"How a Bill Becomes a Law" Has Changed
The Schoolhouse Rock / High School Civics version of legislating is dead
This is a tale of two bills. The First Step Act, Senate Bill 756, which became law in 2018, and the For the People Act, House Resolution 1, which was introduced in 2019 and is currently stalled in a Senate committee, with a Senate floor whip count seemingly well short of the 60 vote threshold necessary for passage.
Both of these bills exemplify the modern form of legislating by Congress. They are both a far cry for Schoolhouse Rock and anything taught in High School Government classes. And while there’s plenty of media and public discussion about the legislative process, rarely is it discussed that the Congress, in the last few decades, has effectively changed that most fundamental of democratic rituals, how a bill becomes a law.
We all know the orthodox narrative. A bill is introduced in a house of Congress (always the House for a revenue bill; in either chamber for most legislation), where it then gets sent to committee. Hearings are held, witnesses are called, reports are written. The bill is “marked up” (amended) by the committee and then, if it is passed out of committee on a vote, goes to the floor, where it is debated, amended, and voted on. If it passes, it then goes to the other house where the same process repeats. Finally, if the House and Senate pass different bills, they appoint a conference committee to hammer out the differences, and then each house passes the same language and sends it on to the President for signature or veto (and a veto can be overridden with a 2/3 vote in both houses).
The formal rules have not changed. You still need a majority vote on the same language from both houses, and presidential approval or 2/3 majority veto override votes in both houses. They still have lots of committees in Congress as well, and still hold hearings.
But in the cable television/Internet era, this isn’t how legislation is written. The basic problem is one any lawyer, agent, or other professional negotiator is familiar with. To do negotiations, you need some level of confidentiality. This is true whether it is legislators writing bills or lawyers negotiating a settlement agreement. If everything one says is public, you quickly find you have no room to negotiate, as every move you consider making gets vetted and portrayed as a betrayal or concession. This is why cases are (proverbially) settled on the courthouse steps, not in open court, and settlement discussions are given legal confidentiality. You need to be able to say to the other side “if I were willing to agree that the letter you sent last month was not a breach of the contract, will you pay us for the widgets we shipped in November?” without the other side being able to then turn around and argue in open court “he agreed it wasn’t a breach of the contract!”.
The same thing is true in legislation. Let’s say you are trying to pass a minimum wage bill. You want it to cover as many people as possible. But to get to 60 votes in the Senate, you are going to have to hold your nose agree to a lower wage for teenagers and tipped workers. It sucks. Your preference is not to do this. But you want to pass the bill, which would give millions of workers a raise. You know what you don’t want? To be forced into any public statement that you agree to lower wages for teenagers and tipped workers before you have a deal. Because while it may be worth it to take the political hit on that if you are delivering actual legislation, if the legislation fails, you may be stuck with your constituents hating you for selling out, no minimum wage legislation at all, and a negotiating baseline in the future that assumes that any deal will have to have the teen and tipped workers provision in it. So what will you do if the negotiation occurs in public? That’s right, you will never offer the concession.
In the early 1980’s, the cable industry launched C-SPAN. I love C-SPAN and think it’s a model for public affairs programming. But I do have to admit it had this side effect- once there were television cameras routinely televising congressional committee hearings and floor debates, it rendered these things useless as mechanisms to negotiate the details of legislation. It pushed legislation drafting out of the committee and floor debate process. The Internet, which makes video of legislative proceedings even more widely available, has continued that trend.
So back to the First Step Act. How did it become law? Well, essentially, it was the product of unpublicized negotiations between key legislators of both parties and eventually including the Trump White House as well. Technically, it went through committees and floor debates, but the key compromises were made in unpublicized negotiations. Indeed, you hardly heard about them while they were going on, even though a monumental piece of legislation was being drafted. The media was none the wiser about it, covering an occasional high profile story like Kim Kardashian’s lobbying efforts for the bill. But there were no leaks that I remember from the negotiations, and even if there had been, the media wasn’t tuned in to their importance.
In contrast, consider the For the People Act, H.R. 1, the Democrats’ big voting reform bill. This bill was written by the Democratic Party messaging machine- legislators, staffers, and party activists- for the purpose of passing it through the House on a party line vote and then using it as a campaign issue against Republicans who prevented its passage in the Senate. This, by the way, does not mean it is a bad bill- H.R. 1 contains many good provisions. It simply means that its purpose was not to pass a law. So it was put through the House committee process with showy committees full of carefully chosen witnesses showing how much a bill like this is needed, and then brought to the floor and passed. And then- nothing. No working group, no “Gang of 14”, no attempt to write legislation that might pass the Senate. (Perhaps no such legislation could. I am simply saying that you don’t see any attempt to negotiate, because that’s not the point.) The For the People Act is what is called in professional politics a “messaging bill”- a bill advanced or passed not for lawmaking purposes, but to create a campaign issue and further the party’s message on an issue.
The key point is in neither case do we follow the Schoolhouse Rock script. Because hearings and floor debates are public, they can’t be used for real negotiation, only messaging. How do we tell when someone is really trying to pass a bill? When they quietly put together a group of legislators and sometimes White House personnel who meet secretly and hammer out the compromises necessary for passage. If that doesn’t happen, well, “I’m just a bill, I am only a bill, and I’m sitting here on Capitol Hill.”