1.11 The Legislative Process

Profs Greer and Jarman discuss the legislative process, why the US Congress hasn't legislated much lately, and what can be done about it. What was the Indiana Pi bill and did it make it into law? Listen to find out!

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• Music: 'Blippy Trance' by Kevin MacLeod

Transcript

Scott Greer: 0:10

This is an HMP governance lab podcast on the american legislative process. I'm Scott Greer. And here to guide us through that exciting topic is Holly Jarman.

Holly Jarman: 0:21

Thanks for that great introduction. So I get to give you the relatively vanilla version of the legislative process as experienced by the US Congress. So bear in mind that there's some variation in terms of how state legislatures go through this process. But the general process kind of holds. And, in particular, you need to know about the five different stages, that legislation is required to pass through, and it passes through those stages in each of the chambers before it becomes law. And so the five stages are introduction. So the point at which a bill is introduced, the Committee stage floor debate, the conference, committee process, and approval. So for each day's stage, there are certain key points to consider. And I'm going to talk to you about those stage by stage. So, at the introduction stage, most legislation starts with somewhat similar proposals that get introduced in both chambers. So note that the US Congress is a bit weird in that individual members of Congress can introduce legislation. This is pretty unusual amongst legislators worldwide. I have the dubious honor of actually having a degree in legislative studies. And so one of the things that we had to read was an analysis of different legislatures, and this kind of active legislature where individual members can put forward their own laws, it's really rare. And there's pretty much just the US and Costa Rica that have this model. So the consequence of that, for our purposes, is that it means the centralized agenda control by the party leadership in each chamber is actually a bit weaker than it might be in other places. So in some countries, governments really do shape the agenda very directly. But in the US case, individual members can throw a curveball by introducing their own legislation, which they like to do for various reasons, including signaling to their constituents, that they've done something about a perceived problem, it doesn't necessarily mean that the legislation is good or will be effective. It's sometimes used as a signaling device in that way. So it doesn't matter who is in charge of the chamber. Obviously, their party preferences and ideology matter. But also, how senior are they? And how well do they know the process? And can they actually bend the rules of the chamber to their advantage? And can they build coalitions of support for a piece of legislation in order to facilitate its passage through the chamber.

Scott Greer: 3:13

So let me use as an example, one of my all time favorite pieces of American legislation, or legislative proposals, which is the Indiana pie bill of 1897, in which a representative named Tyler record introduced a bill on how the circle circle should be squared, which implied a value of pies 3.2. Now, as Holly said, anybody can introduce a bill, and have it be listed in the legislative record as having been introduced and this was introduced a bill in which the Indiana legislature would have established by legislative Fiat, a mathematical formula with a variety of applications, including pi is 3.2. What happened next?

Holly Jarman: 3:55

So I think in most circumstances, that pi bill would die in the next stage, which is the Committee stage. So most bills do not pass the Committee stage. Please note that there are a lot of representatives introducing measures just to introduce measures, they might well realize this is not going to pass the Committee stage. And so they might want to signal in various ways that nevertheless, they're doing something about it. But, again, committees are political and partisan. So what can advance as a piece of legislation out of committee stage to the floor debate is a partisan matter. And so a lot of bills go to die in the relevant committee. So internal rules within the chamber, determine which committee examines the bill. So a series of standing committees can gather information so they can hold hearings, basically. So when you see experts standing up and testifying That's a hearing where a sensibly, the committee members are gathering information about the topic. Although quite often, hearings themselves are also performative. The standing committee can also draft legislation, which is called the markup process. And then they can make some recommendations. So they can recommend passage of a bill, in which case it will move on to the next stage. Or they can just choose not to do anything, and not acting effectively kills the bill. So most bills don't get past this stage. It's worth noting, also that overtime in the legislature, as legislators have dealt with more complex policy topics. committee staff numbers have really increased and have seen a higher workload, although in very recent years, we've had a lot of gridlock and not actually a lot of legislation passing through Congress. So those committee members don't necessarily have a lot to do right now.

Scott Greer: 6:00

Or if they do, they're doing oversight hearings. Now, you'll be amazed to hear that the PI bill made it into Committee stage and in fact, out of committee stage

Holly Jarman: 6:09

what

Scott Greer: 6:09

there was confusion after it was introduced. A senator from Bloomington proposed that it be referred to the Finance Committee, the speaker accepted and other members recommendation that it should go to the Committee on swamp lands where the bill could quote, find a deserving grave. In reality, the bill was actually transferred to the Committee on education, which reflecting I guess, lower standards for staff work in 1897 in Indiana, reported it out favorably. Wow. So it's out of the Committee stage. Now what happens stage?

Holly Jarman: 6:39

Okay, so stage three is the floor debate. So the word debate is a bit misleading here. The way that the debate proceeds in discussion of the bill is kind of the result of negotiation amongst members. And it's the process is guided by party leadership and the whips. So who gets to speak and when, and the points raised is somewhat politically constructed and partisan, obviously. So votes can happen at this stage. And those votes are governed by a mix of formal and informal rules, which we will we will talk about in a minute. So once the pie bill has been debated, did it did it go any further? Scott?

Scott Greer: 7:24

Well, one thing I want to suggest is that complex legislation such as modern health legislation, the pie bill probably will end up in all three. And so conceivably, you could have had the floor looking at three marked up versions from the committee's on swamp land, finance and education. So in that case, it's in the hands of the leadership and the Rules Committee in the house to figure out how they would get these to work together. So for example, the ACA, the three principal committees that would have considered it in the house work together to get a single legislative draft for the house to put onto the floor. Now, in the case of the PI bill, the committee reported it out favorably I'm starting to get a real vibe about the educational quality of Indiana in 1897. But as luck would have it, the president of the Indiana Academy of Sciences a mathematician from Purdue happened to be in town because he was lobbying the Budget Committee for an appropriation for the Indiana Academy of Sciences. And he was available to explain to members that no matter what you legislate pi is not going to be 3.2. So it actually died in a floor debate after being favorably reported out of the Committee stage. But here's the hypothetical. What if the Indiana assembly had indeed passed it and the Indiana Senate had simultaneously passed a hypothetical bill to make pi four?

Holly Jarman: 8:45

Well, in that case, Scott, we would proceed to the next stage, which is the Conference Committee stage. So at that point, there has to be a mechanism for reconciling these bills, we have to figure out what version of this law that's been passed through the two chambers is actually going to be the law on the books. And so this involves more committees, you'll be surprised to hear. So conference committees. Again, this is a negotiated process. And so they negotiate and try and figure out what the consolidated bill will be. And so that happens when chambers approve different versions of the same bill. And the important thing about this stage is it's actually not very transparent at all. If you think about it, as a member of the public, you can get to see when a bill is introduced. Maybe you know something about the Committee stage because you have been following the hearings. You can also take a look at floor debate and the transcripts. The conference committee stages relatively less transparent. And so it can be a tricky one for advocates and

Scott Greer: 9:56

lobbyists to really navigate and this gives us one of the most important Weird pieces of legislation in American healthcare. ERISA. Now, ERISA was a piece of legislation to deal with the fallout from the bankruptcy of the Studebaker Corporation. It's Indiana day in this class. Studebaker was in Indiana, and they went bust and they've made all sorts of promises of insurance and pensions to their employees. And then when they went bankrupt, they just reneged and the employees got nothing and people who were receiving Studebaker pension suddenly gotten a pension. This was perceived as a problem. And so Congress set out to formalize the meaning of a company pension obligation. So if you have an employer that actually offers people a fixed benefit, defined benefit pension? Well, they're within a federal regulatory framework, because Studebaker has shown that state regulatory frameworks weren't enough. Late at night, about three o'clock in the morning, somebody in the conference committee and historians are actually still trying to figure out who that was, said, Wait a minute, this might cause real complexity for companies health insurance. And so ERISA, which is mostly about pensions, and not your problem, acquired one little line, which said, that company health insurance plans for multi state companies are exempt from state insurance regulation. So, state insurance regulators basically can't insure the health bans and benefits can't regulate the health insurance plans and benefits and procedures of the biggest companies. That happened in conference committee. It's amazing, we still don't know who put it in. When it went back for approval, it didn't get any further oversight. And it changed the direction of American Health Policy, because it meant that small employers and people are regulated by states, but the big companies are regulated by the federal government exclusively.

Holly Jarman: 11:56

So I hope we can see by that example, how this relatively overlooked part of the legislative process relatively, not very transparent at all really can have a huge effect on the outcome. And especially when you're dealing with laws and legislation. My advice is to always read the bill, don't rely on other people's interpretation of the bill, read the bill for yourself, learn how to read a piece of legislation, and understand it in context for yourself. Don't rely on other people's interpretation of the law. Because small things like this, like that phrase that was inserted, might have incredibly big implications for you, your organization or the issues that you care about. So we move on to the approval stage. So this is the part where the House and Senate, the conference committee produces a compromise text, and the House and Senate approve that text, then the bill goes off to the President. So this is the part where the public pay more attention, because the President can either sign the bill into law or can exercise the veto power and kick it out.

Scott Greer: 13:15

And if the president exercises the veto power, it takes a two thirds majority in both houses to override. I also want to underline that once something has come back from the conference committee, whose members are appointed by the leadership. So the two houses so it's highly partisan. It's an up or down vote, you don't get to amend again, your last shot at amending as an ordinary member was in the floor debate ages ago,

Holly Jarman: 13:36

prior to the conference committee stage. And that's important.

Scott Greer: 13:40

And at the approval stage, the US Senate has the filibuster, which was born of a mistake in the rules when Aaron Burr, who has been better known these days than for a long time, tried to clean up the Senate rules and accidentally created a glitch in which it appeared to require unanimous consent to end debate and call a question. So a filibuster simply means that you decline to end the debate and actually vote. So what it means is that the Senate passes everything by majority 50 votes plus one most of the time. But ending the debate requires a supermajority, which is currently fixed in the rules at 60. These Senate rules are endlessly fascinating, because they're really important. It takes 11% of the population to elect 60 senators, which means that you can have grotesque disparities within the Senate in favor of essentially thinly populated rural states. Senate rules are set by a majority of 50. So you can abolish the filibuster with 50 or 51 votes. But if you keep the filibuster, you have to have 60 votes in order to actually vote on any legislative proposal. The filibuster has been being used more and more in the 21st century it used to be used in extremists. Now essentially No legislation moves forward in the Senate. Nobody even bothers unless they're assured of 60 plus votes, which is a principal reason that the Senate does essentially nothing. The one thing that the Senate does care about is approving judges. So they basically move to a 50 vote rule. So the Senate has eased its rules for certain budget things, see our discussion of reconciliation, and for federal judicial appointments. For everything else, the Senate retains a 60 vote gridlock, which is bizarrely held in place by a 50 vote decision on the rules.

Holly Jarman: 15:36

I think it's important to note that you say the senate does nothing the senate tours, although the senate as an institution is not doing a lot of legislation. The senators are doing a lot with that time that relates to party priorities, and also the election. So they're raising money and meeting with stakeholders and doing other things with their time, which is important to know.

Scott Greer: 16:05

But even the most constructive senators, you look at the scores that senators get, for example, Gary Peters of Michigan, has one of the highest bipartisan success scores of any senator. And it's still really depressingly low by historical standards. Because bipartisan success requires finding something that in the polarized America of the 21st century, will find 60 votes. And the fact that Peters finds anything is to his credit.

Holly Jarman: 16:34

Right. So that's the basic vanilla legislative process. But I think, like as Scott was sort of alluding to there, there's a number of things we have to think about that actually intervene to shape this process. Particularly I'm thinking here about the rules of both of the chambers, for example.

Scott Greer: 16:58

So the chambers are quite different in culture, the house is defined by the phrase go along to get along, House members are encouraged to specialize on to one or two committees, they fundraise from the people who come before those committees, and they use that to buy their committee posts. It's a pay to play system, you raise a certain amount of money for the party leadership, and they reward you with the post on good committee. So really heavily lobbied committees like to do with finance Ways and Means defense. They have to put in maybe a good half million dollars a year sometimes in donations into the party leadership's control to help their fellow members. And as in return, they get to make policy affecting those districts, or sorry, those areas of policy. If this sounds like legalized corruption to you, you probably have a point. Now, what this means, though, is that house members stay in their lanes. If you're on the agricultural committee, you do agriculture, if you're on a the aging subcommittee of the committee that deals with health, you focus on that, that's your lane, that's your donors. That's your expertise. And that's your support base. The house is traditionally run by the leadership, right. So the leadership responds to the caucus, the caucus responds to the leadership, Nancy Pelosi is essentially the Prime Minister of House Democrats in this model. That's what the speaker does. Being in the minority in the house just stinks. You get to have a root website paid for. But you get a small number of staffers. But basically, the leadership systematically and consistently overrides you and you just need to lump it. So whenever a party thinks that they're going to be out of power in the house for a good while you see a bunch of senior people retire, because it's really no fun at all to be in the minority. The Senate is very different. It's much smaller. Senators cover much bigger waterfront, if you look at a big piece of legislation, you can see the fingerprints of most of the ruling party senators on it. However, the Senate's become far more gridlocked and far more partisan, far less collegial. Because increasingly, Senators like House members vote the party line and leadership has seized control of the process. This is particularly extreme in sort of late Obama and the Trump presidency when there's very little big legislation going through. And a lot of actually what goes through is in the form of budget bills which have to be passed. And so people stick their policy priorities not in law, where it belongs and where it can be properly seen in committee and examined and marked up. But instead it gets mashed into an enormous Bill, by the leadership which gets passed, often sight unseen by House members and senators alike. This is what I mean when I say that American politics is increasingly a legislature free zone. Because it looks more and more like something you've seen in a lot of states, New York State was famous for this, in which the houses essentially are under control of their partisan leadership's they negotiate with the executive, the White House, that's what gets passed, and most of the time what gets passed is in the form of a budget bill, either If I would prefer that it'd be properly thought through legislation.

Holly Jarman: 20:05

So what she's saying is that we should call this something other than the legislature at this point.

Scott Greer: 20:13

Combination of administrative oversight on a good day and budgeting. And this is extraordinarily frustrating, right? Nobody's happy with this. Nobody enjoys this, the few people who do enjoy it are mostly really strange and unpleasant human beings. Right? You don't go to Washington under any party label, because this is what you want to be doing being ordered around by the leadership, being constantly forced to raise money. If you're in the House Minority, you have nothing to do. If you're in the house majority, you basically have an area of expertise, but you have to do what you're told most of the time. And if you're in the Senate, your world is looking increasingly like the house but with an incredibly frustrating supermajority requirement for everything but judges and budgets. That's not a lot of fun.

Holly Jarman: 20:57

So can I ask at this point, what do you think we should do about this? I mean, we've got some exciting young legislators. We've got OC, we've got rasheeda Talib, and others who might be able to shake this up and might be willing to shake this up. How can the legislative process be reformed in a way that would support public health?

Scott Greer: 21:22

This varies, but for a while the democrats have actually been the older party in terms of the average age of their representatives. On one hand, you have the squad. On the other hand, you have a bunch of you know, bright, young Republicans, right, Dan Crenshaw, for example. And they are every bit as heroes on the Republican side, as the squad are heroes for many Democrats. And of course, wolfsbane to many moderate democrats who get hit with attack ads featuring the squad on a regular basis. There's a bunch of procedural things you can do. But here's the problem. political scientists like political parties, we like political parties, because it increases accountability and voter information that little D or that little r tells the voters a lot. We like political parties, because it encourages coordination. We like political parties, because it allows more complex deals that satisfy more interests. So the house in many ways is a perfectly functional European legislature. The Senate is a moderately functional European legislature. The problem is they operate within a system of checks and balances that is dependent on comparatively weak parties and lots of side deals. And lots of if you vote for my policy, I'll vote to build you a bridge. And that's what's gone due to partisanship, which is connected with the amount of money flowing into the system, and the advantage that it gives leadership over the other parts of the legislative bodies.

Holly Jarman: 22:43

You so in political science, we often refer to this phenomenon as hyper partisanship, even because of its well, lack of desirability, but also the damage it does. And it's quite distinct from what anybody around the founding of these political institutions thought might happen. These, the institutions that we have aren't really designed for conditions of hyper partisanship. And so they start to break down and become dysfunctional.

Scott Greer: 23:14

I would point out that the next time you have a party that is attempting to legislate, and has between 50 and 60, Senate votes, the filibuster is gone.

Holly Jarman: 23:25

That would be an interesting development.

Scott Greer: 23:28

Now, this is probably quite depressing. And I realized that's my role in this life. But let's rattle through a basic what you need to note. And so let's do the kind of guiding posts. So first of all, where do these rules come from? When people talk about the Senate rules, the house rules are the rules of the game. The norms, are they come from?

Holly Jarman: 23:50

Yeah, so um, I want to say one more time that the operation of both of these chambers is, is somewhat flexible, and the person in charge can take advantage of the rules to try and get the result that they want. And each chamber, as Scott said, has its own culture and sets its own rules. So where are the rules come from? Obviously, some of this is in the Constitution. But there are also formal rules, which are the standing rules of operation which govern procedure in both chambers. But then there's a bunch of informal rules. Here's the invisible stuff that as a new legislator, you might not really know. And so those informal rules are based on precedent, or custom. So you can actually go and take a look for each chamber. They have basically a PDF of what the rules for that chamber are the formal rules, but then there'll be a bunch of custom on top of that, which sort of governs how the different parties behave, how leadership relates to essentially And how things proceed in terms of the legislative process. And the interesting thing to see is how congressional culture may change over time. As a result of that. There are also statutory rules, which are, as you would expect, from statute a piece of primary legislation that govern the process. And in particular, if you listen to our budgeting podcast, you'll hear our discussion of the bird rule, which was in a piece of legislation that governs the way that budgets can be voted upon. And then the party rules so parties have their own rules for how things are supposed to go in Congress. And in particular, Scott's alluded a little bit to some of the rules and informal understandings around party financing and committee allocation. So these rules determine a bunch of important things. And so we when we say legislative process, people assume that there is a process, it's in the Constitution, and this is how it goes. And what we're really saying here in this podcast is no, there's actually a lot of flexibility and change there over time. So these rules determine voting. So how do you vote? When do you vote, and also like what our votes outcome really means? What are the consequences of the vote, they the rules determine who drives the agenda, and how much time is allocated to discussing a particular bill, which is time is incredibly important in Congress, because if you get time you have priority on the agenda. These rules determine, as we've said, which committees consider legislation, they also determine what information the public receives about this process, which is a very important component of transparency in democracy. They determined who can access the decision making process so who can actually consult with members of Congress? And how does that work? And to what extent does Congress have to communicate to the public what it is doing? These rules also determine determined seniority of members. So with how well do you how high up do you rank within your party and within Congress, and then also, as we've said, things like fundraising requirements for each party rank.

Scott Greer: 27:22

One of the things that is really important to note is that we're in an era of what we call constitutional hardball, in which things that are formally constitutional, but are against the norms are happening more and more often. So for example, Amy Coney Barrett, who was appointed by Trump and heard by the Senate in essentially the last month before the election of 2020. The Democrats didn't turn up at the Judiciary Committee meeting vote that pushed her out onto the floor. They just didn't come so the committee was in court. But for a variety of reasons loosely, nobody made a quorum call. So the committee did something that is against the Senate rules, but Senate rules are not self enforcing. And the republicans wanted to have the vote on Kony Barrett. So they did. Who's right, who's wrong? Are the quorum rules? Good? Are the quorum call rules? Good? I honestly have no idea. Senate rules are intricate beyond belief. But the key thing is the senate used to run on a norm of deference to other senators, particularly with regard to judicial appointments. And that's gone. That's constitutional hardball. Passing Connie Barrett's out of the committee without any Democratic support or vote or quorum is certainly something that you can do under the Constitution. It's against Senate rules. But in a sense, if nobody calls you on it, then what's the problem?

Holly Jarman: 28:42

And that's that's the thing about authority here is that the procedures of the chambers are based, you know, they are their own watchdogs, essentially. So in some circumstances, you can appeal to the Senate parliamentarian about the rules, but it's very easy to remove the senate parliamentarian and install another one. Somebody who may be more like is more likely to agree with you. So the the problem here arises because the Congress is essentially self governing,

Scott Greer: 29:15

self governing, but increasingly trapped in this American vortex of structurally weak parties and very, very high levels of partisanship. So what are some of the trends?

Holly Jarman: 29:28

So yeah, as we said, This increased partisanship, sometimes referred to by us in political science as hyper partisanship is a incredible problem that's been increasing over time. And we've also seen distinct factions within parties. So the tea party would be considered one so tea party affiliation was a big deal. And then on the left, the blue dog democrats who were seen saw themselves as very much centrists and in some ways closer to the republican party. So that's been on the increase in recent years, increased incumbency. So members of Congress, stick around for longer, and incumbents have certain advantages that make it much more likely that they're actually going to stay in Congress, rather than be ousted by somebody else. And that's a huge problem. If you think about the responsiveness of Congress to elections and to the outcomes of elections. There's a lot of concerns about the media environment, which we will we I'm sure talk about in a lot of different episodes of this podcast. But in terms of how the media react to Congress cover Congress understand the legislative process, this is a big problem. To the extent that the media do not have full time journalists who are experts in legislative process procedures, and can understand the implications of what's going on the, you know, the breakdown of the traditional press, and the diversification of media, but also the corporatization of some form of media. That's a big problem for understanding the legislative process and the implications of partisanship within the two chambers. And

Scott Greer: 31:22

this is worse in the States, where it used to be that there would be dozens of correspondents in a state capitol from diverse media outlets, and our Michigan 10 million people has correspondence in Lansing that hover around five, Free Press, The Detroit News, Michigan radio, and Lansing local outlets.

Holly Jarman: 31:42

All of these factors are meaning that we're we're seeing less good scrutiny within Congress, but also less good scrutiny of Congress. Overall, we've mentioned the huge pressure to raise funds. Elections are not getting a cheaper. The current cycle, I'm sure, once we see the final reports will be a very expensive election. It's not surprising that elections get more expensive as they get more contested. So people feel obligated and motivated to give their money. We've also seen new ways of raising funds through the internet and more diverse donors, as well as different patterns of consolidation around big donors in certain cases. And so who's funding Congress is a matter for another podcast. But in general, there's a big and increasing pressure on each member to raise money.

Scott Greer: 32:47

So this isn't a very cheery take. And to be honest, America's legislators are not very cheery places right now. Enormous fundraising demands poor coverage from high quality media poor coverage period, if you're a state, enormous, unhelpful media coverage if you're on the hot seat in Washington. And the result is broadly gridlocked institutions in an increasingly partisan environment, and legislators that do less and less actual legislating. And in the Trump administration, less and less ability even to do oversight, because the administration would frequently just ignore committees that asked for basic records and testimonials. So insofar as there's a political crisis in the United States, one dimension of it is that executive legislative relationships are badly broken. And if you look at what happens to countries with that problem around the world, it's generally not pretty.

Holly Jarman: 33:40

But I think that this is, the one way to deal with this is to think about the pipeline for representatives to think about state and local government, where maybe some more legislative change is possible, even if it's not possible in the US Congress, and to focus on holding these institutions to account. And, you know, the one thing that is a constant is that members are do have to be responsive to some extent, to their voters. And so a focus on how elections are constructed. And information around elections and issues, how state and local government feeds into a system of representatives at the federal level, can be some ways to try to address this.

Scott Greer: 34:28

And this is a system with so many ways you can get into it. So many ways you can have influence. It's easy to caricature, that it's all just for donors or something. But if you actually bring expertise and bring knowledge and claim you speak for somebody credibly, they're gonna want to hear from you. Because go back to what I said. Nobody really likes a world in which it's all about fundraising and yelling on Fox News. There's a lot of appetite to actually make good policy. And when there's an opportunity to make good policy as the agenda setting Cast reminded you, you have to move fast and you have to be ready. So, being prepared, being engaged, and being ready to make your argument and knowing who to make your argument to are, if anything more valuable at a time, when there's so much good luck and mobility.

Holly Jarman: 35:28

This has been an HMP governance lab podcast. If you're interested in our research, come and find us at HMP governance lab.org and follow us on Twitter at HMP. gov.