The Legislative Process
Providing the public a critical voice in determining which ideas become laws
As a lupus advocate, we’ll be asking you frequently to reach out to your members of Congress in support of people affected by lupus. This might include urging your Senators and Representatives to support funding for lupus research or oppose policies that are harmful to people living with the disease.
The journey from idea to law is long and arduous. In fact, the overwhelming majority of bills and resolutions introduced never become law. Here are the numbers for the 115th Congress, which covered the two years from January 2017 to January 2019:
Total number of bills and resolutions (legislation) introduced.
Legislation passed by Congress and signed into law by the president (7%).
Legislation that never received a vote in either chamber (86%).
It’s a challenge to get legislation enacted, and that makes lupus advocates even more critical. Members of Congress are elected to represent their constituents, so at nearly every step of the legislative process, they want to hear from their constituents about what is important to them.
To be an effective advocate, it’s important to understand what your members of Congress are doing, how they’re doing it, and when your outreach can make the biggest impact. Here are the steps of the legislative process, and the input advocates can have during each.
The term legislation refers to bills and resolutions. There are three types of resolutions – joint resolutions, concurrent resolutions, and simple resolutions. While all three are important and different, joint resolutions are the most common because they behave generally the same as bills.
Anyone can draft legislation, but it can only be formally introduced by a member of Congress. Legislation can be first introduced in either the House of Representatives or the Senate – many times it is only introduced in one chamber, but sometimes identical legislation is introduced in both chambers at the same time to show that there is support in both chambers and possibly speed up the process.
Once a bill or resolution is introduced, it is assigned a bill number - starting with H.R. if was introduced in the House and S. if it was introduced in the Senate.
Many bills and resolutions come to exist because constituents contact their members of Congress with problems that need to be solved. We are in constant contact with members of Congress about legislation that would help people affected by lupus. If you are having a problem caused by lupus, please contact our health educators – not only will they be able to help you immediately, but your experience will inform our advocacy efforts to improve the lives of those affected by lupus.
Committees exist in both the House and Senate and are a vital part of the legislative process. Committees review legislation and determine whether it is worthy of moving on for the whole chamber to review. They are comprised of members of Congress with demonstrated interest or experience in the topics covered by the committee.
Once legislation is introduced, it is referred to the committee with jurisdiction over that particular issue – for example, a bill introduced in the Senate that deals with farming would likely be referred to the Senate Committee on Agriculture, Nutrition, and Forestry.
This is a strictly procedural step in the process. Legislation is referred to committee by carefully considered rules in the House and Senate, so advocate input is not necessary nor solicited.
Once legislation is introduced and referred to committee, it is up to the committee chairman to determine how to act. The chairman can decide to do one of three things:
- Nothing - if the committee doesn’t act on a piece of legislation, it is effectively dead and cannot become law.
- Determine that the legislation will be considered by the full committee.
- Refer the legislation to a subcommittee, a smaller group of committee members focused on more specific issues. The Senate Finance Committee, for example, might refer a bill about health insurance to their Health Care subcommittee.
If the chairman opts for either of the second two options, the process will be generally the same. First, a hearing will be scheduled. Hearings allow for people outside Congress to offer input on the legislation and its impacts. This can include members of the public who would be affected by the legislation, either positively or negatively, representatives of government agencies relevant to the legislation, or experts who can speak to the impact of the legislation. In addition to in-person testimony, the committee will often solicit written testimony.
Once the hearing is completed, a markup session will be scheduled. This is where Members of the subcommittee (or full committee) “mark up” the legislation and offer amendments to improve the legislation.
When markup is complete, the subcommittee (or full committee) will vote to “favorably report” the legislation. When a subcommittee favorably reports legislation, it moves to the full committee. The chairman can then either schedule more hearings and markups, or vote on the legislation immediately. When a full committee favorably reports legislation, it moves to the floor for consideration by the full chamber.
If either the subcommittee or full committee do not favorably report the legislation, it is essentially killed and is not likely to become law until a new Congress begins, when the sponsors of the legislation can reintroduce it and try again.
During committee action, there are a number of opportunities for advocates to make their voices heard. If the committee is soliciting it, they can submit written testimony to the committee or subcommittee to give their perspective on the legislation prior to a hearing.
If their member of Congress sits on the committee reviewing a piece of legislation, advocates can reach out and encourage their member to vote in a certain way – either to favorably report the legislation to the full committee or full chamber, or to vote against it. They can also ask their member to amend the legislation to improve it.
When legislation is favorably reported by a committee, it moves back to the full chamber for consideration. The leader of the Chamber, called the Majority Leader in the Senate and the Speaker of the House in the House of Representatives, will then place the legislation on the calendar and determine if and when it will be reviewed. The leaders have broad discretion here, and sometimes legislation that is favorably reported by a committee will never see any action on the House or Senate floor.
If the leader of the chamber does decide to review the legislation, rules will be set for how long it will be debated, which amendments will receive a vote, and how long members will have to vote.
Following debate, where members can speak in favor or opposition to the legislation, and votes on any amendments offered, a final vote will be ordered. In the House, a bill must receive a simple majority to be considered passed – if all 435 voting members are present and cast a vote, that means it must receive 218 votes in favor. In the 100-member Senate, legislation must receive 51 votes (although due to Senate rules, legislation often needs 60 votes to pass).
When a bill is being considered by the full House or Senate, anyone who lives in any of the 50 U.S. states can reach out and make their voice heard, because they are all represented by someone who will be voting on the legislation. Congressional offices track outreach from their constituents and whether it is in support or opposition to the legislation being considered.
If a member hears from thousands of their constituents and they are overwhelmingly urging them to vote in one direction, there is a good chance the member will consider that and vote accordingly.
Once legislation is approved by either chamber of Congress, it moves to the other chamber for consideration. When it arrives, the leaders again have broad discretion over what to do with it – they may refer it to a committee and start the process all over again, or they may do nothing and kill the legislation’s chances of becoming law.
In order for legislation to become law, it must be passed in identical form by both chambers. That means that if the Senate amends the bill in a way that the House does not, for example, it cannot become law until the two chambers have resolved the differences. To do this, Congress will convene a Conference Committee to prepare a version of the legislation for final passage.
When the House and Senate have passed different versions of the same legislation, both chambers will choose members to sit on the Conference Committee. The new temporary committee will meet to evaluate the differences in the two versions and determine how best to resolve them. This almost always involves compromise – for example, they might accept the House’s language for one section of the bill, and the Senate’s language for another section. They may also debate the differences and decide that one chamber’s version is better and accept that one.
Once their work is done, they will issue a conference report, which is essentially a new version of the previously passed bill. Each chamber must pass this identical version of the legislation to move it to the president's desk. Because the underlying legislation has already been approved by both chambers, and they’ve given the conference committee members the authority to negotiate the differences on their behalf, legislation that comes out of a conference committee is usually approved and sent to the president.
The members that each chamber chooses to serve on the Conference Committee remain open to hearing from their constituents about how they would like them to act. This could mean urging them to adopt provisions from either chambers' original legislation, or urging them amend to make further changes to the legislation.
Once the conference report reaches the floor in the House and Senate, it is voted on by all members of both chambers - meaning that once again, anyone living in a U.S. state may contact their member of Congress and urge them to vote in a certain way.
The final step in the process is when the legislation, passed in identical form by both the Senate and the House of Representatives, is sent to the president. The president then can either sign the legislation into law, or refuse to sign it and veto the legislation.
Presidential vetoes are rare, but more common when Congress is controlled by a different party than the presidency. For example, the 114th Congress included a Republican Congress and a Democrat president, leading to 9 vetoes. The 115th Congress included a Republican Congress and president, and there was not been a single veto. When one party controls Congress and the presidency, Congress will typically not bother passing legislation without an assurance from the president that they would sign it.
The president represents all Americans, and is open to receiving feedback from the public in the same way Congress is. If Congress has passed legislation despite the objections of their constituents, the president may choose to veto it if they are receiving similar feedback.
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