ENACTMENT OF A LAW

Introduction

"All legislative Powers" granted to the Federal government by the Constitution, as stated in Article I, Section I, are vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

CONTINUING PROCEDURES OF THE SENATE

The order of business in the Senate is simpler than that of the House. While the procedure of both bodies is basically founded on Jefferson's Manual of Parliamentary Practice, the practices of the two bodies are at considerable variance.

FORMS OF LEGISLATIVE BUSINESS

All proposed legislation, and nearly all formal actions by either of the two Houses, take the form of a bill or resolution. A bill is a legislative proposal of a general nature. A bill may propose either a public or private matter, but both are numbered in the same sequence. Public bills are the most numerous. Private bills are designed to affect or benefit specific individuals or groups of individuals. Together, bills account for a large majority of the total of legislative proposals of each Congress. The Senate numbers bills in sequence starting with number 1, and each number is preceded by the designation "S". House bills are similarly numbered and prefaced by "H.R." Thus, bill number 100 in the Senate is written S. 100, and in the House, H.R. 100.

ORIGINS OF LEGISLATION

The right of petition is guaranteed the citizens of the United States by the Constitution, and many individual petitions as well as memorials from State legislatures are sent to Congress. They are laid before the two Houses by their respective Presiding Officers or submitted by individual Members of the House and Senate in their respective bodies, and are usually referred to the appropriate committees of the House in which they were submitted.

BEGINNING A DAILY SESSION OF THE SENATE

Calendar and Legislative Days

As the Senate begins its new day, it is important to note that the Senate recognizes two meanings for the word "day," the "calendar" day and the "legislative" day. A calendar day is recognized as each 24 hour period. A legislative day is the period of time following an adjournment of the Senate until another adjournment. A recess (rather than an adjournment) in no way affects a legislative day; therefore, one legislative day may consume a considerable period of time--days, weeks, even months--but one or more adjournments from one day to the next would cause the calendar and legislative day to coincide.

Presenting Measures

The Majority Leader customarily secures unanimous consent at the beginning of each new Congress to allow receipt at the desk of all measures on days when morning business is conducted. Such permission allows Senators to bring measures to the desk at any time during the day, instead of following the procedure as set forth in Rule VII, requiring introduction of bills and joint resolutions only on a new legislative day during the transaction of morning business, followed by submission of other resolutions. Bills and resolutions still may be introduced from the floor, however, and any Senator, when doing so, usually discusses his proposal when he presents it. There can be only one prime sponsor of a bill or resolution, but commonly other Senators are included as co-sponsors.

MOTIONS, QUORUMS, AND VOTES

Motions

The motions which "shall be received" under Rule XXII when "a question is pending" "and which shall have precedence as they stand arranged" are: To adjourn. To take a recess. To proceed to the consideration of executive business. To lay on the table. To postpone indefinitely. To postpone to a day certain. To commit. To amend. All but the last four of these motions are not debatable.

The motion to lay on the table is a simple way of taking final action on pending business on which the Senate wishes to take a negative position. It is applicable to a bill and amendments thereto as well as to certain motions. An amendment can be laid on the table without prejudice to the bill to which it was offered, but an amendment to the amendment would also go to the table. Since the motion is not debatable, the question can be brought to a vote in a hurry. The motion is used generally to reach a final disposition on motions to reconsider or appeals from the decision of the chair. While the motion is applicable to pending business, it is not commonly used for the disposition of legislation--bills are generally either voted up or down. The preamble to a bill or resolution may be laid on the table without carrying the bill or resolution with it.

The motion to postpone indefinitely is the next in order, but it is rarely used to dispose of bills except in the case of companion bills, i.e., the Senate passes a House-passed bill and indefinitely postpones a companion Senate bill which has been reported and placed on the calendar. It is a way of effecting a final disposition of a measure. The motion to postpone to a day certain is also used by the Senate. These motions are debatable and amendable and take precedence over a motion to refer or commit. A motion to take up another bill while unfinished business is pending has precedence over a motion to postpone the unfinished business to a day certain.

A motion to recommit a bill to committee with instructions to report the bill back forthwith with an amendment, if agreed to, requires that the committee report the bill back to the Senate immediately with that proposed amendment which is then before the Senate for consideration.

The last of this series of motions which shall be received under Rule XXII, "when a question is pending," and in the order listed above, is "to amend." Any bill, or amendment thereto, before the Senate is open to amendment.

Quorums

"If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate." "Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, shall be in order." The Senate proceeds under the assumption that a quorum is present unless the question is raised.

COMMITTEE RULES

Rule XXVI on committee procedure provides that each committee shall adopt rules (not inconsistent with the Standing Rules of the Senate) governing the procedure of such committee. Committees need not act on all bills referred to them. Under the Senate's rules, a Senator may enter a motion to discharge a committee from the further consideration of any bill, but this is rarely done. By unanimous consent, some bills are discharged from one committee and sent to another. If a motion to discharge is agreed to, the bill is thereby taken out of the jurisdiction of that committee and placed on the Senate Calendar of Business. It may subsequently be referred to another committee. Rule XIV permits the Senator to bypass the standing committee system altogether and have the bill placed directly on the Calendar of Business, with exactly the same formal status the bill would have if it had been the subject of extensive hearings and exhaustive mark-up meetings in committee. Senators generally view this use of Rule XIV as a last resort, both because it undermines the committee system as a whole and because they do not wish to encourage a practice that can be used against their own committees. If Rule XIV is used on a proposed bill and passed by unanimous consent, the package is assigned a Senate number (S.---)and placed directly on the calendar of Senate business.

CONSIDERING MEASURES ON THE SENATE FLOOR

The Senate's Majority and Minority Leaders, as the spokesmen for their parties, and in consultation with their respective policy committees, implement and direct the legislative schedule and program. Most measures are passed either on the call of the Calendar or by unanimous consent procedure (Rule XIV). The motion to proceed to the consideration of a measure on the Calendar is usually only made if there has been objection to a unanimous consent request to proceed to its consideration.

THE AMENDMENT PROCESS

Once a bill or resolution is before the Senate, it is subject to the amendatory process, both by the committee reporting it and by individual Senators offering amendments from the floor. Any Senator may propose amendments to any part of the bill not already amended, and while an amendment is pending, an amendment to the amendment is in order.

FINAL PASSAGE

When all Senators' floor amendments have been disposed of, the bill is ordered engrossed and read a third time, which step ends the amendatory process. The third reading is by title only. The question is then put upon passage of the bill, which requires a simple majority vote. At any time before its passage, a bill may be laid on the table or postponed indefinitely, either of which motions has the effect of killing the bill; Alternatively, a bill may be made a special order for a day certain, which requires a two-thirds vote; laid aside temporarily; recommitted to the committee which reported the bill; referred to a different committee; or displaced by taking up another bill by a majority vote. In the case of a yea-and-nay vote, any Senator who voted with the prevailing side or who did not vote may, on the same calendar day or on either of the next two days the Senate is actually in session, make a motion to reconsider the question. A majority vote determines questions of reconsideration. If the motion is agreed to, another vote may be taken on the question reconsidered; if disagreed to, the first decision of the Senate is affirmed. The making of such a motion is privileged but may not be made while another matter is pending before the Senate. Only one motion to reconsider the same question is in order. Such a motion, under rule XXI, may be withdrawn by the mover by leave of the Senate, which may be granted by a majority vote or by unanimous consent. A bill cannot be transmitted to the House of Representatives while a motion to reconsider remains unacted upon.

ENGROSSMENT AND TRANSMITTAL TO THE HOUSE

After the passage of a bill by one body, it technically becomes an Act (not yet effective as a law), but it nevertheless continues to generally referred to as a bill.

Engrossed bills are transmitted, or "messaged", to the House of Representatives by one of the clerks in the Secretary's Office, who is announced by one of the House's officials. Upon being recognized by the Speaker, the clerk announces that the Senate has passed a bill (giving its number and title) in which the concurrence of the House is requested. Upon receipt of such a message from the Senate, the Speaker refers the measures contained therein to appropriate committees. If, however, a substantially similar House bill already has been favorably reported by a committee, the Senate bill, unless it creates a charge upon the Treasury, may remain on the Speaker's table instead of being referred to committee. It may subsequently be taken up or its text may be substituted for that of the House bill when consideration of the latter occurs.

HOUSE COMMITTEE CONSIDERATION

Senate bills and resolutions when messaged to the House may be referred by the Speaker to the appropriate House committee, just as he refers all bills and resolutions introduced in the House. House rules allow the Speaker, under some circumstances, to refer a bill to two or more committees in sequence, or to refer parts of the same bill to different committees, when more than one committee has jurisdiction over the subject matter contained in the bill. After all House committees having jurisdiction have concluded consideration of a bill, it may be reported to the House with or without amendments. A written report accompanies each reported measure. When reported from committee, a bill is placed on the Union or House Calendar, if a public bill, or on the Private Calendar. The House also has a Corrections Calendar, on which are placed bills that are expected to enjoy considerably more than majority support on the floor, and a calendar of motions to discharge committees from further consideration of bills referred to them.

HOUSE FLOOR ACTION

The House rules designate special legislative days which have been established to expedite certain types of unprivileged business. The special legislative days are: Calendar Wednesday (every Wednesday), District of Columbia (the second and fourth Mondays), suspension of the rules (every Monday and Tuesday), and the Corrections Calendar (the first and third Mondays). Private Calendar business, if any, is considered on the first and third Tuesdays of each month, and discharge motions on the second and fourth Mondays. Generally speaking, after the regular routine business each morning, including the approval of the Journal, the House proceeds to the consideration of whatever bills or resolutions are to be acted on that day. The order varies somewhat, as follows: (1) On days set aside for certain procedures, such as suspension motions on Mondays and Tuesdays, bills and resolutions are called up in pursuance of the procedure, as defined by House rules in each instance; (2) under unanimous consent, bills are called up in pursuance of such requests made and granted by the House, regardless of the regular rules of procedure; and (3) privileged matters, such as general appropriation bills and conference reports, may be called up by the Members in charge of them at almost any time after they have lain over for three days, providing the Representative in charge is recognized by the Speaker.

The House also can determine the order of its business and decide what bill to take up by adopting a special rule (simple House resolution) reported by the Rules Committee. The procedure for consideration of such measures is defined in each instance in the special rule. A special rule to call up a bill may be debated for an hour before it is voted on. Bills called up under special rules are usually major or controversial pieces of legislation.

In the House, as in the Senate, bills are read three times before they are passed. After a Senate bill is passed by the House, with or without amendment, it is returned to the Senate; if there are amendments, the amendments are engrossed before being messaged to the Senate. All House engrossments are printed on blue paper.

MESSAGES AND AMENDMENTS BETWEEN THE HOUSES

Senate Action on House Amendments

Senate bills returned with House amendments are held at the desk and almost always are subsequently laid before the Senate by the Presiding Officer upon request or motion of a Senator (usually the Majority Leader or the manager of the bill). The Presiding Officer may also do this upon his own initiative, but this is rarely done. After the House message has been laid down, the House's amendments may be considered individually or, by unanimous consent, en bloc. Any one off the following motions relating to the amendment or amendments may then be offered, taking precedence in the order named : (1) a motion to refer the amendments to a standing committee of the Senate, (2) a motion to amend the amendments; (3) a motion to agree to the amendments; and (4) a motion to disagree to the amendments and ask a conference with the House. Usually number (4) includes authority for the Presiding Officer to appoint conferees on the part of the Senate, although the power to name conferees is in the Senate, not in the Chair. The number of conferees named varies widely. The usual range is 7 to 11, but occasionally a larger number is appointed, especially in the case of general appropriation bills or omnibus bills such as reconciliation measures.

In the case of motion number (2), the amendments made by the Senate to the House amendments are transmitted to the House, with a request for its concurrence therein. If the House concurs or agrees in all the amendments (the words being used synonymously), the legislative steps in the passage of the bill are completed. The House, however, may amend the Senate amendments to the House amendments, this being the second, and therefore the last, degree in which amendments between the Houses may be made. The House amendments, if any, are transmitted to the Senate, usually with a request for concurrence therein. As in the case of the original House amendments, the Senate may agree to some, disagree to others, or ask for a conference with the House thereon.

A conference may be requested at any stage of the consideration of these amendments between the houses. If, instead, the Senate agrees to all the House amendments to the Senate bill or to the Senate's amendments to House amendments, such action brings the two Houses into complete agreement, and likewise completes the legislative steps.

If the Senate refers the House amendments to a standing committee, the committee, after consideration, may recommend action indicated in motions (2), (3), or (4), and may make such a motion accordingly on the Senate floor.

CONFERENCE COMMITTEES AND REPORTS

When the Senate requests a conference or agrees to the House's request for a conference and names its conferees, it informs the House of its action by message. After the second House agrees to the conference, appoints conferees, and apprises the first House of its action by message, all the papers relating to the measure sent to conference (referred to as the "official papers") are transmitted to the conference. This includes the original engrossed bill, engrossed amendments, and the various messages of transmittal between the Houses. Since the conferees of each House vote as a unit, the House, like the Senate, may appoint as many conferees as it chooses to meet with the Senate conferees to reconcile the differences between the two Houses--the sole purpose of a conference. Thus, having a larger number of conferees than the other House does not provide an advantage.

After deliberation, the conferees may make one or more recommendations; for example, (1) that the House recede from all or certain of its amendments; (2) that the Senate recede from its disagreement to all or certain of the House amendments and agree to the same; or (3) that the conference committee report an inability to agree in all or in part. Usually, however, there is compromise.

Conferees dealing with an amendment or a series of amendments are more limited in their options than conferees dealing with a bill passed by the second House with an amendment in the nature of a substitute. They can only deal with the matters in disagreement. They cannot insert new matter or leave out matter agreed to by both Houses, and if they exceed their authority, a point of order will lie against the conference report. Each House may instruct its conferees, but this is rarely done. Such instructions are not binding since conferences are presumed to be full and free--one House cannot restrict the other House's conferees.

Where one House passes a bill of the other House with an amendment in the nature of a substitute and the measure then goes to conference, the conferees have wider latitude since the entire matter is in conference. They may report a third version on the same subject matter; all of its provisions, however, must be germane modifications of either the House or Senate version, or it will be subject to a point of order.

SENATE AND HOUSE ACTION ON CONFERENCE REPORTS

The recommendations of the conferees are incorporated in a written report and a joint statement of managers, made in duplicate, both of which must be signed by a majority of the conferees of each House. If there are amendments upon which they were unable to agree, a statement to this effect is included in the report. These are referred to as amendments is disagreement. The conferees cannot report parts of amendments in disagreement. For example, conferees must report in full agreement or disagreement when a bill had gone to conference after one House had amended it with a complete substitute for the other House's text.

One report, together with the papers if the House is to act on it first, is taken by the House conferees, or managers, as they are termed in that body, and subsequently presented by them to the House, with an accompanying explanatory statement as to its effect upon the matters involved. The report must lie over three days in the House before it may be considered, except during the last six days of a session.

Assuming action by the House first, the Senate conferees could then present their report and ask for its immediate consideration. It does not have to lie over for three days in the Senate, as it does in the House, and the motion to proceed to its consideration is not debatable; thus the Senate may act immediately. A motion to recommit a conference report may not be made in the second House acting on the report since the conferees of the first House were discharged when their body agreed to the report.

If conferees reach a complete agreement on all of the House amendments to a Senate bill, and the House adopts that report, the adoption of the report by the Senate completes the legislative action on the bill. If, however, there were amendments upon which an agreement had not been reached by the conferees, the adoption of the report by both Houses leaves the parliamentary status of these particular amendments in disagreement the same as if no conference had been held.

If the amendments reported in disagreement are not so disposed of, a further conference on these amendments could be requested by one House and agreed to by the other. When this happens, the two Houses usually appoint the same conferees. Until all the amendments in disagreement are reconciled by the two Houses, the bill cannot be presented to the President.

If a conference report is rejected by one of the Houses, it so notifies the other body by message and usually requests another conference; however, it may merely notify the second body of its action without requesting a further conference, leaving further steps to be taken by the other House. Endorsements showing these various legislative steps, and when taken, are made on the engrossed bill.

When the two Houses reach a complete agreement on all the amendments, the papers are delivered to the Enrolling Clerk of the House where the bill originated. The Enrolling Clerk prepares a copy of the bill in the form as finally agreed upon by the two Houses and sends it to the Government Printing Office for "enrollment," which means historically "written on parchment." The original papers on the bill are retained in the files of the originating House until the end of a Congress, when they are sent to the National Archives.

SIGNATURES OF SPEAKER AND VICE PRESIDENT

Under the rules of the House, the Committee on House Oversight is charged, when an enrolled bill has been duly signed by the Speaker and the Vice President, to present the same, when the bill has originated in the House, to the President of the United States for his signature "and report the fact and date of such presentation to the House." If it is a Senate bill, this responsibility of presenting the bill to the President falls on the Secretary of the Senate.

PRESIDENTIAL ACTION--APPROVAL OR VETO

The President, under the Constitution, has 10 days (Sundays excepted) after the bill has been presented to him in which to act upon it. If the subject matter of the bill is within the jurisdiction of a department of the Government, or affects its interests in any way, he may in the meantime, at his discretion, refer the bill to the head of that department for investigation and a report thereon. The report of such official may serve as an aid to the President in reaching a decision about whether or not to approve the bill. If the President does approve it, he signs the bill, giving the date, and transmits this information by messenger to the Senate or the House, as the case might be.

In the event the President does not desire to approve a bill, but is unwilling to veto it, he may, by not returning it within the 10-day period after it is presented to him, permit it to become a law without his approval. The Archivist makes an endorsement on the bill that, having been presented to the President of the United States for his approval and not having been returned to the House of Congress in which it originated within the time prescribed by the Constitution, it has become a law without his approval.

Where the 10-day period extends beyond the date of the final adjournment of Congress, the President may, within that time approve and sign the bill, which thereby becomes a law. If, however, in such a case, the President does not approve and sign the bill before the expiration of the ten-day period, it fails to become a law. This is what is known as a pocket veto. The United States Court of Appeals, in the case of KENNEDY v. SAMPSON, 511 F.2d 430 (D.C. Cir., 1974), held that a Senate bill could not be pocket-vetoed by the President during an "intrasession" adjournment of Congress to a day certain for more than three days, where the Secretary of the Senate had been authorized to receive Presidential messages during such adjournment. In the case of BARNES v. KLINE, 759 F.2d 51 (D.C. Cir., 1985), the Court held the same with regard to an intersession adjournment.

If the President does not favor a bill and vetoes it, he returns it to the House of origin without his approval, together with his objections thereto (referred to as the "veto message")..

The constitutional provision for reconsideration by the Senate is met, under the precedents, by the reading of the veto message, spreading it on the Journal, and adopting a motion (1) to act on it immediately, (2) to refer it, with the accompanying papers, to a standing committee: (3) to order that it lie on the table, to be subsequently considered, or (4) to order its consideration postponed to a definite day. The House's procedures are much the same.

If, upon reconsideration by either House, the House of origin acting first, the bill does not receive a two-thirds vote, the President's veto is sustained and the bill fails to become a law.