A Comparison of Congress and the Legislature in the Lawmaking Process

Screenshot 2017-10-07 at 07.50.29Of interest to those involved in the legislative process, insights into the California Legislature and the United States Congress allow us to examine the strengths and weaknesses of these branches of government and whether there are possible improvements that could made in the federal or state lawmaking processes.

Both the U.S. Congress and the California Legislature draw their authority from the federal and state constitutions and are provided extensive powers and duties in statute. While they obviously deal with different levels of government, Congress and the California Legislature share similar roles in the lawmaking process. Each legislative body proposes and adopts legislation to be implemented by the executive branch of government.

The legislative branches of the state and federal governments are similar in many regards, but they also have different in several aspects. Obviously, the California Legislature is based upon the Congress and they both are featured in the state and federal constitutions. Both bodies generally make laws and have investigatory powers, adopt budgets, and confirm certain executive branch appointments. But the differences in the legislative process can be profound.

For example, several elected officials who have worked in both the federal and state legislative bodies have noted that, while a legislator can introduce any bill desired in Congress or the Legislature, the state legislature actually ensures that each bill is debated and voted upon. In Congress, while thousands of bills are introduced each year, many of those bills do not even get a hearing, let alone a vote. And Congressional leaders limit debate and amendments on measures that actually do get heard and debated.

The Constitution of the United States (Article I, Sections 1-10) spells out the authority of Congress to make laws. Generally speaking, the U.S. Supreme Court has broadly interpreted this authority for the legislative branch. However, the Court has also negated this authority when finding it conflicts with the 10th Amendment to the Constitution.

The 10th Amendment to the U.S. Constitution provides: “The powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Thus, the scope of policymaking by the California Legislature is very broad just on the basis of the Tenth Amendment to the federal constitution. State statutes can be adopted on nearly any matter as long as they do not conflict with federal law or violate the provisions of the California or federal Constitutions.

The California Constitution (Article IV) and the state Government Code (Sections 9000-10606) establish some of the procedures by which legislation is proposed, considered and acted upon at the state level. In general, these state constitutional provisions and state statutes direct the Legislature to adopt specific rules for the development and consideration of legislation. In turn, the Senate and Assembly have adopted the Senate Rules, Assembly Rules and Joint Rules.

In both Congress and the Legislature, the political parties and the party leaders dictate most of the legislative process, as well as the ultimate outcome of legislation. This is due to the fact that the majority party enjoys a majority of members on the committees (thus generally ensuring they control the fate of legislation) and on the Floors because the vast majority of bills require a simple majority vote for passage.

Both the U.S. Senate and the U.S. House of Representatives use an elaborate system of committees and subcommittees to consider legislation and the federal budget. Currently, the Senate has 16 standing committees and nearly 100 subcommittees, while the House has 22 standing committees and nearly 150 subcommittees. These committees and subcommittees are where legislation is heard, amended, passed to the floor, or held in committee.

Given the size of Congress (with 100 Senators and 435 Representatives), there is a heavy reliance on seniority and the expertise of members in determining committee membership. The selection of committee and subcommittee chairs is determined by party leaders. The California Legislature relies less so on seniority, but certainly takes into account the expertise and political needs of its members to determine committee composition.

Neither the California Senate nor the Assembly has formal rules regarding how seniority and years of experience dictate the selection of committee chairs, committee memberships, leadership positions, office space, number of staff, etc. Instead, party politics play a primary role in affecting these decisions. Traditionally, the leadership of each house recognizes the experience, expertise, and preferences of its members in making committee assignments and leadership assignments.

Like the Legislature, a majority vote is required for most actions of the U.S. House and Senate, as well as its committees and subcommittees. While one party does largely control Congress, House and Senate rules regarding debate and bringing matters to a vote often require supermajority votes (usually three-fifths or two-thirds). The most prominent example occurs within the U.S. Senate where rules provide that debate is virtually unlimited.

These rules allow a minority of U.S. Senators not only to forestall action on legislation (by use of a filibuster), but also to bring the entire operation of the Senate to a virtual standstill. Debate can be terminated through a motion for “cloture”—but this motion requires 60 votes to pass. Thus, while a majority party may have votes to pass a piece of legislation, the minority party can procedurally prevent the legislation from ever coming to a vote on the Floor of the U.S. Senate. Neither the U.S. House, nor the California Legislature have such a rule.

At both levels of government, through the annual federal and state budgets, Congress and the Legislature can provide or remove funding and direct executive branch agency activities through budget control language. Congress can direct one of its many control agencies (GAO, CBO, or legislative committees) and the Legislature can do the same (through the LAO, State Auditor, or legislative committees) to investigate the agency’s actions to regulate or implement laws. Executive branch agencies can be pressured via numerous informal and behind-the-scenes techniques applied by legislative committees, party leaders, or individual legislators.

Similar to Congress, both the California Senate and Assembly use a committee system. The various committees (currently 22 standing committees in the Senate and 31 standing committees in the Assembly), the number of members on each committee, and other details are addressed in the respective Rules of the Assembly and Senate. Some committees have subcommittees, especially in the area of the Budget. Most bills go through two committees in each house of the Legislature, a policy committee and a fiscal committee. However, some bills have two policy committee hearings due to their subject matter.

In these state Legislature committees, the authors present their bills and the committees hear public testimony, discuss the legislation, and then vote. Authors of bills retain significant authority to negotiate and compromise on the language of their individual pieces of legislation. These legislators can propose author’s amendments, they can accept or reject amendments proposed by the committee, or they can drop their proposals entirely. The formative review of legislation occurs in these committees, but the committees do not tend to take over authorship of legislation, as is the practice in Congress.

Another important distinction between federal and state legislative committees is how bills are processed. In the committees of the Legislature, the general practice is to work out language changes prior to the hearing so that hearings are only a brief debate on the merits of the bill between proponents and opponents, nominal discussion by committees, and a vote to either pass or defeat the bill. This is often due to the time limits of committee hearings and the sheer volume of bills that are considered and acted upon in the California Legislature.

On the other hand, in Congressional committees, their hearings are called “mark-up” sessions because the committee members actually debate and amend legislation in their committees rather than just debate the measures. Congressional committees engage in lengthy committee hearings to actually debate specific language changes to federal legislation. Their process of amending bills is open and part of the public hearing process.

In addition, the annual State Budget is treated differently in the committee process in the Legislature. Each house (Senate and Assembly) refers the Budget to its respective and fairly large Budget Committee, which in turn is divided into subcommittees (five in the Senate and six in the Assembly) where that committee will accept, reject or amend the Governor’s Budget proposals. These subcommittee decisions are usually ratified by the house’s full Budget Committee, before a two-house conference committee is convened to resolve any remaining issues between the Assembly and Senate before final action on the State Budget.

In looking at the productivity of these two legislative bodies of our federal and state governments, there were 12,298 bills and resolutions introduced in the 112th Congress (the 2011-12 Session), but only 238 measures (1.9%) became law. At the federal level, rarely do more than 5% of bills introduced in a session actually become law. On the other hand, in California, there are usually about 4,500 bills introduced during the two-year legislative session and usually between 1,500 and 2,000 bills are signed into law, more than one-third of them.

As we would expect, the roles of Congress and the Legislature are similar in the lawmaking process, with some limited exceptions. Their interactions with the President and the Governor, respectively, are similar as well. Because the chief executives determine the ultimate fate of legislation due to their power to sign or veto bills, the President and the Governor are able to greatly influence the legislative process in a similar manner. The role of the chief executive is examined in detail in another article.

Thomas Nussbaum is the former Chancellor of the California Community Colleges. Chris Micheli is a lobbyist with Aprea & Micheli, Inc. Both are Adjunct Professors of Law at McGeorge School of Law.

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