The Legislative Process

Introduction

• The last part of the course is to describe the legislative process—how Congress, and the president, make law
• There is essentially an American lawmaking process that is replicated at the state level
• At the macro-level, its basic characteristics are bicameralism—both bodies must pass the same version of a bill—and presentment—that bill must be presented to the executive
• Within Congress the basic process is (1) introduction, (2) committee treatment, (3) floor consideration and disposition

​

Introduction

House

​

​

Senate

​

​

​

COMMITTEE

FLOOR

INTRO

COMMITTEE

FLOOR

INTRO

POST-PASSAGE

PRESIDENT

Introduction

• Before we start our detailed description of the process, there are a number of introductory matters we need to discuss
• 1. The process does not happen in a vacuum
• There are a whole host of actors who are exerting continual pressure on members as they are considering and voting on bills
• These include the president, colleagues (particularly party and committee leaders, the state delegation, ideologically proximate members), constituents, interest groups and their lobbyists etc.
• As we noted, presidential pressure can be direct—through his lobbying of members—or indirect by “going public”

Introduction

• 2. Legislation tends to go through sequentially rather than simultaneously
• This must be the case with tax bills: Article I, Section 7, “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills”
• It is also now the case with appropriations (spending) bills as well, since in the C19th Congress passed taxing and spending bills “bundled” in money bills and even though they are now separate the House continues to pass appropriations bills first as a matter of tradition
• In the first Congresses the Senate was seen as an American “House of Lords”—merely waiting for bills passed by the House
• Today about 35% of major legislation goes through the Senate first

Introduction

• 3. Only about 5%-10% of bills introduced will make it into law
• Most bills that die do so in committee; remember they exercise significant negative agenda powers and are called the “graveyards” of bills
• In the past few Congresses only about 500 bills become law,116^th=344; 117^th=362; 118^th=274

Introduction

Introduction

• 4. In recent years we have seen a penchant for “mega” or “omnibus” bills.
• The length of bills is getting longer while the number of bills passed is getting fewer
• Why? Longer bills are particularly useful at weaving together majority coalitions (picking up members with “sweeteners” so they will vote for the underlying bill) and getting a president during divided government to accept the majority’s policy proposals

Introduction

Introduction

• 5. There are four types of measure considered by the House and Senate
• (i) Bill—these are given prefix HR (if originate in the House) and S (Senate) and then a number
• Numbers are consecutive, although these days leaders reserve early numbers for big bills—HR1 elections reform (117)
• They must go through both bodies and then to the president; they have the force of law
• Congress.gov

​

Introduction

• (ii) Resolution—H.Res or S.Res
• They only go through a single chamber and therefore not have the force of law—although treaties go through the Senate by resolution
• Generally involve changes to a body’s standing rules, special rules in the House also go through by resolution

​

• (iii) Joint Resolution—HJRes or SJRes
• These go through both chambers and sometimes have the force of law—but do not go to the president
• This is the vehicle for constitutional amendments
• War declarations or authorizations for president to use force

Introduction

• (iv) Concurrent Resolution—HConRes, SConRes
• These go through both chambers, never have the force of law
• The best example is the budget resolution
• This is passed, generally in the spring, as a blueprint to guide and constrain committees as they come up with the next stages of the process
• the 12 annual appropriations bills funding the federal government for the year
• if desired, the reconciliation bill that adjusts taxes and/or policy on mandatory spending (the entitlement programs like Social Security and Medicare)—One Big Beautiful Bill Act 2025
• Appropriations nearly always late
• leading to government shutdowns, Oct-Nov 2025 longest
• need for CR (continuing resolution or stop-gap measure)

​

Introduction

• 6. The “de novo” rule
• Bills that do not pass into law by the end of a Congress are dead—regardless of how far through the legislative process they have traveled
• Each Congress starts with a clean slate—i.e. no bills have been introduced and even bills that were passed by a body in the previous Congress must, if they are to become law, be reconsidered by it in the next

Introduction

• 7. “Summitry”—particularly during divided government and since the 1990s
• With the parties polarized and power increasingly centralized—particularly in the House—many of the big bills during divided government are really hashed out between the White House and congressional leadership before they are presented to the House and Senate
• Recent examples:
• Coronavirus response in 2020 (CARES Act, PPP), infrastructure
• Build Back Better (eventually pared down greatly and passed as the Inflation Reduction Act) in 2021—because of Senate filibuster & difficulties qualifying as reconciliation bill

​

Bill Introduction

• 1. Introduction
• Congressional rules provide for a very open bill introduction process
• Any member can introduce any bill on any topic at any time the body is in session. Only members can introduce bills
• In the House this is done by placing the bill in the “Hopper” that is in the chamber—CRS helps with bill language
• In the Senate members introduce bills when recognized to do so by the presiding officer—this is pro forma

Bill Introduction

• Members introduce bills for a number of reasons
• To change the law
• To bring attention to an issue they believe has not got enough of it
• To demonstrate to their constituents that they care about an issue, share their policy views etc
• Members will also try to get co-sponsors for bills, that is a public (it is in the Congressional Record) position in favor of the bill from colleagues
• The goal is to get large numbers of co-sponsors, particularly from both parties and among the party and committee leadership, to demonstrate important support for the bill

​

Committee

• 2. Referral to Committee
• Most bills are referred automatically, matched to a committee by comparing content with the panel’s jurisdiction. This is done by the Parliamentarian
• When the bill’s scope straddles jurisdictions, it can be referred to multiple committees. This is done by the Speaker in the House, unanimous consent in the Senate.
• Approx 1/3 bills this way; many of the most important

Committee

• 3. Committee action
• There are three major things a committee does. These actions can take place in subcommittee or, if the bill is large in scope, in the full committee. Once in a while they will be done thoroughly at both levels
• Each committee divides its jurisdiction into smaller chunks for subcommittees—of which there are generally 4 or 5
• Remember, much of this is contingent upon the chair and/or large numbers of the committee membership supporting the bill in principle. The support of the majority party leadership is important as well

Committee

• (i) Hearings
• So that committee members can gather information about a bill, witnesses are recruited to provide testimony and answer questions. Witnesses might be fellow members, administration personnel, academics and policy experts, business people, and even regular citizens with personal experience of the matter
• To get media attention, celebrities will often be recruited to testify
• Hearings generally help build a case for the bill

Committee

• (ii) Mark-up
• This is when committee members debate and amend the legislation
• Like hearings, the chair controls proceedings which are governed by “sunshine rules”
• Sometimes the committee will start by replacing the bill with the chair’s “mark” or version of the bill. In the House, this is the tradition on Appropriations and Ways & Means

Committee

• (iii) Vote and Report
• After mark-up, the bill—and it might have been revised—then comes to a recorded vote
• If passed, the bill is reported to the full House/Senate
• It is accompanied by a report that provides transcripts of hearing and mark-up, details of all the votes, and a “minority report”. This is all part of the public record and helps non-committee members understand the bill

​

Committee

• Remember that committees have significant negative agenda powers—but these are not absolute
• In the House there are two main ways around a recalcitrant committee
• (i) Discharge Petition
• If supporters of a bill can get a simple majority of members (218) to sign a petition, the bill must be reported
• This procedure was born in the 1910, the threshold has been at various levels but since 1935 has been at a majority of members elected
• It is very difficult to get a bill discharged
• Recent example: 2025, HR 4405 – Epstein Files Transparency Act

​

Committee

• This is because
• Members are reluctant to undercut the authority of committees because they want to maintain their power on the issues within their committees’ jurisdictions
• The petitions must, by definition, be supported by some majority party members
• Often they are successful in an informal way, leaders capitulate and try to maintain control of the legislation even though they have to recognize it must be reported

Committee

• (ii) Suspension of the Rules
• Under this procedure the Speaker brings a bill to the floor without formal committee action
• 66% of measures in the 118^th Congress (2023-4) brought to the floor this way, 681/1032 – 672 passed
• However, there are many formal and informal restrictions on this
• Bills “under suspension” can only be disposed of on certain days (usually Mondays and Tuesdays), are subject to just 40 minutes of debate, cannot be amended, and must pass with the vote of 2/3 members present and voting
• Current rules also place limits on the scope of the bill—particularly how much it would “cost”—and maintain that it must be approved of by both the chair and RMM of the committee—hence maintaining the committee’s control over the issue the bill addresses
• Not surprisingly, bills considered under the expedited process of suspension tend to be uncontroversial

​

Committee

• In the Senate it is easier to get around committee
• (i) Germaneness
• The House has a general “germaneness” rule that states any floor amendment must be relevant to the underlying bill (there are 6 tests of germaneness)
• The Senate does not—although on some bills, for example the budget reconciliation bill, floor amendments must be germane. This means a Senator can offer a bill as an amendment to any other bill

Committee

• (ii) Uncontroversial Bills
• The Senate allows many uncontroversial bills to come to the floor on a simple motion by a member or members
• These are often also placed directly on the floor by “unanimous consent”

​

• (iii) Rule XIV
• House-passed bills can avoid committee treatment in the Senate if Rule XIV is invoked. This is done when a Senator objects to the reading of the bill when it is received by the Senate. It goes immediately onto the calendar

Floor Scheduling

• This is a stage at which House and Senate lawmaking becomes very different

​

• 1. House

​

• Before the bill can be put on the floor, it must be given a “special rule” by the Rules Committee. These determine the conditions under which the bill will be debated

​

Floor Scheduling

• The Rules Committee has been doing this since the 1880s

​

• Rules meets to discuss what rule to use. Only members can testify to Rules when it does this

​

• Special rules are reported as resolutions and today come in many different forms

​

Floor Scheduling

• There are simple rules
• (i) Open—these rules subject the bill to any amendment on the floor (remember it must be germane)
• (ii) Closed—these rules prevent any amendments, the floor therefore just debates and votes on the bill reported by committee. Closed rules are traditionally given to bills reported by Ways and Means
• (iii) Modified Open/Closed—these rules state that the entire bill is open/closed to amendment except for a certain specified section
• (iv) Structured—these rules explicitly state the amendments that are in order and name their offerers

Floor Scheduling

• And today there are very complex rules
• (i) King-of-the-Hill and Queen-of-the-Hill
• On these a series of substitute amendments are in order—these are amendments replacing the entire bill with another
• On King-of-the-Hill, only the vote on the last substitute counts
• On Queen-of-the-Hill, the substitute with the most votes—so long as it is a majority—“wins”
• They allow members to take formal votes with no meaning on a myriad of tax and spending provision. These votes can provide important cover during an election

Floor Scheduling

• (ii) Self-executing (“deem-and-pass”)
• These are “2-for-1s”; the passage of the rule also leads to the passage of the bill.

​

• Once a rule is reported from Rules, the Speaker can then schedule the bill for floor debate
• Sometimes the Speaker will wait, particularly if he/she is unsure of securing the necessary votes for passage

​

​

Floor Scheduling

• 2. Senate
• The Senate does not have the equivalent of special rules
• This is a problem because Senate standing rules effectively allow for “unlimited debate”
• The power of recognition resides with the Senator who has the floor
• In 1806, the Senate got rid of the “previous question” procedure that was in its rulebook. The PQ provides a way for a majority to bring debate to a close and the measure under consideration for immediate vote.
• Senators therefore attempt to get a “unanimous consent agreement” or UCA

​

​

Floor Scheduling

• These are as binding as special rules are on House members as they consider a bill. But there are two major differences
• All Senators, theoretically at least, need to agree to a UCA. In the House a simple majority needs to pass the rule
• UCAs are often exceedingly complex and can evolve over time. Sometimes the majority and minority leaders are crafting them as the bill is being debated on the floor
• Going to the floor without a UCA risks a filibuster

​

​

Floor Debate

• 1 House
• The first order of business is consideration of the special rule—which of course is in the form of a resolution. This is debated under the House’s standing 1-hour rule and no amendments are permitted
• The rule is usually passed—not least because the majority leadership works hard to make sure that is the case. The passage of the rule is critical to the majority leadership’s control of the floor agenda

Floor Debate

• At this point the body resolves into the Committee of the Whole—essentially a parliamentary device that has a lower quorum (100 instead of 218 as in the Constitution), shorter time to consider amendments (5 mins. Instead of 1 hour), fewer needed to trigger a recorded vote (25 instead of 54—1/5 of quorum as in the Constitution)
• Each “side” has a floor manager. These people are named in the special rule and are generally the chair(s) and RMM(s) of committees of jurisdiction and other notable members in the bills pre-floor history

Floor Debate

• The presiding officer (called the “Chair” in the COW) has the power to recognize individuals for a certain period of time. Floor managers parcel out their time and ask that colleagues be recognized for the time allotted to them
• The presiding officer is generally a majority party member given the job by the Speaker
• If in order, amendments can be offered—they are debated under the 5 minute rule
• When time expires, the presiding officer calls the PQ—this is pro forma and has been passed when the body accepts the rule

​

Floor Debate

• Today the House votes in two different ways
• Voice vote—in this instance the presiding officer calls for the “yeas and nays” and determines which side he believes has won
• Recorded vote—all important measures are disposed of in this way and the Constitution allows for 1/5 of members to call for a recorded vote
• Done by electronic device, members have an ID card they place into slots on the back of benches in the House and then press buttons to denote which way they have voted
• Their votes are transparent and come up on a “scoreboard” behind the dias

Floor Debate

• 2. Senate
• The Senate has two calendars—General Orders and Executive, treaties and nominations are on the Executive Calendar
• Senators have been given the opportunity to place “holds” on bills to prevent them from coming to the floor
• Holds are allowed not by formal rules but by convention. Majority and Minority Leaders recognize them but Senators are supposed to use them only in extreme circumstances

​

Floor Debate

• Holds signal to leaders that a Senator has a problem with the bill and that a filibuster is very likely if the bill should go to the floor
• The holder’s leader will go to them to see what can be worked out. Of holders desire some changes to this or other legislation before they will relinquish the hold
• Holds used to be anonymous—since 2007 holders’ names are revealed after two days, presumably so colleagues can lobby them
• Tommy Tuberville (R-AL) holding of military appointments, 118^th Congress

​

Floor Debate

• The Majority Leader brings a bill to the floor—and reports UCA if there is one
• Since 1930s under Senate President Jack Garner (D-TX), the Majority Leader is given the privilege of “initial recognition”
• He then passes off the debate off to others and it unfolds, if there is one, under the rules of the UCA
• Unlike the House, Senators speak from desks assigned to them

​

Floor Debate

• Because there is no PQ and Senators who hold the floor have the power of recognition, we can get a filibuster
• A filibuster occurs when a Senator or Senators hold the floor indefinitely so as to prevent a final vote on the measure under consideration (bill, resolution, or amendment)

Floor Debate

• There were relatively few filibusters in the C19th, those that occurred were successful
• By the early 1900s, however, their frequency was increasing and many believed change was needed
• In response to the filibuster of the Armed Ship Bill in March 1917, the Senate established Rule XXII
• Rule XXII provided a way to force a filibuster to come to an end—if 2/3 Senators elected voted on a “cloture” motion

Floor Debate

• Rule XXII amended several times—it took on its current form with changes in the 1960s, 1975 and 1986
• In the 1960s, Majority Leader Mike Mansfield (D-MT) presided over the establishment of the “track system”
• This meant a filibuster no longer blocked the entire Senate, just one bill—helping reduce the “cost” of a filibuster and making their use a more appealing tactic
• This brought an end to the old “Mr Smith” filibusters—e.g. the longest solo filibuster was by Strom Thurmond (then D-SC) against the 1957 Civil Rights Act, 24 hrs 18 mins
• Cory Booker, 25hrs 5 mins, “speech” not a filibuster because a general protest, not aimed to block a vote on a specific bill

Floor Debate

• Today 60 votes are needed to break a filibuster, this was established in 1975
• There is also a 30-hour cap on post cloture debate and any amendments must be germane
• There are a number of measures that do not permit a filibuster—budget reconciliation
• As you might imagine, the filibuster is an attractive tool for the minority and is used by them quite a lot—particularly given the recent polarization we’ve seen

​

Floor Debate

• Significant discussion of filibuster reform
• It has been effectively ended for confirmations
• Proposals for legislation
• Eliminate entirely
• Eliminate on procedural motions, so can only be on legislative matters
• Lower the threshold for cloture
• Perhaps 55
• Perhaps ratchet-down over time
• Force “Mr Smith” filibusters

Floor Debate

• The Majority Leader’s “initial recognition” has led him to try to expedite proceedings. Two strategies are used:
• 1. “Fill the amendment tree”—here the Majority Leader offers a number of amendments that, given Senate rules, prevents colleagues from being able to offer any other to the bill
• 2. “Pre-emptive cloture”—here the leader offers a cloture motion before debate even begins, in an effort to bring about a foreseeable end

Post-Passage Process

• If a bill has been passed in identical form by both the House and Senate it is ready to go the president’s desk
• However, it is often the case with important legislation of broad scope that the House and Senate have passed different versions of the same bill. If this is the case they must be reconciled
• There are several ways this can be done
• 1. A body may accept the other’s bill as is—this is the most frequent, around 75% of all bills that get this far

Post-Passage Process

• 2. “Amendments Between the Houses”—a game of “ping pong” until both have approved the exact same language
• This was the case with ACA/Obamacare
• The House passed the bill first (11/09) and the Senate struggled to pass it 12/24/09
• The Senate bill was to the right of the House bill and Reid expressed a belief that he did all he could to overcome filibusters and the Senate could not budge
• Pelosi prevailed on liberal House Democrats but many still believed there were a few things in the Senate bill they could not vote for
• As a result, (1) the Senate passed a “fix” bill, (2) The House passed the Senate bill that had been “fixed”

​

​

Post-Passage Process

• 3. Conference Committee—this is the traditional way on major bills
• Conference committees are made up of members of the House and Senate who played a role in getting the bill passed—chairs, RMMs, and senior members of the committees of jurisdiction, sponsors etc.
• Each body has one vote and both must agree for a conference report (the final bill) to be issued
• Provisions of the bill that the House and Senate have agreed upon are not supposed to be negotiable and conferees are supposed to come to agreements somewhere between or at the House and Senate positions

​

​

Post-Passage Process

• Many fewer these days, particularly when House & Senate split between the parties
• Even fewer in 117^th & 118^th, no reports in 117^th
• One problem is that the motion to go to conference in the Senate can be filibustered
• Historically, conference committee proceedings have been less transparent than standing committees

Post-Passage Process

Post-Passage Process

• Conference reports are then returned to the bodies—no amendments are allowed but they can be filibustered in the Senate and they need a special rule in the House

​

• Having passed both bodies in identical form, a bill then goes to the president who can do any of 3 things
• 1. Sign the bill—in which case it becomes law (remember “signing statements”)
• 2. Do nothing
• After 10 legislative days the bill becomes law. If 10 legislative days cannot expire because Congress has adjourned sine die, the bill is subject to a “pocket veto”—we discussed this procedure earlier

​

Post-Passage Process

• 3. He can veto the bill
• Vetoes need votes of 2/3 of both bodies to be overridden
• Body in which the bill originated gets to try to override first
• Presidents of course use veto threats throughout the legislative process to try to affect the outcome
• Presidents will also reluctantly sign bills they would like to veto because they know they would be overridden and do not want to appear weak
• Between 1997-98, the president could use a line-item veto on spending and specific tax bills. The provision was declared unconstitutional in Clinton v. New York (1998)
• Veto figures are shown over

​

​

Post-Passage Process

​

​

Post-Passage Process

• You can see that the number of vetoes has decreased—largely as a result of fewer bills reaching the stage but also because presidents use veto threats more vigorously these days
• The proportion of vetoes overridden is generally much higher during divided government
• Trump’s 2 in 2025—minor local legislation he believed was waste of money