Overview of the Legislative Process

Article I of the U.S. Constitution grants all legislative powers to a bicameral Congress: a House of Representatives and a Senate that are the result of a “Great Compromise” seeking to balance the effects of popular majorities with the interests of the states. Our system currently provides for a two-year term of office for House members from the 435 population-based districts. In the Senate, voters of each state elect two Senators, who serve 6-year terms that overlap (such that only one-third of the chamber is up for election in any given election cycle).

The two chambers are fundamentally equal in their legislative roles and functions. Only the House can originate revenue legislation, and only the Senate confirms presidential nominations and approves treaties, but the enactment of law always requires both chambers to separately agree to the same bill in the same form before presenting it to the President.

Because each chamber has the constitutional authority to make its own rules, the House and Senate have developed some very different ways of processing legislation, perhaps partially flowing from their constitutional differences. In general, House rules and practices allow a numerical majority to process legislation relatively quickly. Senate rules and procedures, on the other hand, favor deliberation over quick action, as they provide significant procedural leverage to individual Senators.

Congressional action is typically planned and coordinated by party leaders in each chamber, who have been chosen by members of their own caucus or conference – that is, the group of members in a chamber who share a party affiliation. Majority party leaders in the House have important powers and prerogatives to effectively set the policy agenda and decide which proposals will receive floor consideration. In the Senate, the leader of the majority party is generally expected to propose items for consideration, but formal tools that allow a numerical majority to take action are few. Instead, majority party leadership typically must negotiate with minority party leaders (and often all Senators) to effectively conduct Senate floor action.

In both chambers, much of the policy expertise resides in the standing committees – panels of members from both parties that typically take the lead in developing and assessing legislation. Members typically serve on a small number of committees, often for many years, allowing them to become highly knowledgeable in certain policy areas. All committees are chaired by a member of the majority party, though chairs often work closely with the committee’s ranking member, the most senior member of the minority party on the committee. In almost all cases, the ratio of majority party to minority party members on a committee roughly reflects the overall partisan ratio in the congressional chamber.

Committee members and staff focus much of their time on drafting and considering legislative proposals, but committees engage in other activities, as well. Once law is enacted, Congress has the prerogative and responsibility to provide oversight of policy implementation, and its committees take the lead in this effort. Both chambers provide their committees with significant powers and latitude for oversight and investigations into questions of public policy and its effects.

While the engine of legislative ideas and action is Congress itself, the President has influence in the legislative process, as well. The President recommends an annual budget for federal agencies and often suggests legislation. Perhaps more significantly, the power to veto legislation can affect the content of bills passed by Congress. Since it is quite unusual for law to be enacted over a presidential veto, Congress typically must accommodate the president’s position on proposed policies.

The process by which a bill becomes law is rarely predictable and can vary significantly from bill to bill. In fact, for many bills, the process will not follow the sequence of congressional stages that are often understood to make up the legislative process. The presentations on specific topics that follow present a more detailed look at each of the common stages through which a bill may move, but keep in mind that complications and variations abound in practice.

Introduction and Referral of Bills

Legislation may take one of several forms, depending on the intended purpose. Bills and joint resolutions may become law if enacted during the two-year Congress in which they were introduced. Simple resolutions and concurrent resolutions are the other options; these measures cannot make law, but may be used by each chamber, or by both, to publicly express sentiments or accomplish internal administrative or organizational tasks, such as establishing their rules for proceeding.

Only members of each chamber may introduce legislation, though occasionally a member introduces legislation by request of the President. Members and their staff typically consult with nonpartisan attorneys in each chamber’s Legislative Counsel office for assistance in putting policy proposals into legislative language. Members may circulate the bill and ask others in the chamber – often via Dear Colleague letters – to sign on as original co-sponsors of a bill to demonstrate a solid base of support for the idea. In the House, a bill is introduced when it is dropped in the hopper (a wooden box on the House floor). In the Senate, the bill is submitted to clerks on the Senate floor. Upon introduction, the bill will receive a designation based on the chamber of introduction, for example, H.R. or H.J.Res. for House-originated bills or joint resolutions and S. or S.J.Res. for Senate-originated measures. It will also receive a number, which typically is the next number available in sequence during that two-year Congress.

In the House, bills then are referred by the Speaker, on the advice of the nonpartisan parliamentarian, to all committees that have jurisdiction over the provisions in the bill, as determined by the chamber’s standing rules and past referral decisions. Most bills fall under the jurisdiction of one committee. If multiple committees are involved and receive the bill, each committee may work only on the portion of the bill under its jurisdiction. One of those committees will be designated the primary committee of jurisdiction and will likely take the lead on any action that may occur.

In the Senate, bills are typically referred to committee in a similar process, though in almost all cases, the bill is referred to only the committee with jurisdiction over the issue that predominates in the bill. In a limited number of cases, a bill might not be referred to committee, but instead be placed directly on the Senate Calendar of Business through a series of procedural steps on the floor.

Committee Consideration

Each committee receives many bill referrals over the course of a Congress – far more than the panel is capable of pursuing in any detail. The committee’s chair has the chief agenda-setting authority for the committee; in essence, the chair identifies the bills or issues on which the committee will try to formally act through hearings and/or a markup.

The first formal committee action on a bill or issue might be a hearing, which provides a forum at which committee members and the public can hear about the strengths and weaknesses of a proposal from selected parties – like key executive branch agencies, relevant industries, and groups representing interested citizens. Hearings are also a way to spotlight legislation to colleagues, the public, and the press. At the hearing, invited witnesses provide short oral remarks to the assembled committee, but each witness also submits a longer written version of his or her feedback on the bill. After witnesses’ oral statements, members of the committee take turns asking questions of the witnesses.

While these hearings provide the formal public setting at which feedback is solicited on the policy proposal, committee members and staff engage in additional assessment of the approach through informal briefings and other mechanisms. Also note that a hearing is not required from a procedural standpoint for a bill to receive further action from the committee.

A committee markup is the key formal step a committee ultimately takes for the bill to advance to the floor. Normally, the committee chair chooses the proposal that will be placed before the committee for markup: a referred bill or a new draft text. At this meeting, which is typically open to the public, members of the committee consider possible changes to the proposal by offering and voting on amendments to it, including possibly a complete substitute for its text.

A markup concludes when the committee agrees, by majority vote, to report the bill to the chamber. Committees rarely hold a markup unless the proposal in question is expected to receive majority support on that vote. The committee may vote to report a referred bill, with recommended changes that reflect any amendments adopted during the markup. As an alternative to a referred bill, it may instead report out an original or clean bill that was basically written in the markup process itself from a draft proposal.

Most House and Senate committees also establish subcommittees – subpanels of the full committee where members can further focus on specific elements of the policy area. The extent to which subcommittees play a formal role in policymaking – for example, by holding hearings or marking-up legislation prior to full committee consideration – varies by chamber and by committee tradition and practice. Whatever role a full committee allows its subcommittees to play, subcommittees cannot report legislation to the chamber; only full committees may do so.

Calendars and Scheduling

Once a committee has reported a bill, it is placed on one of the respective chamber’s calendars. These calendars are essentially a list of bills eligible for floor consideration; however, the bills on the calendars are not guaranteed floor consideration. Many will never be brought up on the floor during the course of a two-year Congress. It is also possible, although less common, for a bill to come directly to the floor without being reported and placed on a calendar.

In the House, majority party leadership decides which bills the House will consider, and in what order. For example, after consulting with committee leaders, majority party leadership may decide to schedule a bill for expedited floor consideration. Alternatively, leadership may ask the Rules Committee to start the process of bringing a specific bill to the floor for more lengthy consideration and possible amendments. These different mechanisms by which the majority party proposes floor consideration of a bill are discussed in more detail in the next section.

In the Senate, majority party leadership does not use the same set of rules as the House to bring bills to the floor. One way the Senate can take up a bill is by agreeing to a motion to proceed to it. Once a Senator – typically the majority leader – makes such a motion that the Senate proceed to a certain bill, the Senate can then normally debate the motion to proceed. If it eventually agrees to the motion by a majority vote, the Senate can then begin consideration of the bill. Â Alternatively, the majority leader can ask unanimous consent that the Senate take up a certain bill. If no one objects to such a request when it is made, then the Senate can immediately begin consideration of the bill in question. (When the leader refrains from making such a request because he has been informed that a Senator would object, it is often said that a Senator has placed a hold on the bill.)

In both chambers, party leaders keep their membership informed of the anticipated floor schedule using various methods – like periodic whip notices or other frequent communications.

House Floor

The House considers bills under a variety of procedures, each of which differs in the amount of time allotted for debate and the opportunities given to members to propose amendments. Most bills are considered under the suspension of the rules procedure, which limits debate to 40 minutes and does not allow amendments to be offered by members on the floor. However, for the House to pass a bill under suspension of the rules requires two-thirds of members voting to agree, so this method is not designed for bills that do not have supermajority support in the House.

Bills not considered on the House floor under suspension of the rules are typically considered instead under terms tailored for each particular bill. The House establishes these parameters on a case-by-case basis through the adoption of a simple House resolution called a special rule. Special rules are reported by the House Rules Committee. This committee, which is often referred to as the traffic cop of the House, is heavily dominated by the majority party, and works closely with House majority party leadership on the main elements of each special rule. Common provisions found in a special rule include selection of the text to be considered, limitations on debate, and limits on the amendments that can be offered on the floor. For instance, sometimes the committee reports a rule that places few restrictions at all on amending, which can result in dozens of amendments being offered on the floor during consideration. In other cases, the special rule will allow only specific pre-determined amendments to be offered, or even preclude floor amendments all together.

Note that House procedures place certain other limitations on the content of amendments, unless the special rule waives these restrictions. For instance, amendments must typically meet certain germaneness standards, meaning that they must be on the precise subject of the legislation being considered.

After the Rules Committee reports a rule for consideration of a bill, the House first considers that special rule itself on the House floor, for approximately one hour. After debate, the House votes on adopting the special rule. Only after its adoption will the House proceed to consider the bill itself, under the terms specified by the special rule.

In this situation, the House typically will consider the bill in a procedural setting called the Committee of the Whole, which allows members an efficient way to consider and vote on amendments. After any amendments are offered and debated, members vote on approval, and each amendment requires a simple majority to be agreed to.

After the amendment process is complete, the Committee of the Whole rises and reports to the full House any recommended amendments, which are then usually approved by the House by voice vote. Just prior to voting on final passage, members typically will briefly debate and then vote on a motion to recommit, which allows the minority party to effectively propose its own amendment. In the House, some votes are taken by voice, but many votes are taken by electronic device, a method that records the individual position of each member who voted.

Senate Floor

To consider a bill on the floor, the Senate first must agree to bring it up – typically by agreeing to a unanimous consent request or by voting to adopt a motion to proceed to the bill, as discussed earlier. Only once the Senate has agreed to consider a bill may Senators propose amendments to it.

Perhaps the modern Senate’s defining feature is the potential difficulty of reaching a final vote on a matter. Most questions that the Senate considers – from a motion to proceed to a bill, to each amendment, to the bill itself – are not subject to any debate limit. Simply put, Senate rules provide no way for a simple numerical majority to cut off or otherwise impose a debate limit and move to a final vote. As a result, Senators can effectively wage (or threaten to wage) a filibuster – in effect, insist on extended debate in order to delay or prevent a final vote on most amendments, bills, or other motions.

In addition, Senate rules provide few options to comprehensively limit the amendments proposed to a bill. Unlike the House, for example, under most circumstances amendments in the Senate need not be germane, and amendments sometimes involve subject matter unrelated to the bill in question. This can lead to a much more wide-ranging and less predictable floor debate than typically occurs in the House.

Senate Rule XXII, often called the cloture rule, does allow a supermajority to limit debate on a bill, amendment, or motion; in addition, in the case of a bill, cloture limits the amendments that can be offered. Supporters of, for instance, a bill under floor consideration can file a cloture motion, signed by at least 16 Senators. Two days of session later, Senators vote on the cloture motion. If three-fifths – usually 60 Senators – agree, then further consideration of the bill is limited to 30 hours, during which only amendments from a pre-specified list of germane ones can be offered. After this final period of consideration, the Senate will take a final vote on the bill. This final vote requires only a simple majority for approval. But because a cloture process is often required to end debate on a bill, then the bill first must garner the support of a three-fifths supermajority. All told, this process of reaching a final vote on a bill can require about a week of Senate floor time to complete.

Overall, these rules and practices governing floor debate and amending in the Senate provide significant leverage to each individual Senator. But rather than relying on the formal rules like cloture, frequently the Senate can more effectively act using unanimous consent agreements. Such an agreement is a structured plan for limiting debate and amending – a plan that can be tailored to each bill that comes to the floor (somewhat akin to a special rule in the House). Through the use of these agreements, the details of which all Senators have agreed upon, the Senate can more effectively process its business while protecting the procedural rights of each of its members.

While many votes are conducted by voice, a recorded vote is required in some cases, and is often requested by Senators in others. Unlike the House, the Senate does not have an electronic voting system; recorded votes are conducted through a call of the roll.