18.4.1 The legislative process

The Legislative Function of Congress

Overview of the Legislative Process

The legislative process in Congress is complex and involves multiple stages, each with the potential to significantly alter or halt a bill. Both the House of Representatives and the Senate must pass the same version of a bill before it can become law.

First Reading

A bill is introduced in either chamber of Congress, and its title is read aloud. A quick vote is taken to decide whether the bill will proceed to the next stage. This is typically a formality. The bill is then sent to a standing committee, where it can either be accepted or rejected.

Committee Stage

Committees play a critical role in the legislative process. They decide whether to hear the bill or "pigeonhole" it, meaning it is set aside and not considered further. If a committee decides to consider the bill, it holds hearings and investigations to assess the potential impact of the legislation. During this stage, the bill is "marked up," with amendments added. If the bill passes through subcommittees, it returns to the full committee for approval. However, many bills die at this stage, especially after being marked up.

Timetabling

• House of Representatives: Bills are sent to the House Rules Committee, which determines whether the bill will reach the floor for debate and how long it will be debated, including the consideration of amendments.
• Senate: In the Senate, bills are scheduled through unanimous consent agreements between Senate leadership. If a bill is only scheduled in one chamber, it will not proceed, effectively killing the bill.

Second Reading

The bill is debated in both chambers. During this stage, amendments can be proposed. In the Senate, the process can be delayed by a filibuster, where senators use unlimited debate time to block or delay the bill. To end a filibuster, a cloture motion requires approval from 60 senators. For example, in 2021, the Freedom to Vote Act was filibustered, which would have made voting days a holiday. Attempts to reform the filibuster, such as reducing the cloture requirement to 50 votes, have been proposed but defeated.

Third Reading

This is the final opportunity for debate before the bill is put to a final vote in each chamber.

Reconciling Differences

If the House and Senate pass different versions of the bill, a conference committee is called to reconcile the two versions and create a single text. This step is necessary for about 10% of bills. Once reconciled, the final version must be approved by both chambers.

Presidential Action

The President has the option to sign the bill into law, veto it, or take no action. If the President leaves the bill on their desk and does not sign it within 10 congressional days, it automatically becomes law. However, if Congress adjourns during this period, the bill does not become law—a maneuver known as a "pocket veto." If the President vetoes the bill, Congress can attempt to override the veto with a two-thirds majority in both chambers.

Challenges and Limitations

• High Failure Rate of Bills: The vast majority of bills introduced in Congress—99%—fail to become law. Many are pigeonholed during the committee stage and never make it to the floor for a vote.
• Filibustering: The Senate's filibuster rules allow a minority of senators to delay or block legislation, making it difficult to pass contentious bills. For example, the Freedom to Vote Act was filibustered in 2021, demonstrating how a minority can thwart legislation.
• Gridlock: Partisan gridlock, particularly in times of deep political division, can severely hinder the legislative process. The 116th Congress passed only 269 laws, the fewest since the 1970s, reflecting the challenges of a polarized Congress. In 2023, only 27 bills were passed, highlighting ongoing difficulties.
• State Enforcement: Even when Congress passes legislation, its implementation can be inconsistent if states choose not to enforce it. For example, marijuana remains illegal under federal law, but many states have passed legislation legalizing its use.

Successes of the Legislative Function

• Bipartisanship: Despite the challenges, Congress can act quickly and effectively, particularly in times of crisis. The CARES Act, passed in response to the COVID-19 pandemic, and the Patriot Act, passed shortly after the 9/11 attacks, are examples of Congress overcoming partisanship to enact significant legislation. The Sunshine Protection Act is another instance where bipartisan cooperation led to legislative success.
• House Rules Committee: The House Rules Committee plays a crucial role in managing the legislative process in the House of Representatives. By determining which bills reach the floor for debate and setting the rules for how they will be debated, the committee can facilitate or hinder the progress of legislation.

Conclusion

The legislative function of Congress is both complex and vital to the functioning of the US government. While the process allows for thorough scrutiny and debate, ensuring that only well-considered legislation becomes law, it is also fraught with challenges such as partisanship, filibustering, and the high failure rate of bills. Nonetheless, Congress remains capable of passing significant legislation, particularly in times of national crisis, when bipartisanship is more likely to prevail.

Is the Congressional legislative process effective?

Yes • Strengths	No • Weaknesses
• A lengthy process should ensure scrutiny of legislation and ensure the quality, popularity and workability of laws.	• The process is so challenging and the congressional session so short that the chance of passing legislation is limited.
• The equality of both houses in the legislative process ensures that the needs of both the people and the states are heard, with compromise being integral to the process.	• Power is placed in the hands of a few—especially the House Speaker and committee chairs.
• The requirement for super majorities for the veto override and a cloture motion helps to prevent the tyranny of one party.	• The need for supermajorities and the ability of one senator to hold up a bill allow for tyranny of the minority.
• The challenging nature of the process ensures that only law which is necessary passes, and allows therefore for states to retain legislative power over other areas.	• In times of united government, scrutiny is reduced through party dominance; in times of divided government, partisanship can cause gridlock and a total lack of legislation.
• The length of the process should prevent knee-jerk legislation from passing.	• Even after considerable scrutiny and compromise Congress, the president alone can prevent a bill from becoming law and his veto is unlikely to be overturned.
	• Despite a promise to stop the addition of amendments to bills to funnel money to individual states, 'pork barrel politics' has not been eliminated.