Introduction to the Legislative and Regulatory Process

Thousands of bills are introduced as proposed new laws during every session of Congress. The federal legislative process is complicated and Congress often considers proposed bills for months or years before a bill becomes law. Anyone may draft a bill; however, before it can be introduced in the U.S. House of Representatives or Senate a member of Congress must sponsor it. State legislative processes are very similar to the federal process, although fewer bills are introduced and can often be enacted in a period of days.

Many sources draft legislative proposals. They include members of Congress, individuals or groups of constituents, coalitions, lobbyists and congressional committees. The president is the main source of legislative proposals through "executive communications originating from the executive branch." Identifying the source of a proposal can reveal a lot about it and its chances of passage.

There are four basic forms of congressional action: bills, joint resolutions, concurrent resolutions, and simple resolutions. An amendment is a rider to any of the actions and if passed is incorporated into the original measure.

Steps in the Federal Process

Introduction:

The official legislative process begins when a bill or resolution is numbered, - H.R. signifies a House bill and S. a Senate bill - referred to a committee and printed by the Government Printing Office. Frequently, a senator and a representative sponsor identical or "companion" bills in their respective legislative bodies.

1. Referral to Committee:

With few exceptions, bills are referred to standing committees having proper jurisdiction in the House or Senate according to carefully delineated rules of procedure. Committee chairs have great discretionary power and can delay, block or expedite action on measures with few restrictions.

A senator or a congressman who is a member of the Committee has a much greater opportunity to influence a particular piece of legislation. The Committee staff is a key resource. Committee staff are frequently experts in their field. Their duties include drafting the legislation (per the member's instruction), advising and counseling Committee Members and writing the Committee Report to the legislature.

2. Committee Action:

When a bill reaches a committee it is placed on the committee's calendar. A bill can be referred to a subcommittee or considered by the committee as a whole. Committees carry out the central functions of Congress. They process bills that have been introduced, investigate the need for new legislation and oversee the Executive Branch within their areas of jurisdiction. Committees and subcommittees are where the decisions about the content and language of the bill are made.

Standing Committees of the House and Senate

House

Senate

Agriculture
Appropriations
Banking & Financial Services
Budget
Commerce
Education & the Workforce
Government Reform & Oversight
House Oversight
International Relations
Judiciary
National Security
Resources
Rules
Science
Small Business
Standards of Official Conduct (Ethics)
Transportation & Infrastructure
Veterans Affairs
Ways and Means
Agriculture
Appropriations
Armed Services
Banking, Housing & Urban affairs
Budget
Commerce, Science & Transportation
Energy & Natural Resources
Environment & Public Works
Finance
Foreign Relations
Governmental Affairs
Judiciary
Labor & Human Relations
Rules & Administration
Small Business
Veterans Affairs

Committee actions include:

Subcommittee Review and Hearings:

Often, bills are referred to a subcommittee for study and hearings. Hearings provide the opportunity to put on the record the views of the executive branch, experts, other public officials, supporters and opponents of the legislation. Testimony can be given in person or submitted as a written statement.

Mark-Up Sessions:

When the hearings are completed, the subcommittee may meet to examine or "mark up" the bill, usually section by section, to make changes and amendments prior to recommending the bill to the full committee. A subcommittee may elect to report the bill out favorably or unfavorably to the full committee, or it may decide to "table" the bill and take no further action.

Committee Action to Report a Bill:

After receiving a subcommittee's report on a bill, the full committee can conduct further study and hearings and may repeat the entire process of the subcommittee. The full committee then votes on its recommendation before voting to report the bill out to the full House or Senate. They may report it as it was introduced, with amendments, or as a "clean" bill - a new bill incorporating all the amendments made. This procedure is called "ordering a bill reported." If the committee fails to report the bill, the measure is dead and with few exceptions cannot proceed. This is the stage where most bills die.

Publication of a Written Report:

After a committee votes to have a bill reported, the committee chairman instructs staff to prepare a written report on the bill. This report describes the intent and scope of the legislation, impact on existing laws and programs, position of the executive branch, and views of dissenting members of the committee.

3. Scheduling Floor Action:

After a bill is reported back to the chamber where it originated, it is placed in chronological order on the calendar. In the House there are several different legislative calendars, and the speaker and majority leader largely determine if, when, and in what order bills come up. In the Senate there is only one legislative calendar.

In the House, the bill normally must clear the powerful Rules Committee, which directs bills to the floor for debate. The Rules Committee can specify a "closed rule," which means amendments can only be offered on the floor by members of the committee that handled the bill. An "open rule" may be granted by the Rules Committee, which means that any House member can offer an amendment. The Rules Committee can also delay or kill a bill by majority vote refusing to grant a rule. The Senate's Rules and Administration Committee is responsible for general administration in the Senate and does not exercise any of the power of the House Rules Committee.

4. Debate:

When a bill reaches the floor of the House or Senate, there are rules or procedures governing the debate on legislation. These rules determine the conditions and amount of time allocated for general debate. In the House, debate may be limited to the subject at hand. There is no limit on debate in the Senate, except when the Senate decides to create one. The "filibuster" is a delaying strategy where senators make prolonged speeches to put off legislation. A process called "cloture" can end the filibuster and requires 16 senators to file a petition to limit debate and a three-fifths majority vote to approve the petition.

5. Voting:

After the debate and the approval of any amendments, the bill is passed or defeated by the members voting. A simple majority will pass the bill in most cases. Some actions require a larger percentage. A two-thirds vote is required to amend the constitution, to override a presidential veto, or to suspend the rules of the chamber. The House or the Senate can return a bill to committee for further study by a simple majority vote.

6. Referral to Other Chamber:

When the House or the Senate passes a bill it is referred to the presiding officer of the other chamber - the speaker of the House or the president of the Senate - where it usually follows the same route through committee and floor action. This chamber may approve the bill as received, revise it, reject it, or fail to take action on it.

7. Conference Committee Action:

Both houses of Congress must approve identical language before it can be sent to the president. If the other chamber only makes minor changes to a bill, it is common for the legislation to go back to the first chamber for concurrence. However, when the actions of the other chamber significantly alter the bill, a conference committee, composed of members of both chambers, is formed to reconcile the differences between the House and Senate versions.

The speaker of the House and the presiding officer of the Senate select conferees. There are generally three recommendations that can be made in attempting to reconcile the two versions of a bill: 1) that the other chamber withdraw its provisions; 2) that their own chamber withdraw its provisions and accept those of the other chamber or 3) that both chambers compromise by withdrawing some provisions in exchange for keeping others. The conferees are not supposed to insert any provision that was not part of one bill or the other.

If the conferees are unable to reach agreement, the legislation dies. If agreement is reached, a conference report is prepared describing the committee members' recommendations for changes. Both the House and the Senate must approve the conference report.

8. Final Floor Action:

After a bill is revised in conference, both the Senate and the House must pass the amended bill again. If both chambers vote to accept the final language, the bill is put in its final form, signed by the speaker of the House and president pro tempore of the Senate, and sent to the president for his signature.

9. Executive Action:

If the president approves of the legislation he signs it and it becomes law. The president can take no action for ten days, while Congress is in session, and it automatically becomes law. However, if the president opposes the bill he can veto it; or, if he takes no action after the Congress has adjourned its second session, it is a "pocket veto" and the legislation dies.

10. Congressional Override:

If the president vetoes a bill, Congress still has an opportunity to enact the law with an override vote in which both houses decide whether to honor the president's veto or to enact the law without his signature. An override requires a two-thirds roll call vote of the members who are present in sufficient numbers for a quorum in each chamber. No debate is allowed before the vote on a veto. If both houses override the veto, the bill becomes a public law, having the same effect and power as if approved by the president.

Budget Process

The Budget Committees prepare a Budget Resolution that outlines revenue and spending estimates for the upcoming fiscal year. Congress must pass a Budget Resolution every year. Committee hearings usually begin in February and a Budget Resolution is typically not agreed upon by both Houses until late spring or early summer. The Budget Resolution does not require the president's signature; therefore, it is non-binding and does not have the statutory force of law. However, the recommendations contained in the Budget Resolution are used as a guide for the Appropriations Committees, which ultimately determine what level of funding each program receives.

Despite the dissatisfaction Congress typically expresses over the president's request, the president's budget is the blueprint for the appropriations process. What changes from the request to the final appropriation are the spending priorities. For example, Congress might appropriate less money for the Space Station than the president requests, and more money for biomedical research.

In recent years, Congress has come to rely increasingly on the Reconciliation process. Reconciliation is a method of bringing existing tax and spending laws into conformity with the Budget Resolution (which was necessary since the Budget Resolution is non-binding). The authorizing Committees have flexibility in how they will attain the budget savings. Each Authorizing Committee reports its bill back to the Budget Committee, which then consolidates each bill into an Omnibus Reconciliation Bill. The Budget Committee may not amend this bill and must either approve or reject the entire passage. The Omnibus Reconciliation Bill must then be approved by the House and the Senate (it is amendable on the House and Senate floor, subject to certain guidelines). The Reconciliation Bill requires the president's signature.

In addition to using the Reconciliation process to achieve budget savings, Congress has used it as a method of passing authorizing legislation, since it is considered a "must pass" bill and is an excellent opportunity to add amendments and other legislation.

Authorization Process

Authorizing legislation establishes either discretionary programs, which are subject to annual funding levels set in the Appropriations bill (appropriations are at or below the authorized amount); or mandatory (entitlement) programs, which are funded at a set level by law. A funding change in a mandatory program is possible only if the authorizing law is amended. Authorizing bills can be introduced in either the House or the Senate. For example, the NIH Reauthorization Bill may originate in either the House or the Senate. The two chambers may act on their respective versions simultaneously, or the Body may decide to wait until the other chamber has passed a bill before considering a version of its own. A reauthorization of expiring law can be one in which the authority for the program is extended under the same essential provisions, or it can include major changes to the program.

Appropriations Process

The Appropriations Committees must pass a bill every year to establish funding levels for specific programs, unlike authorizations, which typically cover three to five years. The United States Constitution requires that all revenue (tax) bills and all appropriation bills originate in the House. For example, the Labor, Health and Human Services, and Education Appropriations Bill must originate in the House. The Senate Appropriations Committee usually conducts its hearings simultaneously with its House counterpart, but does not actually write its bill until the House has passed its version.

In theory, a program must be authorized before it can receive appropriations. While this is almost always the practice for new programs (i.e., spending for a program that has not previously received funding), it is not always the case for ongoing programs that simply need to be reauthorized. Often, action on a program's reauthorization may face a delay, but the Appropriations Committee will go ahead and provide funds, knowing that the reauthorization legislation is pending.

Typical Appropriations Calendar

January President's State of the Union Address and submission of budget to Congress
February House or Senate begins departmental or federal agency testimony
March Departmental and federal agency testimony continues
April Public witness testimony in both House and Senate
May Preparation for mark-up
June House subcommittee mark-up
August Senate full committee and Senate floor vote
September House-Senate conference committee and adoption of conference agreement, presidential signature or veto
October Beginning of new fiscal year

Regulatory Process

Influencing the making of the law is only part of the process. After Congress enacts legislation, the Executive Branch Departments and Agencies must implement it. The law provides only the outline of a program, and it is the responsibility of the Executive Branch, through the regulatory process, to translate the law into policy. This is a crucial part of the process for a grassroots organization, to assure that the implementation of the law is conducted in accordance with your intentions.

The law is usually broad by design, and the Executive Branch establishes specific policies and procedures to implement the law. Regulations are very specific. They may specify a program's operating procedures; determine how funds may and may not be spent; determine qualifications for participation in a program; etc. The regulatory process provides an opportunity for interested parties to comment on and influence proposed regulations. The process begins with the publication of the proposed regulation, and the public has an opportunity to issue comments within a specified period of time.

Major Ways Health Policy Affects You and Your Patients

Medicare

- Medicare is a federal program that provides health insurance for the elderly. Medicare is one of the largest purchasers of healthcare services. The coverage and reimbursement decisions made by the Medicare program affect the ways providers operate and have an impact on the health services industry as a whole. Often Medicare coverage and reimbursement decisions are adopted by the private sector.

Medicaid

- The Medicaid program is run jointly by the federal and state government to provide health insurance for individuals categorically eligible -- predominantly the poor and disabled. Medicaid is undergoing substantial change as Congress is considering turning over all authority and responsibility to the states. These changes in the structure of Medicaid will affect you and your patients.

Training of Healthcare Professionals

- The federal government supports training programs for health professionals through the Health Services and Resources Administration. Congress is currently restructuring the way in which these programs operate, which will affect the educational and training programs for healthcare professionals.

Funding of Research: Biomedical Research & Health Services Research

The federal government is one of the largest funders of biomedical research and health services research. The National Institutes of Health (NIH) supports research at 2,000 colleges, universities and other scientific institutions, including the efforts of more than 50,000 researchers and their staffs throughout the country. The Agency for Health Care Policy and Research (AHCPR) funds health services research, including outcomes research and clinical guideline development.

Glossary

  • Appropriations-- The annual establishment of funding amounts for specific programs. Appropriations bills originate in the House.
  • Authorization-- A bill that either establishes or continues (reauthorization) a program or an agency, usually for a specific period of time. An authorization may limit funding to a specific amount, or it may authorize "such sums as may be necessary."
  • Budget Authority-- The authority provided by law to incur financial obligations that will result in actual spending (outlays), either immediately or in the future.
  • Caps-- Legal limits on the outlays (actual amount of spending) that may occur in a particular year for specific discretionary programs (i.e., programs whose annual funding is not fixed by law).
  • Cloture-- A procedure used in the Senate to cut off or limit debate on a piece of legislation, required when a filibuster occurs. A cloture petition must be signed by 16 members to be introduced and requires a three-fifths majority of the elected Senate (60 votes if there are no vacancies) for passage. If the cloture motion is approved, debate on the pending legislation is limited to 100 hours of consideration.
  • Committee Report-- A document prepared by a Committee that explains its action on a piece of legislation. Committees often do not file a report on minor bills.
  • Conference-- The process by which the Members of respective House and Senate Committees meet jointly to reconcile differences between their respective versions of a bill. Bills that contain only minor differences usually do not go to Conference; either chamber may "concur" in the other's amendments. In some instances, Committee leaders conduct an informal compromise instead of a formal Conference.
  • Current Services-- The amount of funding necessary to enable a program to keep pace with inflation, to continue the same level of service.
  • Discretionary Spending-- Appropriations that are set annually by Congress and are not limited to specific minimum levels. This includes defense spending and many domestic programs, including NIH.
  • Entitlement-- Also known as "Mandatory Spending," these are federal programs whose spending levels are guaranteed by law, such as Social Security and Medicare programs. Thus, Congress has no discretion on how much to appropriate for these programs.
  • Filibuster-- A tactic used in the Senate by a minority (even as few as one senator) to prevent a vote on legislation that would probably otherwise pass. See Cloture.
  • Mark-up-- The process by which a committee or subcommittee considers a peace of legislation, offers amendments and revisions, and reports it to the House or Senate floor for consideration. IF the marked-up bill contains extensive revisions, the Committee may reintroduce it as a separate bill, thus giving it a new bill number.
  • Outlays-- Actual government spending, including cash outlays for specific programs, direct payments to individuals (such as Social Security), and interest on the federal debt.
  • Reconciliation-- The process by which authorizing committees are required to conform with the Budget Resolution, to reconcile their savings. Savings are reconciled by either reductions in spending, revenue increases, or both.
  • Rule-- As used in the House, a resolution reported by the Rules Committee to govern the consideration of a particular piece of legislation on the House floor, usually to set a time limit for debate and to limit amendments.
  • Supplemental Appropriations-- Additional spending enacted subsequent to a regular, scheduled appropriations act when the need for additional funding is too urgent to be postponed until the next regular appropriations cycle. Often used for emergency matters, such as disaster relief, unexpected social needs (e.g., additional food stamp beneficiaries), emergency defense needs, etc.
  • Suspension of the Rules-- A measure used by the House to expedite passage of a bill. A favorable vote of two-thirds of those present is required for passage and no floor amendments are permitted. This occurs for noncontroversial legislation.
  • Table a Bill-- A non-debatable method of disposing of a matter, in an adverse manner, effectively killing the legislation. The Senate may simply make a motion to "lie the bill on the table," which keeps the bill pending for future action.
  • Unanimous Consent-- Procedure used in the House and Senate to expedite floor action, by which legislation is passed without objection and without a recorded vote or a voice vote.

REFERENCES

  1. Dove, R.B. (1997). "Senate: Enactment of a Law." Library of Congress on the Internet: thomas.loc.gov
  2. Johnson, C.W. (2000). "House: How Our Laws Are Made." Library of Congress on the Internet: thomas.loc.gov
  3. Lierman, T. & Thometz, A. (1998). "Introduction to the Legislative and Regulatory Process." Washington, DC. Capitol Associates.
  4. Public Affairs Video Enterprises. (1998). "A Citizen's Guide to the Legislative Process." Arlington, VA. Author.
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