CONGRESS AS A LEGISLATIVE
ASSEMBLY:
STRUCTURE AND PROCESS
Topics #22-23
Congress as a Legislative
Assembly
• Thus far we have looked at external relationships of
Congress, i.e.,
– its representative character.
• Now we turn to look at internal characteristics of
Congress, i.e.,
– the organization and procedures that Congress uses
to carry out its legislative tasks.
• including investigation and oversight.
Parliamentary vs. Separation-of-Powers
Systems
• Two broad patterns of legislative organization are found in
democracies:
– Parliamentary systems, in which
• legislative and executive elections are fused [into “general
elections”],
• legislative organization is highly centralized and highly partyfocused, and
• the executive dominates the legislature.
– Separation-of-powers [or Presidential] systems, in which
• the legislature and executive are separately elected,
• legislative organization is relatively decentralized and less partyfocused, and
• the legislature and executive “check and balance” one another.
Parliamentary vs. Separation-of-Powers
Systems (cont.)
• In this respect, the U.S. is the exception.
• Parliamentary systems are much more common than
separation-of-powers systems.
– Virtually all European countries have parliamentary
systems.
• France is partial exception.
• Plus Canada, Australia, India, Israel, Japan, etc.
– Parliamentary systems are of two broad types:
• “Westminster” (two-party) systems, and
• proportional representation (multi-party) systems.
– The U.S. separation-of-powers system has been
copied in many Latin American countries and the
Philippines.
The “Westminster” System
• The framers of the U.S. Constitution did not deliberately
reject a parliamentary system.
– Parliamentary systems did not evolve in Europe until
the mid-to-late 19th century and early 20th century.
• In many ways, the framers thought they were copying
the structure (without the hereditary elements) of British
system of government as it then existed (which they
rather admired),
– with a separate legislature (Parliament) and executive
(Monarch).
The “Westminster” System (cont.)
• A parliamentary system evolved in Britain in the mid-tolate 19th century, with the following developments:
– the monarchy lost more and more powers to Parliament;
– the (hereditary) House of Lords lost powers to the (elected)
House of Commons;
– the right to vote for members of the House of Commons was
broadened;
– MPs [Members of Parliament, but specifically of the House of
Commons] were (and continue to be) elected from SMDs;
– malapportionment (“rotten boroughs”) of parliamentary
constituencies was reduced; and (most importantly)
– rival groupings of more or less like-minded MPs evolved into two
rival political parties,
• first called Tories and Whigs
• and later Conservatives and Liberals.
The “Westminster” System (cont.)
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One or other major party wins a majority of
seats in the House of Commons [until 2010].
The leader of the majority party becomes
Prime Minister.
The Prime Minister, together with other
leading party MPs, form the Cabinet [and
government] whose members run the
government departments that execute laws
passed by Parliament.
The leader of the other party becomes
Leader of the Opposition, who together with
other leading party MPs form the Shadow
Cabinet.
Both sets of party leaders exercise strong
discipline over their “back-benchers.”
Thus executive and legislative power are
fused and centralized.
So voters are in effect voting for a party,
Prime Minister, and government when they
vote for one of their local MP candidates.
“Divided government” is ruled out.
Other Parliamentary Systems
• Other (non-Westminster) parliamentary systems:
– Parliamentary seats are allocated among parties on
the basis of one or other system of proportional
representation.
• Voters vote for parties, not candidates.
• Parties win seats in Parliament in proportion to the votes they
receive (at least above some vote threshold)
– The apportionment problem arises again.
– Parliament achieves a high degree of descriptive
representation with respect to partisanship, but
– there is little or no local representation.
– Almost always more than two parties win seats, and
• typically no party wins a majority of seats.
Other Parliamentary Systems (Cont.)
– Thus following an election, there must be negotiation
among party leaders to form a coalition government.
– Party leaders exercise strong discipline over their
“back-benchers.”
– Thus executive and legislative power are fused and
centralized.
– However, there is (typically) no single governing or
opposition party.
– Voters vote for their preferred party but not for a local
MP, or Prime Minister, or government.
U.S. Separation-of-Powers System
• The President is not a mere figurehead with ceremonial
duties only (like a Monarch or President in a
parliamentary system).
• Since both the President and Congress have substantial
constitutional powers, there is always an actual or
potential struggle between them to control government
policy.
U.S. Separation-of-Powers System (cont.)
• Legislative (Congressional) elections and executive
(Presidential) elections are separate.
– Thus divided government may result, so that
• one party controls the Presidency, while
• the other branch controls (at least one house of) Congress.
– Even with unified party control of President and
Congress, the executive cannot dominate the
legislature (or vice versa),
– So Congress need not pass legislation requested by
the President.
• Members of Congress are responding to different political
incentives from the President, in particular
• being good representative agents of their constituents.
U.S. Separation-of-Powers System (cont.)
• Since it is not dominated by the Executive, Congress
had to create its own institutions to carry out its
legislative tasks.
• The Constitution allows each house to adopt its own
rules of procedures.
– The House and Senate have adopted rather different rules (which they
can change without amending the Constitution).
• But a basic legislative institution is common to both:
– a system of standing legislative committees [see box in K&J, p. 238]
• with specialized jurisdictions
• that more or less duplicate the jurisdiction of the executive
departments, and
• that exercise great agenda power (especially in the House).
• The committee system, combined with procedures for
selecting committee members and naming committee
Chairs, results in a relatively decentralized and nonpartisan legislative process.
– Each committee has a large professional staff with expertise
appropriate for its jurisdiction.
U.S. Separation-of-Powers System (cont.)
• In one manner (only) are U.S. congressional parties as
disciplined as their parliamentary counterparts:
– on organizational votes at the beginning of each Congress.
• So, when you vote for your Representative in the House,
(or Senator) you are also voting for which party will
organize the House (or Senate).
• The majority party that organizes each house of
Congress
– elects the Speaker of the House and the Majority Leader of the
Senate,
• [The presiding officer of the Senate is the Vice President.]
– controls a majority of seats on every legislative committee, and
– elects the chair of every committee.
• The committee chair largely controls the agenda of the
committee.
• There is always a ranking minority member (“shadow chair”).
“How a Bill Becomes a Law”
• Or, more typically, how a bill usually doesn’t become a
law.
– “The Obstacle Course on Capital Hill”
– To become a law, a bill must overcome a series of
hurdles (though some can be bypassed, especially in
the Senate).
– Some rough numbers: every year
• about 20,000 bills are introduced;
• about 1,000 bills are enacted into law;
• about 100 of these are “public bills”;
– the other 900 are “private bills”;
• about 10-20 are “major” bills (covered in media, etc.).
• How a Bill Becomes a Law”: Flow Chart =>
How a Bill Becomes a Law (cont.)
• A bill is introduced in Congress.
– This is not hurdle; it’s easy to do.
• Any member [but only members] can introduce a bill.
– A bill can be introduced in either the House or the Senate or
simultaneously in both houses.
• “Parallel vs. serial processing” of legislation.
– However:
• tax bills must originate in the House (a constitutional requirement)
• and by custom appropriations bills also originate in the House.
– While only members can introduce bills, they may introduce bills on
behalf of
• themselves,
• their committees,
• particular constituents,
• interest groups,
• the President/Administration.
– The Constitution authorizes the President to recommend
legislation to Congress but he cannot actually introduce bills.
How a Bill Becomes a Law (cont.)
• Let’s suppose the bill is introduced
into the House only (“serial
processing”)
• The bill is referred to the appropriate
committee,
– or occasionally multiple committees.
• What happens then?
– Typically nothing --- the bill “dies” or is
“bottled up” in committee,
– which is expected and perhaps just as
well, as
– the bill may have been introduced just
“for show” or “position taking.”
• But let’s suppose otherwise, to keep
the story going.
House Action
• Each committee is subdivided into
subcommittees, with still more
specialized jurisdictions.
• The committee chair assigns the bill to
the appropriate sub-committee.
• The subcommittee holds hearings and
invites testimony from:
– its sponsors,
– relevant interest groups (pro and
con),
– relevant experts, and
– the Administration (relevant
Secretary and/or agency heads).
• The subcommittee
– probably revises the language of
the bill, and
– takes a vote on the bill.
House Action (cont.)
• The bill is then considered by the full
committee, which may hold further
hearings.
• The committee marks up the bill by
– going over the language line by line,
– considering proposed amendments, and
– voting these amendments up or down.
• The committee then takes a final up-ordown vote to report the bill to floor of the
House
• The committee may exercise two kinds of
agenda power:
– Gatekeeping (“blocking”) power: if the
committee does not report the bill, the bill
almost certainly dies, though
• a discharge petition may be filed.
– Monopoly proposal power: it may be
relatively difficult (or impossible) to amend
the bill on the floor of the House.
House Action (cont.)
• The bill then goes to the Rules
Committee [the “traffic cop” of the
House].
– Legislative activity on the floor of the
House is tightly organized and regulated.
• The Rules Committee may send the bill
to the floor:
– under a closed rule, i.e., no amendments
are permitted;
– under a restrictive rule, i.e., only a few
specified amendments may offered; or
– under a (relatively) open rule.
• In any event,
– only germane amendments are in order,
and
– time for debate on the floor will be (more
or less severely) limited.
House Action (cont.)
• Floor consideration of the bill:
– Some may take place in the committee
of the whole, which allows
• less formal procedures, and
• a less stringent quorum requirement.
• Floor votes:
– on amendments (may be most critical),
– on final passage of the bill.
• Types of votes:
– Voice votes
– Teller votes
– Roll call votes
• Electronic voting.
• In general, the majority party leaders
(especially the Speaker) exercise
strong control over the legislative
process in the House.
Senate Action
• The Senate has its own similar
process but
– with very different rules governing
floor consideration of bills,
– and this may affect what happens
at the committee stage.
• The Senate generally uses
more informal procedures than
the House,
– giving individual Senators power
to slow down or even block
legislation, and thereby
– giving the majority party
leadership much less control over
the legislative process.
Senate Action (cont.)
• The Senate
– has no Rules Committee
“traffic cop,”
– has no closed or restrictive
rules,
– allows non-germane
amendments, and
– allows unlimited debate.
• Instead, the Majority and Minority
Leaders negotiate an agenda for
the Senate’s work, and
– the Majority Leader asks for a
unanimous consent agreement
to proceed in the agreed
manner.
Senate Action (cont.)
• Because the Senate does
not use closed or restrictive
rules,
– Senate committees do not have
the same kind of agenda power
as House committees.
• Because the Senate has no
germaneness rule, so
– riders may be attached to bills
on the floor, and
– Senate committees don’t have
gate-keeping power, and
– legislation can be written on the
floor of the Senate.
Senate Action (cont.)
• Moreover, the Senate
allows unlimited debate,
– allowing filibusters.
– Cloture (shutting off debate)
requires 60 votes.
• Today the minority party
routinely threatens to
filibuster legislation (or
nominations) favored by the
majority party.
• So it is generally said that a
bill needs the support of 60
Senators to pass.
The Conference Committee
• The House and Senate have probably passed different versions of
the bill, which must therefore be reconciled.
– One house may accept the other house’s version.
– More typically, a conference committee is formed.
• A conference committee is
– an ad hoc (vs. standing) committee
– set up to reconcile House and Senate versions of a specific bill
– that includes members of both houses (and both parties).
Conference Committee (cont.)
• Members of the conference are
– appointed by their respective party leaders
– and are typically members of the committees that considered the
bill.
• Conference committee members are traditionally expected to act as
representative agents of their respective houses,
– though of late they may act more as representative agents of
their party leaders.
Conference Committee (cont.)
• The House and Senate members try to negotiate a
compromise between the House and Senate versions of
bill.
– If they fail to reach an agreement, the bill dies.
– If they do reach an agreement, the conference version of the bill
is sent to each house for an up-or-down (“closed rule”) vote.
The “Third House”: The President
• Everything up to this point is consistent with the
Constitution but not required by it, because
– the Constitution gives each house the power to establish its own
rule of procedure.
• However, the remaining steps are governed directly by
the Constitution,
– which sets up what is in effect a tricameral legislative process.
• The Constitution requires that every bill passed by
Congress be presented to the President for his
consideration.
The “Third House” (cont.)
•
Article 1, Section 7. Every bill which shall have passed the House of
Representatives and the Senate, shall, before it become a law, be
presented to the President of the United States; if he approve he shall sign
it, but if not he shall return it, with his objections to that House in which it
shall have originated, who shall enter the objections at large on their journal,
and proceed to reconsider it. If after such reconsideration two thirds of that
House shall agree to pass the bill, it shall be sent, together with the
objections, to the other House, by which it shall likewise be reconsidered,
and if approved by two thirds of that House, it shall become a law. But in all
such cases the votes of both Houses shall be determined by yeas and nays,
and the names of the persons voting for and against the bill shall be entered
on the journal of each House respectively. If any bill shall not be returned by
the President within ten days (Sundays excepted) after it shall have been
presented to him, the same shall be a law, in like manner as if he had
signed it, unless the Congress by their adjournment prevent its return, in
which case it shall not be a law.
Presidential Action
• The Constitution gives the President three choices when
Congress presents him with a bill:
– he can sign the bill,
– he can veto the bill, or
– he can do nothing.
• If the President signs the bill, it is enacted into law,
– perhaps with elaborate signing ceremony (or perhaps not).
LBJ Signing Medicare
The Presidential Veto Power
• If the President vetoes the bill, it is returned to Congress with a
message setting out the President’s objections.
• Congress can respond in three ways:
– It can do nothing (so the bill dies).
– It can (attempt to) override the President’s veto.
• This requires a two-thirds majority vote by both houses,
• which is usually very difficult to achieve (so the bill likely dies).
– It can pass a new version of the bill that is more to the
President’s liking.
The Pocket Veto
• The effect of the President’s doing nothing depends on
whether Congress is still in session after ten working
days.
– If so, the bill becomes law without the President’s signature.
– If not, the bill dies
• and the President has exercised what is called a pocket veto.
• The President’s pocket veto power is significant because Congress
passes many bills right at the end of its session.
Veto Bargaining
• Sometimes Congress passes a bill that it knows the
President will veto.
– Both Congress and the President may be engaged in position taking,
• which is especially likely under divided government.
• Congress exercises agenda power because it presents
bills to the President under (so to speak) a “closed rule,”
– i.e., the President can only accept the bill as passed or veto it
entirely.
– If Congress expects the President to veto a bill that Congress
very much wants, it can (e.g., through a Senate rider) “package”
it with another bill that the President very much wants.
• It has been proposed to amend the Constitution to give
the President an item veto.
– This would allow the President the power to veto parts of a bill
(in particular appropriations bills) without vetoing the entire bill.
– Congress would lose much of its agenda power and the
bargaining power of the President in the legislative process
would be greatly enhanced.