Every game has to have rules. The legislative game is no exception. It could be argued, in fact, that rules are more essential for legislative bodies than they are for, say, the game of baseball. Legislative bodies are notoriously slow—some observers might even say inefficient—in going about what they do. They also have a lot more players in the game than baseball or any other game you can think of. Some examples: 120 members in both chambers of the California Legislature, 236 in Georgia, 150 in Montana, 60 in Alaska, 213 in New York, 112 in New Mexico and 424 in New Hampshire. At any rate, legislatures would not be able to accomplish much without rules governing the order of business, voting, the precedence of various motions, the resolution of disputes, the conduct of debate and even the behavior of members during sessions.
To that end, each of the nation's 99 state legislative chambers adopts its own rules for the way the chamber's business will be conducted.
A chamber’s rules are tailored to its specific operation. These go to floor activities such as bill readings, voting methods, procedures in committee of the whole, a formal order of business, amendments and limits on debate. The rules may also address other matters, such as restrictions on the number of bills a member may introduce, the membership of standing committees, lobbying regulations and legislative ethics. The behavior of members during sessions is also the subject of rules in many of the country's legislative chambers. Here are some examples. Oregon Senate: “No food, beverage other than water, or smoking is permitted on the side aisles or within the bar." Missouri House: “No member may use profanity either while speaking on the floor or in committee."
Rules are adopted at the beginning of a new legislative cycle, coinciding with the length of the members' terms, but there are provisions for amending the rules at other times. Legislatures also adopt rules that apply when the Senate and House conduct business jointly. And in some states, there may be statutory and constitutional rules that apply to legislative procedures. An example: The Colorado and North Dakota constitutions require a hearing on every bill assigned to House and Senate committees.
The rules don't end there, however. A legislative chamber may opt to designate an official “backup” parliamentary manual. A “backup” parliamentary manual helps cover issues not addressed by the body’s own rules and serves as an additional guide for decision making. Mason’s Manual of Legislative Procedure is the most widely used—by 77 of the country's 99 state legislative chambers. Jefferson's Manual, the U.S. House Rules and Robert's Rules of Order also are frequently-used “backups.”
Introduction of Bills
Before a bill can be introduced, of course, it has to be drafted—the legislative term for “written." And before it can be written, somebody has to have an idea for specific legislation. The proposal may be for a new law that is not on the books. Or, more frequently, a bill may call for a change in existing statutes.
Ideas, suggestions and specific proposals for bills may come from several sources. As might be expected, members of the legislature and legislative committees are the most prolific source of proposals. But suggestions for legislation may also originate with the governor, lobbyists, individual citizens concerned about specific issues, local governments, state government agencies, civic organizations, professional associations, trade associations and similar groups.
Regardless of its origin, an idea must be reduced to words on paper. And while anyone may write a bill, in practice most bills are written by legislative staff with the technical legal expertise necessary in drafting bills. Some states require that proposals written by outsiders must be checked by the legislative legal staff to ensure conformance with the legislature's bill format, which is different in every state.
Bills may be proposed by private citizens, by the governor, by state agencies, or by local governments, trade associations, professional associations or other organizations. But proposed legislation must be introduced before it can be considered by the legislature. And most often, only members can introduce bills. So in many states, the governor may propose the most significant legislation in a state's history, but it will not get to first base unless he can find a member of the House or Senate willing to introduce it. And the same would be true for the highest paid lobbyist, the state's most influential association or the state's most highly respected citizen.
Once a bill has been drafted, the sponsor has several choices. Let's use Representative Wilma Pond's drunk driving bill as an example. Assuming that Rep. Pond requested a bill soon after the November election and the draft was completed before the legislature convened in January, she may be able to prefile it with the clerk of the House. Bills typically can be introduced only when the legislature is in session; however, in more than three-fourths of legislative chambers, a bill can be prefiled. The purpose of prefiling is to streamline the lawmaking process—to prepare bills before a regular session convenes. If the paperwork necessary for a bill’s official introduction can be completed before the legislature convenes, then there will be bills ready for introduction and assignment to committees. That, in turn, enables committees to begin work immediately.
Another possibility for Rep. Pond is to line up some cosponsors. As the originator of the request, Rep. Pond is the prime sponsor. But her bill might have a better chance of being passed if she can persuade some of her colleagues to indicate their support by signing on as cosponsors. If unlimited cosponsors are allowed, then the more, the better. If there were 65 members of the House, for example, and she could get 32 cosponsors, her bill would be assured of having enough votes to pass the House unless one of the cosponsors later had second thoughts, which has been known to happen.
A third scenario is that Rep. Pond might have second thoughts. She is under no obligation to introduce the bill simply because she requested a draft. And, on further reflection about the proposal, she may decide that identifying drunk driving offenders as such on the license plates of their car might not be as good an idea as she originally thought. Another consideration might be that in her state there is a limit on the number of bills a legislator may introduce, and there are other items on her agenda that are more pressing. For whatever reason, she may decide to forget about cracking down on drunk drivers—at least in this year's session.
Rep. Pond's dilemma concerning bills introductions reflects a trend by state legislatures seeking ways to control the steadily increasing volume of bills introduced. A large number of bills may contribute to lengthier sessions. But in some states, legal provisions specify the length of time the legislature may remain in session. An example is Colorado, where voters adopted a constitutional amendment in 1988 restricting sessions to 120 calendar days.To deal with the twin problems of more bills to consider and less time in which to do it, chambers set a deadline for the introduction of bills. Generally, the deadline is effective a specific number of days after the beginning of a session. Another device aimed at curbing the number of formal proposals is a limit the number of bills a member may introduce—used by approximately one-fifth of the legislative chambers.
Assignment of Bills to Committees
Knowledgeable players in the legislative game are acutely aware of the importance of this step in the lawmaking process. A bill's sponsor may think a proposal is the greatest thing since the invention of the wheel, but if the bill is assigned to the wrong committee, that could be the end of it. The wrong committee, for example, would be one whose chairman holds a view opposite to that of the bill's sponsor—that the proposed legislation would be a disaster if it became law.
Again, using as an example Representative Pond's bill to crack down on drunk drivers, the logical assignment for her bill would be the Transportation and Highway Safety committee. Instead, the Speaker referred it to Agriculture and Natural Resources. What that tells you is that Rep. Pond's bill is headed for oblivion. In this case, it was the Speaker who held the view that the legislation would be a disaster if it became law. So, it was referred to the “graveyard committee." That's a euphemism for the standing committee that serves as the place where unpopular bills, especially bills that are unpopular with the leadership, are sent to be killed. No member would ever admit it, but “graveyard" committees are not that rare in the legislative game, particularly in those states where the authority to refer bills to committee rests with the speaker of the House or president of the Senate.
In a majority of state legislative chambers, it is the House speaker or Senate president who makes the call on assignment of bills. Other methods include assignment by a committee on committees or by another member of the leadership—the House speaker pro tem, Senate president pro tem or the chamber’s majority leader. Generally, decisions concerning assignments are based on specific criteria: the jurisdiction of various committees or a bill's subject matter, for example.
Committees are the heart of the legislative process. That is where the most significant work occurs.
It is in committee that legislation can be worked over thoroughly before it goes to the floor for consideration by the full membership of the House or Senate.
- It is in committee that compromises can be reached before a bill moves further along the road to becoming a law.
- It is during committee consideration that members have more time to consider legislation than they will have later, when the bill gets to the floor.
- It is in committee hearings that members have an opportunity for more informal discussions than during floor debate.
- It is in committee that amending or even rewriting the bill is easier to accomplish than on the floor of the House or Senate.
- It is during committee consideration that legislators have time to reflect on the pluses and minuses of a proposal.
Perhaps even more significant, committee hearings are the only place during the lawmaking process where outsiders have an opportunity to participate directly in the legislative game. It is during committee hearings that anyone may present testimony on pending legislation, orally, in writing or both. And it is only during committee hearings that legislators have an opportunity to ask questions—publicly—of the proponents and opponents of pending legislation. When a bill goes to the floor to be debated and voted up or down, outsiders cannot participate in the discussions—only members of the House or Senate can speak to the legislation under consideration. Access to the floor during sessions is usually restricted to members, legislative staff, the press and a few others specified in the rules of each chamber. Consider, for example, this excerpt from the rules of the Nebraska Unicameral:
“(a) The legislative chamber shall consist of the entire floor of the legislative chamber including the space under the balcony on either side adjacent thereto, or any other space designated by the Legislature or the Executive Board thereof.
(b) No person shall be admitted to the floor of the Legislature, as described in this rule, except the following: (i) Members of the Legislature and their immediate families. (ii) Officers and employees of the Legislature. (iii) Reporters of regularly accredited newspapers and broadcasting stations.
(c) With the permission of the chair, members may invite guests to the legislative chamber to sit in those specially designated areas located in the rear of the chamber ....
No registered lobbyist shall be admitted to the chamber ...."
Committee hearings are a different matter. The relatively small confines of most committee hearing rooms, combined with much less formal procedures than those followed during floor debate, provide a setting for the give-and-take of open discussion between legislators and the public. It is a setting that is not available at any other stage in the legislative process.
Committee hearings are conducted in a much more relaxed atmosphere than is the case when bills are considered on the floor of the House or Senate during a regular session. Generally, committee procedures are more informal, making it easier for outsiders to take part in the action. Anyone may attend, of course. Those who want to speak are usually asked to sign in, noting the bill in which they have an interest.
Committees normally have several bills on the agenda for each meeting. The chair announces the beginning of a hearing on a specific bill; the clerk reads it, usually by title, and the game is under way. Generally, the first speaker is the bill's sponsor. Next are members from both chambers who wish to speak, followed by those who signed the witness sheet. Thus, committee members hear from both the supporters and opponents and have an opportunity to question them concerning the need for the proposed legislation, specific details of the bill, and its possible effect if enacted.
Amendments may be offered, but only by committee members. Another committee option is to rewrite the proposed legislation and report a committee substitute for the original bill.
The committee's final action, of course, is a vote to determine the disposition of the bill. It may be sent to the full House or Senate with a specific favorable or unfavorable recommendation, or with no recommendation. Less than 25 percent of the nation's 99 chambers require a committee to report all bills assigned to it. In most legislatures, a bill can be “killed” in committee. It is important to remember, however, that sole power of a committee is to make recommendations to the body; all committee actions—or for that matter, inactions—are subject to review, approval or rejection by the full body.
Committees are identified by various names, come in a variety of sizes and have different functions.
Standing committees are the workhorses. They are more or less permanent participants in the legislative game, usually continuing in existence for an entire legislative biennium. A standing committee's name usually provides a good indication of the subjects it will consider—Agriculture and Natural Resources, Appropriations, Finance, Education, Health and Welfare, Judiciary, etc. They vary in numbers, from six standing committees in the Maryland Senate to more than 50 in the Illinois House.
Joint committees, as the name suggests, are composed of legislators from both chambers. In most instances, joint committees are formed for a particular purpose or study—for example, a joint budget committee to consider legislation dealing with state appropriations. But in three states—Connecticut, Maine and Massachusetts—joint committees serve the same purpose as the standing committees in other state legislative bodies.
Conference committees resolve differences in the language of bills passed by both chambers. These committees are discussed elsewhere in the text.
Interim committees function between legislative sessions. These committees are normally assigned a specific subject to consider, and they cease to exist when their work is completed or when session convenes. Interim committee members may come from a single chamber or from both chambers.
Some state legislatures utilize study committees and special committees. They operate in the same fashion and serve the same purpose as interim committees, the difference being that they may operate at times other than the interim between legislative sessions. Sometimes, these committees have members from outside the legislature.
At the committee stage of the legislative game, states encourage public participation by requiring timely notice of hearings and by making information concerning committee meetings readily available. Those requirements sometimes are relaxed during the last days of a session, especially in states that have statutory or constitutional deadlines for adjournment.
Floor Debate and Voting
This is the arena where the legislative game is most visible. Why, you ask? Because state constitutions usually require floor sessions to be open.
To the uninitiated, floor procedure is probably the most confusing aspect of the whole lawmaking process. Confusing or not, everything that takes place on the floor is carefully orchestrated. And to those who know the rules that apply at this stage of the game, it's all predictable and moves along according to schedule.
There is, in fact, a detailed schedule for each day's session. As with everything else, there are variations from state to state and even from one chamber to another in the same state. Common elements of an order of business include:
- Call to Order
- Prayer/Pledge of Allegiance
- Call of the Roll/Quorum Call
- Approval of the Journal
- Messages or Communications
- First Reading of Bills
- Reports of Committees
- Second Reading of Bills
- Third Reading/Final Passage of Bills
- Consideration of Bills Amended by the Other Chamber
- Consideration of Conference Reports
- Unfinished Business
Let’s learn a little more about some of these elements.
Call of the Roll/Quorum Call
You can't have a game without players. And where legislative bodies are concerned, it is essential to know who is in attendance and how many members are present: a quorum is required to transact business.
Messages or Communications
These may be formal messages between legislative chambers to provide information concerning action taken on bills, appointment of a conference committee or other business of the legislature. Official communications from the governor may be “read into the record.”
Introduction, First Reading and Referral of Bills
This is the time when bills are formally introduced. First reading is for information—to give notice that legislation officially exists and the nature of its provisions. Typically, the reading clerk reads the bill number, the sponsor, the title and the committee to which it is referred—all of which constitutes first reading.
Reports of Committees
Bills are introduced, but very few are enacted in the same form in which they began. Bills are refined as they move through the legislative process. Committees look closely at the details of proposed legislation and, as a result, recommend most amendments.
Committee chairs make a formal report of action that has been taken on bills referred to their committees. After bills have been reported they are placed on a chamber's calendar for consideration. In some legislatures, rather than going directly on the chamber's calendar, bills reported out of committee go first to a rules or calendar committee that controls the flow of legislation to the floor. A bill can die in Rules if that committee refuses to send it to the floor.
Second Reading of Bills
Second reading is the most crucial stage of the game. To reach this point, a bill has survived drafting, committee hearings and, in some legislatures, consideration by a rules or calendar committee. Now all the members get a shot at it—which is especially important to the members who did not serve on a bill’s committee of reference. They get to debate the bill, any committee recommendations and, if necessary, even further refine the bill’s content. The changes offered to a bill during floor consideration are called "floor amendments."
In some chambers, second reading takes place in Committee of the Whole, a procedural device for a legislative body to consider bills. In Committee of the Whole, debate typically is unlimited, roll-call votes are not taken, a call of the Senate or House is not allowed, and motions for the previous question—a device to end debate—are not in order. Committee of the Whole is what the term implies: the whole membership of the House or Senate becomes a committee for the purpose of debating and amending bills.
Committee of the Whole device may be confusing to a first-time visitor in the gallery. What the gallery visitor hears is some rapid-fire mumbo jumbo that goes like this:
Majority Leader: “Mizaspeeger ahmuvahowszolvself intacomithole furconzidrashunuv bilzonsekanreedn."
Speaker. “Thoutajekshun soldered.Rebzenive Gumshuwiltakacheer."
Then a game of musical chairs occurs; the presiding officer leaves the dais and Rebzenive Gumshu leaves his seat on the floor, marches up to the dais, occupies the Speaker's chair, gives a resounding whack with the gavel and intones: “Thacomitulcomtordr anaglurkalreed howsbil toonighteen."
Got it? Right. Clear as mud. What are they doing? What language are they speaking? Here is a translation of all of the above:
Majority Leader: “Mr. Speaker, I move the House resolve itself into the Committee of the Whole for the consideration of bills on second reading."
Speaker: “Without objection, so ordered. Representative Gumshoe will take the chair."
Representative Gumshoe: “The committee will come to order. The clerk will read House Bill 219."
Another mumbo jumbo dialogue occurs when the Committee of the Whole has completed consideration of bills on the second reading calendar for that day and reports its decisions to the House.
But since it is a committee, action taken during Committee of the Whole must be approved by a formal vote of the House or Senate. The body votes to accept, reject or amend the decisions on bills that were considered by the Committee of the Whole.
Third Reading/Final Passage of Bills
Bills that are on the calendar for third reading—final passage in most legislatures—are those that were previously debated and passed on second reading. On third reading, the chamber judges whether the bill “truly expresses the deliberate sense or will of the body"—that is, whether the bill is in its final form. If the bill passes, it is sent to the other (second) chamber for its consideration.
Consideration of Bills Amended by the Other Chamber
If the second chamber makes any changes to a bill passed by the first chamber, the first chamber (a.k.a., house of origin) must consider those changes.
What are the options? The first chamber typically has three choices; it may:
- Concur with (agree to) the amendments, in which case the bill is enacted.
- Refuse to concur, in which case the bill may die.
- Request a conference committee to resolve the chambers’ language differences.
Consideration of Conference Committee Reports
When a conference committee resolves the differences between the House and Senate versions of a bill, the committee's compromise version is reported and the members of both chambers vote on whether to enact the bill as recommended by the conference committee. Typically, conference reports cannot be amended.
This is the place reserved for mundane items of interest to members, but it should not be overlooked. For example; there could be announcements concerning changes in the schedule of committee meetings.
At last, what everybody has been anticipating. It requires a motion, though—usually to a specific time and day.
To outsiders, floor consideration of bills may appear to be the most confusing aspect of the legislative game. But in reality, it is the most structured and orderly stage of the process. Everything unfolds according to established parliamentary rules and three basic procedures—readings, debating and voting.
“Reading” refers to a specific stage in the legislative process; it does not mean that every bill is read at length. A “reading” usually constitutes a recitation by the chamber's reading clerk of a bill's number, title and sponsor—nothing more. If the full text of each bill were read, far too much of the legislature's time would be devoted to that activity. First reading occurs when a bill is introduced. Second reading, in most chambers, takes place after a committee reports a bill to the body. Third reading occurs when the bill is up for a final vote. Legislative chambers generally require three readings of a bill. Some exceptions: both chambers in North Dakota and South Dakota, two; Nebraska's unicameral Legislature, four. With few exceptions, readings must take place on separate days.
Citizens expect legislators to carefully consider the issues brought before the “people’s branch of government.” Debate is the parliamentary device through which members discuss the pros and cons of proposed legislation. The public wants free and open, yet decorous, discussion on bills and other measures. On the other hand, most state constitutions limit the length of legislative sessions. To keep the game from getting bogged down, a variety of rules are used to limit debate. Most legislative chambers limit how often—or how long—a member may speak. A member typically may speak only once or twice per question. Time limits vary, but most commonly range from five to 15 minutes. Legislative assemblies also have methods to end debate—the most common being the motion for the previous question.
After the talking is over, it's decision time. In legislative bodies, there are three basic methods of voting. The simplest is a voice vote; members express a preference by responding to the chair's call for those in favor and those opposed to a question. Another mechanism is a division vote. That is usually taken by asking those in favor of a question to rise at their seats and repeating the process for those opposed. Division votes can also be taken by asking members to file by tellers assigned to count the yes and no votes. In both methods there is no record of how individual legislators voted. The only recorded votes are roll call votes, which require a yes or no response from each member. Roll call votes are recorded in the chamber's journal. In most states, a roll call (recorded) vote is mandatory on final passage of a bill.
Actions by the Other Chamber
Once a bill has been finally approved, it is engrossed—that is, put into its form as passed, including all the amendments that may have been added by a committee or during floor debate. The engrossed bill then goes to the other chamber, except in Nebraska. Remember Nebraska? That's the state legislature with only one chamber.
At any rate, the process in the second chamber—whether it's the Senate or House is essentially the same as in the first chamber: the bill is introduced, assigned to a committee, committee hearings are held, the bill is killed in committee or sent to the floor for action by the full membership.
That is simple enough. But there is a catch. Do you remember what it is? Yes, that’s it—both chambers must pass exactly the same version of a bill. If the House, for example, makes any change in the bill as passed by the Senate, the bill would have to go back to the Senate. If the Senate agreed to the House amendments, the legislation would be ready to send to the governor. But if the Senate, in this hypothetical example, did not agree to accept the House changes, the bill would either die or go to a conference committee.
Conference Committee Resolve Differences
As explained previously, bills must be passed by both chambers with exactly the same wording—there cannot be two different versions of the same bill, not even any differences in commas, spelling or anything else. When different versions of a measure are passed, each chamber appoints members to a conference committee that is charged with resolving the differences in the two versions of the bill.
Conference committees have been described as "little legislatures” or “the third house.” Some would say that they are the least visible phase of the lawmaking process. Although they may have a low profile, it is in conference committees that some of the most important action in the legislative game takes place. There are several reasons for their importance.
Conference committees often are responsible for reaching agreement on legislation that is controversial or that involves appropriations or other fiscal matters of major importance. They most often come into play near the end of a legislative session, when there is much work still to be done and not much time in which to do it. Conference committees are composed of only a few members from each chamber, but as already noted, they frequently have little time in which to reach agreement. Compromises between the different versions must be hammered out. And the conferees from each chamber need to take into consideration whether the agreement they reach is likely to be acceptable to a majority of their colleagues, since the version arrived at by the conference committee must be approved by both chambers, but typically cannot be amended by either chamber.
The number of conferees varies. The most common number is three members from each chamber, but in some states, there may be as many as five for non-fiscal legislation and as many as 14 for committees resolving differences in fiscal legislation.
The description of conference committees as "little legislatures" is accurate also because that is what they amount to, more so in some states than in others. The authority that legislative chambers give conference committees varies. For example, the conference committee may have very wide (open) latitude—the entire bill is subject to being changed by the committee. Or a conference committee’s scope may be limited—it may be allowed to consider only those sections of the bill where differences between the two houses exist. Even in that instance, however, some legislatures allow the conferees to “go beyond the scope" of the differences if the full membership of each house votes to extend the committee's authority. And in some states, a combination of open and limited committees is employed. For example, the first committee of conference may be limited, but if agreement cannot be reached and a second committee is appointed, the conferees can consider the entire bill.
What all that amounts to is that near the end of a legislative session, when the bills that address the tough questions may still be undecided, they frequently end up in a conference committee composed of a few legislators from each chamber who are responsible for putting together a final version of legislation that is often the most significant enacted during the entire session and which cannot be amended. And then, of course, the full membership of both chambers still must agree to accept the legislation as agreed upon by the committee.
Action by the Governor
This is the simplest part of the entire lawmaking process. If the governor signs the bill, that's it. The bill becomes law. As emphasized earlier, however, there are variations on the time frame for the governor to act as well as variations on when the bill becomes law.
When it comes to the time given to the governor to decide whether to sign a bill, the states are all over the ball park. Timing can range from three days to 60 days. And that's during a legislative session. If the governor gets the bill after the legislature has adjourned, the time frame for signing is another ball game but, generally, more time is allowed.
End of the Game? No, the game doesn't end there. The legislature still has a chance. If the governor doesn't go along with the legislature and vetoes a bill, the game moves to the hardball stage. The rules of the game do not allow a governor to reject legislation on a whim—he or she must have a good reason, or several good reasons, for vetoing legislation. The rationale for rejecting the legislation are included in the governor's veto message to the legislature. The vetoed bill and the governor's message are returned to the chamber where the bill originated
From there, the next move is up to the legislature. The legislature, of course, can override the governor's veto, but it isn't easy. Forty-four states require a supermajority vote to override a veto—such as, a vote of three-fifths or two-thirds of the members. In six states, the veto override requirement is a majority of those elected. The chance for an override is increased if the vetoed legislation originally passed both chambers by a margin close to or greater than the vote required for an override. Politics might also be involved, especially in states where the legislature and the governor's office are controlled by different parties.
Signing or vetoing legislation are the choices most often used by governors. But there are others. The governor may express disapproval of the legislation by simply refusing to sign, in which case it usually becomes law without the governor's signature. And a few states provide for a pocket veto: if the legislature adjourns before the governor has time to act, the governor may pocket the bill—take no action. In that case, the bill dies.
When Does a Bill Become a Law?
You might think that is a simple question with an obvious answer: when the governor signs it. But remember that we're talking about the legislative game, so there is no simple or obvious answer. In some states, a bill does become law when signed by the governor unless an effective date is included in the bill itself. In other states, the bill takes effect later at a specified time after the legislature has adjourned or, in a number of states, at the beginning of the fiscal year.