The Legislative Process

by Sophia

 WHAT'S COVERED

In this lesson, you will learn the traditional steps in the lawmaking process and why they make it so
easy for Congress to deadlock and fail to pass important measures. Moreover, you will explore how
Congress has responded to heightened partisanship by introducing tactics to get around these
traditional steps, giving more control to the party and leadership in power. Specifically, this lesson
covers:

1. The Classic Legislative Process

A dry description of the function of congressional leadership and the many committees and subcommittees in
Congress may suggest that the drafting and amending of legislation is a finely tuned process that has become
ever more refined over the course of the last few centuries. In reality, however, committees are more likely to
kill legislation than to pass it. And, the last few decades have seen a dramatic transformation in the way
Congress does business. Creative interpretations of rules and statutes have turned small loopholes into large
gateways through which much congressional work now gets done. In this section, we will explore the
traditional legislative route by which a bill becomes law. We will also learn how and why Congress
transformed the way it does business.

The traditional process by which a bill becomes law is called the classic legislative process. First, legislation
must be drafted. Theoretically, anyone can do this. Much successful legislation has initially been drafted by
someone who is not a member of Congress, such as a think tank, advocacy group, or the president. However,
Congress is under no obligation to read or introduce this legislation, and only a bill introduced by a member of
Congress can hope to become law. Even the president must rely on legislators to introduce that president's
legislative agenda.

1a. Committee Referral

Once legislation has been proposed, the majority party’s leadership consults with the parliamentarian about
which standing committee to send it to. Each chamber has a parliamentarian, an advisor, typically a trained
lawyer, who has studied the long and complex rules of the chamber. While Congress typically follows the
advice of its parliamentarians, it is not obligated to, and the parliamentarian has no power to enforce their own
interpretation of the rules. Once a committee has been selected, the committee chair is empowered to move
the bill through the committee process as they see fit. This occasionally means the chair will refer the bill to
one of the committee’s subcommittees.

1b. Committee Hearings

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Whether at the full committee level or in one of the subcommittees, the next step is typically to hold a hearing
on the bill. If the chair decides not to hold a hearing, this is tantamount to killing the bill in committee.

The hearing provides an opportunity for the committee to hear and evaluate expert opinions on the bill or
aspects of it. Experts typically include officials from the agency that would be responsible for executing the
bill, the bill’s sponsors from Congress, industry lobbyists, interest groups, and academic experts from a variety
of relevant fields. Typically, the committee will also accept written statements from the public concerning the
bill in question. For many bills, the hearing process can be routine and straightforward.

1c. Markup Sessions

Once hearings have been completed, the bill enters themarkup stage. Members of the committee meet to
“mark up,” or amend, the bill. In the end, with or without amendments, the committee or subcommittee will
vote.

If the committee decides not to advance the bill at that time, it is tabled.Tabling a bill typically means the bill is
dead, but there is still an option to bring it back up for a vote again. If the committee decides to advance the
bill, however, it is printed and goes to the chamber, either the House or the Senate. For the sake of this
explanation, we will assume that this bill goes to the House first. Note, however, that the reverse could be
true, and, in fact, bills can move simultaneously through both chambers.

1d. House Rules Committee and the Floor Vote

Before a bill reaches the House floor, it must first go through the House Committee on Rules. This committee
establishes the rules of debate, such as time limits and limits on the number and type of amendments.

After these rules have been established, the bill moves through the floor where representatives debate and
can add amendments. Once the limits of debate and amendments have been reached, the House holds a
vote. If a simple majority, 50 percent plus 1, votes to advance the bill, it moves out of the House and into the
Senate. Once in the Senate, the bill is placed on the calendar so that it can be debated. Typically, the Senate
will consider the bill (or a companion version) in its own committees.

1e. Debate in the Senate

Since the Senate is much smaller than the House, it can afford to be much more flexible in its rules for debate.
Typically, senators allow each other to talk and debate as long as the speaker wants, though they can agree
as a body to create time limits. But without these limits, debate continues until a motion to table has been
offered and voted on.

This flexibility about speaking in the Senate gave rise to a unique tactic, the filibuster, which is unlimited
debate. The word “filibuster” comes from the Dutch word vrijbuiter, which means pirate, and the name is
appropriate since a senator who launches a filibuster virtually hijacks the floor of the chamber by speaking for
long periods of time, thus preventing the Senate from closing debate and acting on a bill. The tactic was first
used regularly in the 1850s, as Congress wrestled with the contentious issue of slavery.

After the Civil War, the use of the filibuster became even more common. Eventually, in 1917, the Senate
passed Rule 22, which allowed the chamber to hold a cloture vote—the vote needed to end debate. To
invoke cloture, the Senate needed to get a two-thirds majority. This could be difficult to achieve.

 EXAMPLE This classic approach still occasionally occurs, such as when Senator Ted Cruz (R-TX)
executed a filibuster in 2013 on legislation related to the Affordable Care Act. His filibuster included
reading the Dr. Seuss classic, Green Eggs and Ham.

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The vast majority of the time, the actual filibuster action is not needed, as floor leaders rarely bring bills to the
floor that don't meet the cloture threshold, which means that leaders expect the required number of senators
to support ending the debate.

In 1975, after the heightened partisanship of the civil rights era, the Senate further weakened the filibuster by
reducing the number needed for cloture from two-thirds to three-fifths, or sixty votes, where it remains today
(except for judicial nominations, for which only fifty-one votes are needed to invoke cloture).

Moreover, filibusters are not permitted on the annual budget reconciliation bills, which change the amount of
money the federal government budgets to specific programs or agencies. The rules for these bills help fast-
track legislation that can include significant changes to the budget through Congress. In this way, the
Republicans passed the Tax Cuts and Jobs Act of 2017 and the Democrats passed the American Rescue Plan
Act of 2021, which contained a massive COVID relief package.

⚙ THINK ABOUT IT

The founders worried about the tyranny of the majority—that a large population with shared interests
might use the democratic process to pass legislation that only served their own concerns and ignore
those of the minority. What are the rules of debate in the Senate? What purpose do they serve? How
might these rules protect or fail to protect minorities?
1f. Reconciling House and Senate
Because both the House and the Senate can and often do amend bills, the bills that pass out of each chamber
frequently look different. This presents a problem since the Constitution requires that both chambers pass
identical bills. One simple solution is for the first chamber to simply accept the bill that ultimately makes it out
of the second chamber.

Another solution is for the first chamber to further amend the second chamber’s bill and send it back to the
second chamber. Congress typically takes one of these two options, but about one in every eight bills cannot
be resolved in this way. These bills must be sent to a conference committee that negotiates a reconciliation
both chambers can accept without amendment. Only then can the bill progress to the president’s desk for
signature or veto. If the president does veto the bill, both chambers must muster a two-thirds vote to
overcome the veto and make the bill law without presidential approval (Figure 1).

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 (Figure 1) The process by which a bill becomes law is long and complicated, but it is designed to ensure that, in the
end, all parties are satisfied with the bill’s provisions.

 TERMS TO KNOW

Bill
A draft of proposed law.

Markup
The amending and voting process in a standing committee.

Cloture
A parliamentary process to end a debate in the Senate. As a measure against the filibuster, it is

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 invoked when three-fifths of senators vote for the motion.

2. The Modern Legislative Process

For much of the nation’s history, the process previously described was the standard method by which a bill
became law. Over the course of the last three and a half decades, however, changes in rules and procedures
have created a number of alternate routes. Collectively, these different routes constitute what some political
scientists have described as a new but unorthodox legislative process.

2a. Omnibus Bills

The primary trigger for the shift away from the classic legislative route was the budget reforms of the 1970s.
The 1974 Budget and Impoundment Control Act gave Congress a mechanism for incorporating amendments
that dealt with policy issues, such as economic reforms, within the budget bill. The benefit of attaching the
reforms to the budget resolution was that Congress could force an up or down (yea or nay) vote on the whole
package.

Such a packaged bill is called an omnibus bill. Creating and voting for an omnibus bill allows Congress to
quickly accomplish policy changes that would have taken many votes and the expenditure of great political
capital over a long period of time. This and successive similar uses of the budget process convinced many in
Congress of the utility of this strategy.

⚙ THINK ABOUT IT

How do omnibus bills avoid the long process that regular bills need to go through? How does this protect
or threaten minority interests?
2b. Leadership and Committee Referrals
An important characteristic feature of modern legislating is the greatly expanded power and influence of the
party leadership over the control of bills. Heightened partisanship in Congress that stretches back to the
1980s has inspired another major change in the legislative process.

With such high political stakes, party leadership is reluctant to simply allow the committees to work things out
on their own. Instead, in the House, the leadership uses special rules to guide bills through the legislative
process and toward a particular outcome. Uncommon just a few decades ago, these rules are now widely
used to restrict debate and other options. Leaders also refer proposed legislation that they do not favor to
committees controlled by leaders who are unlikely to report the bill to the floor.

The practice of multiple referrals, by which entire bills or portions of those bills are referred to more than one
committee, greatly weakened the specialization monopolies that committees formerly held—primarily in the
House but also to an extent in the Senate.

With less control over the bills, committees naturally reached out to the leadership for assistance. Indeed, as a
testament to its increasing control, the leadership may sometimes avoid committees altogether, preferring to
work things out on the floor. Even when bills move through the committees, the leadership often seeks to
adjust the legislation before it reaches the floor.

⚙ THINK ABOUT IT

Leaders of the majority party in the House now exercise considerably more power than they did just a few
decades ago. Is this a good thing? Does this give more power to some House representatives over

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 others? Do you think this is fair? How does this protect or threaten minority interests?
2c. Use of Cloture in the Senate
Another feature of the modern legislative process, exclusively in the Senate, is the application of the modern
filibuster. Unlike the traditional filibuster, in which a senator took the floor and held it for as long as possible,
the modern filibuster is actually a perversion of the cloture rules adopted to control the filibuster. When
partisanship is high, as it has been frequently, the senators can request cloture before any bill can get a vote.
This has the effect of increasing the number of votes needed for a bill to advance from a simple majority of
fifty-one to a supermajority of sixty. The effect is to give the Senate minority great power to obstruct if it wants
to do so.

 WATCH

Please watch this video about the process of a bill becoming a law.

 TERM TO KNOW

Omnibus Bill
A proposed budget that includes amendments that advance unrelated policies.

 SUMMARY

In this lesson, you learned about the classical legislation process through which a successful bill is
introduced by a member of Congress, referred to committee, amended, and reported out to the floor
where the entire chamber votes on whether to pass it. You also examined how the modern legislation
process is different and, specifically, how unrelated policies can be incorporated into omnibus budget
bills for a yes or no vote, how Senate rules on debate have changed, and how House leaders refer
bills into committees that determine whether the bill will pass to enhance the role of leadership in
directing the amending process.

Source: THIS CONTENT AND SUPPLEMENTAL MATERIAL HAS BEEN ADAPTED FROM OPENSTAX
“AMERICAN GOVERNMENT 3E” ACCESS FOR FREE AT openstax.org/details/books/american-government-
3e

 TERMS TO KNOW

Bill
A draft of proposed law.

Cloture
A parliamentary process to end a debate in the Senate, as a measure against the filibuster; invoked
when three-fifths of senators vote for the motion.

Markup
The amending and voting process in a standing committee.

Omnibus Bill
A proposed budget that includes amendments that advance unrelated policies.

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