Legislation slides 1

How a Bill Becomes a Law Why is it important to know the details? 1.Statutory interpretation/legislative history 2.Client strategy: draft or repeal legislation, or attempt judicial change

I. The basics Bicameralism House – 435 members elected from single-member districts (mostly apportioned according to strict population equality, except at least one representative per state) Senate – 100 Senators, elected at large (why?); 2 from each state regardless of state population (gives more power to smaller states)

Bill must pass in identical form in both houses and be presented to the president (presentment) Must pass by majority votes in both houses.

President’s options Sign – the bill becomes law Don’t sign while Congress is in session—the bill becomes law after 10 days (not counting Sundays) Don’t sign while Congressional session ends—the bill does not become law (“pocket veto) Veto bill—the bill does not become law unless Congress votes by a 2/3 margin to override veto.

What power does president have in legislative process? Formal versus informal role

II. The complexities Consideration of bills in the House: Under the House rules: Speaker of the house refers the bill to committee chair Committee chair decides what to do (can kill bill, refer it to subcommittee) Subcommittee/committee hold hearings, mark-up and vote on the bill. Committee can let bill die, or report it to the full house. Rules committee then can kill bill, or adopt “special rule”, dictating how much debate there will be, how amendments will be offered, etc. On house floor, debate governed by special rule

Consideration of the bill in the Senate: Bill comes up and is read for the first and second times. Presiding officer of the Senate refers bill to committee, or bypasses committee by simple majority vote. In the civil rights bill, this debate about whether to consider the bill at all went on for 14 days. (p. 17 of casebook). Committee hearings, markup vote---or directly to floor. Possibility of filibuster---no rules limiting debate Majority leader schedules vote though uniform consent agreement, but no vote unless cloture is invoked by 60 votes (used to be a 2/3 vote) After cloture, debate continues, including some post-cloture filibustering. Bill is read a third time, followed by a vote.

How do the different House and Senate Rules Affect the Consideration of Bills? In the House bills must be referred to a committee, but in the Senate it is easier to circumvent a committee. What is the likely result of this difference?

In the House, nongermane amendments are prohibited and debate time strictly limited; in the Senate, riders generally ok unless there is unanimous consent to change the rule, and there is unlimited time for debate unless cloture is invoked. What is the likely result of this difference?

In the House, members specialize on subcommittees; Senators serve on several committees enjoying increased visibility. What is the likely result of this difference?

III. Additional complexity: unorthodox lawmaking (Sinclair reading) Civil Rights Act of 1964 passed in an unorthodox manner. Why?

In the last few decades, unorthodox lawmaking has become more common 1.Multiple referral 2.Post committee adjustments 3.“Special Rules” in the House 4.Changes in Debate rules in the Senate 5.Omnibus legislation 6.Summits

What factors might have contributed to these changes?

Statutory interpretation: a preview before your minds have been polluted by judicial opinion Hypothetical 9 person legislature considers civil rights legislation 4 legislators want a strong civil rights bill 1 legislator wants a weaker civil rights bill 4 legislators oppose any civil rights bill

Bill passes 5-4 and contains some ambiguous language. How should a court resolve the ambiguity?

What if there is a conflict in meaning among: 1.A committee report 2.Floor statement of moderate 3.Floor statement of supporter 4.Floor statement of opponent?

Hypothetical 2 President pushes for an environmental bill that eases restrictions on polluters House passes bill that mirrors president’s proposal Senate passes bill that does not ease restrictions on polluters as much

Conference committee produces bill that passes both houses, containing unclear language on a key provision (why might it contain unclear language?) President, in his signing statement accompanying the legislation states his belief that the law is written in line with his views.

How should court interpret ambiguity statute? What weight, if any, should be given to presidential signing statement?

Hypothetical 3 Legislature is divided (Yellow Party/Orange Party) Legislative body votes to suspend usual rules and to pass legislation without hearing or debate Legislation passes by same vote Does this present any constitutional problems? Should this matter to a court interpreting the meaning of legislation?