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Lawmaking; the preparation and enactment of laws by a legislative body.
Legislative bodies exist to enact legislation. The legislative process is a series of steps that a legislative body takes to evaluate, amend, and vote on proposed legislation. The U.S. Congress, state legislatures, county boards, and city councils engage in the legislative process. Most legislation is enacted by Congress and state legislatures. Implementation of legislation is left to other entities, both public and private, such as law enforcement agencies, the courts, community leaders, and government agencies.
Legislation begins with the submission of a bill to the legislature for consideration. A bill is a draft, or tentative version, of what might become part of the written law. A bill that is enacted is called an act or statute. The selection of appropriate and clear language for the proposed piece of legislation is critical. Legislators need to understand what is intended by the bill and who will be affected by it.
A bill is amended to accommodate interested and affected groups and to eliminate technical defects. More legislative attention is generally devoted to decisions on amendments than to disputes over whether a bill will be passed. An able legislator or supporter of a piece of legislation constantly seeks ways to silence opposition or convert opponents into supporters. Many important provisions that finally become law are adjusted by amendments in order to accommodate conflicting viewpoints.
Sources of Legislation
Ideas for legislation come from many sources. Legislators who have experience and knowledge in a particular field introduce bills that they think will improve or correct that field. They often copy existing legislation because an idea that works well in one jurisdiction can be useful in another. For example, in the 1970s, legislation that created "no-fault" divorces was copied from state to state.
Legislators receive proposals from the National Conference of Commissioners on Uniform State Laws, a coalition of over three hundred lawyers, judges, and law professors, who are appointed by the states. Conference members draft proposals of uniform and model acts. Such acts attempt to establish uniformity in a single legislative area. For example, the Uniform Probate Code is an attempt to standardize U.S. probate law, and has been widely enacted.
The Council of State Governments, the American Law Institute, the American Bar Association, and numerous other organizations all produce model acts for legislatures. Even if a uniform or model act or a law used in a neighboring state is not totally applicable, it is easier to edit and revise it than to draft a new one.
Legislation is not motivated solely by existing ideas. Modern legislation is often concerned with changing or protecting social and economic interests. Interest groups usually become involved in the legislative process through lobbyists, who are persons they hire to act for them. Often lobbyists work to protect the status quo by defensive lobbying, that is arguing against a piece of legislation. Other times lobbyists propose a bill. Whether opposing or proposing change, lobbyists typically inform legislators about the expected effect that legislation will have on their particular interest group. Lobbyists also influence legislation through financial contributions to the political campaign committees of legislators.
Modern legislatures have a large staff that helps prepare legislation. On occasion, studies are authorized when a problem is recognized and no solution is readily available. Major legislation often starts with a blue-ribbon legislative commission, which might include citizen members and an independent staff from the academic community. A handful of states have created permanent law revision commissions, which operate independently of the legislature.
In addition, most states have independent offices that act as editors, putting legislative ideas into formal, statutory language that conforms to current usage in the jurisdiction. Modern legislation has become increasingly lengthy and complex, making it difficult for a single legislator to craft a bill alone.
The procedure by which legislation is enacted varies within the following general structure.
A constitution is the basic charter for governments in the U.S. legal system. Constitutions typically specify that some kinds of legislation, like a capital expenditure, require an extraordinary vote, such as passage by two-thirds rather than by a simple majority. Three separate readings, or announcements, of a bill to the full house, are commonly required before a vote can be taken. Some constitutions require a detailed reading each time, but legislatures have found ways to circumvent this mandate.
Constitutions often require an affirmative vote by a majority of all the members of a house, not merely those present, in order to pass a bill. They can also require that the names of members voting aye and nay be recorded in the journal of the legislative body. Constitutions can authorize the executive to veto legislation, and establish a procedure for the legislature to override a veto. Sometimes a specific period of time is prescribed for the legislative session or term, and all work must be completed before expiration of the session.
It is common for a constitution to require that a bill pertain to only one subject, which must be expressed in the title of the bill. For example, An Act to Increase the State Sales Tax from Six to Seven Percent is a proper title for a bill that does exactly that and nothing else. This requirement efficiently packages legislative work, significantly affecting procedure, order, and efficiency. It does not apply to the U.S. Congress, but often applies to state and local legislatures.
Each legislature adopts its own rules to detail the organization and procedure of its body. A standard version of legislative rules is often adopted to cover any situation not governed by a specific rule. Legislatures frequently need to depart from regular procedure in order to accomplish tasks. Therefore, special rules usually provide for the suspension of normal procedure, when necessary. A rules suspension can be allowed only by a two-thirds vote.
Some of the work of the legislature can be accomplished by resolution rather than by bill. A resolution is used to settle internal matters or to make a public pronouncement without enacting a law. Resolutions are used to adopt the rules of the house, to establish committees, to initiate investigations, and to authorize and hire legislative employees. Even more mundane daily work can be accomplished by a motion on the floor. A motion lacks the formality of a resolution in that it cannot be formally announced and printed in the record.
A resolution takes one of several forms. A senate resolution or assembly resolution is adopted by only one house. A joint resolution originates in one house and then is passed in the other house, having the full force of official legislative action. This is the customary form for proposing state constitutional amendments and ratifying amendments to the U.S. Constitution. A concurrent resolution, like a joint resolution, originates in one house and is assented to by the other. It lacks the legal effect of a normally adopted joint resolution, and is often used to express an opinion. Petitions from state legislatures to the president or to the U.S. Congress are drawn as concurrent resolutions. Commendations to persons who have performed socially significant deeds and to victorious athletic teams are typical concurrent resolutions.
The Enactment of a Bill
A bill must follow certain customary steps through a legislature. It is introduced by an elected member who acts as a sponsor. The chief sponsor, who might or might not be the author of the bill, is the legislator who manages the bill as it progresses through the body and who explains it to other legislators. The bill may also have cosponsors, who attach their names to the bill to add support.
When the bill is introduced, it is referred to a standing committee. Whenever possible the bill's sponsors and the legislative leadership attempt to steer the bill to a particular committee. In most legislatures there is room for discretion in the reference of bills. Major legislation might have to be referred to several committees, so the issue might be who receives it first.
Once the bill is referred, the committee must be convinced to place it on the agenda so that it can be considered and passed. The committee chair is in charge of the committee, and requests for a slot on the agenda of the committee must be directed to the chair and the chair's staff. An autocratic chair can decide which bills to consider without consulting committee members, but much of the work of a committee is done by consensus.
Competition for committee time is generally intense. Usually bills that are heard are essential, popular, or generally beneficial. Occasionally they are noncontroversial or not especially appealing to the chair. A bill can even be scheduled merely to impede another, unfavorable proposal. If a spot cannot be attained on the agenda, a sponsor can seek consideration by a subcommittee so that a rough proposal can be polished into a draft that will be more appealing to the full committee.
Legislative procedure is designed so that a bill is heard when a need for it is demonstrated. Unnecessary or poorly drafted bills are bottled up in committees where no one takes time to consider them. As a bill approaches passage, it becomes more difficult to amend it or kill it. Efforts made early in the history of the bill are generally more effective. For example, fewer members have to be persuaded when a bill is still being considered by a committee, and fewer compromises have to be made.
If a committee decides not to act on a bill and tables it, that bill is effectively stopped for that session of the legislature. If the committee recommends that the bill be indefinitely postponed, the bill is formally killed and that recommendation is reported to the floor as a committee report to be confirmed by house vote. Adoption of the committee report officially kills the bill. If the committee recommends that the bill be passed, the bill is submitted to the floor with a favorable report, which is essential to its passage. If the bill must go through more than one committee, the first committee must then refer it to the second, and the first favorable decision gives it some momentum toward success.
After a legislative body approves a favorable committee report, the bill is placed on the agenda for floor action, or action by the full body. The agenda can be lengthy. During its wait for floor action, the bill is subject to a motion to refer it again to the same committee or any other committee for reconsideration. Making a successful motion to refer it again is a classic method of defeating a bill without taking the difficult step of going on record against it on a final vote.
In most state legislatures, a bill is first considered on the floor in a committee of the whole, in which every member of the house sits as a committee to debate the bill. A committee of the whole is derived historically from the desire of early English parliaments to act in semisecrecy, without recorded votes that the queen or king could monitor. The idea has survived, and legislators continue to act without suffering the political consequences of an unpopular vote on the record.
Procedurally, the consideration of a bill by a committee of the whole allows debate without limits on the duration of time or number of times a member can speak. It also provides an interval between the first formal floor consideration and final passage of the bill, which permits more time for careful deliberation.
The use of the committee of the whole has, however, declined. More bills are submitted for deliberation by the legislative body and final vote while the subject is still fresh in the members' minds. A legislature can, therefore, eliminate use of the committee of the whole for some types of bills, for special circumstances, or altogether.
Almost every legislature has a consent calendar for bills identified by committee reports as noncontroversial. Each such bill is read at the appointed time and briefly explained, and a vote is taken. Even if only a few votes dissent, the bill is returned to the regular calendar for examination. The consent calendar permits a legislature to dispose of a host of minor bills expeditiously.
As a general practice, the legislative leadership uses a special order to schedule debate, amendment, and passage of a bill at a single session. A bill can be designated for special order by a vote of two-thirds, or more commonly by selection by a priority-setting or policy committee. Bills from appropriations and tax committees might receive automatic special order privileges because of the necessity for their enactment.
Some constitutions, including that of the United States, permit a vote on the final passage of a bill to be oral and unrecorded unless a member calls for the ayes and nays. Ordinarily, a member is entitled to do this on any motion, including final passage.
Immediately following a vote on final passage, a motion to reconsider can be made. In effect this motion requests another vote on the bill. Although the number of successful reconsiderations is small, the device can facilitate additional compromise to accommodate competing interests on the issue. Generally, only one reconsideration of any vote is allowed, so both sides endeavor to gather switch votes after a close vote. The victorious side attempts to conduct the vote on the reconsideration immediately, so that the losers do not have time to marshal strength. In the U.S. Congress, a motion to reconsider is made routinely after every vote, to give the vote a finality by precluding such a motion at a later time.
In a bicameral legislature, once a bill is passed in one house, the chances for success in the second house are good because the bill has become a product of compromise. There is no concern about wasting time on a bill that can never succeed, because the bill has already cleared the other house. Busy legislators prefer not to repeat debates that have already been extensive in the first house, and they respect the value of cooperation between the two houses.
A single bill must be passed by both houses of a bicameral legislature and be signed by the executive. If the houses pass identical but separate bills, one of the houses must approve the official bill from the other house. The presiding officer and the chief clerical official must verify passage of a bill by signing the official or enrolled copy before the bill is ready for the executive's signature. After the final affirmative vote for passage in the first house, the bill is put into an official engrossment, or formal final copy, and transmitted to the other house for consideration.
Since each house must pass the exact same bill, the form that is passed in the first house can be substituted for a parallel or companion bill in the second house. If the second house accepts the version that is adopted in the first house, it returns the bill with a message to that effect. The first house then enrolls, transcribes, and registers the bill on a roll of bills and submits it to the executive for signature.
If the second house amends the bill, it returns the bill to the first house with a message requesting agreement on the changes. If the amendments are acceptable, a motion is made to concur and to place the bill on repassage. If the motion passes, all the formalities of a final vote are repeated for the bill in its amended form. If repassed the bill is enrolled in its amended form, signed by the legislative officers, and submitted to the executive for signature.
When the two houses cannot agree on a final form for a bill, a complex procedure of compromise is attempted in a conference committee comprising usually three to five members from each house. If the conferees can reach agreement, a conference committee report is filed in both houses that reflects the final changes. Both houses must approve the report, without amendment, for the bill to be passed.
Once the bill is approved by both houses, it is put into final form and transmitted to the executive. If the executive signs the enrolled bill, it is filed with the secretary of state. The enrolled bill is then an act, a written law. Depending on the bill, the act may become effective upon signature of the executive or at some date specified in the bill.
Executive Veto Power
An executive can refuse to sign a bill and can return it to the legislature with a veto message explaining why. The legislature can attempt, first in the house where the bill originated, to override the veto by an extraordinary vote, usually a two-thirds majority.
Governors in a majority of states also have the authority to select particular items from an appropriations bill and individually veto them. This authority, called the line-item veto, became popular because it allowed the executive to cancel specific appropriations items from bills that were hundreds of pages long. Congress enacted the federal line-item veto authority in 1996 (2 U.S.C.A. §§ 691, 692) to give the president the ability to impose cuts on the federal budget. In Clinton v. City of New York, 524 U.S.417, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998), however, the Supreme Court ruled that the Line-Item Veto Act violated the Presentment Clause under Article I of the Constitution. Under the Presentment Clause, after a bill has passed both Houses, but "before it becomes a Law," it must either be approved (signed) or returned (vetoed) by the president. By canceling only parts of the legislation, the president, in effect, amends the law. The Court concluded that there was no constitutional authorization for the president to amend legislation at his discretion.
The line-item veto, like a regular veto, can be overridden at the state and federal levels by a two-thirds majority vote.
If the executive does not sign a bill or return it to the legislature with a message of disapproval, the bill becomes law within a prescribed number of days. At the state level, the governor turns the bill over to the office of the secretary of state, and the fact that it became law without the governor's signature is noted. If the legislature adjourns before the governor's time for signing expires, the bill does not become law without the signature. The governor's time for consideration has been curtailed, and the adjournment prevents the governor from returning the bill with a veto message. In this case the governor can defeat the bill by refusing to act, which produces a pocket veto.
The veto power gives the executive a pivotal role in the legislative process, if the executive cares to assert his or her authority. Use of the veto power varies considerably, depending on the personality of the executive, the political allegiances of house members and independence of legislative leaders, local customs, and the quality of the work produced by the legislature.
"Clinton Becomes First President with Line-Item Veto." January 2, 1996. CNN.com: All Politics. Available online at <http://images.cnn.com/ALLPOLITICS/1997/01/02/line.item> (accessed August 28, 2003).
Dewar, Helen, and Joan Biskupic. 1998. "Court Strikes Down Line-Item Veto." Washington Post (June 26).