The Legislative Process

The legislative process is more complicated than taught in most civic courses. This section presents a detailed description of the legislative maze a bill must navigate before it can become law. (Prepared by our Visiting Scholar, Ilona Nickels.)

Additional narratives of the legislative process are available from the House and Senate Parliamentarians. Visit "Enactment of a Law" or "How Our Laws are Made".

The Stages of the Legislative Process

  • bill introduction
  • referral to committee(s)
  • committee hearings
  • committee mark-up
  • committee report
  • scheduling legislation
  • house: special rules, suspension of the rules, or privileged matter
  • senate: unanimous consent agreements or motions to proceed
  • floor debate
  • floor amendment
  • vote on final passage
  • reconciling differences between the house and senate
  • amendments between the houses, or
  • conference committee negotiations
  • floor debate on conference report
  • floor vote on conference report
  • conference version presented to the president
  • president signs into law or allows bill to become law without his signature
  • president vetoes bill
  • first chamber vote on overriding veto
  • second chamber vote on overriding veto
  • bill becomes law if 2/3 vote to override is achieved in both chambers
  • bill fails to become law if one chamber fails to override

                

The Legislative Process

Introduction

Under the United States Constitution, in Article I, section 1, the power to legislate is vested in the United States Congress. The Congress is made up of two bodies: the U.S. House of Representatives and the U.S. Senate. The concurrence of both is required to enact a law. However, each chamber has a unique mission, distinct rules of procedure, and different traditions. The bicameral design of the U.S. Congress is consistent with the basic principle of government embraced by the framers of our Constitution: that dividing government into units which must share power with one another provides an inherent check against tyranny.

The fact that the Congress does not act as an efficient, homogenous unit, but as two bodies often in conflict with one another, adds to the difficulties in processing bills from introduction through to law. The U.S. legislative process can accurately be described as legislative Darwinism, or survival of the fittest. In recent Congresses, not even 6% of all the bills introduced became law. This means that within the 2-year life-span of a Congress, an average of 94% of all the bills introduced fail to reach enactment. For more data see the Appendix at the end of this report. The bias built into the U.S. legislative process makes it difficult to enact a law but easier to block its passage.

Bicameralism

In creating a bicameral legislature, the framers saw the House as the chamber representative of, accountable to, and closely connected with the American people. The entire membership of the House, now set at 435, stands for election every two years. Through frequent elections, Representatives are viewed as more likely to be sensitive to changes in popular sentiment. Representatives come to know their constituencies well and are expected to accurately reflect the views of the local citizenry and advocate the needs of their districts.

The Senate is a continuing body; only one-third of its membership of 100 runs for election at any one time. Moreover, each Senator stands for election only every six years. The continuity of the chamber and the longer term is to ensure that Senators will be better able to resist the immediate pressures of popular thought and serve to restrain the House.

While the House is meant to reflect the wishes of the majority of the American people in the lawmaking process, the Senate is designed to force the deliberation necessary to thoroughly examine the popular opinion. Deliberation requires delaying passage of proposals until adequate discussion has taken place. As a result, the Senateís rules and traditions give advantages to the minority, such as unlimited debate, so that they can stop the majority from acting too rapidly. The rules and traditions of the House, however, favor the majority -- to ensure that the peopleís views prevail and that no minority may obstruct them.

Rules and Procedures Governing the Legislative Process

Both bodies follow parliamentary procedures that are based on a variety of sources. In each, there is a body of standing rules: 51 in the House and 42 in the Senate. The House Rules, accompanied by extensive annotations from the Parliamentarian, are contained in a volume known as the House Rules and Manual. The Senateís rules are contained in the Senate Manual.

gavelAlso governing procedure in both chambers are the precedents of each body. Precedents are past rulings of the presiding officer which expand upon, explain, or fill in gaps in the written body of standing rules. The precedents are compiled at the end of each Congress and combined with previous ones. Precedents need to be viewed simultaneously with the standing rules for an accurate picture of proper procedure.

Some floor actions are taken, not pursuant to either the rules or precedents, but pursuant to statute -- previously enacted public laws with rulemaking provisions written into them for specific pieces of legislation. Prominent examples include the Congressional Budget Act of 1974, governing budget resolutions and reconciliation bills, and the fast-track authority governing bills implementing trade agreements, like NAFTA, in the Trade Act of 1974.

Finally, the U.S. Constitution sets forth a few procedural mandates for both the House and Senate in Article I, e.g. requirement for a sufficient second of 1/5 of those present to obtain a yea-and-nay vote, and requirement for the presence of a quorum in order to conduct business.

Bill Development and Introduction


                

Rep. Larry CombestOnly a Member of Congress can introduce a bill. However, the idea for the legislation may be developed elsewhere. Members receive proposed drafts of bills from constituents, academics, interest groups, lobbyists, state legislatures, executive branch departments, federal agencies, and the President of the United States. Members who embrace the concept can introduce it as their own, or if they wish to keep some distance from the proposal, can introduce it by request, with those words printed on the face of the bill, after their name as sponsor. This implies they introduced the bill out of professional courtesy, but does not mean they are necessarily embracing its ideas.

Introductory statements are not required in either chamber; they are a matter of discretion on the part of each Member. Without an introductory statement to review, it is often impossible to discern in the public record on whose behalf a bill is being introduced. The words on the bill itself, by request, are insufficient to reveal whether the request comes from a public official or a private organization. Moreover, the House Rules and Manual states that: It has never been the practice of the House to permit the names of the persons requesting the introduction of the bill to be printed in the Record. [Rule XXII, Clause 6, section 860.]

At times, a proposal for legislation emanates from the President and is given much advance publicity, or is announced formally by him -- in a State of the Union speech, for example, or in a press conference. The U.S. Constitution in Article II, section 3, states that:

He shall from time to time give to the Congress information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient . . . .

In those instances it is widely known that when a Member of Congress does respond to the Presidentís recommendation and proceeds to introduce the proposal in legislative form, it is done on behalf of the President. However, the fact that the idea for the legislation did come from the President of the United States carries no guarantees with it. The bill introduced on his behalf by a Member of Congress will still go to House and Senate committee(s) which will work their will on it. The politics of divided government (i.e. when the White House is controlled by one party and the Congress by the other) will have an impact. Sufficient votes within the Presidentís own party may not materialize to support his proposal. The opposing party may radically change his proposal as introduced through successful floor amendments. The American governmental tradition of checks and balances is so well established that the President cannot rely on congressional concurrence for his policy proposals, no matter how grandly proposed. He must lobby ferociously for them with the American people and their elected representatives -- just as do all other legislative advocates in our system which respects and protects the independence of the legislature from the executive.

The motives Members of Congress have for introducing a bill are many. Obviously, enactment into law is primary. At other times, bills are introduced to gain a focal point for generating interest and discussion of a subject matter. Sometimes, bills are introduced only to appease constituents or political groups. They may be introduced to spur the executive or judicial branches into action. Or as mentioned above, they may be introduced by request on behalf of a private individual or public official.

Given the low percentage of bills enacted into law, only those bills vigorously promoted among colleagues and given vocal support by outside interest groups will advance. Bills that are not promoted, that lack policy urgency, or political consensus will not move. No matter how well-drafted, bills are just pieces of paper. Someone must push them along for them to progress through the maze of the legislative process.

Types of Legislation

An important question to be settled in preparing a bill for introduction is its form. Some legislative vehicles are law-making; some are not. Although the word bill is accepted widely to mean any piece of legislation, including even in this article, that use is not technically precise enough. The word, measure more accurately encompasses all the varieties available. Brief definitions of the various types of legislation follow:

Bills. These become law. That means passage is required in both the House and Senate and the President must sign them into law or allow them to become law without his signature. Bills are numbered H.R. in the House, e.g. H.R. 1300; and S. in the Senate, e.g. S. 300.

Joint Resolutions. These also become law. Again this requires passage in both the House and Senate, as well as Presidential approval. Joint Resolutions are numbered H.J.Res. in the House (e.g. H.J.Res. 633); and S.J.Res. in the Senate, (e.g. S.J.Res. 133). By tradition, it is joint resolutions which are used for any proposal to amend the Constitution. Contrary to bills, joint resolutions may also contain a series of whereas clauses (an explanatory preamble) and a resolving clause.

Concurrent Resolutions. These do not become law. Instead they take an action on behalf of both chambers. This means both the House and Senate must pass them, but they are not sent on to the President. For example, concurrent resolutions are used to set the spending and revenue levels in the Congressional Budget Resolution, which does not rise to the level of law. Concurrent resolutions are also used for sense of Congress language -- advisory in nature and unenforceable -- which, for example, expresses the opinion of the Congress about a Presidential action, or congratulates a foreign leader on his election, or expresses condolences to another nation for a loss. Concurrent resolutions are also used to create the occasional joint committee of Congress, and for administrative acts, such as granting the use of the Capitol Rotunda for a ceremony. Concurrent resolutions are numbered H.Con.Res. in the House, e.g. H.Con.Res. 210; and S.Con.Res. in the Senate, e.g. S.Con.Res. 160.

Simple Resolutions. Simple resolutions do not become law. They speak on behalf of one chamber only. They need only pass in that one chamber. A simple House resolution might be used to create a new House committee. A simple Senate resolution might be introduced to express the opinion, or the sense of the Senate on a matter. Simple resolutions in each chamber are offered to amend that bodyís standing rules. Simple resolutions are numbered H.Res. in the House, e.g. H.Res. 249; and S.Res. in the Senate, e.g. S.Res. 85.

Bill Referral

Once introduced, bills are referred to one of 20 committees in the U.S. Senate and one of 20 in the House. Committees each have varying subject matter jurisdictions based on years of precedent, some of which have risen to a level of codification in the rules of the chamber. The subject matter of the bill, as determined by each chamberís Parliamentarian, dictates its referral to the appropriate committee. If more than one subject matter is involved, the Senate practices primary jurisdiction. The committee with ownership of the bulk of the subject matter receives the total bill for processing, regardless of matter extraneous to its jurisdiction. However, in the House, the Speaker may designate one committee as primary for the bill and another as secondary, with authority to speak only to those parts of the bill which correspond to its jurisdiction. The House also permits sequential and split referrals:

Sequential referral. This referral sends the bill first to one committee, then when (and if) it completes consideration of the bill, it is sent to a second committee. If the second committee likewise chooses to report the bill, it goes to the House floor.

Split referral.This referral breaks a bill into its component titles. Titles go to various committees as dictated by the subject matter. Each committee receives the titles appropriate to its jurisdiction simultaneously. All must report their provisions before the legislation is eligible to receive floor consideration.

The Speaker of the House makes the decision on what kind of referral a bill should receive, based on the advice of the Parliamentarian and based on the political agendas of the chairmen involved. In general, bills referred to more than one committee have longer odds in reaching enactment. More panels are involved, more schedules have to be coordinated, and more policy conflicts will need resolution. Although not impossible with adequate political will, it is clearly more difficult to clear multiple committee hurdles, rather than a single one.

Committee Consideration

There is no requirement in either the House or Senate that committees act on a bill. Once a bill has been referred to a committee it remains there until the committee either reports it out (which requires a majority vote of the committee membership) or is discharged from its further consideration (which requires a majority vote of the entire chamber). Committees receive far more bills than they are able to process. It is largely the chairmanís call, in consultation with other Members on the committee, to schedule specific bills for consideration, and ignore others. Because a majority vote is required to report a bill to the floor, chairmen cannot be completely arbitrary in making these agenda decisions. However, if a chairman declines to schedule a bill for committee consideration there is little effective procedural recourse in either chamber. Persuading the chairman to schedule a matter becomes part of the political work each Member undertakes when he is assigned to a committee.

Although not required, most committees will begin a billís consideration by holding public hearings. Hearings may focus on a specific bill or alternative bills dealing with the same subject matter. Or they may be held to examine a subject matter, without specific legislation in mind. Hearings may also be held apart from legislative goals. They can be held to investigate a scandal that has already erupted, or alleged malfeasance in office. Hearings are sometimes oversight in nature, considered part of the checks and balances of the American governmental model, which require Congress to supervise executive branch actions.

When holding a hearing, the committee will usually call expert witnesses, occasionally average citizens to dramatize a problem with a personal story, Members of Congress with experience in the matter, and executive branch officials to explain their actions or inactions.

Rep. Robert WexlerAfter hearings have been completed, a committee will almost always hold a mark-up session next, if it has decided to proceed with the legislation under consideration. Mark-up is the term given to a committee meeting during which Members offer specific changes to the language of the bill in front of them -- literally marking up the text of the original bill. Their amendments may seek to insert additional language at points in the original bill, to delete existing language, or to delete existing language and insert in its place new text. Another choice is for the committee to scrap the existing bill completely and transform what the Members have learned in the hearing process into a new, alternative bill. The new bill is then introduced by the committeeís chairman and referred to as a clean bill. The committee must then take a vote on whether or not to report the clean bill to the chamber floor for further consideration. Legislative histories and databases will provide links between the original bill introduced and the new bill which has superseded it.

If the decision is made to report the bill, most committees will write reports to accompany the bill to the floor explaining their actions and providing a comparison with current law. House rules require every committee to issue a report whenever it sends a bill to the floor. However, the Senate has no such requirement. Reports are discretionary. Most committees prefer reporting a bill with an accompanying report. However, there are often time constraints or a perceived lack of widespread interest in the bill which may lead a committee to dispense with preparing a report.

Awaiting Floor Action

Once reported, a political decision must be made whether to schedule or not schedule a bill for floor consideration. Scheduling is a matter of political timing and is based on an acute awareness of the daily vote count. As a result, there is often a considerable time lapse between the day a committee reports out a bill and the day it is taken up on the floor for consideration by the entire body. In the House, bills are lodged on either the Union or House Calendars, and await consideration there while a scheduling decision is being made. The Union Calendar is used for bills which directly or indirectly expend money or raise revenues, while the House Calendar is used for everything else.

In the Senate, measures await consideration on the Legislative Calendar, known formally as the Calendar of General Orders.

Bringing a Bill to the Floor

In both chambers, the authority to call up bills for consideration on the chamber floor rests with the majority partyís leaders. In the House, the decision is made after consultation among the Speaker and his immediate deputies, such as the House Majority Leader, Majority Whip, and party conference chairman. Also called in are the committee chairmen appropriate to the subject matter. An individual Member, no matter how persuasive, lacks the tools to circumvent or reverse the leadershipís decisions concerning the legislative agenda. The only way to do so, short of persuasion, would be to marshal the necessary 218 votes (a simple majority of the House) to adopt a discharge motion, forcing a bill out of committee and bringing it to the floor. The procedure is rarely attempted because it is rarely successful. For members of the majority party, it has the political consequence of alienating oneís party leadership, for it seeks to alter their chosen legislative agenda.

Once the House majority leadership has made the decision to call up a matter, it determines under what conditions the bill will be considered. Under the regular order, debate on the bill would be for one hour equally divided between the two parties, and debate on each amendment would be five minutes for each side. In some cases this is perceived as too generous, in others as too restrictive. As a result the leadership often decides to provide for a special order of consideration rather than allow the regular order to proceed. These are known as special rules, and are drafted by and reported from the House Rules Committee.

In the Senate, the authority to call up a bill is reserved for the Majority Leader. In setting the legislative agenda, the Majority Leader consults with the Minority Leader, with the committee chairmen appropriate to the subject matter, and any individual Senators who have notified him of their interest in the legislation at hand. The Senateís Majority Leader must be more inclusive and accommodating than the Speaker needs be in the House, because he is restrained by the tools available to him to call up bills. Senate procedure permits only two: the unanimous consent of all Senators, or a motion to proceed to the consideration of a bill. One single objection prevents unanimous consent from succeeding, so if this route is chosen extensive negotiations to meet every Senatorís concerns must precede it. The alternative, the motion to proceed, is problematic because it is fully debatable, and often invites extensive debate, prior to even reaching the bill itself.

As a result of the decision to use unanimous consent as the favored method to call up a bill, individual Senators can expect to have their scheduling needs and policy views considered by the party leaders as consensus is sought to bring legislation to the floor. This gives them far more procedural autonomy and influence than their House counterparts enjoy.

Debate and Amendment

House rules set time restrictions on all forms of debate, not surprising given the size of the body. Once a bill is on the floor, Members are normally yielded anywhere from one to five minutes to speak on the pending matter. It is the responsibility of the majority and minority floor managers for the bill to parcel out the debate time to individual Members. The chairman of the committee which reported the bill acts as its floor manager, while the minority floor manager is typically the highest ranking minority Member on the reporting committee. Closing debate in the House is relatively easy to achieve. Motions are available to the managers to close debate by a simple majority vote.

However, ending debate in the Senate is no easy matter, in accordance with its deliberative role. The regular order of procedure places absolutely no limitations on the length of debate on either a bill or on amendments to it. Once recognized, Senators may speak for as long as they wish. At times, the Majority Leader seeks to negotiate voluntary unanimous consent agreements to limit debate on a bill or on specific amendments. These are known as time agreements. Once explained, or propounded, they require only the silent approval of all present. However, as with all unanimous consent practices in the Senate, a single objection prevents their implementation.

Ending debate in the Senate is often the most challenging aspect of the legislative process for the Senateís leadership. Short of voluntarily yielding the floor, an individual Senator can only be silenced through a formal procedure known as cloture. The process of cloture takes 3 calendar days and 60 votes to play out. It is easy to see why Majority Leaders prefer to reach a negotiated settlement with a Senator conducting a filibuster, the colloquial term used to describe an extended debate. The power to use a filibuster as a tool to gain negotiating leverage over both the policy agenda and legislative content again proves that individual Senators can, and do, act apart from their party and their leadership if they so wish.

The Senateís regular order places no restrictions on the amending process. Not only may Senators offer as many amendments as they wish, the amendments need not be relevant to the subject matter of the bill. Germaneness of amendment is not a Senate requirement. The leads to frequent quagmires on the Senate floor. Non-germane amendments permit any individual Senator to introduce subject matter into the discussion which the majority, for whatever policy or political reason, has refused to schedule for independent consideration. However baffling to those outside the Senate, Senate tradition recognizes non-germane amendments as part of the procedural advantages deliberately granted the minority in that chamber.

Non-germane Senate amendments present a significant problem for the House. The House requires germaneness. When it meets with the Senate to reconcile differences between the two chambersí versions of a bill at the end of the legislative process, it will often insist that the Senate drop provisions unrelated to the bill on the table. At times, the Senate is willing, but at times, it is not. Non-germane amendments, therefore, have the potential of seriously impeding progress toward enactment.

Reconciling House/Senate Differences

At some point, both chambers will have passed similar bills. The House and Senate get to this point in one of three possible ways. Most often, similar bills are introduced at about the same time by allies in both chambers. Its sponsors then seek parallel consideration of the legislation in both chambers. Given the differing procedures and political climate in each body, the House and Senate rarely achieve simultaneous enactment. As a result, the chamber which finishes first (almost always the House) sends its completed measure to the second. The second chamber takes up its own bill, but passes it in the form of a grand substitute amendment to the first chamberís version. Now it can be said that both have passed the same bill, albeit differing versions, and the next stage of the legislative process can be reached.

Alternatively, the House could pass legislation first and send it to the Senate. Having no similar bill in place, the Senate debates and amends the House bill, then passes it. Finally, but rarely, the Senate could pass legislation first and send it to the House. With no comparable vehicle of its own, the House debates and amends the Senate bill, then passes it. In either case, both chambers have now adopted a bill with the same bill number, although with different texts.

Once both chambers have passed similar versions of the same bill, the differences must be reconciled before the legislation can be sent to the President for his decision to sign or not sign the bill into law. Differences between House and Senate versions of a bill may be resolved most easily when one chamber simply adopts the otherís version without change. Clearly, this happens only on matters of little controversy. More regularly, differences are resolved through one of two procedures: by a process known as amendments between the Houses or by conference committee negotiations.

In Amendments between the Houses,the bill is traded back and forth between the chambers with each offering amendments to the other bodyís version until one chamber adopts the latest amendment of the other without change. Under the regular order only two volleys per side are permitted. However, if agreement is sensed as close, a special rule from the House Rules Committee may be adopted to allow for an extra volley. In the Senate, unanimous consent would be sought to do the same. Because ending the process just shy of agreement would mean killing a bill for which considerable momentum toward passage has been demonstrated, most requested exceptions to the two-volley rule are granted.

Conference committee negotiations are the more well known of the two methods used to reconcile differences between the two bodies. In the House, conferees or the managers on the part of the House are appointed by the Speaker at the recommendation of the committee chairmen involved. The appointment of conferees, their number, and party composition, rest solely with the Speaker, and cannot be challenged on a point of order.

House rules provide three main criteria for the selection of conferees. A majority of the conferees must 1) generally support the House version of the bill, 2) have been primarily responsible for the legislation during House consideration, and 3) have been proponents of any provisions which were adopted to the bill on the House floor. Although by tradition the Speaker normally takes into consideration the differing attitudes of the majority and minority party toward the bill, that is not always the case. At times the conferees have represented the ratio of majority to minority members in the House overall, but at other times they have been predominantly or exclusively from the majority party in order to meet the three criteria stated above. It is the Speaker who is given the determination of whether or not a majority of the managers selected meet these criteria.

Competition to get on a conference committee is usually quite fierce precisely because Members realize that successful amendments adopted on the House floor may be sacrificed to the Senate by House managers not in support of them. It is also the final stage of the legislative process and the last opportunity to delete or insert language in the bill.

In the Senate, the conferees are chosen strictly by the committee chairmen going to conference. More than any other factor, seniority determines conferee selection in the Senate.

Once configured, conference committees have few rules to follow. The hands of the negotiators are left as free as possible. The goal is, after all, to negotiate a consensus version of the differing bills which a majority in each chamber can vote to support. Successful negotiations require flexibility and freedom. However, one important restriction is addressed in the rules of both the House and Senate. Conferees are limited to matters in disagreement between the two chambers. The rules state clearly that conferees may not delete provisions identical in both bills nor may they insert subject matter not found in either the House or Senate-passed bill. Moreover, the conferees are asked to stay within the range of differences, i.e. not exceed the boundaries that define the House and Senate bills.

In actual practice, even these restrictions are violated in the interests of achieving a consensus. If votes can be picked up by inserting a new program not included in the earlier stages of the legislative process, conferees will add it. If the political support exists for a conference version that technically violates the rules of procedure, exceptions to the regular order are made in both chambers. Procedural correctness will give way to political consensus.

Approval of Conference Report

Once a majority of the conferees have agreed upon the final text of a compromise measure, the conference report is issued. It contains both the legislative language of the final measure, as well as the statement of managers -- an explanation of how the compromise was reached between the House and Senate versions.

The conference report must be adopted by a majority vote in both chambers in order to proceed to the President. If the first chamber to take up the report fails to get the conference report adopted, the second chamber never votes on it. Which chamber goes first is usually negotiated. Although procedural rules state the chamber which asked for the conference should act last on the conference report, this rule is often ignored . Most often the House goes first. This is because the rules of the House permit its majority leadership to guarantee a vote on the conference report. In the Senate, however, a vote on final adoption is not guaranteed since a filibuster is always possible. If the Senate cannot end the filibuster, no vote will be held on the conference report. Another factor in the decision of which chamber acts first on the conference report involves the political outlook for the vote on final adoption. If adoption looks certain in one chamber, but unclear in the other, the chamber with the more favorable outlook will go first in order to build political momentum toward passage in the second.

When both chambers have adopted the conference version, an enrolled version is prepared by the enrolling clerk of the chamber which originated the bill. Both the Speaker of the House and the President of the Senate must sign the enrolled bill. Their signatures attest to the version as accurate and identical to the form which passed their respective chamber.

Presidential Action

Once the legislation is presented to the President formally, as an Act of Congress, he has 10 days after receiving it to choose from four options:Rep. George Miller and President Clinton

Sign into law. By affixing his signature to the legislation, the President signals his approval. The bill becomes law.

Law without signature.
Should the President fail to sign the legislation within 10 days, it becomes law without his signature, if Congress is in session. This option is chosen if the President does not wish to associate himself strongly with the bill, or if he knows the votes are not present in Congress to sustain a veto.

Veto the bill. Within the 10 days, the President may formally decline to sign the legislation and return it to the chamber which originated it, along with a message containing his reasons. The House and Senate then have the remaining time in that Congress to schedule a vote on overriding the veto. In each chamber, a 2/3 vote of those present is necessary. If the vote fails to achieve 2/3 in the first chamber, the second never receives the legislation, and need not act. If a 2/3 vote is achieved in both bodies, the bill becomes law notwithstanding the objections of the President.

Pocket Veto. Within 10 days, if the President does nothing and Congress has adjourned, the legislation is considered as vetoed. With Congress out of session, no opportunity for a veto override vote presents itself and the bill is considered dead.

If the stage of law is achieved, the legislation receives a Public Law number, e.g. P.L. 106-39, which would be the 39th bill enacted in the 106th Congress.

Changing Trends and Variations from the Norm

The traditional legislative process described here and taught in schools across the country as a chronological timeline is not always followed in legislating today. In fact, the more complex, politically contentious, or significant a measure, the more likely Congress will consider it in an exceptional manner. Two important trends have emerged in recent years that have redefined legislating and changed the predictable stages of the legislative process.

Declining committee authority. When legislation is considered crucial to the agenda defining a political party, the party leadership in Congress has often assumed control over its progress. Committees of jurisdiction, both their chairmen and members, have at times been completely bypassed in favor of ad hoc task forces appointed by the party leaders to forge a political consensus on an issue. The resulting work product is then transformed into a bill introduced by a party leader, and brought directly to the floor without prior committee consideration.

In another variation, leaders have used a bill reported from a congressional committee as their foundation, but held closed door, by invitation only, drafting sessions to rewrite the measure in a manner designed to collect as many votes for it as possible from the majority caucus, or to appeal to the broadest spectrum of the electorate.

Both legislative tactics bypass the traditional committee system of initial consideration by a panel of issue specialists, and have resulted in more and more measures being shaped on the floor among a broader membership with a wider array of motives. This has greatly complicated law-making.

Packaging legislation. Legislators have discovered that combining separate measures into one large bill, called an omnibus bill, enhances the odds for passage. Problematic bills --the bitter -- are combined with pork barrel projects and other popular provisions -- the sweet -- to create a package more attractive than its component parts. Members are then faced with the choice of voting for the 90% of the omnibus bill crucial to the legislative agenda, e.g. appropriations funding the entire government at once, or voting against the 10% of the package they might truly disdain.

These huge, complex measures often come to the floor toward the end of a congressional session, leaving little time for thorough examination of sometimes thousands of pages of complex legal and technical provisions. Members often complain about their inability to adequately deliberate over complicated policy proposals in the face of the momentum created for passage by last minute measures brought to the floor in the final days of a session.

Packaging has also been practiced as a high-risk tactic to elicit approval from an oppositional President. Omnibus legislation might at times persuade him to sign into law legislation he would otherwise not sign if presented to him as a series of individual measures. A presidential veto of an omnibus bill can result in serious political consequences for both the Congress and the White House, e.g. the shutdown of the federal government in the face of failure to enact an omnibus appropriations bill. However, in other instances, signing such a measure into law can result in credit for both the President and the Congress for cooperating to produce comprehensive results despite serious political and policy conflict.

Both trends make it more difficult to hold the Congress accountable for the legislation it produces. When the traditional legislative process is circumvented or short-circuited, it becomes difficult to know when and where the crucial decisions finalizing legislative language were made. In turn, this makes it more difficult for the electorate to know exactly whom to reward for policy success or whom to punish for policy failure.


APPENDIX RESUME OF CONGRESSIONAL ACTIVITY

105th Congress: 1997 and 1998

Bills and Joint Resolutions Introduced in House/Senate: 7732
Public Laws Enacted: 394
ENACTMENT RATE: 5.0%

104th Congress: 1996 and 1995

Bills and Joint Resolutions Introduced in House/Senate: 6806
Public Laws Enacted: 333
ENACTMENT RATE: 4.8%

103rd Congress: 1994 and 1993

Bills and Joint Resolutions Introduced in House/Senate: 8540
Public Laws Enacted: 465
ENACTMENT RATE: 5.4%

102nd Congress: 1992 and 1991

Bills and Joint Resolutions Introduced in House/Senate: 10,511
Public Laws Enacted: 590
ENACTMENT RATE: 5.6%

LEGEND:

Concurrent resolutions and simple resolutions are excluded since they do not rise to the level of law. Only bills and joint resolutions become Public Law if enacted.

SOURCE:

Congressional Record, Resume of Congressional Activity, first issue of each Congress.

THOMAS:

Legislative Database of the Library of Congress. 105th Congress, 104th Congress, 103rd Congress, and 102nd Congress Bill Files.