Legislative Process Questions and Answers


What party controls the Congress today? Which political party has most often been in the majority in Congress?

If the Senate is split 50-50, who is in control? Has there ever been an even split?

Is there any type of formal procedure within Congress that evaluates the constitutionality of proposed legislation?

What is the committee structure in the House and Senate?

Where does the term "whip" come from and what are the responsibilities of the members holding these posts?

What happens in the event of a tie vote in Congress? If the tie vote is in the Senate, and the Vice-President is not there to break it — what is the outcome?

How is it that conference committees can meet behind closed doors?

How is the membership of a House/Senate conference committee determined?

What rules of procedure are used in a House/Senate conference committee, that of the House or the Senate?

Why is the Senate called "Senate" and the House of Representatives, "House"? Why are the terms House and Congress used interchangeably? And why are Members of the House called Congressmen, but Senators aren't?

Why is the Senate often called a "continuing body"?

What party controls the Congress today? Which political party has most often been in the majority in Congress?

The Republican party controls the House and the Democratic party controls the Senate in the current Congress:

House: 435 Total; 192 Democrats, 241 Republicans, 0 Independent, 2 Vacancies.

Senate: 100 Total; 51 Democrats, 47 Republicans, 2 Independents

Since 1857, Democrats have held the majority in the House of Representatives 57% of the time, and Republicans 43%. In the Senate, Republicans have held the majority since 1857 for 55% of the time and Democrats, 45%. Prior to 1857, the Republican and Democratic parties were not the dominant political parties in Congress.

If you would like to see party divisions for the Senate, going back to the First Congress, visit:http://www.senate.gov/pagelayout/history/one_item_and_teasers/partydiv.htm

Party divisions for the House of Representatives can be found at:http://clerk.house.gov/member_info/cong.html

Back to Top

If the Senate is split 50-50, who is in control? Has there ever been an even split?

If the voters were ever to elect 50 Republicans and 50 Democrats to the U.S. Senate, the party of the Vice President would be considered the majority party. The Vice President is named by the Constitution to be the President of the Senate [the presiding officer]. The Vice President would cast the tie-breaking votes on all the resolutions organizing the new Senate, including electing its officers and assigning committee seats.

A 50-50 split would mean a greater number of tie votes. The Vice President would likely become a daily presence, because only he can break a tie by voting in the affirmative. The role of the Vice President, serving as the President of the Senate, is not just a symbolic one. He has the power to cast his vote in favor of a question, break the tie, and see it win. If he opposed the question, he would not have to vote in the negative because tie votes lose automatically.

In a 50-50 Senate, the leader of the political party that is the same as the Vice-President's, would become the majority leader. The Senate Majority and Minority Leader are elected by their fellow party members [all Republicans elect their leader and all Democrats elect theirs]. Although long a Senate tradition, the Majority and Minority Leader positions are not established by a vote or rule of the Senate. The leader of the party which wins the majority is simply recognized by all as the Majority Leader of the Senate. In the Senate's history, there has never been a precise 50-50 split. However, there has been parity due to the existence of Independents who chose to caucus with one side or the other.

The lastest example of parity is in the current 110th Congress. The current Senate is split 49-49 between the two parties with 2 independent Senators. Senator Joseph Lieberman of Connecticut and Senator Bernard Sanders of Vermont both agreed to caucus with the Democrats, giving the Democratic party the majority.

Another recent example was in the 107th Congress (2001-2003). From January 3 to January 20, 2001, with the Senate split 50-50 between the two parties, the Democrats held the majority due to the deciding vote of outgoing Democratic Vice President Al Gore. After President George W. Bush was inaugurated on January 20, 2001, Republican Vice President Richard Cheney held the deciding vote, giving the majority to the Republicans. The control of the senate was returned to the Democrats on June 6, 2001, when Senator James Jeffords of Vermont switched from Republican to Independent status and announced that he would caucus with the Democrats, giving them a one-seat advantage. For more information, visit the senate website at:http://www.senate.gov/pagelayout/history/one_item_and_teasers/partydiv.htm

Another example of parity was in 1953: Robert Taft, a Republican of Ohio, was serving as Majority Leader, when he died. The Ohio Governor appointed a Democrat to fill out his term. That left the then-96 member Senate with 47 Republicans, 48 Democrats, and 1 Independent. The Independent, Wayne Morse of Oregon, agreed to caucus with the Republicans, bringing the Senate to 48-48. Republican Richard Nixon was the Vice-President, and therefore the Senate's presiding officer. That helped Republicans retain a fragile majority.

In 1881, the Senate stood at 37-37, with 2 Independents: one tended to vote with the Democrats and the other with the Republicans. When Vice President Chester Arthur became president after the assassination of President Garfield, the Vice Presidency was left vacant, leaving no one to cast a tie-breaking vote in the Senate. The two parties came to an agreement where the Republicans controlled the committees and the Democrats managed the patronage. To learn more, visit:http://www.senate.gov/artandhistory/history/minute/Presidents_Death_Eases_Senate_Deadlock.htm

Back to Top

Is there any type of formal procedure within Congress that evaluates the constitutionality of proposed legislation?

There is no formal procedure in Congress to determine the constitutionality of proposed bills.

The role of deciding the constitutionality of laws enacted by Congress belongs to the courts, and ultimately with the Supreme Court. Bills enacted by Congress, and signed into law by the President, may have their constitutionality challenged in the courts. And if a law is so challenged, it is the Supreme Court that has the last word on constitutionality.

During floor debate in both the House and Senate, the constitutionality of a proposal is often brought up as a debating point by both proponents and opponents. At times raising the question of constitutionality may be persuasive in the debate.

In the Senate, Senators may raise an actual point of order that an amendment or a provision of a bill is unconstitutional. Senate rules require the Presiding Officer to put this question to the Senate for a vote, and not to rule directly on the question of constitutionality. The Senate's collective judgment by its vote of the moment decides whether or not the amendment or provision is constitutional in the view of its current majority.

The House has no similar procedure. If a proposal's constitutionality has been challenged in debate, and the House goes ahead and votes to adopt it anyway, it has in effect made a positive judgment on the constitutionality of the proposal.

Since a majority vote alone decides the opinion of each chamber on the question of constitutionality of a proposal, it is conceivable that the House may decide a provision is constitutional, while the Senate decides the opposite. One chamber will have to cede to the opinion of the other in order to produce agreement on a final version of a measure to send to the President.

Back to Top

What is the committee structure in the House and Senate?

The House and Senate are each free to create or abolish committees as they see fit to do the important preliminary work of reviewing legislation, conducting hearings and investigations, and supervising the work of the federal government. As a result of their individual authority, the committee lineup of the House and Senate is not exactly parallel. They each have split up the subject matter workload - known as jurisdiction - in slightly different ways. However, both chambers have the same three types of categories of committees: standing, special or select, and joint.

Standing committees are considered permanent, with jurisdictions established in the House and Senate rules. The rules also assign them oversight responsibilities - to supervise the programs, agencies, and departments of the executive branch that fall under their jurisdiction.   House Standing Committee

 

Special [or Select] committees may be permanent with legislative authority, or they may be temporary. Some have legislative authority and consider bills and resolutions; some do not. Some are created for a singular special purpose [e.g. the House Select Committee on Homeland Security] that otherwise would cut across jurisdiction lines of several committees.   House Special Select Committee

 

Joint committees are not legislative but rather administrative or analytical. The Joint Committee on Printing oversees and sets policies for the Government Printing Office, while the Joint Committee on the Library does so for the Library of Congress. The Joint Committee on Taxation provides expert research, analysis and support for the two revenue committees of the Congress: House Ways and Means and Senate Finance. The Joint Economic Committee conducts research and issues reports and studies on economic conditions and forecasts and recommends changes in economic policy.   Joint Committee

Following is a list of the 16 Senate and 19 House standing committees; the 4 Senate and 3 House special/select committees; and the 4 joint committees. More information about each committee and the subjects it handles can be found on its website. Click on either Senate Committees or House Committees for links to those sites. 

Senate Committees
Standing
Agriculture, Nutrition, and Forestry
Appropriations
Armed Services
Banking, Housing, and Urban Affairs
Budget
Commerce, Science, and Transportation
Energy and Natural Resources
Environment and Public Works
Finance
Foreign Relations
Health, Education, Labor, and Pensions
Homeland Security and Governmental Affairs
Judiciary
Rules and Administration
Small Business and Entrepreneurship
Veterans' Affairs

Special, Select, and Other
Indian Affairs
Select Committee on Ethics
Select Committee on Intelligence
Special Committee on Aging

Joint
Joint Committee on Printing
Joint Committee on Taxation
Joint Committee on the Library
Joint Economic Committee

House Committees
Standing
Agriculture
Appropriations
Armed Services
Financial Services
Budget
Transportation and Infrastructure
Science and Technology
Energy and Commerce
Ways and Means
Foreign Affairs
Oversight and Government Reform
Education and Labor
Homeland Security
Judiciary
Rules
House Administration
Small Business
Veterans' Affairs
Natural Resources

Special, Select, and Other
Standards of Official Conduct
Permanent Select Comm. on Intelligence
Select Committee on Energy Independence and Global Warming

Back to Top

Where does the term "whip" come from and what are the responsibilities of the members holding these posts?

The use of the term "whip," in the U.S. Congress comes from the British House of Commons. In the British practice, the "whipper-in" plays an important role in the sport of fox hunting. He whips the dogs to keep them running after the fox as a pack, preventing them from running off on their own. Similarly, the "whipper-in" of both the government and opposition parties in Parliament is tasked with encouraging Members to vote with their party, and not stray off on their own.

James Clyburn, D-SC, the Majority Whip, ranks 3rd in the House Democratic party, behind the Speaker and the Majority Leader. He is in charge of maintaining party unity on key votes, acting as the liaison between rank and file Majority members and the Democratic leadership, and helping the leadership develop strategies on how to win votes. The first Democratic whip was appointed in 1899.

His counterpart, the Minority Whip, Rep. Roy Blunt, R-MO, has the same responsibilities, but ranks 2nd in the House Republican party, behind the Minority Leader. The first Republican whip was named in 1897.

Today each Whip has a staff of employees, and supervises numerous colleagues who serve as assistant whips: chief deputy whips, deputy whips, at-large whips, zone or regional whips. As the size of the House grew, so did the need for party leaders to keep close tabs on the inclinations of each Member, a role performed by the Members serving as assistant whips. Knowing each Member well helps the Whips to know how best to negotiate, persuade, or plead with them for loyalty to party positions during important votes.

In this day and age of relative political and financial independence, it is difficult to truly discipline Members. However, the few perks still left to the party leaders — nomination for vacant committee assignments, a seat at the conference table on an important bill, campaign contributions from leadership PACs, or selection for foreign travel — are all influenced by recommendations from the Whip and his organization.

The Whips have as their chief task calculating "head counts" prior to important votes. They track the number of yeas, nays, and undecideds building on a particular issue. Their counts help the Speaker in making important decisions, such as when a measure is ready for the floor, or the Minority Leader in planning opposition to a bill. The undecided Members are important when close votes are expected, and become prime targets for the persuasive talents of the Whips. Whips also try to "whip up" support for a measure by building temporary voting coalitions from disparate groups of Members. They attempt to persuade each group to stay focused on the common goal despite their differences, or they may propose language changes to the leaders to draw in additional support.

The Whips are also expected to get out the vote. They predict when attendance of key Members will be at its best for scheduling purposes. They help round up absentees. Assistant whips will man all the doors to the House chamber and hand each Member arriving to vote a written message, give thumb signals, or whisper quick words of advice from the leadership. Whips also gather intelligence for their party leader — they listen and report back the complaints and concerns Members might have on specific measures. By assessing the personal knowledge their assistant whips have about the personalities of each Member, the Whips can make recommendations on how best to win over a recalcitrant stray.

Finally, the Whips also serve an important communications role, passing on the intentions and wishes of the Speaker or Minority Leader, and issuing both daily and weekly "Whip Notices," announcing changes to the floor schedule to help Members plan their travel.

Back to Top

What happens in the event of a tie vote in Congress? If the tie vote is in the Senate, and the Vice-President is not there to break it — what is the outcome?

A tie vote means the proposal loses, whether it be in the House, Senate, on the floor, or in committee.

Only the Vice-President has the authority under the Constitution to break a tie vote, and only on the Senate floor. Of course, he would only need to come to the Senate to do that if the Administration favored the proposition. In that case, he would vote aye, tipping the scales from 50-50 to 51-50 [if all Senators were present and voting.]

If the Administration opposed the matter, then his vote would be unnecessary. If the vote were tied at 50-50, the matter would lose automatically.

Back to Top

How is it that conference committees can meet behind closed doors?

The conference stage is the last word on a bill's content. It can – and usually does – have far more influence on the final text of legislation than do the earlier hearings or floor debate. Yet, this last all-important stage of the legislative process remains the least visible part.

Since 1975, House rules have required all conference meetings be open to the public and press unless the full House determines otherwise by adopting a "motion to close." This rule is followed primarily when issues of national security or defense are involved. The Senate's rules are different. They allow their conferees wide latitude to meet in open or closed session as they see fit, without requiring permission of their chamber.

Once a conference report is issued, House rules permit a point of order striking it down if House conferees failed to meet in open session. However, that has been interpreted by past precedent to mean "meet in open session at least once." Conferees are careful to have at least one formal meeting in open session so that their conference report cannot be challenged in the House on grounds of openness. The Senate has no such point of order.

While total openness has great political appeal, it has presented challenges to the process of negotiating a compromise. Most Members would acknowledge that negotiating is easier in private than when myriad lobbyists who want conflicting results are watching in the same room. Members are also aware that constituents respect firm commitment to a principle more than they do the act of compromise and horse-trading for votes, which are the necessary dynamics at work during a negotiating session.

Former Senator Mark Hatfield [R-OR] described the sentiment about this in 1974 — and it still prevails today:

"When conferences were in closed session, members didn't have to pound the table and make speeches they hope will be reported back home. They could sit there and say, "You know where I sit and I know where you sit so let's compromise." We do the same thing now [in open session] but it takes much longer because we all have to give all our speeches first."

Even in open session, all is not conducted openly. Over the years, conferees haveconsistently caucused privately behind the scenes, in a Member's office, the corridor, even in restrooms! Or they form a huddle right in the committee room and converse off-mike. Small meeting rooms are sometimes used deliberately to limit the audience size of lobbyists and reporters. Larger conferences often split into smaller working groups, which have no requirement to meet in open. And with e-mail and faxes, language often is worked out off-stage in advance of an open session. Also "staff conferences" are sometimes held in advance of the public sessions with agreements worked out among the staff for the Members to ratify in the open session.

Even in closed sessions, conferees are not alone. White House lobbyists are present or nearby since what the conferees do to the bill may attract or deflect a veto. Congressional staff are present and often run messages back and forth to interested parties in the hallway outside.

Sometimes lobbyists or issue experts are called in for their expertise, but "by invitation only."

Back to Top

How is the membership of a House/Senate conference committee determined?

Conference committees are temporary panels whose purpose is to reconcile the differences between the final House and Senate versions of a bill. Conference committees are made up of House and Senate Members known informally as "conferees." The final compromise text they produce, called a "conference report," must be adopted by a majority vote in both chambers before it can proceed to the President and then, perhaps, become law.

In the House, the Speaker appoints the conferees based on a list of names proposed by the chairman and ranking minority Member of the committee which reported the bill under consideration. Conferees are usually the bipartisanship leadership of the committee and subcommittees involved and a few other members of the committee of jurisdiction. However, House rules give the Speaker broad discretion in conference appointments, and Speakers have appointed Members not on the committee leaders' lists — primarily those who offered successful floor amendments to the bill which may have been opposed by the committee's members. These limited appointments are sometimes made in order to ensure defense of the bill in the version adopted by the entire House.

The rules of the House advise the Speaker to appoint conferees based on the overall party ratios in the chamber and to choose Members who support the prevailing position of the entire House. However, this practice is not always followed. Both the Speaker of the House and the leaders of House committees have used the competitive appointment of conferees to reward or to punish Members. The conference stage is often the most significant phase of the legislative process. To be a conferee is to gain influence over the most important version of legislation: the final text.

The Senate's conferees are appointed by the presiding officer based on the list of names recommended by the bipartisanship leadership of the committee involved. The Senate tradition differs from the House: the committee's decision is rarely challenged, and the Majority Leader of the Senate, unlike the Speaker of the House, does not intervene in conference appointments.

There is no set number of conferees. The size of each conference delegation varies depending on how many committees were involved in reporting the measure in question. Conference committees have grown steadily in size over the last decade as legislation has become more complex and committee jurisdictions have overlapped.

Given the obvious size difference between the chambers, the House always has more conferees than the Senate. However, because each chamber's delegation may vote only as a unit, the two delegations have equal weight at the table, regardless of size.

Back to Top

What rules of procedure are used in a House/Senate conference committee, that of the House or the Senate?

There are no formal rules governing conference committee procedures. Because they are intended to be flexible negotiating sessions, conferences may adopt any rules they wish or none at all. Each conference has a different "climate" depending on the politics and the personalities involved in the particular issue on the table. Some conferences formally trade proposals in structured debate with votes on each proposal, while others engage in free-form discussions ending with someone stating a consensus proposition.

Conferees must decide first who will chair the conference: the head of the House delegation or the Senate delegation? Some decide to have co-chairs. Others who meet regularly on an annual bill, switch back and forth.

They then make either a formal decision or, more typically, an informal agreement about time limits for discussion and whether the entire bill will be open for discussion at once or if it will be presented for consideration section by section or title by title. In advance of a conference, the staff prepare working papers for the conferees which include a side-by-side comparison of the House and Senate bills, showing exactly where the two bills are identical and where they differ.

Although there is no mandated procedure to follow within a conference committee, the House and Senate both place some restrictions on the authority of their conferees. For example, conferees are told not to exceed the language differences between the two bills: either pick one version or the other or agree upon something inbetween. In reality, this restriction is often ignored. If the conferees believe they will have a majority vote for the conference report language back in the full House or Senate, they know they willalso have a majority vote to overcome any potential point of order against the conference report for exceeding their authority under the rules.

Regardless of what procedures it follows, the ultimate challenge for every conference committee is the same: to produce a final version of a bill that satisfies a majority of the House, a majority of the Senate, and the President of the United States.

Back to Top

Why is the Senate called "Senate" and the House of Representatives, "House"? Why are the terms House and Congress used interchangeably? And why are Members of the House called Congressmen, but Senators aren't?

The framers of the Constitution chose "Senate" for the upper body because most of them had a classical education and were very well versed in the ways and wisdom of the Roman Republic. "Senate" was the name given the supreme council of state in ancient Rome, and its members were called "Senators." According to Donald Ritchie, U.S. Senate Historical Office, the word "Senate" comes from the Latin, "Senatus," which means council of elders. (It is also the root word for senility!) The framers were also influenced by the fact that at the time of the founding of our country, 9 of the 13 colonial legislatures had upper bodies already known as "senate."

As for the House, "house" is simply a straightforward word for referring to a legislative body or assembly of representatives. The fact that so many of the founding fathers were well acquainted with the Virginia House of Burgesses may have influenced this decision as well.

It is not accurate to use "House" and "Congress" interchangeably. Congress is both the House and Senate, or said in reverse, the House and Senate are each only 1/2 of Congress. However, this logic does not extend to the terms of address. Senators are only called Senators, while House Members may correctly be called Congressman or Representative.

Some may argue that the tradition of referring to Members of the Senate only as "Senator," is because the members of that body think of themselves as more distinguished than the Members of the House and also because they wish to evoke the aura of the solons of ancient Rome. However, there is another explanation. If we used "Congressman" for members of both bodies, we would not be able to immediately identify the Member's chamber. Using "Senator" or "Representative or Congressman" makes the distinction instantly clear.

Back to Top

Why is the Senate often called a "continuing body"?

The Senate is known as a "continuing body," because it never formally goes out of existence. Every two years, one-third of the Senate's members [33 or 34] are up for re- election while the others [66 or 67] remain in place.

This is in contrast to the House of Representatives, which goes out of existence every two years — because all 435 members are up for election at the same time. The entire House is reconstituted in a new Congress in January of the next year following the election.

The Founding Fathers created this difference in terms so that the House might remain acutely sensitive to the wishes of the American people, while the continuity in the Senate would bring stability to the new government.

The rotation in the elections of senators, one-third at a time, was also to protect the Senate from a rapid turnover in ideas. It was meant to encourage senators to consider the long term interests of the nation by carefully deliberating measures over time. Also, it was hoped the continuing nature of the Senate would provide leadership during any periods of national uncertainty.