In the last three parts, we examined the Congress which is the House of Representatives and the Senate. Today, we’ll examine how a bill becomes law.
In the Federal Government, the process for a bill becoming law is somewhat convoluted. Let’s follow the process and examine each of the steps.
A bill first starts as an idea. This idea is sold to a group of senators or representatives or both. Who does the selling really isn’t important. It can be an individual, the president, or some political action committee.
Once a group of senators or representatives get behind the bill, they start trying to build a consensus both among their own party and the other side of the aisle. They get a list of people who sign onto the bill. These are called the “sponsors.” They are selling the bill the same way you might sell a used car. Obviously, they are trading favors. “I’ll sign on to your bill if you sign on to mine.” “Why won’t you sign on to this bill? What do you want changed?”
Eventually, the bill moves into the appropriate committee or sub-committee. There, it goes through a series of hearings where the committee members get to bring in people who will say it is a good or bad bill. If the bill is likely to pass the committee, they’ll vote on it to move it forward to the next committee or schedule it for a reading on the floor. If the bill is not likely to pass, they’ll vote it down or leave it for another day.
The Speaker of the House or the Majority Leader of the Senate schedules the bill for some floor time. When it comes to the floor, it is first read. If it’s a long bill, or if people are in a hurry, they might ask to skip the reading. Sometimes, if the minority party is feeling mean, they’ll ask that it be read in full.
Once on the floor, senators or representatives will start offering amendments to the bill. These are voted on pretty much right away. There is a limit to the number and types of amendments that can be offered, and usually the presiding officer has some control over this process. Eventually, the amendments run out and debate proceeds to the next step.
Once all the amendments are through, the senators and representatives will begin debating the bill. It may have been true at one time in history that members of the Senate and House actually paid attention to each other. That isn’t true today, and it hasn’t been true for a very long time. Debate today is simply a way to stall and to get some airtime on the news shows. While debate is going on, the final back-room deals are wrapped up and the two parties have it figured out who is going to vote which way.
The kinds of back-deal negotiations made are quite seedy. For instance, a certain senator may support the bill, but because the bill is unpopular, he wants to vote against it. So he may ask to be allowed to dissent as long as the bill won’t fail. Or he may even trade his vote for someone else’s and return the favor later on. This wasn’t unforeseen by the Founding Fathers. This was, after all, how Parliament worked and still works today.
In the senate, a senator may decide to filibuster the bill. This means he will begin speaking on it and never stop. To break a filibuster, according to Senate rules, you need 60 votes. Once those 60 votes are found, the bill has “cloture”, meaning, the senate will cease debate and vote on it. Nowadays, nobody actually filibusters a bill. Instead, they merely threaten it. When 60 votes are found to proceed, then they proceed.
The House has no such filibuster or cloture rules. They got rid of the filibuster and other parliamentary tactics long ago.
It should be noted that all of the above rules are set by the respective bodies. That is, the Senate determines how the Senate works, and the House determines how the House works.
The voting remains open for some time, usually a few hours, although exceptionally, for several hours. During this time, the floor leaders (who are appointed by the party) make sure their party is voting the right way and that no one votes the wrong way. There may be some last-minute back-room deals as people may decide to switch their vote to hold out.
If the bill passes, then the whole process starts again in the other house.
Eventually, a bill will pass in both the House and the Senate. The bill that the House passes usually looks nothing like the bill that the Senate passes. So the bills go to a conference committee where representatives and senators meet to decide how to put the final bill together. Once this final bill is put together, it is proposed to both the House and the Senate simultaneously without opportunity for amendments. At this time, senators and representatives have one last chance to vote “no”. If either house fails, the bill fails and the process has to start all over again.
Once the House and Senate agree to the same bill and both approve it, then the bill is taken to the president. The president has three choices.
- He can sign the bill, making it law. Sometimes the president puts a signing statement on the bill, which will explain his constitutional view of the bill and how he intends to follow or not follow it.
- He can veto the bill, sending it back to congress to try and override the veto.
The president has 10 days to make a decision. If the doesn’t, then the bill is signed.
To override a veto, both the House and the Senate simply have to vote with 2/3rds to override the veto. In such a case, the bill becomes law despite the president.
The president, by tradition, adds some notes to the bill as he signs it. These are usually instructions to his office about how he intends to read and enforce the bill, and whether he considers part of it constitutional or not. Note that this is the power of the executive—he is the doer, and the congress is the writer. If he doesn’t want to do something, it doesn’t get done.
Most people end the story there, but this is not the end.
After a bill becomes a law, it is considered federal law. However, several things can happen to strike down a federal law.
If the federal prosecutors refuse to prosecute violations of the law, then the law is no law. A law that isn’t enforced isn’t a law. At least, not until someone tries to enforce it. Many laws have disappeared from the public conscience (but not the law books) in this way.
If the law is unconstitutional and enforced, then you can bring it before the federal courts. To do so, you have to find someone with “standing”. They have to have some sort of injury due to the law. Usually, he has broken the law and is being prosecuted for it. Once in court, the defendant can claim that the law is no law at all since it is unconstitutional. The courts will decide whether it is a constitutional law or not in that particular case, and often they will give instructions to lawyers and judges about which parts are constitutional and which are not.
Congress is full of lawyers so they are pretty good at writing laws that the judges won’t overturn. But sometimes the courts change the way they think about the constitution or the law. It’s important to have judges who don’t change their opinions or read the law and constitution literally and consistently so that people who want to follow the law know exactly which parts are constitutional and which ones aren’t.
Even if the courts agree that the law is constitutional, the jury in a criminal trial can still refuse to convict on the law. This principle of “jury nullification” is the last line of defense. Note that just because one jury decides not to convict doesn’t mean that another won’t either. Relying on jury nullification is risky at best.
This process of making new laws is one where the people will get plenty of opportunity to make their desires known. Along the path, any number of things can occur that will effectively kill the bill. This is by design. Changing the law should be hard. It should be a long process. It should involve all three branches of government and the people. It should be publicly visible and allow for plenty of opportunity for people to study the change and point out why it is good or bad.
In the next part, we’re going to examine, for comparison, how to amend the federal constitution.
