CHAPTER 7 THE LEGISLATIVE PROCESS

1. CHAPTER 7 THE LEGISLATIVE PROCESS

2. Introduction • Several factors make the legislative process appear confusing to the layperson. • Complex rules are a basic part of the legislative process. • The legislative process consists of several stages. • The issues faced by legislators are growing in complexity. • Through the presiding officers’ control of the flow of legislation in Texas, their power over public policy is tremendous. • Many participants who are not legislators are also involved in making legislative policy.

3. Powers of the Presiding Officers • Procedural Powers • Committee Membership • The presiding officers (the lieutenant governor in the Senate and the speaker in the House) effectively determine the composition of legislative committees even though seniority does play a role in selecting committee members. • Special interest representatives and legislators may also be involved in the bargaining that determines who will fill committee slots. • The governor, subject to approval by the legislature, may make appointments to special interim study committees. • The power of the speaker is illustrated by Speaker Craddick’s action to eliminate the seniority appointments from the Appropriations Committee to ensure that its make-up would reflect his conservative ideology.

4. Powers of the Presiding Officers • Procedural Powers, cont. • Conference Committees • Because major bills seldom pass both houses in identical form, conference committees must be formed to resolve the differences. • Five members from each house are appointed to conference committees by their respective presiding officers. • At least three members of the conference committee from each chamber must agree to accept the conference committee's report before it can be reported back to the House and Senate. • Because each chamber must either accept without change or reject the conference report, members of conference committees are very important in the legislative process. • Representatives of special interests often become involved in conference committee deliberations.

5. Powers of the Presiding Officers • Procedural Powers, cont. • Committee Chairpersons • Because standing committees control legislation and their chairpersons control the committees, the selection of chairpersons is of great importance and is a matter of great interest to lobbyists. • Through the appointment of chairpersons, the presiding officers control legislation. • Seniority is relatively unimportant in determining chairmanships. • Speaker Lewis increased his control of standing committees by creating on each committee the position of chairperson for budget and oversight, another position appointed by the speaker. • Democrats and Republicans increasingly share power in the legislature, but the presiding officers, preferring to operate on a nonpartisan basis, have given committee chairmanships to members of both parties. • In 2003, the divisiveness in the legislature was along ideological lines more so than along party lines as extremists in both parties dominated their colleagues.

6. Powers of the Presiding Officers • Procedural Powers, cont. • Referral • The many jurisdictional ambiguities in the Texas legislature's extensive committee system make the presiding officers' referral power important in determining the outcome of a bill. • Members of the Senate may overrule the lieutenant governor's referrals. • Presiding officers may consider a variety of factors when assigning bills to committee, including the following: • The position of their own supporters on the bill. • The effect of the bill on other legislation, especially with regard to funding. • Their own ideological commitment to the bill. • The past record of support or nonsupport of the bill's backers. • The bargaining in which the bill's backers are willing to engage.

7. Powers of the Presiding Officers • Procedural Powers, cont. • Scheduling/The Calendar • Scheduling---placing the bill on a legislative calendar---determines the order of the bill’s debate and vote. • In the Texas House the two calendars committees control placement of bills, although both committees are controlled by the speaker; in the Senate, the members control the agenda by being able to take bills out of order with a two-thirds vote, the lieutenant governor controls efforts to change the order of debate. • Texas's short biennial sessions magnify the importance of scheduling, especially since bills far down on a calendar may never come to the floor before adjournment. • The timing of debate may well determine the outcome of the vote.

8. Powers of the Presiding Officers • Procedural Powers, cont. • Scheduling/The Calendar, cont. • Presiding officers do not have absolute control of the calendars. • In the House, the Calendars Committee and the Local and Consent Calendars Committee actually control the placement of bills on the calendars, but because the speaker appoints the members of these committees, he exerts indirect influence. • The confusing calendar system in the House includes the Daily House Calendar, the Supplemental House Calendar, the Local, Consent, and Resolutions Calendar, and the Congratulatory and Memorial Calendar. • There is no Calendars Committee in the Senate and, technically, the main calendar--the Senate Calendar--is simply called in numerical order, but a two-thirds majority vote can bring a bill to the floor out of order. • When a senator intends to ask for consideration of a bill out of order, he or she must file an intention with the clerk, asking for a place on the Intent Calendar.

9. Powers of the Presiding Officers • Procedural Powers, cont. • Scheduling/The Calendar, cont. • A legislator has two ways to improve chances that a bill might be placed high enough on a calendar to ensure floor debate on it. • Early filing may ensure that the bill is referred to committee early in the session. • If the governor is interested in the bill, he or she can declare an emergency to force speedy consideration.

10. Powers of the Presiding Officers • Procedural Powers, cont. • Recognition • Presiding officers have the power to recognize a member who wishes to speak and traditionally invoke this power in a fair and judicious manner, although Speaker Craddick allowed some heckling in 2003. • The lieutenant governor has more formal recognition power than does the speaker as a result of Senate procedures that require that a bill receive a two-thirds vote before floor consideration can begin and that the bill's sponsor be recognized by the presiding officer before moving the bill for consideration.

11. Powers of the Presiding Officers • Procedural Powers, cont. • Procedures • Both houses adopt rules of procedure at the beginning of each regular session. • The presiding officers interpret these rules and thereby greatly influence the outcome of debates through their rulings on points of order, their interpretations of whether a proposed amendment is germane, their announcement of vote counts, and so on.

12. Powers of the Presiding Officers • Institutional Powers • The presiding officers appoint the members of three important arms of the legislature---the Legislative Budget Board, the Legislative Council, and the Legislative Audit Committee---and, for each board, the lieutenant governor and speaker serve as joint chairs. • Each of these bodies exists to serve the legislature as a whole. • The Legislative Budget Board • The Legislative Budget Board (LBB) is a joint 10-member Senate-House committee, supported by professional staff, that is responsible for preparing the legislative budget and overseeing state agency expenditures and efficiency. • The LBB operates whether the legislature is in session or not. • The agency’s power to assess the efficiency of other state agencies was enhanced in 2003 at the expense of the state comptroller.

13. Powers of the Presiding Officers • Institutional Powers, cont. • The Texas Legislative Council • The 14-member Legislative Council oversees the professional staff members who provide bill-drafting services for legislators during sessions and also conduct investigations and research on behalf of the legislature between sessions. • The Legislative Council includes the presiding officers of the House and Senate who each appoint six additional members from their respective chambers. • Legislative Audit Committee • The Legislative Audit Committee, with six members, oversees the state auditor and a professional staff responsible for conducting the post audit of agencies’ expenditures and for checking the quality of services provided by state agencies. • The Legislative Audit Committee is composed of the two presiding officers and the chairpersons of the Senate Finance, House Ways and Means, House Appropriations, and Senate State Affairs committees.

14. Limits on Presiding Officers • Personality and Ambition • Because the presiding officers are so powerful that they do not need to search for ways to gain additional influence, arbitrariness appears to be a function of personality and not of the office. • The position of presiding officer is often a springboard for seeking higher office or a lucrative business position and so presiding officers with other ambitions must avoid antagonizing those whose backing they may need later.

15. Limits on Presiding Officers • Legislators • Legislators have their own power bases that presiding officers must take into account. • Presiding officers are also limited by their leadership responsibilities to legislators. • Even where it appears that the membership is following the lead of the presiding officers it may be that the appearance results primarily from pre-existing ideological agreement or from members' calculations of future interests. • The presiding officers cannot abuse their powers with impunity because those powers are dependent in large measure on House and Senate rules that may be changed by the membership.

16. Limits on Presiding Officers • Interest Groups and State Administration • Alliances between private and public interests have become increasingly common as the number of governmental agencies has grown, but, because the presiding officers and these coalitions often share the same political viewpoint, confrontation is unlikely. • The public is seldom considered by these alliances, especially when some of the more powerful interests of the state such as oil and gas, insurance, banking, and real estate are involved.

17. Limits on Presiding Officers • The Governor • The veto power gives the governor considerable influence over the legislative process, particularly in view of the fact that the legislature often must adjourn before the governor has had to act on a bill. • The threat of special sessions may also be an important source of legislative power for the governor. • Conservative governors often have ties to the same interest groups as legislators and may therefore be able to exploit those ties in conflicts with the legislature.

18. Limits on Presiding Officers • The Electorate/The Constituents • Although legislatures were created to represent the people, the strength of special interests and the lack of knowledge on the part of most citizens mean that citizens rarely exert as much influence over the leadership and members of the Texas legislature as state officials and private interests do. • Citizens focus on issues that affect them directly, remaining complacent about ordinary day-to-day legislative events. • Powerful special interests work hard to avoid stirring up the citizens.

19. How a Bill Becomes a Law in Texas • Introduction • There are four different forms of legislative action used in Texas. • Bills, which are required by the Texas Constitution for introducing a law or a change in a law, become acts and are sent to the governor for his or her signature or veto after passing both houses. • Simple resolutions are used by either house to take care of housekeeping matters, details of business, and trivia. • Concurrent resolutions are similar to simple resolutions but require the action of both houses. • Joint resolutions are the means used to introduce proposed constitutional amendments. • Bills may originate in either chamber except in the case of revenue bills, which must originate in the House. • Between five and six thousand bills and resolutions that are introduced in a typical session, a number that is reduced by several hundred when the legislature is considering reapportionment and redistricting, but only 25 to 30 percent are passed.

20. How a Bill Becomes a Law in Texas • Introduction, cont. • Some bills, marked "By Request" by the sponsor, are offered with no expectation of serious consideration. • There are three major differences in the procedures of the two houses. • The House has about twice as many committees as the Senate and thus the speaker has a greater choice in determining where to refer a bill. • The calendars (as noted above) are different. • Debate is unlimited in the Senate but is generally limited to 10 minutes per member (20 for the bill's sponsor) in the House. • The following outline uses the Senate to trace the path of a bill through the legislative process.

21. How a Bill Becomes a Law in Texas • Step One: Introduction and Referral • Every bill must be introduced during the first 60 days of the session by a member (the sponsor) either from the floor or by depositing copies with the secretary of the Senate (or the clerk in the House). • The secretary assigns a number to the bill in order of submission and the reading clerk gives the bill the first of three required readings. • The lieutenant governor (in the House, the speaker) then assigns the bill to a committee.

22. How a Bill Becomes a Law in Texas • Step Two: Committee Action • Legislators are heavily dependent on committee reports because of time constraints, especially in Texas's short, infrequent sessions. • Favorable committee action is crucial and so sponsors must ensure that their bills are not pigeonholed or totally rewritten by the committee. • Standing committees hold hearings on proposed legislation, often at odd hours. • Committees may report bills favorably, unfavorably, or not at all.

23. How a Bill Becomes a Law in Texas • Step Three: Floor Action • Once out of committee, a bill must be scheduled for debate. • The Senate Calendar is rarely followed; instead, senators list their bills on the Intent Calendar, which in essence is a declaration of intent to ask for a suspension of the rules to take up a bill out of order. • This motion to suspend the rules requires a two-thirds majority vote to pass, but all that is required to pass the bill itself is a simple majority of those present and voting. • When the bill receives the necessary two-thirds vote, it can proceed to its second reading and debate.

24. How a Bill Becomes a Law in Texas • Step Three: Floor Action, cont. • Senators have unlimited privileges of debate and thus may engage in filibusters. • A filibuster is the attempt to kill a bill by talking at length about it and anything else that will use up time. • Although they do not occur frequently, filibusters can be very effective in blocking legislation, especially near the end of the session. • During debate that is not halted by a filibuster, there may be proposed amendments, amendments to amendments, motions to table, or even motions to send the bill back to committee. • A vote is taken after the third reading. • It is almost routine for four-fifths of the Senate to vote to suspend the rules and proceed immediately to the third reading.

25. How a Bill Becomes a Law in Texas • In the House: Steps One Through Three Repeated • A bill passed in the Senate must go through the same process in the House. • Even after having been passed in the Senate, a bill has little chance of success in the House unless a representative pushes it through.

26. How a Bill Becomes a Law in Texas • Step Four: Conference Committee • When the Senate and House versions of a bill differ, it must go to a conference committee consisting of 10 members--five appointed from each chamber by the presiding officers. • The conference committee may attach amendments to the bill, rewrite portions of it, or even pigeonhole it. • If agreement is reached by the conferees, the bill returns to the House and Senate for a vote on the conference committee's report as it stands. • The bill dies and may not be reintroduced if it fails at this, or any other, stage in the process. • When the bill is passed by both houses, it is formally prepared, its caption is read a final time, and it is signed by the presiding officers, the House chief clerk, and the Senate secretary. • The officially printed (engrossed) bill, now an act, is sent to the governor for action.

27. How a Bill Becomes a Law in Texas • Step Five: The Governor • The governor has 10 days (excluding Sundays) to dispose of enacted legislation unless the legislature adjourns, in which case the period is extended to 20 days. • The governor may sign an act into law, allow it to become law without signing it within the 10- or 20-day period, or veto it. • A veto that occurs after the legislature has adjourned is absolute. • A veto applies to the entire bill except in the case of appropriations bills, on which the item veto may be used. • Acts signed by the governor become law 90 days after the session ends (unless they contain an emergency clause) except in the case of appropriations, which always become effective on September 1, the beginning of the fiscal year.

28. Legislative Dynamics • Handicaps • Time pressures in the short 140-day session are tremendous for legislators who must not only face thousands of bills and resolutions but also handle casework, committee responsibilities, deal with constituents and state administrators, and avoid going into debt while unable to attend to their businesses or professions. • Lenient lobbying laws, inadequate information services, and the need to campaign continuously make legislators easy prey for special interests. • Members' frustrations are especially evident in dealing with the biennial budget since more programs are always seeking support than there is money available to support them. • Lack of public understanding and support, particularly regarding the necessity of compromise in the legislative process, is another handicap for legislators.

29. Legislative Dynamics • Changing Alignments • Legislators must face the difficult task of adjusting to shifting alliances in the legislature, especially as it has become more urban and more Republican in recent years. • Furthermore, the 2003 legislative session brought to the forefront a sharp division between liberals and conservatives. • This problem is compounded by the fact that the two houses have not changed in the same way. • The Senate periodically provides glimpses of moralistic thinking; the House appears frozen in the state’s individualistic-traditionalistic political culture. • In 2003 the Senate continued to operate as a chamber with civility but slipped into hard-line partisanship late in the redistricting battle. • The House had an alliance of conservative Democrats and Republican which gave it a distinctly conservative flavor beginning in the mid-1980s, but in late 1990s liberal-conservative skirmishes were plentiful and in 2003 partisan interests reigned.

30. Evaluation and Reform • Assessing the Legislature • Many organizations and media rate the Texas legislature after each session but, with the notable exception of Texas Monthly's biennial listing of the 10 best and 10 worst legislators, most ratings reflect a particular interest group or editorial bias. • Evaluating a session as a whole is difficult, but some general criteria are suggested by these questions: • Did the legislature deal with major issues facing the state or mainly with trivial issues? • Did the appropriations bill reflect genuine statewide concerns or only the interests of the large lobbies? • Did the leadership operate effectively, forcing attention on major issues and arranging compromises on stalled bills, or did it cater to lobbyists? • Was the effect of current legislation on future social, economic, and physical resources considered, or did the legislature live for today? • A brief evaluation of the last ten legislatures reveals changes in that branch over time.

31. Evaluation and Reform • Suggested Reforms • Committees • Fewer standing committees, in order to reduce confusion over committee jurisdiction, and more joint committees, in order to reduce duplicated effort (especially on the budget), are needed. • Fewer committee meetings would give legislators more time to study issues and the content of specific bills. • Committees also need better meeting facilities and more professional staff. • The Lobby • Legislators must be able to declare their independence from lobbyists and state administrators. • For this to happen, changes are necessary in the attitudes of citizens to allow adequate legislative sessions, pay, staff support and public financing of election campaigns and in the commitment of legislators to give up the social and economic advantages of strong ties to the lobby. • While the likelihood of total independence is not high, at a minimum Texas should stop the practice of allowing lawyer-legislators to accept retainer fees from corporations that subsequently send lobbyists to Austin to influence these same legislators.

32. Evaluation and Reform • Conclusion • The Texas legislature is becoming more representative, but also more ideological and partisan • Nonetheless, because the legislature is centralized it id capable of translating public preferences into coherent public policy. • At the same time, because so few Texans vote, it is often the preferences of the rich and better-educated minority that are made into policy. • While liberals may criticize the content of public policy, they cannot deny that policy is rational from the standpoint of most Texas voters.

33. Nonlegislative Lawmaking • Lawmaking by the Governor • The governor may influence legislation through his or her message and veto powers and by rallying the support of political cronies and lobbyists for or against a bill. • The governor may also indirectly influence how, or even if, legislation will be administered by appointments to state boards and commissions. • The governor's role as the state's major liaison with other states and the federal executive establishment provides another means of indirectly influencing legislation.

34. Nonlegislative Lawmaking • Lawmaking by the Administration • Because legislation must be written in rather general terms, the bureaucracy is required to supplement statutes with administrative rules and regulations. • Administrators interpret statutes and in so doing they engage in a type of lawmaking. • By advising legislators, sometimes acting in conjunction with interest groups, administrators may also influence legislation. • The attorney general's office, which can issue opinions on the constitutionality of legislation that have the force of law unless successfully challenged in court, is perhaps the most influential executive agency.

35. Nonlegislative Lawmaking • Lawmaking by the Courts • Both federal and state courts review legislative acts challenged on the grounds of unconstitutionality. • Courts also hear challenges to administrative interpretations of laws.