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Congress and The Legislative Process, Explained

Knowing the basics of Congress might usually look like a daunting and impossible task, here’s a guide to help you navigate the convoluted waters of Congress

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Understanding the legislative process in the United States can prove a daunting task for most people, with the media usually employing very technical terms when explaining how a bill becomes a law. Sometimes it looks like you need to learn another language in order to get what’s happening on the hill, which is why we’ve decided to create a quick yet comprehensive guide, a congressional dictionary if you will, on the most important terms to know in Congress.

Composition of Congress

The United States is famous for having a bicameral parliamentary system, where each chamber holds an almost equal amount of power in the legislative process. Both chambers represent a different set of constituents, with members of the House representing congressional districts of around 700,000 people and senators representing their entire state, regardless of population.

In 1929, Congress approved a law that capped the number of total representatives to 435 voting members while the Consitution mandates that each state of the Union is entitled to have two senators each. Representatives have shorter terms, being up for reelection every two years, while Senators have much longer terms, with six years each. Hence, every two years the entire House is up for grabs, while only a third of the Senate is due to face the voters.

Each chamber of Congress is divided into several committees where they evaluate the content and merits of proposed legislation, conduct hearings and recommend legislation to be put up to debate on the floor (a process known as markup). There are committees and subcommittees on a wide array of issues like foreign affairs, appropriations, judiciary, veterans affairs, etc.

The U.S Congress is divided into two chambers: The House of Representatives, with 435 voting members based on population, and the Senate, with each state having two senators to a total of 100 members. (EFE)
How does a bill become a law?

Every member of Congress, either the House or the Senate, is able to present a bill in Congress which is assigned a specific number per session based on the order they were presented (H.R 1 for example) and is then remitted to a committee where the legislation awaits for their chair to decide if the bill would be evaluated and put up to a markup vote if the bill gets voted down on the markup process or the chair never decides to submit the bill to evaluation, a bill “dies” in committee.

If the bill survives the committee process they are remitted to the House or the Senate calendar, where they are eligible to get a vote on the floor of the chamber, however, the vast majority of bills (usually over 80%) are not even considered for a vote.

The scheduling and floor consideration in each chamber is different. In the House, the bill can be debated either via “suspension of the rules”, where the debate of the bill is limited to 40 minutes and no amendments to the bill are allowed. This is often used for non-controversial bills as it requires a 2/3 majority for it to pass.

If a suspension under the suspension of the rules status is not achieved, then the House Leadership sends the bill to the powerful Rules Committee of the House, which debates and decides the parameters (time, number of amendments allowed, etc) for the debate of the bill in a case-by-case basis. As this committee is vital for the inner workings of the House, the majority party usually outnumbers the minority by a healthy margin, as of 2021 there are 8 Democratic members and only 4 Republicans in the Rules Committee.

Once the Rules committee has reached a conclusion, the whole house votes on whether to accept that recommendation and debate the bill within the parameters set by the committee. If it votes yes, then the House debates the bill as established and eventually votes on it.

In the Senate, the process is a bit different, and members could move a bill to be scheduled to vote via “unanimous consent”, which means that all senators agree on putting the measure to a debate or by a majority vote o the members of the body. Since it needs the agreement of all senators, this procedure is also used for non-controversial issues.

The Senate, however, has two key differences from the House when it moves a bill for consideration: it does not have a time limit for debate, and Senators can propose amendments that are not related to the bill that is being discussed.

basics-of-congress-
The main difference between the House and the Senate procedures is that the latter does not have a time limit when debating bills (EFE)

That first difference (the no time limit for debate) is what gives any senator the ability to delay debate indefinitely and prevent a bill to come to a final vote, effectively preventing it from getting through congress, this quirk of the system is the so-called Fillibuster.

In order for a bill to overcome the legislative fillibuster, senators call for a measure called “cloture”, which can actually impose limits on the allotted time of debate and the allowed amendments for a bill that can be debated. Up to 16 senators can introduce a cloture motion in the senate, however, the motion needs to be approved for at least 60 senators (3/5), after which a timetable for debating the bill (usually 30 hours) and a limit on allowing only relevant ammendments is set.

If cloture is approved, then the bill can go into a final vote on the Senate floor, where only a simple majority vote is needed. Hence, when we hear that a bill needs a 3/5 vote to get through Congress is not that the final vote in the Senate needs 60 votes in favor, but that at least 60 senators need to agree to hear the bill and allow it a vote in the floor.

If the language of the approved bills is identical then it goes for the president to signature or veto. However, when the content on both bills is different, both the House and the Senate can send delegates to a conference meeting where they iron out the differences of the bills and then send the compromise legislation to both chambers to get a final vote.

Once the President receives an approved bill, he can either sign it or veto it. If the president decides to veto a law, then the bill is dead, unless 2/3 of the voting members of each chamber decide to override the veto and enact the bill as law despite the presidential negative.

Reconciliation and other quirks

However, as the COVID relief bill showed, the 3/5 threshold is not always needed when debating bills in the upper chamber and sometimes a bill can pass congress with only a simple majority vote in the Senate, allowing for the passage of controversial bills without the need of convincing members of the opposite party to give support to the law.

The reconciliation process, set into law thanks to the 1974 Congressional Budget Act, allows setting limits on the debate time and amendments on the senate for bills that change revenue, spending or the debt limit. The Senate adopted a convention, called the Byrd rule, which prevents amendments that does not change the level of spending or revenue, effectively limiting the process to budget-realted matters.

There are questions about how many times the process can be used in a single year, with the brunt of that decision resting in the shoulders of the Senate Parliamentarian, who according to the Senate’s website is the “Senate’s advisor on the interpretation of its rules and proceedings”. The Consitutional Center also elaborates in the duties of the role, with the parliamentarian answering questions about the wording, the precedents , and actions of any motion posed in the senate.

Congressional leadership usually obeys the rulings of the Parliamentarians, however, this is not mandated by law (EFE)

Although the rulings of the Senate Parliamentarian are not binding by themselves, the senate leadership usually accepts its ruling, it is very uncommon that a presiding officer decides to overrule the judgement of the parliamentarian. The role of the parliamentarian then is that of an impartial referee of the proceedings and rule that form the Senate.

A great example of the power and duties of the parliamentarian was when she decided that the proposed infrastructure bill of the Biden administration could be debated under the reconciliation process, bypassing the threat of a filibuster, a significant early victory for Biden’s legislative ambitions.

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