hours for all action including votes and quorum calls. During this time, no Senator may speak for more than one hour on the floor. 

The complexities of Senate floor action are often a source of mystery and frustration to House members trying to move legislation.  Several years ago, Congressman Jamie Whitten, then Chairman of the House Appropriations Committee, was heard to complain frequently that it took "60 votes for the Senate to start business every day and 60 votes for them to stop!"

Exceptions to the Rule

There are some measures that are protected from the threat of filibuster by law, the most notable being a Budget Reconciliation measure.

Reconciliation measures are those bills that are developed containing all the detailed legislation needed to implement the requirements of a previously passed budget.  For instance, during the high deficit years of the nineteen-nineties, there were several times in which the Congressional budget provided for tax increases and/or deep cuts in entitlement programs such as Medicare or Medicaid.  The Budget Resolution passed by Congress is only an outline of broad numbers, and to make them come true, it is necessary to pass legislation which details how the government is to change programs, or raise taxes to meet those broad numbers.

The process of making those numbers come true is called reconciliation. In this process each legislative committee is assigned a target number for the programs in its jurisdiction and then it passes legislation to hit those numbers. When the individual committees do this work is done by the individual committees, the Budget Committee compiles all the different provisions into one bill called reconciliation. This bill is then sent to the floor in the House under the provisions of a special rule. In the Senate, it is sent to the floor under the procedures first outlined in the Congressional Budget Act of 1974.

Under these provisions, debate on reconciliation bills is limited to no more than 20 hours on the Senate floor. The most obvious effect of this law is that Budget Reconciliation Bills can be passed in the Senate with only 51 votes. Because of this fact, it is often considered desirable to tuck controversial legislation into reconciliation bills. That, of course, is only possible if the legislation has budget implications.

Not every budget cycle produces a reconciliation bill, but when they occur they are watched closely because they present such unique opportunities to pass otherwise difficult measures in the Senate. The coming session of Congress may well prove to be one in which the reconciliation process contains major legislation on taxes and Medicare. 

Conclusion

The process for passing legislation is long and complex. Because of this fact, it is possible for the citizenry to influence it at many points. Both individuals and groups of citizens have a much greater impact on the legislative process than is generally believed. Usually, it is easier to stop proposals than to bring them to fruition.

The field of health care policy is replete with recent examples of policy ideas that were blocked by individuals and their interest groups. From the Clinton health plan of the early 1990's to the Medicare prescription drug proposal of the last Congress, we see many examples of health policy initiatives that couldn't quite come to fruition. 

It remains to be seen what will emerge in this session of Congress but one thing is sure—the best way to affect the process is to understand it and make your views about policy issues known to your elected representatives. 

Author

This Issue Brief was written by Eileen Baumgartner, NIHP Senior Researcher and   former Democratic Staff Director of the House Budget Committee.

Sources

A Century of Lawmaking for a New Nation:  U.S.  Congressional Documents and Debates, 1774 - 1875, Gales & Seaton's History, Library of Congress, Washington, DC

House Rules and Manual, U. S. House of Representatives, Washington, DC

Historical Minutes, 1787 - 1800, U.S. Senate, U.S. Senate web site.

How Our Laws Are Made, Revised and Updated by Charles Johnson, Parliamentarian, United States House of Representatives, Washington, DC, January 31, 2000.

The web site of the Library of Congress, www.thomas.loc.gov

The web site of the United States of Representatives, www.house.gov