The Legislative Process
The Legislative Process
This a 18 page paper including references. The paper is about the legislative process of law making from the grassroots of the formulation of a bill to the intricate forms of getting the bill formed into legislation in the United States governement.
3 main questions of the essay: How and what is a bill/legislation? What are the possible steps that could be taken to create legislation in the United States government? And what are the meanings of log-rolling, implicit and explicit bargaining?
To understand the legislative process, we first must understand that a bill is actually started when an idea for gain and or profit for big business, interest groups, constituents, and Congressman/Congresswoman political advancement are thought of. Sometimes, an interest group and Congressman/Congresswoman, big business and Congressman/Congresswoman, or constituents and Congressman/Congresswoman conjointly conceive legislation. Once the idea of the proposed legislation is made to a House Representative, it is up to them to bring the bill to the floor by dropping the proposed bill in the hopper by the Speaker’s podium or handing the legislation to the House Clerk.
The Representative who brings the legislation into the House becomes the legislation’s sponsor; the Representative may also look for other members of the House to cosponsor the legislation. This is usually done to seek and show wide support for the legislation. Representatives may also seek help from interest groups to influence other members in the House to cosponsor the legislation or give their support for the legislation.
During the early process of introducing legislation, many representatives have expert drafters construct the wording in the proposed legislation to give their legislation a chance to be heard and not killed in the first second it is heard. An example of this tactic is the Contract of America. There was measures or items that was worded in such a way that you would have to really look hard to figure out what the titles of the legislation really meant. “The American Dream Restoration Act”(tax code reform), “The Common Sense Legal Reforms Act”(tort and product liability changes), and “The Taking Back Our Streets Act”(crime control), all of this legislation were worded in The Contract with America (Davidson and Oleszek, p.230).
Any piece of legislation can be drafted by anyone that would like to help the legislation pass in the House and then Congress. Another tactic that is commonly used with drafting of legislation is packaging of bills. Packaging usually contains a vast amount of legislative issues that was brought to the House floor and died, died in committee, or defeated in vote. They are usually tied in with a large bill, so they can be hidden to have a better chance of passing through and becoming a bill.
Once apiece of legislation has been drafted and is ready to be presented to the House for debate, it is then up to the Representative if he or she wants to introduced or brought to the floor early or late in the Congressional session. “A bill that might succeed early in a session could fail as adjournment nears” (Davidson and Oleszek, p. 231). On the flipside of things apiece of legislation that is introduced in the last days of Congress, can become a bill, due to trying to finish Congressional business quickly. Sometimes apiece of legislation can be added or taken off the Congressional agenda, due to reelection concerns. All of these are just the introduction process of the proposed legislation before it is sent to committee.
The referral of legislation is very important to the possibility of the passage or failure of the legislation. An example of how important the referral of legislation can be is the Domenici bill S. 790. By Domenici avoiding the word tax in legislation aimed at proposing a charge on waterborne freight he avoiding getting the legislation referred to the Finance Committee, where Russell B. Long, of Louisiana was chairman at the time. Why was this important? Louisiana has one of the two world’s busiest and biggest barge ports. Domenici knew that he (Long) could bring up several years worth of legislation before he would bring up S. 790. So, by drafting the legislation without using the words tax he was able to get the legislation to be referred to the Commerce and Environment Committees, which coincidently he served on (Davidson and Oleszek, p.233).
Once the legislation has been reported out of committee it can be brought to the House floor for debate and general amendments. Rules of the House states, that a majority of the full committee must be present to report any and all legislation out to the floor of the House. If this measure is violated, the legislation can have a point of order reported against it once it presented to the House floor. “A point of order can halt the proceedings of the legislation being debated on the House floor and only can be lifted by the chamber’s presiding officer decides that the contention is valid”, (Davidson and Oleszek, p.234).
If the presiding officer does not find the contention valid the legislation is either sent back to committee or dies. Once the legislation is sent out of committee in the House, the legislation is listed on one of the several calendars in chronological order, and also in order of what the legislation does. If the legislation raises or spends money it is sent to the Union Calendar, public measures are on the House Calendar, private legislation are sent to the Private Calendar (such as claims against the government), and generally non-controversial bills are placed on the Corrections Calendar.
There are quick ways that can sometimes be taken to bring legislation off the calendar to the House floor. One shortcut is, the designation of special days for considering minor bills (Davidson and Oleszek, p.235). Example, the Corrections Calendar is up for floor consideration on the second and fourth Tuesdays of the month. The creation of the Corrections Calendar came about from former Speaker of the House Newt Gingrich, it gave the Speaker a way to control take away outlandish rules, regulations, and laws that were on the books in Congress. A second shortcut that can be used to get minor legislation out on the House floor is called “suspension of the rules”. The Speaker of the House also controls this shortcut. The way that a Speaker has control when using suspension of the rules is by controlling whom he or she may recognize to speak on the legislation. In today’s Congress it is roughly used about 50% of the time, compared to 8% percent of time about a quarter of a century ago (Davidson and Oleszek, p.235).
This may be used every Monday and Tuesday on noncontroversial legislation, the measure allows for debate about the legislation to last about forty minutes; no amendments can be made, and requires a two-thirds vote passage (Davidson and Oleszek, p.235). Members use this measure that who try to steer away from unfriendly amendments and points of order against their legislation in committees. Third, a member can use the discharge petition. The discharge petition is a rule the permits the House to relieve a committee from jurisdiction over a stalled measure (Davidson and Oleszek, p.242). This rule allows a way for the rank and file members to force legislation to the floor even if the majority leadership opposes the legislation in question. The discharge petition can be used, if legislation that was assigned to a committee is not reported after thirty days.
Then any member can file a discharge motion to get the legislation on the House floor, as long as they have a majority of the House signatures, which are at least 218 members. The legislation then is put on the Discharge Calendar for seven days; there it could be called up on the second and fourth Mondays of the month by anyone of the members who signed the discharge motion. If the discharge motion is passed the legislation is brought up right away. Since 1910, only two discharge measures became law (Davidson and Oleszek, p.242). This measure is primarily used as a threat mechanism to get a committee to act on legislation before them and to get the majority party leadership to put it on schedule for floor action.
Once on the House floor there are five main things or phases before final passage is achieved they are: adoption of the rule, committee of the whole, general debate, the amending phase, and voting. The adoption of the rule is the process by which the Speaker and the committee chairmen who is affected by the debate over the legislation decides on when the House will debate on the legislation and what type of rule will be used for the debate. The time limit for this is usually an hour to explain the contents of the rule being used; the entire time limit is rarely used. Custom dictates that the majority member gives at least half of the time to the minority member of the Rules Committee for debate. Once the debate ends the House votes on the rule. It is very rare that the rule is ever defeated, due to the fact that the Rules Committee is sensitive to the wishes of the House (Davidson and Oleszek, p.244). Once the House adopts the rule, it (the House) is governed by the provisions set forth by the rule for the debate on the legislation. Now the Speaker may declare the House resolved into the Committee of the Whole.
Committee of the Whole was designed to expedite consideration of legislation. In this the House is in a different form and has a whole new set of rules. An example is that a quorum normally has to have 218 members, but in a Committee of the Whole it only has to have 100 members. The Speaker appoints a majority party colleague to preside over the committee, which then begins the general debate of a bill or legislation (Davidson and Oleszek, p.244).
In a general debate, a rule from the Rules Committee sets the allotted time for general discussion on the legislation or bill under consideration, usually one to two hours. Legislation that is controversial usually needs more allotted time then non-controversial legislation, sometimes from four to ten hours. The time given for discussion on the legislation is split between the majority and minority floor managers. Usually, this is the chairman and the ranking minority member of the committee that reported the legislation (Davidson and Oleszek, p.242).
For the majority floor manager their job is to push the wanted legislation through to the final passage stage and for the minority floor manager, their job is to defeat the legislation by killing it or amending the legislation on the floor. Once the have stated their reasons for passage or killing the majority and minority floor manager they set aside about seven minutes for colleagues on their respective sides to want to speak about the legislation. This leads up to the amending phase of the legislation on the House floor.
The amending phase is where the “heart of the decision making” on the House floor (Davidson and Oleszek, p.245). This determines the final shape of the legislation and is usually dominating the discussion in the public’s eye. The legislation’s sponsor or sponsors’ and the legislation’s opponent are giving five minutes to defend and attack the legislation on the House floor. If they want to speak longer the representatives will say “I move to strike the last word” or I move to strike the requisite number of words.” (Davidson and Oleszek, p.245).
Now if there is a open rule for the debate on the legislation opponents of the legislation will try to load as many objectionable amendments so it will “sink”, the opposite is possible when a proponent for the legislation, they will try to add amendments on the legislation to attract other members to support the legislation this is called “sweetening or adding sweetener” (Davidson and Oleszek, p.245). After this comes the voting process.
Voting before1970 was not recorded. In 1970 the Legislative Reorganization Act was passed, it made the records of who voted for or against any legislation public record in the Committee of the Whole (Davidson and Oleszek, p.246). Now any representative supported by twenty-five colleagues can obtain a recorded vote, the member that requested a recorded vote is counted as one of the twenty-five who rise to be counted by the chair (Davidson and Oleszek, p.246). Once all of the pending amendments have been voted on by the Committee of the Whole rises and the chairman hands the gavel back to the Speaker and the normal number for the quorum (218 members) is reinstated. Now comes the process of the final passage.
Final passage starts off with the Speaker stating, ” that under the rule the previous question has been ordered” (Davidson and Oleszek, p.246). This simply states that can be no further debate is allowed on the legislation or the amendments made to it. The Speaker then asks any representative wants a separate vote on any of the amendments. If there is none, all the amendments made to the legislation in the committee are agreed upon and will be approved. The next step of importance is the recommittal motion. The recommittal motion gives the House a chance to return or recommit the legislation to the committee that reported it (Davidson and Oleszek, p.246).
Recommittal motions very rarely succeed in the House, but were put in place to protect the rights of the minority party in the House. Once the recommittal motion is defeated the Speaker then declares, “The question is on passage of the bill.” (Davidson and Oleszek, p.246). Final passage is a recorded vote usually. Once passed by the House the bill or legislation must be passed in the Senate before it is sent to President to become a law. The process on how legislation passes and become a law is different from those in the House.
The Senate process of legislation passing and becoming a law is different from those in the House. In the Senate there are less legislators than in the House, therefore the Senate does not have well-defined rules and precedents like the House. In fact, the Senate acts more informal when it comes to decision making on legislation before them. The Senate has rules that emphasize individualistic thinking amongst colleagues and rights of the minority are greater than the rights given to the minority in the House. In the Senate any action or progress on legislation can be held up or stopped by just one member, whereas in the House it would take more than one member to hold up legislation from going to committee, coming out of committee, and or passing the legislation. In the Senate, legislation usually can reach the floor for a vote through two ways, unanimous consent (also called time-limitation agreements) or by a motion (Davidson and Oleszek, p.247).
In the House, legislation can reach the floor many different ways, placing it on the Corrections Calendar, Suspension of the Rules, and the Discharge Petition. With unanimous consent Senators limit the time for debate on the legislation at hand, any possible amendments, and a range of motions that could be made on the legislation. Sometimes they specify the time limit for final passage voting and levy restrictions on the amending process. They are the equivalent of special rules from the Rules Committee in the House. Unlike in the House, most of the unanimous consent agreements are made in private by Senators’ staff aides instead being made in public hearings like the House.
Extraction of legislation from a committee in the Senate is different from in the House. In the House, you would have to worded the legislation in such a way to get the legislation in the committee of your desire, but in the Senate the legislation if it is blocked in committee can be added to another piece of legislation that is total different from it as long as it is nongermane. In the Senate you can also: bypass the committee stage by putting the legislation on the calendar, suspending the rules, or discharge the legislation from committee. But these three tactics that I have just listed are not as effective as the first tactic and are kind of difficult to employ, also rarely succeeds.
In the Senate, when legislation has made it to the floor for vote it still has a chance of being held up by three strong arm type tactics: holds, filibusters, and cloture. A hold is not in the rules of the Senate nor a precedent was ever made for one, but it is an informal custom, which is honored by a party’s leader at their discretion. Holds have a power that basically comes from a threat that is not implied physically or mentally but is know that it could possibly lead to a filibuster or a possible disagreement with unanimous consent agreements. Holds now are used to bring “death” to legislation by holding them up indefinitely or to gain political leverage (Example: blockage of a president nomination for a position).
If a hold turns into a filibuster it can become a means to effectively end any chance that the proposed legislation had for passage in the Senate. Filibusters simply put are the right to extend the time of debate on the legislation at hand. Any one senator or even a group of senators can just voice their opinions on the legislation for debate in hopes of delaying, getting something on the legislation changed, or just simply defeating the legislation. For a filibuster to succeed, some say that it depends on how long it takes and most importantly when it is implied. A filibuster late in the congressional session can be the most deadliest time for it to happen, due to the fact that is just no time left to have a lengthy debate and break the filibuster successfully.
Many people who defend the use of a filibuster say that, “it protects the rights of the minority”, gives time for through debate on any legislation before them that they think should be discussed in great detail, and “dramatizes issues” (Davidson and Oleszek, p.251). Opponents say that it just gives minority factions in the Senate a chance to imply unwanted concessions. The differences in the House and the Senate in my viewpoint are two main aspects, formal-informal and power that the minority has in each chamber.
In the House, the rules are set from the beginning and are followed about nine out of ten times. They are formal and rigid in their approach to legislation before them in committees and floor debates. The members of the House try to always follow the rules which they are governed by in the House, do work in committee and not by themselves, develop a friendly work relationship, and be willing to go along with their party’s wishes when it comes to a vote they might affect themselves in their own constituencies. Members of the House are also expected to be specialist, especially in one specific area of legislation.
Whereas, in the Senate the members are more informal in their approach to legislation, do not have a set of rigid rules that tells them how they have to go about legislation in their chamber. They are expected to specialize in issue that relevant to their committees or affecting their home (Davidson and Oleszek, p.135). They are expected to do the work and not worry about being in the “public’s eye” unlike their House counterparts. In the Senate members are allowed to be individualistic in their approach to legislation. When it comes down to the power for the minority faction in both chambers the House is the weaker of the two. In the Senate, a single member can hold up any legislation that comes before them, whereas in the House it takes a quorum in most cases 218 members to hold up legislation.
The process of deciding how to vote on pending legislation is a hard one for members of Congress. There are so many ways that a member can vote on legislation. They can vote for the legislation and really want to see it pass or they can vote for the legislation and not want to see it pass at all. They could vote against the legislation and want to see it fail or they can vote against the legislation and want to see it pass. They can give their vote to another member as a favor to get a favorable vote when they may need one them self for their legislation.
They could vote for the legislation in committee and vote against the legislation at the vote of final passage or they can vote against the legislation in committee and vote for it at final passage. Or how about this, the member could look and see how their party is voting on the proposed legislation and then cast their vote. They could even vote against their party and vote with people from their district, state, and or region. All of these scenarios are possible in the complicated decision to vote yea or nay on any legislation. I will attempt to explain the reasoning for why members of Congress vote the way they do.
In my opinion, one of the most prevalent factors in the way members of Congress vote is the “public record of voting.” The public record of voting is the recorded tally of votes on any measure or legislation that comes before any member of Congress, which is public knowledge since the Legislative Reorganization Act of 1970 was enacted. By making the votes recorded and public knowledge interest groups, lobbyists, and constituents can see any Congressional members voting record in their seat of Congress. Now members of Congress became wearier about voting for just any legislation that they could not explain their actions for to their constituents during a reelection bid or interest groups who may give them donations for their campaigns. From this theory there comes three types of decision makers: early deciders, active players, and late deciders.
Early deciders are fervent supporters who want to get out early and be part of the fight (Davidson and Oleszek, p.261), and for there eagerness they are usually passed up by the lobbyists because of they for the most part can not be swayed to see the lobbyists point on the legislation and their track record on voting on an issue. Active players, on the other hand usually hold off their final decision and or compliance on any legislation, until they hear both sides of the argument and then usually give their full support to the one side they believe in. Late deciders often delay their decision or sometimes if they already gave an earlier commitment they retract it and make their decision after being courted by the lobbyists even though they have little to no effect on the outcome of the pending legislation.
Late deciders are such because of fears or reelection and political payoffs in the future. The casting of votes is usually the Congressman/Congresswoman pride and joy. It reflects their stand on issues and measures that some legislators believe best serve the interests of their constituents. “Senators and representatives strive to be recorded on as many floor and committee votes as they can.” (Davidson and Oleszek, p263). Do these votes really reflect what the Senators and representatives really think of some legislation before them?
When first looking at how a Senator or representative’s vote is made, you may think that he/she was for or against the legislation they voted on. But when we examine the situation closer sometimes that was not the case. A member may vote to pass an authorizing program, but vote against funding for the program (Davidson and Oleszek, p266). Many members of Congress vote like this to save their appearance to the lobbyists and to their constituents when it comes time for their reelection campaign. Party is another factor into their voting decision on legislation in front of them. By consulting with political colleagues in their party they get insight on the views of their party as a whole. Party affiliation is the strongest single correlate of members’ voting decisions, and in recent years it has reached surprisingly high levels (Davidson and Oleszek, p267). About two-thirds of all votes on the floor can be called “party unity votes” (Davidson and Oleszek, p267).
Party unity votes are in which a majority whether it be democrats or republicans, one party’s majority will vote automatically against the other party’s majority. On the other hand partisan strength is the voting on the basis of demographics and or political areas. Some legislators go away from their party’s ranks when they feel that their constituents they served are best served by going against their own party’s agenda to get what the constituents of their district can use and need. Some legislators still vote with their party even though it would not help their constituents at home. Why is this? Party cohesion. Party cohesion flows from top to bottom in a party. Party cohesion begins when a person who has just entered politics feel that they best relate to one than the other.
An example of this is the defections of some southern legislators from the Democratic Party to the Republican Party do to the fact they felt like they could relate more to the ideology of the Republican Party compared to the Democratic Party. Most of the political parties have social gatherings for incoming members of Congress to get them acquainted with party members also, help them get in to committees that they would like to be put on. This leads to the cue taking of other members in their party for which way they should vote on legislation, instead of voting on the legislation in front of them on how it would affect their home district (this occur frequently in both the House and Senate). A major factor into the exploitation of incoming and other members of any party is “process partisanship.”
Process partisanship is, “the degree to which each institution is structured or operates in a partisan fashion” (Davidson and Oleszek, p270). In the House, this is a very strong tactic used by senior members over incoming and junior members. They can control what committees, scheduling of legislation, and use of the special rules governing the House debates on the floor. Also, they are able to engineer they way votes go their legislation so they can win passage on their legislation and avoid the legislation that they should lose. In the Senate, it is harder to control power, due to the fact that power is set up to be distribute more between the majority and minority parties, also individuals in the Senate. But, Senate leaders can regulate the time of any debates by their right of being recognized first to speak and offer any amendments on the legislation being debated upon on the floor. Ideology and voting also plays a part in the decision process of a Congressman/Congresswoman.
It is very obvious to anyone who observes Congress to tell that ideology of a member’s party plays a part in the decisions of most congressmen, instead of the decision to vote on any legislation on how they feel about it affecting their constituents. The members who actually think about how any legislation would affect their home constituency, views themselves as a constituency servant (Davidson and Oleszek, p136). That is another form of controlled decision making for legislators. Constituency servant is a legislator who sees themselves as the voice for his/her constituents and makes sure that their district gets their fair share. Constituency servants will put the needs of their district over the national needs of their party, that feel is more important to their constituents than their own party. With this constituency servants fear the fact if they do not get what their district wants or needs in the eyes of their constituents they can lose their seat in Congress when it comes up for reelection. This leads to a factor that figures into the equation and the factor is an attentive public.
Attentive publics are those citizens who are aware of issues facing Congress and harbor decided opinions about what Congress should do (Davidson and Oleszek, p272). People who fall under the category of being part of an attentive public usually are part of an interest group (not always the case) that can constantly remind, bring a call for action, and let their voice be heard about any issue or issues that affect them and their district. For the most part members of Congress really do not have any problem identifying who is paying attention to what is going on in that specific chamber of Congress or Congress as a whole that will affect their district (through their reelection campaign and their district’s budget). Inattentive publics are the ones that Congressmen bank on. An inattentive public do not pay close or no attention to congressional matters that will affect them. This is a majority of the public at large.
Some say that a legislator cannot understate an inattentive public ability to cause problems (primarily in reelection campaigns). These are all part of broad factors that come together to create a very complex equation for decision-making in Congress for legislators. I forgot to mention the two phases of decision-making: predisposition and conversation given by Cleo Cherryholmes and Michael Shapiro (Davidson and Oleszek, p275). In the predisposition stage of decision-making a legislator weighs into their mind that is voting for or against legislation before them, if they cannot come to a conclusion in the predisposition stage of decision-making they go into the conversation of decision-making. In the conversation stage the legislator looks for any cues they can get from colleagues in the proposed legislation.
According to Donald Matthews and James Stimson there are nine sources of voting cues: state party delegations, party leaders, party majority, president, House majority, committee chairmen, ranking minority members, the conservative coalition, and the liberal Democratic Study Group (Davidson and Oleszek, p275). Both the Democratic and the Republican parties have the biggest source of voting cues to be same state party delegations according to the study by Matthews and Stimson. Party and committee leaders were the next largest source of voting cues in Congress. With the model created by Matthews and Stimson, they were able to predict 88 percent of the vote in Congress from 1958-1969. The only problem with the models is that they can never give anyone the full depth of the factors in the equation that shape the Congressmen decision-making. There are two main types of bargaining that legislators use to get their desired goal, they are: implicit and explicit bargaining.
Implicit bargaining consists of actions taken by a legislator to get a desired reaction on a measure from other legislators, even if negotiations might have not even taken place between them. Another version of implicit bargaining is when a legislator seeks to accept or get an opinion of a colleague with vast expertise in the subject matter at hand. In return the same will be given to the colleague if they ever need help with a subject that have little expertise in. In this form of implicit bargaining the trade off is information and saving time to put on other legislation. These are two the most important factors in having a successful legislative career in Congress (besides accumulating a huge war chest).
Explicit bargaining is a fifty-fifty process. Compromise is the key with explicit bargaining, if a member favors a program and another member opposes the program they might come to the agreement of having a trial period for the program. After the trial period they will decide on the legislation’s fate. The most important thing to remember for any legislator is, compromise is just something that you have to do, it is inevitable in getting legislation done and if you do not compromise you will have a hard time getting any legislation through your chamber or Congress as a whole. Logrolling is a larger form of bargaining that makes compromise the important key to getting legislation through.
Logrolling involves trading amongst parties, where support is the median. This is most visible in trading where it is a win-win situation for everyone (known as “pork barrel”). A legislator who gets involved in this process of logrolling is expected to support the legislation in its final stage, no matter if it differs from what they gave their support to in the beginning. It is best put by a former representative from Minnesota Republican Bill Frenzel, “It’s not a system of punishment. It’s a system of rewards.” (Davidson and Oleszek, p279).
Some logrolls do not involve direct payoffs for support on that legislation; it could be paid off in support of a legislation with no relation to the issue at hand. An example is giving a federal project to a state or district to get a better committee assignment (Davidson and Oleszek, p280). Another form of logroll is called time logroll. Simply put, support given to a measure now is traded off to get support on a measure in a later time, sometimes specified within a time limit.
Weisberg, Herbert F., Heberlig, and Eric S., Campoli, Lisa M. 1999. “Classics
in Congressional Politics”