by Peter Joyce
Consideration by the House
Legislative proposals emerging from a committee consideration are then considered on the floor of the House. It is common for debate at this stage to be constrained by a ‘rule’. This is a resolution that stipulates the procedure to be adopted, for example the time set aside to discuss it and whether amendments can be put forward. Following debate, the House determines whether to approve the bill or to reject it. A third option, to recommit it back to the committee, is also possible. If the bill is approved, it proceeds to the Senate for consideration.
Resolution of differences
In order for a bill to become law, it is necessary for the Senate and House of Representatives to pass the measure in an identical format. If the Senate proposes changes, the House is required to approve them. If the Senate proposes a significant number of alterations, a conference committee (consisting of members of the House and Senate) may be set up, which will attempt to reconcile the differences by drawing up a single bill that is returned to both bodies for approval. Conference committees also issue reports that put forward the main features contained in the final version of the bill. The bill’s progress will be ended if no agreement between the Senate and the House of Representatives can be secured.
Final passage
When a bill has been approved in identical format by both the House and the Senate it is referred to as being ‘enrolled’. The next stage rests with the president, who may sign the measure into law, veto it and return it to Congress, or let it become law without signature. At the end of a session the president has a further option – that of the ‘pocket veto’, whereby a bill approved by Congress is not signed into law and is thus killed off.
SCRUTINY OF THE EXECUTIVE
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Insight
Legislatures perform a number of other functions in addition to law making. In particular they scrutinize actions that have either been carried out or which are proposed as future actions by the executive branch of government.
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In addition to law making, legislatures scrutinize the actions of the executive branch of government. Governments are required to justify their actions to the legislature, which may thus exert influence over the government’s conduct. This scrutiny may be retrospective (that is, it occurs after a decision has been implemented and seeks to examine whether it was justified). In some cases, however, the legislature may be required to give its consent to an action which the executive branch wishes to undertake. In America, for example, Congress has to approve a declaration of war.
In parliamentary systems in which the legislature provides the personnel of government, scrutiny facilitates ministerial responsibility. Governments are collectively responsible to the legislature. Perceived deficiencies in the overall activities of the government may result in its dismissal by the legislature (usually through the mechanism of a vote of ‘no confidence’). Individual ministers may also be individually responsible for the performance of specific aspects of the work of the executive branch. However, the ability of legislatures to force individual ministers to resign varies. In Germany, for example, the Bundestag lacks such a sanction, although criticism by the legislature of a minister may result in that person’s resignation.
CONFIRMATION OF GOVERNMENTAL APPOINTMENTS
Scrutiny may also extend to approving the nomination of individual members of the government put forward by the chief executive. This form of legislative scrutiny operates in some parliamentary systems of government such as Ireland. The scrutiny of nominations for public office by the legislature is also a feature of some presidential systems of government such as America, where the Senate is required to confirm a wide range of presidential appointments. The rationale for such a process is to ensure that those nominated for high government office have the relevant credentials to occupy such a post. In practice, however, this form of scrutiny might involve delving into a person’s private life (to demonstrate personal failings which are allegedly incompatible with office holding) or might be determined on political grounds.
INVESTIGATORY FUNCTIONS
The investigation of issues of public importance is an important function of many legislative bodies, which is usually performed by committees. This role may be separate from the exercise of scrutiny over the actions of the executive. In America, Congress has the right to subpoena: that is, to force persons to appear and answer questions on the topic which is the subject of investigation and to secure the production of documents to aid the investigatory process.
SUPERVISORY FUNCTIONS
Legislatures may concern themselves with the manner in which an institution of government or an activity that is reliant on public funds is being performed. This function (which in America is termed ‘oversight’) is concerned with monitoring the bureaucracy and its administration of policy. This entails ensuring that an agency is meeting the goals specified for it, that the public money provided for it is being spent for the purposes for which it was intended or that an operation is being conducted in accordance with any restrictions which were initially placed upon it by the legislature. The American Congress actively performs supervisory functions through committee hearings and the review of agency budgets, but these procedures are less prominent in other legislatures such as Britain. An example of this was the hearings held by the Senate Finance Committee in 1997 into the operations of the Internal Revenue Service.
RAISING ISSUES OF LOCAL AND NATIONAL IMPORTANCE
Legislatures debate policy and other issues of public importance. Such debates are published in official journals and through the media, thus providing a source of information for the general public. This enables the electorate to be politically informed and educated. These bodies further provide a forum in which representatives can advance the interests of their constituencies and intercede on behalf of any of their constituents who have encountered problems in their dealings with the executive branch of government. Much work of this nature takes place in private, but it is usually possible to raise such issues publicly, within the legislative chamber.
JUDICIAL FUNCTIONS
Legislatures may also perform judicial functions whereby members of all three branches of government may be tried and sentenced in connection with offences connected with the performance of their official duties.
In America, for example, Congress has a judicial power, that of impeachment. This is a formal charge that a member of the executive or judicial branch of government has committed an offence while in office. The accusation of inappropriate conduct is laid before the House of Representatives and if they believe that there is a case to answer a trial takes place in the Senate. If guilt is determined by this body, the official would be dismissed from public office.
Legislatures may also exercise judicial-type functions in relation to the conduct of their members. The processes used vary. In America, for example, each House of Congress has an Ethics Committee to which accusations of wrongdoing contravening the rules of either body are referred. Members of Congress cannot be impeached, but wrongdoings by legislators may be punished by an alternative process of censureship. This rarely involves removal from office but embraces alternative sanctions which adversely affect the status of the condemned legislator.
INITIATING CONSTITUTIONAL CHANGE
Legislatures play a key role in the process of changing a country’s constitution. In countries with a flexible constitution (that is, one which can be altered by the normal law-making process) the legislature is solely responsible for initiating and determining constitutional change. This is the situation in the United Kingdom. In countries with rigid constitutions (where amendment involves a separate process from the normal law-making procedure), the role of the legislature in providing for change is reduced, although important as the following examples show.
America
Two-thirds of both Houses of Congress (the House of Representatives and the Senate) must separately agree either to call a constitutional
convention to determine change when asked to do so by two-thirds of the states (which last occurred in 1787), or themselves to propose a specific amendment to the constitution, of which two-thirds of the states must then approve. Recent examples of this process were the Equal Rights Amendment proposed by Congress in 1972, which failed to secure the required level of support from state legislatures, since only 35 approved it.
Ireland
Proposed changes to the constitution are initially put before the Oireachtas and if approved are then placed before the country’s citizens in a referendum. The number of amendments has been small. In 1972 the Third Amendment allowed Ireland to join the EEC and the Tenth Amendment authorized the state to ratify the 1987 Single European Act. In 1995 a proposal to legalize divorce was narrowly approved in a referendum.
Question
Using examples from a country with which you are familiar, outline the main functions performed by the legislature.
The operations of legislatures
Legislatures conduct their affairs through a number of mechanisms. We discuss the main ones in the sections that follow.
DEBATE
Legislatures are first and foremost debating institutions. This means that functions such as the consideration of legislation, the articulation of constituency issues or the discussion of matters of national importance are performed orally. Members of the legislature deliver speeches in which they put forward their views and listen to the judgements of their fellow legislators on the same issue. To facilitate debate, members of legislative bodies may enjoy certain immunities which ordinary members of the general public do not possess. In the UK, for example, members of the House of Commons enjoy freedom of speech. This is one of a number of ‘parliamentary privileges’. This means that in parliament members may effectively say what they want (subject to the speaker’s rulings) to facilitate the maximum degree of openness in debate. Speeches made by a member of parliament, no matter how defamatory, cannot be subject to an action for slander.
COMMITTEES
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Insight
To avoid being overloaded with work, legislatures devolve many of their functions onto committees.
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Much of the work performed by contemporary legislative bodies is delegated to committees. In turn, these bodies may devolve responsibilities to sub-committees, which have become increasingly influential in the US Congress since the 1970s. These are useful devices as they enable a legislature to consider a number of matters at the same time and thus cope with increased volumes of work associated with the expanded role of the state in years following the Second World War and membership of supranational bodies. They further enable small groups of legislators to investigate the affairs of government in considerable detail, and through their reports the entire assembly becomes more knowledgeable of these matters and thus less dependent on government for the provision of information.
There are various types of committee existing in modern legislatures. In the UK’s House of Commons a key division is between standing committees (which are used to consider legislation) and select committees (which are used for various purposes, including examination of the work performed by key government departments). A similar division exists in the American Congress, although standing committees are the most widely used form of committee. Both Houses use standing committees, which consider bills in different policy areas. In 2010 there were approximately 20 standing committees in the US House of Representatives, each of which has a number of sub-committees. Select committees may also be set up to investigate special problems. In countries whose legislatures consist of more than one chamber, joint committees may be established to enable the two chambers to co-operate for specific purposes.
Committees are an especially useful means for considering legislation. In countries such as America the examination of legislative proposals is aided by the system of hearings, in which the committee or sub-committee considering the proposal invites interested parties to give evidence before it to ensure that its decisions are based on a wide range of informed opinion. The decision whether to report a measure out of committee with a favourable recommendation or to ‘kill’ it is influenced by this procedure.
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The party system and party membership
The party system may have an important bearing on the effectiveness with which committees operate in modern legislatures. The appointment of members to committees usually involves the party leadership and the fact that committee members are affiliated to a political party may influence the manner in which issues before a committee are viewed by its members.
In countries with parliamentary forms of government, such as the UK, the party system may help the executive branch dominate committee proceedings since the governing party usually possesses a majority on committees considering legislation. In countries with presidential systems, such as America, committees may exercise a far greater degree of autonomy since the executive branch is not directly involved in appointments.
There, appointments are allocated by the party apparatus which exists in both Houses, although a member’s desire to serve on a particular committee may be taken into account. Membership is not confined to a particular session of Congress: once appointed to a committee, a member will usually sit on it for the remainder of his or her career. The chairmanship of such bodies is largely – although now not exclusively – determined by seniority. This was a procedure whereby the longest-serving committee member whose party controlled Congress headed the committee.
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In some countries the work of committees extends beyond the consideration of legislative proposals. Legislation may be initiated by these bodies. The committee system of the German parliament is particularly influential in this respect.
QUESTIONS
Questions are a further means through which the work of the legislature is transacted in countries with parliamentary forms of government. These may be oral or written and are addressed to members of the executive branch of government. They can be of use in eliciting information, clarifying an issue or seeking to secure action by the executive branch of government, although they are rarely of importance to the process of policy making. They provide a mechanism whereby civil servants (who prepare the answers to these questions) respond to an agenda set by legislators as opposed to members of the executive branch of government. In the German Bundestag, questions aid the process of ministerial accountability. The oral questioning of a minister may be followed by a vote which enables members of the legislature to express whether they are satisfied with the answers with which they have been provided.
Question
Examine the role played by committees in the legislature of any country with which you are familiar.
Bicameral and unicameral legislatures
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Insight
Legislatures may consist of one body or debating chamber (termed ‘unicameral’) or consist of two bodies (termed ‘bicameral’). The UK has a bicameral legislature, composed of the House of Commons and the House of Lords.
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In most liberal democratic political systems, the legislature is divided into two separate bodies. These bodies form separate debating chambers. For example, in the United Kingdom parliament consists of the House of Commons and the House of Lords. In America, the legislative branch is divided into the House of Representatives and the Senate. In Ireland, parliament (the Oireachtas) consists of the Daíl éireann and the Seanad éireann, while in France the legislative function of government is shared between the National Assembly and the Senate. All these countries have what is termed a bicameral legislature.
The opposite of this is a unicameral system in which the legislature consists of only one body. Examples of this are found in New Zealand, Finland, Denmark, Sweden and Israel.
The following sections consider the advantages of having a legislature composed of two bodies or debating chambers.
A REVISIN
G CHAMBER
An important benefit of a bicameral legislature is that one chamber can give the other an opportunity to think again, to reconsider its position. On occasions when the content of legislation is contentious and the period surrounding its passage through the first of the legislative bodies is charged with emotion for and against the measure, it is useful that a second chamber can coolly and calmly re-evaluate what has been done and if necessary invite the first chamber to reassess the situation by either rejecting the measure or proposing amendments to it. In this case, the second performs the function of a revising chamber.
DIFFERENCES IN COMPOSITION
In bicameral systems, the two chambers of the legislature are often drawn from different constituencies (that is, composed in different ways). This may be an advantage in that it enables issues to be examined from different perspectives.
In some countries one chamber of the legislature is designed to represent public opinion while the other is concerned with territorial representation – advancing the more localized views of the areas, states or regions into which the country is divided. This was originally the justification for creating the American Senate. When the constitution was being drafted, a conflict of interest emerged between the sparsely populated states and those in which large numbers of persons resided. Thus the constitution adopted a compromise position (which was termed the ‘Connecticut Compromise’). This resulted in representation in one chamber (the House of Representatives) being based on population, which would give the populous states a greater voice in that body. However each state, regardless of size, was given equal representation in the second chamber, the Senate.