A Fashionista's Guide to Politics: The Legislative Branch of the United States Federal Government - by Tamara Cincik and Rafaella de Freitas

With the mid-term US elections just around the corner, understanding what this means: who has the balance of power, what voices constitute each Chamber and what this means in terms of legislation is increasingly important wherever you live in the world, changes to US laws affect all of us in this increasingly globalised world. For instance when the US Senate voted to change tax laws at the end of 2017, it reduced Corporate Taxes by 14% from 35, to 21%. As a result of the reforms, US companies with offshore dealings could decide to keep their money at home, enticed by lower corporation taxes plus a desire to avoid new restrictions on shifting profits abroad. Companies operating overseas, such as big tech and pharmaceutical companies, would be taxed at a low rate - 15.5% - to return the cash to the US in a one-time move. However, Ireland, where Apple has a major base, still undercuts the US with a corporation tax rate of 12.5%. 

Established by Article I of the Constitution, the Legislative Branch consists of the House of Representatives and the Senate, which together form the United States Congress. The Constitution grants Congress the sole authority to enact legislation and declare war, the right to confirm or reject many Presidential appointments, and substantial investigative powers. Whichever party – and remember in the US this is either Democrat or Republican, there is in effect no third party – holds the Senate holds the power to push through policies. In the midterms of Obama’s first term, the Republicans took over the House, pushing him to rely on his executive authorities to get things done. This was a point for criticism by Trump, and ironically, Trump is in the same position: despite having a mathematical majority in Congress, Republicans are failing to act according to his agenda, leaving him dependent on the same strategy used by Obama.

Congress’ main responsibilities include setting the annual government budget and serving as an auditing body for the government. It levies taxes and tariffs to provide funding for essential government services, and can also authorise borrowing is there are insufficient funds. Congress can also mandate spending on specific items, such as a particular project. The oversight conducted by Congress is done so through hearings:  The House Committee on Oversight and Government Reform and the Senate Committee on Homeland Security and Government Affairs are both devoted to overseeing and reforming government operations, and each committee conducts oversight (scrutiny and accountability checks) in its policy area. Congress also maintains an investigative organisation, the Government Accountability Office (GAO), responsible for the government audit and generation of reports.

Due to a strained budget, the US government was questioning the possibility of a shutdown. However, in September the Senate passed a short-term spending billin an attempt to mitigate the budget problem; the bill came attached to an budget package which included full-year 2019 funding for the Pentagon and other departments such as Labour, Health and Education, in addition to increasing the military budget.

The House of Representatives

The House of Representatives, also known as ‘The House’, is made up of 435 elected members. Members are divided among the 50 states in proportion to their total population and elected every two years – candidates must be at least 25 years old, have been a U.S. citizen for at least seven years and also a resident of the state. The exact number of representatives that each state should have is determined according to a statistical formula in federal law, for example, Texas has 36 representatives in The House, whilst Iowa has 4. In addition to the elected members, there are 6 non-voting members, representing the District of Columbia, the Commonwealth of Puerto Rico, and four other territories of the United States. The presiding officer of the chamber is the Speaker of the House, elected by the Representatives.

If a party has a majority in the House, it is very likely that they are supported by the majority of the population. Furthermore, the House better captures the diversity in opinions held by the American population.

A list of all members can be found here. 

The main and exclusive powers of The House include the power to initiate revenue bills, impeach federal officials, and elect the President in the case of an Electoral College tie, which occurs when there is a tie in the Presidential election – please refer to our piece on the US Executive branch for a more comprehensive account on the voting process. In the case of an Electoral Tie, the House chooses between the two candidates, something that has only happened twice before – in 1800, where the House chose Thomas Jefferson over Aaron Burr, and in 1824, when John Quincy Adams was selected.

The Senate

The Senate is composed of 100 Senators, 2 for each state, and are elected by popular vote for six-year terms. Candidates must be 30 years of age, U.S. citizens for at least nine years, and residents of the state they represent. Uniquely, there are elections every two years, which means roughly 1/3 of the Senate is replaced every two years. The members of the Senate are not proportional to the population, which means that a party can have a majority in the Senate without having the support of the majority of the population. During campaigning, the parties can choose to be strategic and campaign in more states with a smaller population, to win the support in the majority of states.

A list of the current U.S. senators can be found here.

The Senate has the exclusive power to confirm appointments made by the President that require consent, and to ratify treaties. There are, however, two exceptions to this rule: the House must also approve appointments to the Vice Presidency and any treaty that involves foreign trade. The Senate also tries impeachment cases for federal officials referred to it by the House, as was the case with district judge Harry E. Claiborne in 1986, who was impeached for falsifying his income tax returns and sentenced to two years in jail. 

The Senate vs. The House

Typically, the House and Senate are controlled by the same party as the President when presidential elections are held. However, the midterms, which are held in the middle of the president’s mandate, usually result a shift in the balance of power. This year’s midterms gave the Democrats a majority in The House, but strengthened the GOP’s power in the Senate. With a split divided government, which also occurred after Obama’s midterms, decisions become very difficult.

During the final two years of Obama’s mandate, the Republicans gained control of the Senate and blocked many of the president’s decision - i.e. the appointment of Merrick Garland to sit in the Supreme Court, which was blocked by the Republican-dominated Senate. The limitations of a split Congress are quite different For Trump, because he still controls the Senate. Despite the House being Democrat-dominated, its role is limited to approving or rejecting bills, therefore the president still has other ways (executive orders, regulation by government departments) of exerting his power and influence on legislation.

The Legislative Process

The Legislative Process refers to the process in which a bill is signed and becomes law. Although anyone can write a bill, it has to be introduced by a member of Congress.

A bill can either be a private bill, which affects a specific person or organisation, or a public bill, which affects the general public. 

The First Reading

The first step in the legislative process is the introduction of the bill to Congress – this is done by a member of Congress, who then becomes the sponsor of the bill. If there is more than one sponsor, the representatives become co-sponsors. Representatives usually sponsor bills that are important to their constituents. Junior Senator Maria Cantwell is the sponsor for the S. 2032: GSP Footwear Act of 2017.

In the House, representatives introduce bills by placing them in a box located on the Speaker’s platform, known as the hopper.  a bill clerk assigns the bill a number. House bills begin with "H.R." Resolutions begin with "H. Res.," "H. Con. Res.," or "H. J. Res," depending what type they are; an example is the H.R. 7: No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2017. The first reading of a bill means the bill's title is read on the House Floor. The bill is then referred to a committee for mark-up. The H.R. 7 bill proposes to make the Hyde Amendment – which has been passed by Congress every year since 1976 and prevents federal money to be used to perform abortions – permanent. The H.R. 771: Equal Access to Abortion Coverage in Health Insurance (EACH Woman) Act of 2017 introduced in January 2017, proposes the exact opposite.

In the Senate, a bill is introduced by placing it on the presiding officer's desk or by formally introducing it on the Senate Floor. Senate bills begin with "S.", an example being the S. 106 ObamaCare Repeal Act.

This stage is a formality, and no decision is made in the First Reading

Committee Action

The bill is referred to the appropriate committee: there are 23 House committees with 104 subcommittees and 17 Senate committees with 70 subcommittees, which have jurisdiction over different areas of public policy. The committees change in accordance to the needs of Congress and legislation. An example is the House Select Committee on Energy Independence and Global Warming, which was established in 2007 and disbanded by Congress in 2011.

A committee may choose to hear the bill – the choice of not hearing a bill is known as pigeonholing, which frequently happens. If the bill is heard, the committee call upon and consults with experts in the relevant field, and hearings and investigations are held. At this stage, the bill can be rejected, amended or marked up.

A bill that is currently in this stage is the S. 1586: Great Lakes Environmental Sensitivity Index Act of 2017. 

Timetabling

Once marked up and reported out of the committees, the bill enters the timetabling stage. There is a different process in the House of Representatives and in the Senate”

House of Representatives:

• Bills are given to the House Rules Committee which will decide on whether or not the bill will make it to the floor, how long they will be debated for and whether or not amendments can be added.

Senate:

• Bills are agreed through unanimous consent agreements. This means that the Senate Leadership will agree on which bills make it to the floor.

If a bill is scheduled in one house and not the other, the bill will be dismissed. 

Second reading

The bill will be debated in both chambers, and if allowed, it will also be amended.

The House has a very structured debate process: each member who wishes to speak only has a few minutes, and the number and kind of amendments are usually limited. In the Senate, debate on most bills is unlimited — Senators may speak to issues other than the bill under consideration during their speeches, and any amendment can be introduced. Senators can use this to filibuster bills under consideration, a procedure by which a Senator delays a vote on a bill — and by extension its passage — by refusing to stand down. A supermajority of 60 Senators can break a filibuster by invoking cloture, or the cession of debate on the bill, and forcing a vote.

The Third Reading

The Third reading is an opportunity to debate a bill before the final vote – at this stage, the debate is usually small and non-controversial. 

Reconciling

Given that the bill is discussed in both Chambers, it will usually have different wording. This is an issue, given that the Constitution requires that the two bills have the exact same wording. A Conference Committee is required to align both bill. The Committee members come from both Chambers, and together, produce a conference report, intended as the final version of the bill. Each chamber then votes again to approve the conference report. Depending on where the bill originated, the final text is then enrolled by either the Clerk of the House or the Secretary of the Senate, and presented to the Speaker of the House and the President of the Senate for their signatures.

Presidential Action

Once the bill has gone through the stages in the Congress, it is given to the President. The President then has a number of options: they may sign it into law, they may veto the bill (which can be overridden by a two-thirds majority in each chamber of Congress).

An example of a bill approved by President Trump is the
S.178 - Elder Abuse Prevention and Prosecution Act, approved in October 2017, which requires greater specialised care from the Department of Justice when investigating criminal acts towards the elderly.

If Congress is in session and the President takes no action within 10 days, the bill becomes law. If Congress adjourns before 10 days are up and the President takes no action, then the bill dies and Congress may not vote to override. This is called a pocket veto, and if Congress still wants to pass the legislation, they must begin the entire process anew.

In the end, the bill becomes law, is dismissed, or has to restart the entire process again.