Here's Why It Seems Like Congress Can't Pass, Well, Anything

Schoolhouse Rock did not give me the full story.

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If you know anything about the legislative process in America, you know it’s not nearly as simple as Schoolhouse Rock made it out to be. In fact, the whole process can get so complicated, even lawmakers themselves have to find loopholes and workarounds just to get things done especially when critical issues, like reproductive rights, are on the line. Now that the Supreme Court has overturned Roe v. Wade, it’s more important than ever to unpack how some laws make it past the president’s desk, and how some can’t even make it past the Senate floor.

That’s why Elite Daily spoke to Molly Reynolds, Ph.D., a senior fellow in Governance Studies at The Brookings Institution, about the legislative process. From first draft to final destination, here’s everything you need to know about passing laws in the United States.

This interview has been edited for length and clarity.

From start to finish, could you walk me through the process of passing a law?

MR: Let me start by saying, there's the way the process is designed to work, and there's the way it actually works. The way it’s designed to work, a member from each chamber of Congress — the House and the Senate — would introduce a piece of legislation. That piece of legislation would be considered by a special committee in each chamber. If the legislation is about student loans, that would be considered by the committees that handle education issues in each chamber. The legislation would then go on the floor to either be amended, reviewed and approved, debated over, or just voted on. Once both the House and the Senate had passed the same version of the legislation, it would go to the president’s desk to be signed into law.

That’s how the process is supposed to work. There can be additional complications throughout the process, but the really important thing to know is that the House and the Senate have to pass the exact same version of the bill before it can go to the president for signing. Legislation is easier to pass in the House, because you only need a majority vote. But because of the filibuster in the Senate, you need the support of 60 senators, not just a simple majority.

OK — so, what is the filibuster…?

MR: At the highest level, to filibuster a piece of proposed legislation in the Senate means using debate tactics to prevent it from coming to a vote. The reason Senators can do this is because the Senate’s formal rule book doesn’t put any restrictions on how long members can debate a particular measure. Additionally, there’s also nothing in the Senate’s rule book that allows only a simple majority of votes to cut the debate short. This creates an opportunity for a minority of senators to prevent action on most legislation by keeping debate open indefinitely, or threatening to do so: In 2022, most filibusters don't actually involve extended speech-making to drag out a debate like they used to. Now, to cut off “debate” and actually take a vote on something, the Senate has to file a “cloture” motion, which needs 60 votes to pass.

The filibuster is not part of the Constitution. The founders did not write the supermajority — 60% — requirement to pass legislation. The filibuster we have today is partially the result of some unintended consequences from changes made to the Senate's rule book very early in its history. Combined with the evolution of partisanship in the United States, we’re left with this 60-vote requirement to end the filibuster debate and move to voting, and almost all legislation is subject to it.

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What are the biggest factors in whether or not a bill gets passed, and what are some of the most prominent stumbling blocks along the way?

MR: It's easier to pass a bill if it has broad support. So increasingly, in our very closely divided institutions, that generally means you need bipartisan support to pass any piece of legislation. So if 10 Republicans in the Senate are willing to vote for something, that's gonna make it much more likely to get past the 60-vote filibuster threshold. Legislation is also more likely to pass if the consequences of not acting are really big — like not passing a spending bill, and causing a government shutdown.

What happens to the bills that don't get passed?

MR: Each session of Congress lasts for two years. At the end of this session in December 2022, the 117th Congress will end, and any bill that was introduced but hasn't been passed just dies. However, a lot of that legislation will be reintroduced in the next session. It may take a while for a bill to gain enough support to go to the Senate floor for a vote, so sometimes, we see bills go through a couple of these life cycles before any action is taken on them.

Sometimes, the House or the Senate will pass something knowing it's not actually going to become law, because they think it's valuable to demonstrate where the party stands on the issue. For example, between 2010 and 2017, when Republicans controlled the House, they brought up legislation to repeal the Affordable Care Act (ACA), aka Obamacare. They knew President Barack Obama was never gonna sign a bill to repeal his signature domestic achievement, but they thought it was valuable to demonstrate where they stood to their constituents.

Sometimes, there are bills whose purpose is popular with the people, that just can’t get passed — for example, the Women’s Health Protection Act (WHPA), which would legalize abortion. More than half of Americans support abortion rights. What’s stopping bills like this from being passed?

MR: Talking specifically about the context of the WHPA, or other legislation that would codify Roe v. Wade, the filibuster has a huge impact. You need 60 votes to cut off debate on a bill and bring it to a final passage vote.

Given the lack of support to reach the 60-vote threshold, then the next question is, can you change those rules? And the answer is yes, you can, but you still need a simple majority to be willing to vote to change those rules. Currently, even with Vice President Kamala Harris’ tie-breaking vote, Democrats still don’t have a simple majority in the 50-48 Senate. [Editor’s Note: two senators, Bernie Sanders and Angus King, are Independents and not affiliated with either the Democratic or Republican Parties.] So, there's no support to change the rules with fewer than 60 votes. In the case of the WHPA, and some other pieces of legislation, that’s where the hold-up is.

Talk to me a little about some of the roundabout ways that legislation does get passed — for example, rolled into other bills.

MR: The best way to think about this is to use the metaphor of a train. Every year, some pieces of legislation (like a spending bill) get passed only because there's a deadline, and if that deadline isn’t met, something bad (like a government shutdown) is going to happen. That piece of legislation, that must-pass bill, is getting passed one way or another. So if we imagine that bill as a train leaving the station, we can view other pieces of legislation getting added on as extra cars to that train.

One of the consequences of legislation being really hard to pass is that even members of Congress start to look outside of the legislative branch for ways to accomplish things — namely, through putting pressure on the president to take executive action. There's been a lot of pressure from congressional Democrats for Biden to use his executive power to cancel student debt. That's a good example of how lawmakers use lots of different ways to get their priorities through the legislative process, even if they have to look outside of the legislative process to get things done.

Do the other two branches of government, the executive and the judicial, play into the legislative process?

MR: As Congress becomes more gridlocked, it gets harder for it to legislate — meaning that, when Congress can’t come to a decision, more power gets deferred to the judicial branch, which interprets the laws that Congress passes and decides whether or not they’re constitutional. Some of the court’s recent decisions, including the one overturning Roe v. Wade, are a good example of this: Congress couldn’t act to codify abortion rights, and that left the issue open for the Supreme Court to subsequently overrule in Dobbs v. Jackson Women’s Health Organization.

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How has the legislative process changed over the years?

MR: There’s actually less of a change inside Congress, and more of a change within the broader American political system. As the parties have gotten more polarized, it's become easier to hold a minority coalition against something together. So as Republicans and Democrats have gotten farther apart, when there's something Democrats want to do, the divide between the parties means it's easier for Republicans to hold their coalition together to obstruct what Democrats want to do.

In the middle of the 20th century, everyone in Congress just kind of expected that Democrats would be in the majority for a long time. So at the time, if I were Republican and I wanted to get something done, I knew I had to work with my Democratic colleagues. I didn't have any expectation that my party was gonna be in the majority in two years or four years, so I couldn't really wait if there was something I wanted to get done. I had to figure out a way to work with Democrats to do it.

Starting in the 1980s, that changed when competition for control over the House and the Senate began to shift, and that altered people's incentives about working together. Now, politicians don’t really have a reason to work with one another across party lines.

What are some of the biggest problems with the United States’ current legislative process, and what might you change?

MR: As a country, we’re on a long, slow march to the end of the Senate filibuster. It's increasingly clear the filibuster has made it difficult for the Senate to act on big problems that are facing the country. Now, the biggest question is: what issue will be critical enough to compel senators to take a bipartisan stance on eliminating the filibuster? At some point, there will be an issue important enough for the Senate to get rid of the filibuster — it’s just a question of when that will happen.

Additionally, since about the mid-1990s, Congress has really underinvested in itself. It has less staff, and it doesn’t pay its staff as well as it should, making it really hard for people who don’t come from independently wealthy backgrounds to pursue long careers on Capitol Hill. I would massively increase the degree to which Congress invests in its own ability to know how issues work, and to make good legislative choices, rather than having to rely on outside interest groups and lobbyists to give it the expertise it needs.

What can young people do to try and bring justice and equity to America’s legislative process?

MR: Again, at the end of the day, the legislative process depends on the math. If you have priorities that you wanna see enacted, do the work to get more members of the party that shares your values elected.

You may also want to think about going into public service. If you are interested in making change, there are a lot of ways to do that on Capitol Hill, and in organizations that work with folks there. The more diverse perspectives we can feed into the process, the more likely it is that the resulting legislation will serve the needs of Americans who have been systematically disenfranchised by our government.