How do laws really get made?
Picture yourself in a room with dozens or even hundreds of other strong-minded people. Many of them disagree with your views on just about everything. And they are not shy about speaking up for their beliefs. Nonetheless, you need to work together, in a democratic fashion, to make some very complex decisions. This is the challenge facing members of the House and Senate every time they meet to debate and vote on legislation.
In both chambers, the majority party controls what happens on the chamber floor. Floor time is precious, and what is said on the floor can be used to create sound bites for the news and social media. The speaker of the House and the majority leader of the Senate determine which bills will be debated and who will be allowed to speak for how long.
Once floor debate on a bill begins, the speaker and majority leader both have the power of recognition. No member may rise to address the chamber without first being recognized, or given permission, by the leader. The power of recognition is so important that members of Congress do all they can to stay on good terms with their House and Senate leaders.
Armed with the power of recognition, the speaker and majority leader are usually able to run an orderly legislative process. That process has three main parts: (1) general debate on the bill, (2) debate and voting on amendments to the bill, and (3) voting on final passage of the bill.
With 435 members, the House has to put limits on floor debate. On most bills, the Rules Committee often limits general debate to one hour – 30 minutes each for the majority and the minority parties. The goal of this one-hour rule, like much that takes place on the House floor, is to keep the legislative process moving.
The bill’s sponsor and main opponent usually control a bill’s debate time. They dole out their precious minutes to colleagues who want to speak on the bill. Typically, House members are limited to just one or two minutes at the microphone, so they learn to make their points quickly. Still, with most floor debates now being televised on C-SPAN, members appreciate even this short amount of “face time” in front of the voters back home.
The Senate prides itself on its tradition of unlimited debate. With only 100 members, it can afford to be more relaxed about time. But sometimes, this tradition can bring the legislative process to a halt.
In contrast to the speaker of the House, the Senate majority leader has limited control over the legislative agenda. To schedule a bill, the majority leader often must work closely with the minority leader. The majority leader also has less control over floor debate. Senators must consent to limit debate. If they do not, any senator – once recognized – may speak on any subject at any length.
This right comes into play most vividly when a senator starts a filibuster. A filibuster involves prolonged debate or other delaying tactics aimed at blocking the passage of a bill favored by a majority of lawmakers. A Senate filibuster can go on for days, with one long-winded speaker following another. In 1957, the late Strom Thurmond of South Carolina set the record for the longest single speech. He spoke for 24 hours and 18 minutes in an effort to kill a civil rights bill. At first, Thurmond talked about civil rights. But as the hours rolled by, he read some of his favorite recipes. By the end of his marathon speech, he was reading names from a phone book.
In 1917, the Senate adopted a means of closing debate known as the cloture rule. At that time, this rule required a supermajority of two-thirds of all senators to cut off debate. Today, cloture requires only three-fifths of the Senate, or 60 votes.
A filibuster is not the only delaying tactic available to senators. They can also place a hold on bills to delay debate. A hold signals the lawmaker’s intention of launching a filibuster if the bill is sent to the Senate floor. Because the identity of the person placing the hold may be kept secret, senators use this tactic when they do not want to openly oppose a bill.
Like the rules for debate, the amendment process also differs in the two chambers. In the House, when general debate ends, the measure is opened to amendment. Under the five-minute rule, members debate each proposed change. In theory, though not often in practice, this rule limits members who support and oppose an amendment to five minutes of debate time each. Once all amendments have been voted on, the full House is ready to vote on final passage of the bill.
The Senate follows a similar procedure, with one important difference. According to House rules, an amendment is supposed to be germane, or relevant, to the content of the bill. In the Senate, however, senators can attach amendments that are totally unrelated to a bill. Known as riders, such amendments may be used as “sweeteners” to win more votes for a bill. Or they can serve as “poison pills” designed to make sure a bill fails. Riders are often used to get controversial legislation or bills favoring special interest groups through Congress.
Must-pass legislation, such as an emergency funding bill, tends to attract many riders because the president is unlikely to veto such a measure. The result is often described as a Christmas tree bill. In 1956, Time magazine ran an article with that title about a trade bill that had attracted more than 100 amendments. New Mexico senator Clinton Anderson said of the result, “This bill gets more and more like a Christmas tree; there’s something on it for nearly everyone.”
Floor votes in the House and Senate can be taken in three ways. In a voice vote, supporters all together call out “aye,” meaning “yes.” Then opponents call out “no.” The louder voices, in the judgment of the presiding officer, win the vote. In a standing vote, first the supporters and then the opponents stand to be counted. Neither of these two methods records how each individual lawmaker voted.
In a roll-call vote, each member’s vote is officially recorded. In the Senate, this is done by having a clerk call each name from the roll of senators and recording each one’s vote. The much larger House uses an electronic voting system. Each member inserts his or her plastic Vote-ID card into a voting station slot and punches a button for “yea” ("yes"), “nay” ("no"), or “present.” A vote of “present” means the member abstains, or chooses not to cast a vote on this bill.
Before voting on any bill, most legislators consider the views of their constituents, as well as their own personal convictions. They may also feel pressures and influences from several other, often conflicting, sources.
Interest groups. Interest groups are sometimes called pressure groups-and with good reason. Their lobbyists crowd committee rooms and the halls of Congress. They confront legislators who are undecided on how to vote on a particular bill. They can also be persistent. Senator Ben Nighthorse Campbell once said that being besieged by lobbyists is “like being attacked by a plague of locusts. Now I know what a grain of wheat feels like.”
Party leaders. Leaders of each political party expect their members to support the party’s public policy goal. To gain that support, leaders can pass out favors, such as the promise of a plum committee assignment or help raising campaign funds. They can also use persuasion. Lyndon Johnson, who served as Senate majority leader before becoming president, was a master of persuasion. Two journalists who followed Johnson’s career described what came to be known as “the treatment.”
Colleagues. Members of Congress regularly yield to the pressure to trade votes. This kind of logrolling, or mutual support and cooperation, is a common way to get things done in Congress. Typically, two opposing groups each want a particular bill passed, so each promises to vote for the other’s measure. Simon Cameron, a politician who served in President Abraham Lincoln’s cabinet, aptly defined logrolling as “you scratch my back and I’ll scratch yours.”
Once the House or Senate passes a bill, the bill does not go directly to the president. Both chambers of Congress must vote to approve the bill in identical form before it goes from Capitol Hill to the White House for the president’s signature.
A bill first passed by the House must be voted on by the Senate and vice versa. If the bill is changed in any way by the second chamber, the House and Senate will have to work out a compromise version. This often happens informally, and leaders from the two chambers iron out their differences and come to an agreement on any amendments.
About 20 percent of the time, however, especially with major or controversial legislation, House and Senate leaders cannot reach agreement informally. In such cases, the bill is sent to a joint conference committee. The task of this committee is to work out a compromise that a majority of lawmakers in both chambers can accept and that the president will sign into law.
The speaker of the House and the presiding officer of the Senate appoint members to a conference committee. These members are known as conferees. Typically, each chamber appoints about a half dozen conferees, mainly senior members of the committees involved with the bill. The conferees bargain face to face. To reach agreement, they may heavily revise a bill or even rewrite it completely. For this reason, conference committees are sometimes called “the third house of Congress.”
An agreement reached by a conference committee must have the backing of a majority of each chamber’s conferees. That agreement, known as a conference report, goes back to the House and Senate for an up-or-down vote. This type of vote means that the revised bill must be adopted or rejected as is, with no further amendments, by a majority of the full House and Senate. Only if both chambers approve it can the bill be sent to the president.
Once the bill is delivered to the White House, the president has ten days (not counting Sundays) to do one of the following:
A bill that has been vetoed by the president is delivered back to the first chamber that passed it. That chamber may decide that the bill cannot be saved. Or it may try to override, or cancel, the presidential veto. Historically, only a small percentage of bills approved by Congress have been vetoed.
Overriding a presidential veto is not easy. Two-thirds of the members present in each chamber must vote in favor of saving the legislation. If the first chamber fails to override the veto, the measure dies there. Otherwise, it moves on to the second chamber for a vote. If two-thirds of the lawmakers in the second chamber also approve the override, the bill becomes a law without the president’s signature.
Congressional overrides are more likely when the president belongs to one party and Congress is controlled by the other, or when Congress and the president clash over a particular issue. Both conditions existed during Andrew Johnson’s presidency in the 1860s. Johnson was a southern Democrat, while Congress was controlled by northern Republicans. Congress also disagreed with Johnson’s plans for reconstructing the South after the Civil War.
Under these unusual circumstances, Congress was able to override 15 of Johnson’s 21 vetoes. In contrast, during his four terms as president, Franklin Roosevelt vetoed a record number of 372 bills. Congress managed to override only 9 of his vetoes.
In theory, the lawmaking process in Congress is fairly straightforward. In reality, it is a complex struggle involving many traditions, rules, and competing interests. The rare measure that actually becomes law often bears little resemblance to the bill that was first introduced.
Convening a new Congress Before a new Congress opens, Democrats and Republicans in each chamber meet in party caucuses or conferences. There they elect party leaders, make committee assignments, and formulate strategies.
Working in committee Standing committees and their subcommittees do most of the work of Congress. Directed by powerful committee chairs, these committees study, revise, and sometimes completely rewrite bills.
Voting on bills The majority party leaders in each chamber direct the flow of bills through the process of debate, amendment, and voting. The House, because of its large size, restricts debate. The Senate allows unlimited debate.
Final steps to enactment Before a bill goes to the president, both chambers must pass it in identical form. The president can choose to sign a bill into law or veto it. To save a vetoed bill, both chambers of Congress must pass it again, but this time by a two-thirds majority of those present and voting.