How do laws really get made?
Some people have compared the making of laws to the making of sausage. It is a messy process that calls for mixing together many ingredients-some rather unpleasant-and stuffing them into one package. Some diagrams can explain the lawmaking process in a straightforward manner. However, because lawmaking is so complex and chaotic in real life, any diagram of this process is far too neat, as one former member of the House of Representatives made clear:
You don’t just have an idea, draft it in bill form, and drop it in the House hopper or file it at the Senate desk. Developing the idea is very much a political process-listening to the needs and desires of people and then trying to translate that into a specific legislative proposal.
Once a bill is introduced in the House or Senate, the business of lawmaking begins. In theory, a proposed law first goes to a committee. If approved there, the bill goes to the floor of the chamber in which it was introduced for a vote. If it passes there, it goes to the other chamber of Congress for a second vote. After being approved by both the House and Senate, the bill goes to the president.
In reality, as Representative Hamilton observed, the legislative process is far more complex and filled with hazards. During the months it takes to move a bill through Congress, lawmakers can be pulled in several directions. Party leaders insist on loyalty to the party’s position. Constituents may demand attention to local concerns. Lobbyists may clamor for consideration of their particular interests. And all the while, the news media watch and report lawmakers’ every move.
In addition to these outside pressures, many lawmakers feel an inner pressure to make decisions based on their own principles. As one political scientist put it, “Members of Congress are inevitably caught in a crossfire of competing expectations.”
Congressional elections are held every two years on the first Tuesday in November. Incumbents and challengers vie for all the seats in the House. In the Senate, one-third of the seats are up for election every two years. Most elections bring new faces to Congress. On occasion, an election creates a new majority party in the House, Senate, or both. In January, federal lawmakers, old and new, travel to Washington, D.C., to convene, or organize, the next Congress.
Before the new Congress holds its first formal meeting, lawmakers from each chamber meet with fellow party members in what is known as either a party caucus or a party conference. Four meetings are held in all, one each for the majority and minority parties of the House and of the Senate. Party members meet often during each two-year session of Congress. But the opening meeting is the most important.
At the first party caucus or conference, members begin to organize the new Congress. Their primary task is to elect their congressional leaders: the speaker of the House, majority and minority leaders, and whips. Over the next two years, these party leaders will work to achieve consensus, or agreement, on legislation, a task that will often tax their powers of persuasion.
Another vital task at this first meeting is the formation of party committees. Unlike congressional committees, these groups serve only their political party. Through their party committees, Democrats and Republicans research broad policy questions. They consider strategies for the upcoming session and determine party positions on legislation. They also nominate party members to serve on standing committees.
Leaders of both parties in the House and Senate work out the number of seats the two parties will have on each standing committee. As a rule, seats are assigned to Republicans and Democrats roughly in proportion to their numbers in the chamber as a whole. The majority party leaders, however, make all the final decisions. In this way, they ensure that their party maintains control of each committee.
Nearly all House members sit on at least one standing committee. Many sit on two or even three. In the smaller Senate, members must take on more committee responsibilities. Most of the 100 senators sit on three to five of the Senate’s 20 committees.
A handful of these standing committees are the most sought-after by members, either because the committees control the federal purse strings or because they deal with crucial issues of public policy. The coveted assignments include the Appropriations, Budget, and Commerce committees of both chambers, as well as the Rules Committee and Ways and Means Committee in the House and the Finance Committee in the Senate.
Before a new Congress meets, newly elected members request committee seats. At the same time, returning incumbents may ask to be moved to a more prestigious committee. The party caucus or conference, as well as the full House or Senate, must approve the committee assignments.
Historically, party leaders in Congress used their power to assign committee seats as a tool to ensure party loyalty. Members who received a requested assignment understood that they “owed” party leaders a favor. The leaders would expect to collect those favors in the future as votes on key issues. Party leaders today are less controlling, but they still use committee assignments to reward members of Congress who cooperate and to punish those who do not.
For new members, assignment of committee seats can be an especially trying experience. Like incumbents, they hope to join a committee that will allow them to serve their district’s needs, while also making them look good in the eyes of voters back home. A representative from a district with an air or naval base, for example, might seek a seat on the House Armed Services Committee. Rarely, however, do lawmakers start their career with such a desirable committee assignment.
In general, new members accept whatever committee assignments they receive and try to improve their position in the future. Carl Albert, who first won election to the House of Representatives in 1946, took this attitude. Though assigned to the minor Committee on the Post Office and Civil Service, Albert was determined to start his congressional career on the right foot. He marched into the office of Speaker of the House Sam Rayburn to thank him for the assignment. Rayburn’s secretary mistook the youthful Albert for a teenage congressional page. She informed Albert that the congressman did not have time to talk to pages.
Albert’s dream of moving up in Congress eventually came true. In the 1970s, he served with distinction as speaker of the House. But back on January 3,1947, he was thrilled just to be sitting in the House chamber for the first time. “With befitting solemnity,” he remembered years later, “the clerk of the House began calling the alphabetical roll of members. The first called, Thomas Abernathy of Mississippi, did not respond. The second was Carl Albert of Oklahoma. ‘Here,’ I answered. It was the sweetest word in the English language.”
The first day of any new Congress opens with a series of ceremonies. Once a quorum (a simple majority) is established, the House votes for speaker. Members vote along party lines, so the majority nominee always wins. Next the dean of the House, or the member with the most years of service, administers the oath of office to the speaker. The speaker then swears in all the members of the House at once.
Similar rituals take place in the Senate. There, the vice president swears in the members of the Senate, a few at a time. The Senate majority leader, however, receives no special swearing in.
All members in the House and the Senate take the same congressional oath of office. This oath has been used by Congress since 1868:
After the opening-day ceremonies, the new Congress is ready to get to work. A great deal of that work takes place in committee – so much so that some observers describe Congress as a collection of committees that come together now and then to approve each other’s decisions.
Committee chairs are chosen by the majority party, mainly through a vote of its party caucus. Historically, the choice of chairs was governed by seniority rule. This rule automatically gave the position of committee chair to the majority party member with the most consecutive years of service on the committee. Likewise, the minority party used the seniority rule to select its top committee post-that of ranking member.
Beginning in the 1970s, however, party leaders began considering other factors, such as party loyalty, political skill, and trustworthiness, in choosing committee chairs. Even so, seniority remains the best predictor of leadership in Senate committees. It is the key factor in each party’s choice of chairs and ranking members. In the House, however, fewer committee leaders are chosen based only on seniority, although it remains an important factor.
Bills come to a committee from a variety of sources, including individual citizens and interest groups. A large number originate in departments and agencies of the executive branch. These bills are put forward to advance the policies advocated by the president. No matter where a bill originates, a member of Congress must introduce it. That member becomes the bill’s primary sponsor.
According to the rules of the House, the speaker distributes proposed legislation to the various committees for study. In the Senate, the presiding officer handles this task. In actual practice, however, the House and Senate parliamentarians refer most bills to a committee. Each parliamentarian is an expert on the rules and procedures of either the House or the Senate.
Once a bill is sent to a committee, the chair decides what to do with it. One option is simply to ignore it. Former representative Lee H. Hamilton found this out during his first year in the House. Hamilton and a few other members decided to introduce a constitutional amendment that would increase House terms from two years to four. Hamilton later recalled how they approached the “awesome and fearsome” chair of the Judiciary Committee, Emanuel Celler, to ask him how he stood on the proposal. “I don’t stand on it,” he replied. ’’I’m sitting on it. It rests four-square under my fanny and will never see the light of day.”
Another option is to hold hearings on the bill, either in the full committee or in one of its subcommittees. Subcommittees are smaller groups of lawmakers that focus on particular areas within the full committee’s jurisdiction. The House has more than 100 subcommittees. The Senate has approximately 70. The committee chair can refer a bill either to a subcommittee that will give it a favorable reception or to one that will not. This is another source of a chair’s considerable power.
A committee’s work on a proposed bill can be divided into three phases. At each point, the legislation can move forward or die.
Phase 1: Hearings. The first phase usually begins with a legislative hearing in front of the subcommittee to which the bill was assigned by the committee chair. The purpose of the hearing is to listen to testimonies and gather information from individuals who are interested in or have expertise to share about the proposed legislation. The people called on to testify may include the bill’s sponsors, public officials, lobbyists, and private citizens. To shine the media spotlight on a bill, a chair may even invite a movie star to testify. “Quite candidly,” Senator Arlen Specter admitted, “when Hollywood speaks, the world listens. Sometimes when Washington speaks, the world snoozes.”
Hearings can be fairly short, or they can drag on for days. Subcommittee chairs, for the most part, control the selection and scheduling of witnesses. If they favor a bill, they can move the hearing along. If they oppose a bill, they kill it by scheduling hearings that never seem to end.
Phase 2: Markup. If a bill makes it through the hearings, subcommittee members gather to determine the bill’s final language. This meeting is known as a markup session, because this is when members mark up, or amend, the bill. At least one-third of the subcommittee’s members must be present at a markup session to make up a quorum.
The chair starts a markup session by noting the bill’s title and opening it up to amendment. Amendment procedures vary by committee, but typically any change in a bill must be approved by a majority of those present. The committee members usually debate the merits of each proposed amendment before voting on it.
During markup, members are often torn between their roles as delegates and as trustees. As delegates, they want to address the particular interests of their home districts or states. As trustees, they want to shape a bill that will be good for the country while also attracting support from other lawmakers, the president, and the general public.
Phase 3: Report. Once subcommittee members deal with the last amendment to the bill, they vote on a motion to return the bill to the full committee. Those who do not want the bill to move on vote no at this point. However, if a bill has made it through markup, it will most likely be sent back to the full standing committee.
The standing committee can then accept the bill as is or amend it further – even holding more hearings and its own markup session. It then votes on whether to report the bill to the full House or Senate for a floor vote. If the vote is favorable, the committee staff prepares a written report explaining why the committee recommends the enactment of this bill. It is then up to the full House or Senate to agree or disagree with the committee’s recommendation.
In the Senate, a bill reported out of committee is ready to be voted on by the full chamber. But in the House, the bill’s sponsors need to clear one more hurdle: the House Rules Committee. This powerful committee acts as a “traffic cop” for House legislation. It can move a bill ahead of others on the House schedule so that it can be considered quickly. Or it can delay a bill’s arrival on the House floor.
The Rules Committee also sets the rules for debate on a bill. A bill’s supporters usually ask for a closed rule. A closed rule severely limits floor debate and amendments to a bill. A closed rule makes it easier to get a bill through the House quickly, with no damaging debate or changes. Opponents, in contrast, prefer an open rule. An open rule allows floor debate and the introduction of amendments that could cripple or kill the bill.
The Rules Committee does not act independently of the speaker of the House. The speaker often sets the guidelines for when and how a bill will be debated on the floor. Should the speaker desire changes in a bill, for example, he or she might arrange for an open rule. Former House member Porter J. Goss observed, “How much is the Rules Committee the handmaiden of the Speaker? The answer is, totally.”