The Lay of the Land, Part 2
The Frustrating Genius of Alexander Hamilton
In part 1 of this series, we covered the structure of Tennessee government and explained the basics of how law is changed. This edition takes a deeper look at the legislative process and why it is hard to pass a law.
A common frustration among Americans is the slowness with which government moves. Federal, state, and local governments are seemingly slow to accomplish anything they attempt — whether simple functions like tax refunds, license renewals, and road work, or dramatic problems such as disaster relief or criminal proceedings. Often, sluggish government proceedings cause unbelievable hassle, and in some cases, injury or death. Much of the problem can be attributed to agency bloat, bureaucratic laziness, or a failure of the executive branch. It may also stem from government trying to do too much, and failing to do anything as well as it should.
To be frustrated about these unnecessary delays is both acceptable and right. We should expect more from our government, and hold our leaders accountable when they fail to deliver on promises. The executive branch is designed to act quickly, so when promised disaster relief takes weeks or months to arrive and results in death or harm, that is a failure of people within the executive branch. The courts are structured to swiftly protect victims and prosecute criminals, so when a family member is caught up in accusations and spends two years in jail waiting to go to trial, that is a failure of the courts. Both the executive and judicial branch were designed to act quickly to protect citizens, punish criminals, and guard our rights.
However, the legislative branch was structured differently. This third branch of government, tasked with creating or codifying new laws, is intentionally and specifically a slow-acting branch. This is not an accident, nor is it a modern failure. It is a structural feature of U.S. government. Alexander Hamilton, one of the architects of the U.S. Constitution, believed that law changing too quickly would create instability within a nation. In Federalist #73, he wrote that one of the main reasons to empower the executive branch with veto power was to decrease the passage of bad laws through “haste, inadvertence, or design.” He said that shifting legal frameworks formed the “greatest blemish in the character and genius of our governments”, and believed that by subjecting a potential law to many diverse viewpoints and rigorous examination, we could compel a measure of deliberation and prevent passing fads from gaining the power of law. In short, he wanted to create a system in which it was easy for a bill to fail and difficult for a bill to pass.
To give you an idea of the level of forced deliberation they created, let me use an imaginary example bill. My imaginary bill aims to improve the educational outcomes of Tennesseans by adding an extra year of compulsory education to the normal 12-year system, affecting a million students and costing ten million dollars per year. I have a complete draft of this bill, my sponsors are lined up, and the bill is filed correctly by the filing deadline. Since this bill costs the state money, it has a fiscal note attached for $10,000,000.
Now the bill starts through committees. Let’s assume this one starts in the Senate and is assigned to the Education Committee, which has nine members. They put it on a calendar, and the sponsor sits in the room waiting for his bill to come up. If he’s not in the room when the bill comes up, it is pushed back to the end of the day or maybe to the next week. If he misses too many times, the bill can die a procedural death by being unassigned from the committee; if the sponsor doesn’t care enough to be present, why should the members care enough to vote?
When the bill comes up on the calendar, the sponsor needs someone on the committee to give him a motion and someone else to offer a second. This is a simple procedural move, but without a motion or second, the bill fails instantly. Failure to motion a bill forward is a political tactic often used to kill bills that leadership or a committee chairman doesn’t like, but I’ve also seen bills fail when members are simply distracted by conversation as a bill comes up to be heard.
Once heard, the bill needs a majority of votes on the committee to proceed. A good lobbyist or sponsor will count votes before the committee meets and make sure that they have enough to pass. But committee members also have a mind of their own, and unexpected things happen during hearings, including outside testimony given for or against a bill, other members asking questions the sponsor can’t answer, or a staff attorney pointing out some legal issue or potential loophole. While it seems like it ought to be easy to get just five votes for a bill, it’s usually easier for the opposition to point out all the flaws of the bill and make members uncomfortable with it. On an education bill like this one, committee members would also be bombarded by voters who are opposed to my bill, and we would probably have a packed committee chamber and several hours of expert testimony from professors, principals, and teachers who want to have their say.
If my bill makes it through the Education Committee, it is now assigned to the Finance committee. Remember that fiscal note? The sponsors need to find that $10,000,000 in the state budget, or the bill fails because it isn’t funded. And even if I find the money, the Finance committee is under no obligation to pass the bill — it’s as real a committee as the Education committee, just staffed by bankers and CPAs instead of teachers and principals. Again, I need a majority to pass.
If I pass the Finance committee, then the bill goes to the Floor of the Senate. Here I need 17 out of 33 votes. Assuming I can get those 17 Senators on board, it passes and — after just one month of hair-pulling stress — I am through one chamber. On to the House!
The House is the same as the Senate but harder. The main reason for this is subcommittees. Subcommittees are smaller groups of legislators who take specialized bill sets; for instance, my education bill would probably go through the House Education Committee and the K-12 Subcommittee. This subcommittee likely has only 7 members, meaning that if my opponents can sway just four members to vote against my bill, it’s dead. Not only that, but the bill has to be voted through the subcommittee and the committee, meaning that I have to win fives votes: K-12 Sub, Education Full, Finance Sub, Finance Full, and the Floor. For this Floor vote, I need at least 50 of the 99 members to vote in favor.
For each of these votes, different members are reading my bill and I need to speak with each of them prior to their vote to ensure that they understand it and explain why I think they should vote for it. I may need to spend hours trying to convince them, and I definitely need to spend hours putting together talking points and explaining why our young people need more education. My sponsors have to be in all the right places at all the right times, while juggling nine other bills and all the commitments those bring. I have to line up students and teachers to testify, field friendly and hostile amendments, speak with lobbyists and voters, and above all, make sure that the message of the bill stays cohesive. Confusion kills bills.
Assuming that I get my sponsor to all his meetings, whip all the votes I need, and find $10,000,000 in state money that someone else didn’t want, my bill passes! Super easy. The only remaining step is for the Governor to sign it, unless he chooses to veto it, in which case it’s back to the legislature to try to override his veto.
If this feels like a long, drawn-out, difficult process, it is. If it feels like everyone has to have their say, they do. And if it seems like there are a thousand ways for a bill to die, there are.
But that’s the genius of it. A new state law could affect the lives of seven million people — or more, if we count the impact on tourists, immigrants, and people in neighboring states. Seven million people who could be negatively affected, including friends, neighbors, children, the elderly, or the disadvantaged. Laws often have unintended consequences, and without a system of forced deliberation and review we would likely end up with swathes of harmful law on the books.
As for the good bills that fall prey to the committee system and are voted down instead of passed? We can try to put them forward again. But Hamilton points out that, “the injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones.” By making the law hard to change, we produce peace of mind for residents because they know what to expect from their government. Stable law produces stability in society, because even if you hate the system, it’s predictable. Predictability allows for innovation. Citizens can bank on the fact that the law will remain largely the same for years or decades, and plan accordingly.
So, next time you’re tempted to complain about why congress can’t get more done, remember: that’s a feature, not a bug.
For more information about the passage of a bill, click here.
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