The Fundamentals of the Legislative Branch

The United States government is unique through the different institutes that make up the many processes’ bills, laws, treaties, etc. must go through. The legislative branch is what we know as the lawmaking sector. Made up of two sections, Senate and House of Representatives, lawmaking in the United States tends to be complicated as the separation of powers allows all these branches to be connected in the process. However, the Senate and House of Representatives are the main sections that allows for bills to be created and passed as laws.

The Legislative Branch in the Constitution

According to the constitution, the Legislative branch has specific powers granted that allow them to be separate from the Executive and Judicial branch. While the House and Senate do share some powers, the constitution also gives each one unique power.

Powers of the Legislative Branch under the Constitution:

• Passes bills

  • Has broad taxing and spending power

  • Regulates inter-state commerce (based on a broad interpretation the commerce clause. Congress has assumed a near unlimited authority over economic matters)

  • Controls the federal budget (power of the purse)

  • Has power to borrow money on the credit of the United States

  • Any bill may be vetoed by President

• Has sole power to declare war, as well as raise, support, and regulate the military

• Oversees, investigates, and makes the rules for the government and its officers

• Can remove federal executive and judicial officers from office for high

• Each chamber chooses their own officers

• Defines by law the jurisdiction of the federal judiciary in cases not specified by the Constitution

• Everything listed in Section 8: represents the Founders understanding of the primary function of the legislative power at the time of the founding

Unique Powers of the Senate:

• Has the sole power for the trial of impeachment

• Confirms presidential appointments to the federal judiciary, federal executive departments, etc.

• Ratifies treaties signed by the President if 2/3 of Senators concur

Unique Powers of the House:

• All revenue bills must originate in the House

• Has the sole power of impeachment

• They can choose their own Speaker of the House

The Process of Lawmaking

The process of lawmaking is complicated in the sense that there are many obstacles and steps to go through. Looking closely in the way that bills are made into laws, there is a regular order versus the unorthodox lawmaking. Barbara Sinclair, author of “Unorthodox Lawmaking”, argues that while the “route of enactment of laws used to be linear and predictable […] it is now ‘flexible and varied’” (Campbell). Because of this, she also argues that the “regular order” has been eclipsed by “unorthodox lawmaking”.

Unorthodox lawmaking comes from rank-and-file members giving power to party leaders to make it easier for majority to pass legislation over the minorities head. In Congress, there are many examples of unorthodox lawmaking being used – some that only apply to the Senate and others that only apply to the House. However, unorthodox lawmaking can be found in both chambers. The first example is Omnibus bills. Like most unorthodox lawmaking, Omnibus bills help party leaders because they structure who is expected to vote on it, and ultimately decide what is in the Omnibus bill. Omnibus bills are vote trading for agriculture subsidies and food stamps to gather 60 votes since some would rather both than neither pass. Another notable example of unorthodox lawmaking used in the House and Senate is Fast track authority. Fast track authority is the privilege afforded to trade bills especially where president takes lead and negotiations are executive lead. Unlike other forms of unorthodox lawmaking, fast track authority helps the president but hurts congress. Some advocate to give the president fast track authority across policy areas but others believe that it would make the U.S. government a parliament. Lastly, reconciliation is another form of unorthodox lawmaking that can be described as a single piece of legislation with multiple provisions by several different committees. In reconciliation, all parts of the bill influence the federal budget spending. It becomes a potential method for passing legislation that will impact the budget, but it also serves to pass substantive legislation since it can avoid a filibuster. Many of these unorthodox lawmaking procedures help the party leaders but it also serves the interests of lawmakers through incentives. When a party leader is in power, the members of that party also get rewarded through legislation being passed, more money for campaigning, etc. While it is difficult to know whether regular order or unorthodox lawmaking produce better public policy, unorthodox lawmaking has made it easier to pass legislation without the slowness of polarization and gridlock. In order to assess the quality of the policies of these processes, we must see how well congress is working together to pass legislation that helps the United States as a whole. Polarization is a big issue when passing legislation and we can see through the DW Nominate scores whether polarization is affecting the lawmaking process.

In Congress, unorthodox lawmaking has created ways to pass legislation – or not pass – that helps what party leaders and individual MCs want. Starting with the House of Representatives, the biggest example we see unorthodox lawmaking is when the Rules committee comes into play. The Rules Committee has a supermajority of the majority party of the house and minorities are there as witnesses. The Speaker of the House has majority power over this committee which governs a rule for the bill. There are 3 types of rules: Open, Closed, and Modified. The open rule is the regular order and while most promise an open rule, they are able to go back on that promise and change it to one of the other two rules. While open rule helps individuals, the closed rule helps party leaders which ultimately makes it where no major piece of legislation in the house is passed under an open rule. Unlike the House, the Senate does not have a Rules Committee which means the majority leader does not have the same power of determining the rules of debate. Instead, they do this through unanimous consent agreements. In the Senate, the biggest form of unorthodox lawmaking is the ability to have multiple referrals. There are 3 types: joint, split, and sequential. This generates broad support for a bill, or it can be used for it to look like broad support. Another unorthodox lawmaking, we see in the Senate is the ability to bypass committees. The party leaders can select a group of individuals to work on a piece of legislation that may or may not is given the ability to report a bill. This group is called a task force which ultimately bypasses a standing committee. Through these examples, it is notable that most of these methods of “unorthodox lawmaking” tend to help party leaders which ultimately increases the power of committee chairs and rank and file members. In the House, for example, whichever party that the Speaker of the House is in will most likely benefit from the power the speaker holds and their ability to control and contribute to the rules committee. Each one of these examples, even for the Senate, ends up helping party leaders. The reason why these procedures are considered unorthodox lawmaking is because of their ability to help the majority party against legislation that they do not support. They most certainly help party leaders and gives incentives to their own party. The theory of “conditional party government” helps us understand these changes in the distribution of power in both the House and Senate because it explains why MCs tend to give over their power to party leaders. Conditional party government theory shows why rank-and-file MCs are willing to give over power to their leadership. The varying distribution of powers exists because MCs like it that way because it serves their own interests.

Understanding this unorthodox method of lawmaking is important but the regular order is too since it is what the Legislative Branch was founded on. The process of lawmaking can be simplified through various steps that a bill goes through in order for it to become a bill. The National Human Genome Research Institute lays out the simplified steps so for a more in-depth understanding, check out this link: How a bill becomes a law.

Step 1: The bill is drafted

Step 2: The bill is introduced

Step 3: The bill goes to a committee

Step 4: Subcommittee review of the bill

Step 5: Committee markup of the bill

Step 6: Voting by the full chamber on the bill

Step 7: Referral of the bill to the other chamber

Step 8: The bill goes to the president

Step 9: Overriding a veto

Want To Get Involved With The Legislative Branch? Here is How!

As we now know, the legislative branch is made up of two parts and as lawmakers, reelection is one of the biggest priorities. If you would like to dip your toes in the inner workings of the legislative branch, applying to intern for a Senator or Representative in your state or district is a great way to start. Interning for these lawmakers gives you the opportunity to learn by working closely and following the daily routines of a lawmaker. Each lawmaker, depending on their role and goals, will follow a different schedule but it as an intern you will still be able to learn the different aspects of what being a lawmaker is all about. During election season, many lawmakers also look for interns to help with campaigning. Through an easy google search, you can find job listings for these campaigning positions considering the midterm elections for 2022 are coming up. Being an intern might seem daunting but, in the end, it is a rewarding position that gives you the necessary experience and hands-on activities to learn more about Congress.

If being an intern for a Congressional Lawmaker is not something that you are interested in but would like to know more about how legislation works, investigate mock Senate clubs in your high school or university. Most universities have some form of Student Government that allows students to run for elections to be a Senator or representative for their specific college. This allows students to get hands-on experience on what the lawmaking process looks like by writing their own bills or resolutions for their school.

Lastly, reading about your lawmakers I highly important. If you are of the voting age, remember to research the people running for your state and district, especially during midterm elections. For more information, check out the Project Patriarchy article “Why Midterm Elections are Important” as well as the possible representatives’ websites.

Works Cited

“Oregon State Legislature How an Idea Becomes Law.” Citizen Engagement, https://www.oregonlegislature.gov/citizen_engagement/Pages/How-an-Idea-Becomes-Law.aspx.

“How a Bill Becomes a Law.” Genome.gov, https://www.genome.gov/about-genomics/policy-issues/How-Bill-Becomes-Law#:~:text=After%20both%20the%20House%20and,the%20bill%20automatically%20becomes%20law.

Congress.gov | Library of Congress. https://www.congress.gov/.

Campbell, Colton C. "Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress." The Social Science Journal, vol. 37, no. 1, Jan. 2000, p. 151. Gale Academic OneFile, link.gale.com/apps/doc/A61535380/AONE?u=googlescholar&sid=bookmark-AONE&xid=6069ddad. Accessed 15 Aug. 2022.

The Constitution of the United States: A Transcription. National Archives, United States National Archives and Records Administration, 28 Feb. 2017, www.archives.gov/founding-docs/constitution-transcript#toc-article-iv-.