Consensus Building in the Legislature

How Does a Bill Become Law

Objectives:

• Students will identify the steps involved in developing legislation and the issues that arise when trying to pass legislation.
• Students will make connections between the process of legislating and how representatives in Congress work on behalf of constituents.
• Students will describe how legislating is accomplished through the interaction of Congress members and identify the civic virtues needed to build consensus.

All Legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Article 1, Section 1

How does a bill become a law in the House of Representatives?

• Idea for a Bill
  • New legislation usually requires a reason, like addressing a public issue or carrying out congressional duties.
  • Members of Congress can formulate ideas for bills in discussions with constituents, lobbyists, or advocacy groups or letters from constituents. They also develop ideas by discussing issues and concerns with each other formally and informally. The issues may be those of general concern to the American people or specific ones related to a representative’s area of expertise.
  • Building Consensus Reflection: Discuss how representation plays a role when legislators decide which issues to address based on constituent needs. When identifying a reason for new legislation, how can representatives practice civic virtues to work on behalf of their constituents and build consensus to pass a bill? Reflect on how citizens can influence the legislative agenda by voicing their concerns and how this represents a form of self-governance.
• Write the Bill
  • A lawmaker and their aides, sometimes with input from outside groups and constituents, draft a bill. A member of Congress must formally introduce a bill.
  • At times, outside experts can provide useful input to lawmakers as they develop the details of legislation.
  • Before a bill is introduced, legislators seek support from their colleagues. Building this support can involve behind-the-scenes negotiations and concessions. This might happen in offices, at dinners, or at social events where legislators discuss the bill and negotiate.
  • Representatives might coordinate with the media and use social media platforms to announce the introduction of a bill, aiming to generate public support right from the outset.
  • Building Consensus Reflection: Consider how the process of drafting a bill with input from constituents exemplifies the consent of the people and enhances the representative nature of our government. How might this process impact popular support and consensus for the legislation?
• Bill Given to Clerk OR Placed in the Hopper
  • The bill is assigned a number (e.g., H.R. 1).
  • The bill is labeled with the sponsor’s name. Members may co-sponsor the bill.
• Garnering Support for Bill
  • After a bill is introduced, public opinion can start to play a role. Constituents may call, email, or meet with their representatives to express their support or opposition. This feedback can heavily influence a legislator’s stance on the bill.
  • Media coverage can also affect public opinion and, by extension, the views, and actions of legislators. How the media portrays a bill can determine its popularity or notoriety, which in turn impacts legislative support.

Committee Action

• The Speaker refers bills to relevant committees. Occasionally, a bill may be sent to multiple committees. The Speaker can impose deadlines.
• Overview of Committees
  • Specialized committees enhance Congress’ efficiency. They address specific issues, scrutinize government operations, gather information, and propose actions to the full chamber. This focused approach increases the chances of well-informed legislative decisions.
  • Standing versus Select versus Joint committees
    • Standing committees have fixed roles based on their rules. Select committees are created to complete specific tasks, like investigations into particular events. Joint committees involve members from both the House and Senate collaborating on projects.
• There may be time dedicated for public hearings and comment periods that invite citizen input and interested groups, allowing outsiders to have additional influence on the legislative process.

Committee Steps

• Request for Comments: The committee requests comments about the merits of the bill from relevant government agencies.
• Subcommittee: The committee chair can assign the bill to a subcommittee. Subcommittees report their findings to the full committee.
  • “Mark-up” Session: The committee conducts a “mark-up” session to make revisions. Significant changes can lead to a “clean bill” with a new number, replacing the old one. Before the final vote, the chamber must review, modify, or reject committee amendments.

• Draft Report: The committee staff drafts a report supporting the bill and its amendments. Opposing members may include a dissenting opinion. The report is circulated to the entire chamber and added to the calendar.
• Committee Votes: The committee needs a majority vote before the bill can go to the House Floor for a vote.
  • The majority of bills do not progress beyond the committee stage; they are neither marked up nor put to a vote in either the subcommittee or the full committee. Deciding which proposals advance is one of the key roles played by committees, acting as a critical “gatekeeper” in the legislative process.
  • Since few bills become law, sometimes the language of one or more bills is put into a larger “must-pass” bill that eventually becomes law. This usually happens to get the vote of the original bill’s sponsor to support the larger bill. It often requires the lobbying efforts of the sponsor to get the original bill included in the larger bill. This kind of trading and negotiating helps shape how Congress works.
• Rules Committee: House bills typically pass through the Rules Committee before the floor. This committee establishes procedures for bill consideration. A “closed rule” enforces strict debate limits and no amendments. These rules significantly influence bill passage. Bypassing the committee is possible through a rule suspension (2/3 vote), discharge petition, or Calendar Wednesday procedure.
  • The Calendar Wednesday procedure provides an alternative route for legislation to reach the floor, potentially bypassing opposition, or delays in the Rules Committee. It is rarely used today but remains a procedural option.
  • The Rules Committee holds significant power in setting the terms for how bills are discussed on the House floor. It can issue a special rule that overrides any standard House rule for a bill’s debate. For example, the committee might allow amendments that are not directly related to the bill. Additionally, the committee can enact a “self-executing” rule, whereby the approval of the rule itself means certain bills are automatically passed.
• Influence on Bill During Committee Steps
  • Lobbyists frequently meet with committee members to discuss the bill. The aim is to persuade or dissuade particular points, impacting the bill’s progress.
  • Based on inputs from various stakeholders, including constituents, other legislators, and lobbyists, amendments may be proposed. These changes can significantly alter the bill’s intent or effectiveness, either smoothing its path or hindering it.
• Building Consensus Reflection: What are the potential challenges when trying to reach agreement in the committee process? Choose one and describe how lawmakers can apply a civic virtue to tackle the problem of forging consensus.

House Floor Action

• Legislation on Calendar: Bills are assigned to House Calendars, but their report does not dictate floor consideration. Some bills may not reach the floor. The Speaker and Majority Leader determine the schedule. A discharge petition can also bring legislation to the floor.
• Debate: The Rules Committee sets debate limits. The Committee of the Whole discusses and amends but cannot pass the bill. The sponsoring committee guides the debate, and time is split equally. Amendments must be relevant. The bill returns to the House. A quorum call ensures 218 members are present for a final vote. If not, the House adjourns or sends a Sergeant at Arms to find members. This rarely happens because the voting participation of at least 218 members is considered sufficient.
  • The Committee of the Whole is a procedure used by the U.S. House of Representatives where all members act as a large committee to discuss and amend bills. This method allows for more flexible debate and the introduction of amendments. After discussion and amendments, the bill returns to the full House.
  • Building Consensus Reflection: How does this process ensure that various perspectives within the House are considered, promoting effective deliberation?
• Party Strategies
  • The House leadership decides the rules under which the bill will be debated, which can include limitations on amendments and debate time. These decisions often involve strategic considerations to maximize the chances of passage.
  • The parties may schedule party strategy meetings. These are internal party meetings where strategies are devised on how to handle the bill on the floor. This could include deciding who will speak on behalf of the bill, what key points to emphasize, and how to respond to opposition.
  • Although the House does not have a filibuster, tactics such as offering numerous amendments or lengthy speeches can be used to delay or alter proceedings, often coordinated informally among groups of members.
• Vote: Congress votes on the bill. Passed bills go to the Senate unless it is already considering a similar measure. Failure in either chamber can lead to the bill’s dem A member of Congress could introduce a similar bill and try again to get it approved; or, if the other chamber approved a version of the bill, it could take up that version of the legislation and try to pass it.
• Identical bills reach the president. Differing bills head to a conference committee. Major legislation often goes through this process.
• Gaining Support for Votes
  • The party whips play a crucial role in gauging support and securing the necessary votes. Sometimes, to secure necessary votes, backroom negotiations will result in promises of future support for unrelated initiatives or amendments to the bill that satisfy fence-sitters.
  • Just before the vote, intense lobbying efforts can sway undecided or wavering legislators. This lobbying can be direct from interest groups or through constituents pushed to voice their opinions.
  • Party leaders may exert pressure on members to vote in line with party goals, sometimes using party discipline as a lever to ensure compliance.
• Building Consensus Reflection: In a debate, how can House members apply the civic virtue of moderation to convey their points effectively? (Remember, moderation means avoiding extremes, or going to unnecessary lengths.)
• Suppose one party has the majority and can easily pass legislation. How does the House Floor process create opportunities for representatives to practice the civic virtue of moderation?

Similar House and Senate Bills Conference Committee

• Conference Committee: Although they rarely happen anymore, members from each House can form a conference committee and meet to work out differences between the House and Senate versions of the bill. Typically, it comprises senior members chosen by the original committee heads. They advocate for their respective versions.
• Compromise: If the conference committee reaches a compromise, it prepares a written conference report, which is submitted to each chamber.
• Approval: The House and Senate must approve the conference report.
  • Differences between the House and Senate versions of a bill can lead to negotiations in conference committees, where compromises are often hashed out in closed sessions.
  • In recent years, differences are most often worked out through informal discussions between the leaders in both chambers rather than the formal committee. These differences usually either result in one chamber agreeing to the other chamber’s bill as is, or each chamber passing revised or amended versions of the bill until its content is agreed to by both chambers. This process can be known as “ping-ponging” because it goes back and forth until agreement is reached.
• Building Consensus Reflection: How can you use civic virtues like respect, prudence, and humility to find a compromise in a situation?

The President

• The bill is sent to the president for review.
• A bill becomes law if signed by the president or if not signed within 10 days when Congress is in session.
  • If Congress adjourns before the 10-day period has ended and the president has not signed the bill, then it does not become law (“Pocket Veto.”)
• If the president vetoes the bill, it is sent back to Congress with a note listing the president’s reasons. The House can attempt to override the veto by a vote of two-thirds of those present. If the veto of the bill is overridden in both chambers, then it becomes law.
• Sometimes presidents issue veto threats to bills while they are being considered by Congress, in the hopes of convincing lawmakers to change the bill before it gets to his desk. This gives the president some flexibility in working with Congress and prevents a veto.
• To counter a potential presidential veto, Congress sometimes passes legislation that contains elements undesirable to the president, but also includes provisions the president favors. This strategy aims to provide sufficient incentive for the president to sign the bill into law.
• Advocacy groups might launch campaigns to influence the president’s decision to sign or veto the bill. This could involve public campaigns, direct communication from influential supporters or opponents, and analyses of public and political impact on the president’s popularity.
• Building Consensus Reflection: In the context of the checks and balances system, how can the president work with Congress members to find common ground and reach a consensus when they disagree? If the president and majority in both houses are of the same party, is there any need to find common ground and consensus? How can a presidential veto provide a check on a Congress dominated by one party that does not feel the need to compromise?

How does a bill become a law in the Senate?

• Idea for a Bill
  • New legislation requires a reason, such as addressing a public issue or carrying out constitutional duties.
  • Senators often discuss potential legislative ideas with colleagues, experts, lobbyists, and constituents informally before any drafting occurs. These discussions can take place in offices, during Senate lunches, or at private meetings.
• Write the Bill
  • In theory, anyone can draft a bill, but in practice, it is usually done by representatives’ aides. Regardless of the author, a bill must be formally introduced by a Senate
  • Bill drafting may involve input from specialized lobbyists or think tanks, along with Senate legislative aides who ensure the bill’s language aligns with the senator’s objectives.
  • Building Consensus Reflection: When writing a bill, how can prudence be applied to help make sure it is something that can benefit the public?
• Legislation is Introduced
  • Members must gain recognition from the presiding officer to announce the introduction of a bill. If any senator objects, the introduction of the bill is postponed until the next day.
  • The bill is assigned a number (e.g., S.Res.1).
  • The bill is labeled with the sponsor’s name. Senate bills can be co-sponsored.
  • Before introduction, a senator will often secure co-sponsors through informal negotiations, which might include promising to support their initiatives in exchange.
  • A senator might coordinate with media teams to craft the reasoning behind the bill, influencing public opinion and building a broader support base from the outset.

Committee Action

• The bill is referred to the appropriate committee by the presiding officer. Most often, the actual referral decision is made by the Senate parliamentarian. Bills may be referred to more than one committee and split so that parts are sent to different committees.
• Overview of Committees
  • Specialized committees enhance Congress’s efficiency. They address specific issues, compensate for members’ expertise gaps, scrutinize government operations, gather information, and propose actions. This focused approach guarantees comprehensive assessment and well-informed legislative decisions.
  • Standing versus Select versus Joint committees
    • Standing committees have fixed roles based on their rules. Select committees are created to complete specific tasks like investigations. Joint committees involve members from both the House and Senate collaborating on projects.

Committee Steps

• Request for Comments: The committee requests comments about the bill’s merit from relevant government agencies.
• Subcommittee: The committee chair can assign the bill to a subcommittee. Subcommittees report their findings to the full committee.
• “Mark-up” Session: The committee conducts a “mark-up” session for revisions. Significant changes can lead to a new “clean bill” with a new number, replacing the old one. The chamber must review, modify, or reject committee amendments before the final vote.
  • During committee review, lobbyists and representatives from various interest groups often testify, presenting data or opinions that could sway the committee’s views on the bill.
  • Senators may engage in formal and informal negotiations, making deals to adjust or amend the bill to gain the necessary support from committee members.
  • Senators may propose amendments to gain support or to appease critics, respond to external pressures from special interest groups or constituents, and especially after discussions with colleagues.
  • Decisions about the bill can be extensively debated in executive sessions, where public access is restricted, allowing for more candid discussions and strategic planning.
  • “Emergency bills, or measures that are of particular importance (such as short-term spending bills needed to keep the government open) may receive only brief, formal consideration by committees. Instead, party leaders and their staff do the bulk of the work drafting legislation.
• Building Consensus Reflection: In the “mark-up” session, how can Congress members work together to find common ground?
• Draft Report: The committee staff drafts a report supporting the bill and its amendments. Opposing members may include a dissenting opinion. The report is circulated to the entire chamber and added to the calendar.
• Committee Votes: The committee needs a majority vote before the bill can go to the Senate floor for a vote.

Senate Floor Action

• Legislation Calendar: Legislation is placed on the Legislative Calendar. Treaties and nominations have their own Executive Calendar. The Majority Leader handles scheduling. Bills can be brought to the floor with a majority vote.
• Debate: Debates can go on indefinitely unless cloture is used to end them. Senators can talk for as long as they want and suggest amendments even if they are not directly related to the bill. This means a whole new bill can be proposed as an amendment. If cloture is not invoked, senators can use the filibuster to prevent a measure from passing by talking indefinitely.
  • Filibuster: A filibuster in the U.S. Senate is a strategy to stall or stop a vote on a measure by prolonging the debate. Senate rules allow unlimited speaking, so if no one else is talking, a senator can speak for as long as they want.
    • To break a filibuster or to ensure passage, senators may engage in backroom deals that involve trading support on various legislative matters.
  • Building Consensus Reflection: Building consensus during a filibuster can be a challenging task, but it is possible with the right approach. What civic virtues are needed to build consensus during a filibuster?
• Vote: After voting, the bill goes to the House, unless it is considering a similar one. If not passed in either chamber, it fails. A member of Congress could introduce a similar bill and try again to get it approved; or, if the other chamber approved a version of the bill, it could take up that version of the legislation and try to pass it. If both pass the same bill, it goes to the president. If they pass different bills, a conference committee resolves it. This is common for major legislation.
  • The majority of bills do not progress beyond the committee stage; they are neither marked up nor put to a vote in either the subcommittee or the full committee. This function of controlling which proposals advance is one of the key roles played by committees, acting as a critical “gatekeeper” in the legislative process.
  • Intense lobbying efforts may occur right up to the vote, with lobbyists and constituents making phone calls or visiting Capitol Hill to influence the final decision.
  • Party whips play a crucial role, assessing vote counts and applying pressure where necessary to align members with party strategy.

Similar House & Senate Bills

• Conference Committee: Although they rarely happen anymore, members from each chamber can form a conference committee and meet to work out the differences. Typically, it comprises senior members chosen by the original committee heads. They advocate for their respective versions.
• Compromise: If the conference committee reaches a compromise, it prepares a written conference report, which is submitted to each chamber.
• Approval: The conference report must be approved by both the House and the Senate.
• If there are differences between Senate and House versions of a bill, select senators will negotiate with House members in a conference committee to reconcile disparities in a final draft.
• In recent years, differences are most often worked out through informal discussions between the leaders in both chambers rather than the formal committee. These differences usually either result in one chamber agreeing to the other chamber’s bill as is, or each chamber passing revised or amended versions of the bill until its content is agreed to by both chambers. This process can be known as “ping-ponging” because it goes back and forth until agreement is reached.

The President

• The bill is sent to the president for review.
• A bill becomes law if signed by the president or if not signed within 10 days and Congress is in session.
• If the president vetoes the bill, it is sent back to Congress with a note listing the president’s reasons. Congress can attempt to override the veto by a vote of two-thirds of those present. If the veto of the bill is overridden in both chambers, then it becomes law.
• Informal Process/Real-World/Implicit Influences
• Depending on the bill’s significance, advocacy campaigns aimed at the President might ramp up, pushing for either a veto or signature. These campaigns can involve public demonstrations, targeted media releases, and direct appeals to the White House.
• Building Consensus Reflection: In the context of the checks and balances system, how can the president work with Congress members to find common ground and reach a consensus when they disagree? If the president and majority in both houses are of the same party, is there any need to find common ground and consensus? How can a presidential veto provide a check on a Congress dominated by one party that does not feel the need to compromise?

What happens when similar bills go through both houses at the same time?

• A group of both senators and representatives try to reconcile the two bills to get to one bill.
• Both houses pass the reconciled bill. Then it is sent to the president for review. The president may sign it or veto it.
• If the president vetoes the bill, it is sent back to Congress with a note listing his/her reasons. Congress can attempt to override the veto by a vote of two-thirds of those present. If the veto of the bill is overridden in both chambers, then it becomes law.

Analysis Questions:

• What civic virtues should be employed when introducing new legislation to ensure consensus building?
• How does the legislative process support representation and self-governance?
• The representatives work on behalf of constituents. What civic virtues can representatives employ to listen to their constituents?
• How does the structure of both chambers of Congress affect the legislative process?
• What are three methods that members of Congress can use to stop legislation from being voted on? Do these methods differ between the Senate and the House of Representatives?
• What role do committees play in the lawmaking process?