The Legislative Process

"Listen to advice and accept instruction, and in the end you will be wise." - Proverbs 19:20 (NIV)

I'm performing my public service for the election cycle by helping people understand how the legislative process works at the national level.  Now, before I get what has become the standard response to some of my posts of "What makes you qualified to tell us about this," or "Who made you an authority on this," type of questions (obviously meant as a way to say I don't know any more than you) let me establish my bonafides up front.

First, I have a Bachelor's Degree from Southern Nazarene University in Political Science and a Masters Degree from the University of Central Oklahoma in Political Science.  So from an academic/intellectual perspective, I've been studying this for some time.  Second, I worked for a U.S. Representative for 6 years.  So I have coupled my academic knowledge with actual real-world experience.  Finally, several local institutions of higher education have found my ability to communicate this material to others of such high quality that they have hired me to teach it to their students.  So I hope we can dispense with all the questions/attempts to say I don't know what I'm talking about.  I do.

If you want to understand how the legislative process works, heed the scripture quoted above, and try to put your preconceptions behind you.

Congress is divided into two separate chambers:  The House of Representatives and the Senate.  While these two bodies combined form "Congress" they are distinct institutions that have their own rules, their own calendars, their own requirements, and their own agendas.  Neither chamber is required to review legislation passed by the other.  Legislation often dies this way, especially in an environment like the current one, where each chamber is controlled by a different party.  But it happens when one party controls both institutions as well (the demise of many provisions of the "Contract with America" advanced by House Republicans is an example of this).

The House of Representatives is comprised of 435 members divided among the 50 states based on population.  These members serve two-year terms.  After each census, reapportionment occurs.  This is where the 435 seats may be re-distributed among the states should population growth/shifts require it.  The individual state governments are required to draw the districts (geographical boundaries) of each House District in their state.  Individuals running for the House of Representatives are required to live in the state for which they are running (i.e., you can't live in Oklahoma and run for Congress in Florida).  However, you do not have to live in the House district for which you are running (although as a practical matter, it's difficult to win if you don't live in the district).

The Senate is comprised of 100 members, with every state having an equal number - 2.  While each senator is elected to a 6-year term, they are set on a rotating basis, where only 1/3 of the senate is elected every two years.  This is unlike the House of Representatives, where the entire membership is elected every two years.  Senators are not bound to geographic districts within the states, like House members.  They both represent the entire state.  Because the Constitution requires equal representation in the senate, senators are not affected by the census and there is no reapportionment.  Like house members, an individual running for the senate must live in the state for which they are running.

The House of Representatives was designed to be very sensitive and responsive to the "passions" running through society.  Because House members are elected so frequently, they must have a strong connection to the people in their individual districts.  Because of this sensitivity to political movements among voters, the majority party in the House has the ability to move legislation through that institution with little resistance from the minority party.  Not only does the majority party have it's nominee elected as Speaker of the House, but it also controls all the committee and subcommittee chairmanships - which means it has control of the legislative process in the House.  The majority party does not have to be responsive to the minority party's concerns, complaints, or wishes. 

The Senate was designed to be more detached from the same political passions that so affect the House of Representatives.  Because senators have longer terms, and because they were not originally elected directly by the people, they could afford to examine proposed laws from a more "objective" view (so was the theory).  However, with the ratification of the 17th Amendment, senators did become more affected by the political winds.  But the length of their terms still provide some insulation, as compared to their counterparts in the House.  Because the Senate was expected to be more detached, it developed rules that allow the minority party greater power to slow down the legislative process.  I'll discuss these in more detail below.

Both the House and the Senate are divided into committees.  Here are two links where you can access information about specific committees in each chamber:  http://www.house.gov/committees/ and http://www.senate.gov/pagelayout/committees/d_three_sections_with_teasers/committees_home.htm

As I indicated earlier, the majority party in both chambers controls the chairmanships of their committees.  This gives the majority party great power in determining what bills will actually be voted on in each chamber.  Committee chairs have virtually complete control of the process within their committees, and most bills die in committee.  In the House, the Speaker has tremendous power in the legislative process.  The Speaker approves committee chairmanships, committee assignments, and directs which committee(s) proposed legislation will be directed.  The Senate has no single individual with the same amount of power as the Speaker of the House.  The majority leader of the senate is much less able to control the legislative process than the Speaker can in the House.

Within the committees and their subcommittees, the real work of writing legislation begins.  Hearings may be held.  But such hearings are rarely "fact finding" exercises.  They simply allow the majority party (and sometimes the minority party) the opportunity to provide "witnesses" stating why they oppose or support specific proposals.  And remember, especially in the House, only that legislation which is supported by the majority party will be passed out of committee. 

In the House, once a bill has been reported out of a committee (received a majority of "yea" votes by the committee members), it goes to the Rules Committee, where the terms of debate are created.  These terms include the length of debate on the measure as well as whether or not amendments will be allowed.  Once the House has approved the Rule on a bill, it will be debated and voted upon.  But remember, at every stage of the process, the majority party has complete control of the process.  In the House, the minority party can make a lot of noise, but they can't really prevent anything from passing, or required the majority party to address their concerns.

In the Senate, the minority party has much more power to demand the majority party listen and address its concerns.  The senate has the rule of "unlimited debate."  So discussion of a proposal can go on indefinitely.  In order to stop debate, the senate must take a cloture vote.  To successfully enact cloture 60 senators must vote to do so.  In a period in which neither party has 60 senators, achieving cloture on the most controversial measures can become very difficult.  Unlimited debate allows senators to filibuster a bill - in effect to talk it to death.  Since the senate does not have a rules committee like the House, it utilizes unanimous consent agreements to set the parameters of debate for proposed laws.  However, a senator can prevent "unanimous consent" by placing a hold on the legislation.  The one measure that is specifically not subject to a filibuster in the Senate is the budget reconciliation legislation passed by Congress.  The Budget Act of 1974 specifically exempts reconciliation measures from filibuster attempts by only requiring 51 votes to pass (Senate Democrats used reconciliation to pass the Patient Protection and Affordable Care Act since they could not produce 60 votes for cloture).

If the House and Senate produce differing versions of the same legislation, a conference committee is created which has members of both chambers and is designed to reconcile the differences.  Once a conference committee has completed its work, the measure is scheduled for a straight up or down vote in both chambers. 

Once legislation has been passed by both chambers, it proceeds to the President where it will be signed or vetoed.

Some important things to take away from this.  The majority party, in both chambers has control of the process.  In the House, it's almost complete.  In the Senate, that control is not as complete, but the majority party still gets its way, generally.

Also, when a party has a slim majority in either chamber, it gives factions within that party much more power to demand concessions from its leadership.  This means, especially on controversial legislation, it is usually the majority having to make agreements with individual or groups of members within its party to pass legislation more often than having to reach compromise with the minority party.  Again, this is particularly true in the House.

In addition, don't confuse legislative "debate" with actual persuasion.  Debate in either chamber is not about trying to convince anyone that they should change their position.  Debate in Congress is more about individual Representatives and Senators being able to make small speeches about legislation so they can ensure their constituents know where they stand on proposed laws.

Also, realize that most proposed laws never get past the committee stage.  Perhaps 1 in 10 proposals are reported out of committees for a full vote by either chamber.  Given that the majority party in each chamber controls committees, it is not surprising that the legislation that party desires is what is approved.

Finally, let go of the notion that their is much in the way of "cooperation" between the majority and minority parties in Congress.  First, they aren't elected with an expectation of cooperation.  In other words, people don't elect a Republican to go to Congress and start voting with Democrats, or vice versa.  They expect legislators to vote in a manner that is consistent with their party labels.  Second, the majority party holds almost all the cards at the legislative table.  It rarely, if ever, needs the cooperation of the minority party to pass anything.  It can, and has "steamrolled" the minority party on legislation for a long time.

I hope this has been helpful in understanding how the institution of Congress actually produces laws.  I'll admit, it's a basic introduction, but it should give you a good overview of what happens in Congress.