PART 2 OF 3 See Part 1 here

By Michael DePrimo, Attorney, AFA Center for Law and Policy

May 2009 – What might we expect from Congress under the Obama administration? That depends. For the next 20 months both houses of Congress will be controlled by Democrats by considerable margins. Will a Democratic Congress go along with a Democratic president or will it exercise independent judgment? During last year’s campaign cycle House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV) indicated their intent to go along with the policy goals of then-candidate Barack Obama. These goals included passage of the Freedom of Choice Act (FOCA); repeal of the Defense of Marriage Act (DOMA); expanding hate crime and employment laws to include sexual orientation; and laws protecting homosexual adoption. While these policy goals are sure to appease the liberal wing of the Democrat Party they are likewise sure to raise the ire of conservative Democrats and Republicans. In any case, navigating political minefields is what shrewd politics is all about. 

Of the three branches of government, Congress, the legislative branch, is plainly the most powerful. Congress not only makes federal laws, it also controls the purse strings. No federal money can be spent without congressional authorization.

Where does Congress get its power? Mostly from Article I, Section 8 of the U.S. Constitution. The Constitution both enumerates and limits the things Congress can do. The limitation is found in Article I, Section 18 and is called the Necessary and Proper Clause. That clause grants Congress power only to make laws that are “necessary and proper” for carrying out the duties assigned to it by the Constitution. 

The United States is composed of a two-tiered government – state and federal. The framers of the Constitution wanted to ensure that the federal government did not encroach upon the rights of the states. In fact, at the time the U.S. Constitution was adopted, state governments were far more powerful and influential than their federal counterpart. Not until the New Deal legislation of the 1930s did federal government really begin to flex its political muscle. 

So, how exactly does the federal lawmaking process work? The idea for a law may originate with a lawmaker, his staff, a lobbying group, a political action committee or a private citizen. The idea is then converted into a legal form such as a bill (also called a joint resolution) which, if passed by Congress and signed by the president, will have the force of law. Or it can be a simple resolution which, though not having the force of law, expresses Congress’s opinion on a particular matter or issue. 

Once in the form of a bill, the proposed law is introduced by one or more congressmen (sponsors) and then referred to a committee with authority over the bill’s subject matter for study and recommendation. The committee then holds public hearings in which experts or citizens are given an opportunity to testify for or against the bill. The bill then is “marked up” with negotiated changes in its substance or language. Once the bill is in final form, committee members vote on whether to send the bill to the Floor (to be debated and voted on by the entire House or Senate). If the committee votes to send the bill to the Floor, a committee report is drafted. The report describes the purpose and scope of the bill and the reasons for its recommended approval. The report is then made available to all members of the House and/or Senate.

Once the bill is out of committee, the House/Senate leadership decides whether to bring the bill up for vote. If the leadership brings up the bill, it is debated and then voted on by all members. If the leadership refuses to bring it up for vote, the bill is killed by lack of action. If the bill passes by majority vote in one house (House or Senate), it is then sent to the other. The second may vote on the bill as is or make changes. If passed with changes, it is sent back to the first house for vote on the changes. As might be expected, lobbying and negotiating are often frenzied each time a bill is being considered.

Once the bill is passed by Congress, it goes to the president for his signature. If the president signs the bill it becomes law. If he vetoes (refuses to sign) the bill, it goes back to Congress. If a two-thirds majority of Congress votes in favor of the bill, it becomes law despite the president’s veto. This is known as overriding. A more detailed explanation of the federal lawmaking process is available at http://thomas.loc.gov/home/lawsmade.toc.html.