Why is it so hard to pass
legislation through Congress?
‘’The hurdles to enacting legislation
are substantial’ 2004 Burdett Loomis –
The Contemporary Congress
This is not a question you would
ask in the UK
Facts
• 109th Congress 13,072 bills and only 395 (3%)
became law.
• Compare this to the UK, where in the same
period, there were 219 bills, of which 58 became
law and
In terms of government bills, 53 out of those 69
the government proposed became law. In the
UK, government bills are almost guaranteed
passage.
What are the institutional/structural
obstacles?
– Key reasons
• It is designed not to work
• There are checks and balances
• The separation of institutions/sharing
powers
– ‘Perhaps the most remarkable feature of the
legislative process in Congress is how much
is stacked against the enactment of a new
law’ – Steven Smith 1999
Obstacle 1
Point 1
The Committee Stage
• Like in the UK there
are three readings
and a committee
stage BUT the
differences here are
fundamental.
In the UK the
committee stage
comes after the
2nd reading and is
only done by ad
hoc generalist
committees
In the USA the
committee stage
comes before the
2nd reading and is
done by
permanent ,
policy specialist
committees
The Congressional
Standing
Committees have
virtual life and
death power over
bills as well as full
power of
amendment.
Members of both
chambers will bow
to their expertise.
Obstacle 2
Point 2
The need for a super majority at certain stages
– Three crucial ‘pivots’ in Congress are identified by
Keith Kreihbel: ‘Pivotal Politics’ 1998
– Any bill must find a simple majority in both houses
– Any bill must find a majority of 3/5 in the Senate
– Any bill, if vetoed by the President, must find a
majority of 2/3 in both houses.
Development of this point, with
examples
Comment:
• obviously all bills need a vote to pass and
sometimes a conference vote before they go to
the President for signing.
• The 3/5 rule is the filibuster – to end it you need
3/5 i.e. 60 Senators e.g. 21 December 2005, The
Senate was voting on the Defense and
Appropriations Bill, after the conference committee
report. The vote was 55-44 to end the filibuster.
Because it was 4 votes short the bill was not
passed.
Clinton and the veto - 1997
• Both Houses need 2/3 to override a presidential veto e.g.
Clinton 1997 – Clinton vetoed the Late Term Abortion Ban
Bill. The House overrode this veto by 296 – 132 (11 votes
over). The Senate was 64/36 in favour – 3 votes short of the
2/3 majority needed (67). So, although 360 members of
Congress wanted to go ahead, it was the 168 who did not
want the bill who won, with the President’s support
Significantly, this demonstrates that
supporters have a much higher bar to clear
than do opponents. This is an example of
the power of the minority.
Obstacle 3
Both houses possess equal power in
passing legislation
Comment – this makes legislation more
complicated. It is often said that the Senate is
more powerful, which it is because it has two
very important exclusive powers (to appoint
and to ratify) but in terms of legislation – both
houses are equal.
Differences between UK and US
UK
USA
Only one chamber is required to give its
whole hearted support
Both must give their full consent, neither
chamber can override the other
Bills need approval by standing committees
in both chambers
Majorities are needed in both chambers
after the second and third reading
Conference committee reports must be
approved by majority votes in both
chambers
After a veto, both must pass a 2/3 majority.
Obstacle 4
– The two houses may be controlled by
different parties
Comment – This is an added problem brought about by the
separation of powers e.g. mid 2001 – end 2002 –
Democrat Senate, Republican House and 1981 – 1987
Republican Senate and Democrat House.
If one house was superior this wouldn’t really matter e.g. In
the UK after 1997 there was a Conservative dominated
Lords and a Labour dominated Commons – but the
Commons is superior in terms of the passage of
legislation, so it matters less.
an example of this……
– In the US mid 2001 to the end of 2002, the
committees in both houses were chaired by different
parties and ideologies from each other
e.g. agriculture –
• In Senate chaired by Tom Harkin (D) Iowa
• In House chaired by Larry Combest ( R) Texas
– The only thing these two have in common is
agriculture. In otherwords when Indiana
Republican Dick Lugar was chairing the Senate
Committee it was much easier.
obstacle 5…….
– The Presidency and Congress may be
controlled by different parties. This is ‘divided
government’ (usually one party controls both
houses). This was the case mostly between
1969 and 2001. Out of 32 years, 20 were
divided. For 6 years under Reagan – 19811987, the President’s party controlled only
one house. For 6 years 1977-1981 and 199394 did the President’s party control both.
Timing
• The beginning and the end of the legislative process are
important.
• The beginning - The State of the Union address can be
followed by hurdle after hurdle, as we saw with Nixon,
Ford, Bush Snr and GWB in the last 2 years e.g. Clinton
in the late 1990s wanted to introduce a minimum wage
and a Republican controlled Congress wanted cuts in
Federal Programmes
• The end – veto time – vetoes are far more common in
times of divided government – than when there is control
of one house e.g. 1961-2005 (18 years of united
government and 42 vetoes (2 per year) only 2
overridden……20 years of divided and 147 vetoes (7 per
year) 25 overridden.
final obstacle…..
– Party discipline in Congress is comparatively weak.
There is never any guarantee of legislative success
• e.g. Clinton 1993
82 seat majority in House
16 seat majority in Senate
He had 6 priorities – economic stimulus, deficit reduction, campaign
finance, national service, welfare reform and his top priority,
healthcare reform.
Results? Even with a united government, only two of these 6
priorities were enacted and neither of them were healthcare
WHY? Most votes in Congress are of a bipartisan nature, opposition
and support comes from both parties. It was some of Clintons own
democrats who scuppered his healthcare plans, and Bush Snr,
only got his controversial tax increases through with the support of
the opposition. Most big-ticket legislation is passed by quite large
bipartisan majorities………….. See No Child Left Behind 2001
Summary – Power in Congress has
become more decentralised
• It is true that in the 1050s and 1960s it was
possible to get legislation through Congress with
support from the ‘Kings of the Hill’. – Committee
chairmen, speaker and Leaders of the houses.
Not so anymore. It is now much more
necessary to persuade the subcommittee
chairmen and ordinary members of Congress:
• Anthony King – the whole process of getting the
President and Congress to work together is ‘like
trying to sew buttons on a custard pie’