Why is it so hard to pass legislation through Congress?

‘The hurdles to enacting legislation are substantial’ 2004 – Burdett Loomis –

‘The Contemporary Congress’

Interesting fact

• In the 109th Congress (2005-6) there were 13,072 bills and only 395 of them were passed, that is a meagre 3%. If you compare that to the UK, 219 bills were introduced and 58 became law and 53 out of these 69 were government bills. In short - Why is it so difficult to pass legislation through? - is a not a question you would ask in the UK.

Institutional reasons for this difficulty

• It is designed not to work

• The checks and balances add to this issue

• Separation of powers (separated institutions and ‘shared powers’ - Richard Neustadt)

– All these serve to make the legislative process difficult.

The process itself is complicated

• ‘Perhaps the most remarkable feature of the legislative process in Congress is how much is stacked against the enactment of a new law’ – Steven Smith 1999

• To develop this point – if we compare the process to that of the UK, BOTH countries have 3 readings and a committee stage, but the differences are fundamental

• The Committee Stage - In the UK it comes after the 2nd reading and it is only done by ad hoc (temporary), generalist committees

– In the USA – THE COMMITTEE STAGE COMES EFORE THE SECOND READING AND IS DONE BY PERMANENT, POLICY SPECIALIST COMMITTEES.

– The Congressional Standing Committees have virtual life and death power over bills as well as full power of amendment. Mmebers of both chambers will bow to their expertise.

There is a need for super-majorities at certain stages

• Three crucial ‘pivots’ in the legislative process, identified by Keith Krehbiel : ‘Pivotal Politics’ 1998

1. Any bill must find a 3/5 majority in Senate (filibuster)

2. Any bill must find a simple majority in both houses

3. Any bill, if vetoed by the President, must find a majority of 2/3 in both houses.

To develop this point………1. This point is obvious – after the second and third readings,

bills must all pass votes, and possibly conference votes, before they go the President for signing

2. This 3/5 rule is the filibuster – in other words to end the filibuster you need 3/5 of Senators to vote accordingly. (see handout)e.g. 21 December 2005. The Senate was voting on the Defense and Appropriations Bill, after the Conference Committee report. The vote was 55-44 to end the filibuster. Because it was 4 votes short the bill was not passed.

3. The VETO – Both houses need 2/3/ to override it. E.g. Clinton 1997 – vetoed Late-Term Abortion Ban Bill. The House overrode this veto by 296-132 (11 votes over). The Senate was 2/3 needed (67). Therefore 360 members of Congress wanted to go ahead, it was the 168 who did not want the bill who won, with the President’s support.

Very important…………..

• Supporters have a much higher bar to clear than do opponents. This is a good example to show the important role the process plays in supporting the power of minorities

Both houses possess equal power in passing legislation

• This makes legislation more complicated. Although many would regard the Senate as more prestigious and powerful (because of the two exclusive powers it has over appointments to the judiciary and executive, and ratification powers over treaties) in terms of legislation, both houses are equal.

• Unlike the UK, where only one house has to give its wholehearted consent, both houses must

– Give their full consent– Not override each other– Get approval by standing committees in both houses– Get majorities in both houses after 2nd and 3rd reading– Conference Committee re[ports must be approved by majority votes in

both houses– After vetoes, both houses must pass by 2/3 majority to override it.

The two houses may be controlled by different parties

• This is an added problem, brought about by the separation of powers – e.g. mid 2001 – end of 2002 – Democrat Senate and

Rep House. Also 1981 – 1987 – Rep Senate and Dem House.

– IF ONE HOUSE WAS MORE SUPERIOR THIS WOULDN’T REALLY MATTER e.g. In the UK after 1997, there was a Conservative Lords and a Labour dominated Commons, but as the Commons was superior, it wasn’t so important.

further development of point…………………

• In the US – mid 2001- end of 2002, the Committees in both houses were chaired by different parties and ideologies from each other– e.g. Agriculture – in Senate it was chaired by

Democrat Tom Harkin from Iowa and in the House by Larry Combest from Texas. The only things these guys have in common is agriculture. In other words, when Indiana Republican, Dick Lugar was chairing the Senate Committee it was much easier.

The presidency and Congress may be controlled by different parties

• This is known as DIVIDED GOVERNMENT and usually one party will control both houses. Out of 32 years between 1969 and 2001 20 were divided. For 6 years under Reagan, the President’s party controlled the Senate and for 6 years in 1977-81 and 1993-94, the President’s party controlled both.

• TIMING - the beginning and the end of the legislative process can illustrate this point – After the State of the Union address the President can be faced with many hurdles e.g. Clinton in the late 1990s wanted to introduce a minimum wage, whilst Congress wanted to make cuts in federal programmes– The end – Vetoes are far more common in times of divided

government, than when there is control of at least one house. E.g. in the 18 years of United government, there were 42 vetoes (2 per year) and only 2 were overridden and in the 20 years of divided government there were 147 vetoes (7 per year) of which 25 were overridden

Party discipline in Congress is comparatively weak

• There is never any guarantee of legislative success e.g. Clinton 1993 had an 82 seat majority in the House and a 16 seat majority in Senate and he had 6 legislative priorities

– Economic stimulus– Deficit reduction– Campaign finance– National service– Welfare reform– Healthcare reform – his top priority

– Even with his majorities he only succeeded in passing 2 of these priorities and healthcare wasn’t one of them. WHY?.

– He did threaten to use the veto and called for Congress to stand behind him, for the interests of all Americans to have guaranteed healthcare insurance in the State of the Union address. HOWEVER, the legislation never even got out of the committee rooms in either chamber, it was the same for GWB on social security reform

– Most votes in Congress are of a bipartisan nature, there is often division however within the two parties and this is the hurdle to be overcome. Bush’s 1990 tax increases were passed only with the support of his opposition party.

– It is true to say that most big-ticket legislation is passed by large bipartisan majorities – e.g. GWB which needs to be studied as a case sudy.

Power in Congress has become more decentralised

• Power has recently moved away from ‘The Kings of the Hill’ (key congressional leaders and chairmen). Now real power lies with the subcommittee chairmen, and to ordinary members of Congress.

• Development of point…….. This change in emphasis from the few to the many has actually complicated the process even further – John Ehrlrichman in the 1970s likened putting coalitions together in Congress to support his legislation as ‘laborious, step by step work, like putting together tiles in a great mosaic.’ and Anthony King, ‘like trying to sew buttons on a custard pie’

• In recent years there have been signs that this trend is reversing and it is potentially easier to manage. Former Republican Speaker of the House, Dennis Hastert, was prepared to use his power to get people he wanted appointed to leadership posts in the House, this was also true during the tenure of House Majority Leader Tom DeLay.

• Task1. Complete the work on the case study of the ‘No Child Left Behind’ Act and

Tasks 2.1 – 2.42. Read and summarise the article on the Filibuster