Do you need to follow policy and legislation developments but don't work in Washington? Read on to learn what to watch as you evaluate a bill's prospects.
In the natural resources, critical minerals, energy, and climate spaces, a variety of federal policies and incentives impact businesses. It has become vitally important to care how Congress works, and nowadays business leaders follow politics as if it were the Super Bowl.
But creating policy is not the Super Bowl. It’s much harder to follow, and C-SPAN offers no fun commercials...yet. So Cascade Strategies is here to give you a little clarity.
The quick take:
Thin majorities in both chambers mean House and Senate leadership will be involved in any major bill.
A bill introduction is not a victory for you, but probably not a threat, either.
A bill needs friends in committee to succeed. If a bill is being considered by committee, start paying attention.
Sleep through the House vote, wake up for the Senate vote.
Anything can happen in an omnibus spending bill, so be prepared.
You may remember the general process from that high school government class you took way back when:
This outline is not wrong, but the reality is also more complicated. Let’s dig into what actually happens and what you should look for. But before that...
Pro Tip: House and Senate leadership wield a lot of power.
The House and Senate have both struggled with narrow party majorities for years. This means that the Speaker of the House and the Majority Leader in the Senate can’t rely on party line votes to pass major legislation. If there are just a few dissenting voices (and there usually are), major bills can fail.
For this reason, House and Senate leadership in both parties tend to be very involved in major legislation. In some cases, committees of jurisdiction don’t even have a say in final bill language (see item 2 for more about committees). Instead, negotiations on bill language may happen at the most senior levels, with final language appearing at the last minute.
As a result, you will often see rank-and-file members gripe about how little time they have to review major legislation. This is a real challenge. Some bills are thousands of pages long and members only have a 24- or 48-hour window to review them. You will certainly run across legislation that didn't follow the model I lay out below. Chances are, this is why.
One could opine about what these developments mean for democracy, but I will not do that here. Instead, back to the subject at hand!
1. Introduction: Look for why the bill was introduced and how much effort is behind it.
Members of Congress can introduce an unlimited number of bills. When a member of Congress agrees to sponsor or cosponsor a bill, there are a few main reasons they do so:
A party leader asked them to
They think it’s good policy and want to see it pass
Writing the bill’s language happens in a lot of different ways. Members of Congress can have their offices draft the bills, but they can also use language from external stakeholders, other congressional offices, or congressional committees. No matter who drafts the original language, members of Congress will always work with legislative counsel to make sure the bill is technically correct.
Writing and sponsoring a bill can be relatively easy, making it a good way for politicians to take a stand, even if they have no intention of pushing the bill through. Once, I received a bill draft from a Senate office that was one sentence long. Spoiler alert: it didn’t make it to committee. Just because you see a politician introduce or sponsor a bill, does not mean it’s all systems go.
To understand a bill's outlook, ask yourself why that bill was introduced and how much effort the Member of Congress is putting into its passage. Be realistic about whether your bill is getting the congressional support you want. Members of Congress must prioritize, and sometimes your bill will not make the cut. Sometimes your competitor's bill also doesn't make the cut – and that's one less thing to worry about!
Pro tip: most of this information is publicly available. Visit Congress.gov to track bill progress, view bill text, and see who cosponsors are. It’s not the most user-friendly, but all the information is there…somewhere. Committee and individual member of Congress pages have some info, as well.
If a bill is introduced in the House, a companion bill must be introduced in the Senate for bills to become law, and vice versa. This is another way to check how serious a bill is – has it been introduced in the other chamber?
2. Referral to Committee: Look for whether the bill can pass out of committee.
If you want your bill to pass – or you want your competitor’s legislation to fail – watch what happens in committee. If nothing is happening, that tells you what you need to know.
Bills must first get “referred” to the appropriate committee. We won’t go into the technical details of how that happens here, but the big picture is that it’s a routine process to send a bill to the appropriate committee based on the content of the bill and a committee’s jurisdiction. The House and Senate refer bills separately because the committees don’t have one-to-one equivalents.
But there is nothing that says a committee needs to consider the bill. The chair of the committee, and sometimes the chair of a subcommittee, will decide if a bill gets consideration. (A subcommittee is a small group of committee members that reports to the larger committee. In some cases, subcommittees can be very important—that’s for another day, though!)
Since committee leadership decides its agenda, a bill is much more likely to receive consideration if it has champions on the committee. For this reason, savvy stakeholders will secure committee member(s) to sponsor, cosponsor, or unofficially support their bill.
If a bill receives consideration, it will move through a hearing, review, and/or mark-up process before it goes to a committee vote. The committee must vote to progress the bill before the full House or Senate can vote on something (with few exceptions).
If a bill is voted out of committee, the House or Senate has until the end of that two-year legislative session to hold a floor vote. Yes, that’s right – bills that pass out of committee at the beginning of each Congressional session have two years to be voted on, while bills filed the last day have less than 24 hours. Certainly an argument against procrastination!
Let’s say your bill has been voted out of a committee in the House—great! Now it’s eligible for a floor vote in the House. Now it's time to check: how is the companion bill doing in the Senate? The committee process is the same on both sides of Congress with only slight variations, but the timelines may be different depending on various factors.
3. Floor Vote: Look for whether the Senate is voting. And always watch the omnibus packages!
If the House passes a bill, don’t get too excited.
The House usually operates on a simple majority: the party in control can pass legislation that showcases its agenda. You will see a lot of top party priorities receive floor votes, especially in the beginning of a term. These votes let party leaders and members of Congress show folks back home they are keeping the promises that got them elected. If a bill passes, it might be a helpful messaging opportunity for you or your competitor, but that’s it.
This is because a bill must pass both the House and the Senate to become a law…and the Senate is a whole different ball game.
If the Senate is voting on a bill, it's time to pay attention.
Because of the filibuster, the Senate typically needs 60 votes to pass a bill. In recent years, neither party has reached that threshold, so a bill typically can’t pass unless it has bipartisan support.
The Majority Leader, who decides what the Senate votes on, only wants to spend time on worthwhile efforts. So there will usually be votes only on bills that have enough support to pass. Other votes may occur because the Majority Leader wants to put Senators on the record, or wants to show that an issue cannot pass on the floor. The Majority Leader will usually say why they are holding a vote, so if you follow the relevant news reports, you can get a sense of whether the bill has enough support to pass.
As long as the major political parties are so evenly divided that neither possesses at least 60 seats, the Senate will remain the critical tipping point in the lawmaking process.
Omnibus legislation is a wildcard and should be watched closely.
Omnibus legislation is where anything can happen. In recent years, annual spending bills have not been able to pass the House and Senate through regular order because of narrow majorities in each chamber. This means that Congress relies on omnibus bills to carry out many of its “must do” efforts.
If Congress is still negotiating and wants to keep the government funded, it can pass a temporary Continuing Resolution (CR). If it wants to pass a full annual spending bill, it may put together an “omnibus”. These are structured as single yes/no bills that Congress needs to pass before it goes home for the holidays (or on other enticing trips out of DC). Since it’s a simple up or down vote, individual members of Congress can’t provide as much scrutiny as they normally would.
These bills can get packed with all sorts of provisions that would otherwise not stand a chance. It’s a great opportunity for savvy organizations to slip in a priority of theirs – or for their competitors to do the same.
4. Conference: Look for whether the House or Senate language is selected for the final bill.
A bill has miraculously passed both chambers. Hurray! But the language in the two bills is nearly always different and needs to be reconciled. To reconcile the language, a conference committee made up of House and Senate members is formed. They negotiate, each trying to keep as much of their version of the bill as possible.
Both chambers must vote again on the conference language. Conference committee members must convince their respective chambers to accept the new language. If the bills are very different, this process can be fraught.
External stakeholders often have preferred language they want preserved in the final bill text. This is why it’s worthwhile to try to get preferred language in both the House and Senate version of a bill. If it’s not possible, watch the conference committee to see what they do.
5. President’s Desk for Signature: The president signs it or vetoes it.
This one is actually pretty straightforward. Presidents usually broadcast before a floor vote what their intention is.
If you support the bill and played a role in its passage, be sure to snag an invite to the White House celebration!
That's how Congress works!
Just kidding. There's a lot more to Congress than that, but this is a good overview about how a bill winds its slow way through the chambers of the Capitol. Now you have an idea of what to look for when there's policy being created that may impact your business.
Look out for our next post on the legislative process, which will cover the ins and outs of how federal spending is determined.
If you would like to learn more, or if you’re looking for government affairs and public policy support for your organization, please contact us. You can also subscribe here to get our latest publications.