The Legislative Process

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. View the stages 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 body's 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

Legislation is introduced by a Congressman or Senator when he/she presents it to the Parliamentarian on the floor of his/her respective Chamber. Once introduced, bills are referred to one of the committees in its respective Chamber. The subject matter of the bill, as determined by each chamber's Parliamentarian, dictates its referral to the appropriate committee.

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). At the discretion of the Chairman of the Committee with jurisdiction over a measure, hearings may be held to begin consideration of a bill. The next step is to hold a mark-up session. 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. At the conclusion of the mark-up session, a vote is held to determine whether or not to report the measure to the Chamber floor.

Awaiting Floor Action

Once reported out of committee, the House or Senate leader must decide whether or not to schedule floor time for the measure. 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 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 party's leaders. In the House, the decision is made after consultation among the Speaker, his leadership team and other appropriate members.

The Senate works under unanimous consent agreements—if one member objects to a motion then it can either be put to a vote which is debatable or removed from consideration. This allows individual Senators to wield a great deal of power when considering the Senate schedule.

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. Debate and Amendment (Floor Action) House rules set time restrictions on all forms of debate. Once a bill is on the floor, Members are normally yielded up 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.

In the Senate, ending debate is no easy matter. 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.

Ending debate in the Senate is often the most challenging aspect of the legislative process for the Senate's 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.

The Senate's regular order places no restrictions on the amending process. Senators may offer as many amendments as they wish, with little regard to whether they are germane to the subject matter of the bill. 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.

Non-germane Senate amendments present a significant problem for the House because the House requires germaneness. When the two sides meet to reconcile differences between the two versions of a bill at the end of the legislative process, it will often insist that the Senate drop the non-germane portions of the bill. This is not always acceptable to Senate negotiators. Non-germane amendments, therefore, have the potential of seriously impeding progress toward enactment.

For more information, see our glossary of terms used on the House and Senate Floor.

Reconciling House/Senate Differences

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 other's version without change. Usually, 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 body's version until one chamber adopts the latest amendment of the other without change.

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. In the Senate, the conferees are chosen strictly by the committee chairmen going to conference.

Once configured, conference committees have few rules to follow. One important restriction in the rules of both the House and Senate limit Conferees 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.

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.

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:

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 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.

Links

The above document is an excerpted edition of "The Legislative Process" provided by the Center on Congress at Indiana University. The complete article may be found here.

LOC Thomas "How Our Laws Are Made"
by Charles W. Johnson, former Parliamentarian, United States House of Representatives

LOC Thomas "Enactment of a Law"
by Robert B. Dove, former Parliamentarian, United States Senate

CRS Report "Bills and Resolutions: Examples of How Each Kind is Used"
by Richard S. Beth, Specialist in the Legislative Process, Government and Finance Division

More resources can be found here.