The summary below highlights the differences between the ordinary legislative process and the fast-track procedure under which some trade agreements are considered. In discussions of the fast track it is common for analysts to focus on the rule barring any amendments to the bill. While this is a very important aspect of the fast track, it may be less significant than the guarantee that the bill will be voted upon within 90 legislative days. In the absence of this guarantee, it would be much easier for the opponents of an agreement to ensure that the measure never came up for a vote in the Senate. Moreover, the no-amendment rule does not take into account the substantial authority that members of the trade committees have in shaping the terms of the implementing bill before it is formally introduced by the president.
The Constitution (Article I, Section 7, Clause 2) provides the basic rules for the enactment of legislation. These are supplemented by the formal rules and traditions of the two chambers, which have in turn been modified by the special rules of the fast track (when that option is available).
Note that there is no single, "normal" series of steps by
which a bill becomes a law. There are instead a number of differing
paths that can be taken, with the parliamentary rules giving legislators
numerous opportunities either to retard or accelerate the movement
of a bill through Congress. Some are of minor importance; for example,
the bill might alternatively have begun its life in the Senate. Others
are more significant. The most important alternative to the standard
model is for a bill to become a "rider" (i.e., an amendment)
to another bill. The bill to which a rider is attached is commonly
known as the "vehicle." There is however an idealized path
that a bill is supposed to follow, as reviewed below. This deliberately
simplified presentation consists of eighteen steps.
Introduction. A bill is introduced in the House of Representatives, the Senate, or both. For purposes of simplicity, we will assume here that the bill is initially introduced only in the House. That is in fact mandatory in the case of most trade legislation, which according to the Constitution (Article I, Section 7, Clause 1) must originate in the House. The bill is given a number that reflects the order in which it was introduced. If it is the 101st bill introduced in this Congress, for example, it will be designated H.R.101. (If in the alternative it were the 22nd bill introduced in the Senate during this Congress, it would be S.22.)
Referral. The bill is referred to the committee or committees of jurisdiction in the chamber where it was introduced. In the case of most trade bills, that is the House Ways and Means Committee.
Hearings. The committee may hold hearings on the bill, either at the subcommittee or full committee level. It is often the case that hearings will be held on the issue (though not the bill itself) before the bill is formally introduced.
Mark-up. The committee holds a "mark-up" session on the bill, at which the bill can be amended (which may even mean the substitution of the bill with an entirely new bill). This session can be held either at the subcommittee level (in which case the bill may then be subject to yet another mark-up session at the full committee level), or at the full committee level.
Committee vote. The committee votes on the discharge of the bill to the full House of Representatives. The bill can be approved with a recommendation that the full House pass the measure, that it be approved without a recommendation, or defeated altogether.
Rules Committee. The House Rules Committee is responsible for devising the rules by which the bill will be considered on the floor of the House. The committee prepares a draft rule to govern debate on the bill. The rule might be "closed " (i.e., allow no amendments to the bill), "open" (i.e., allow any or all amendments to the bill), or a "modified open" or "modified closed" rule (i.e., allow certain amendments to be considered). The rule also determines how much time will be allowed for debate on the rule itself, on the bill, and on any amendments to the bill. It is quite common for the rule to be a modified open or closed rule, which might (for example) allow consideration only of a Democratic substitute for the bill.
Vote on the Rule. The House of Representatives debates and votes on the rules recommended by the Rules Committee. These are usually approved, but in some rare cases the rules might be rejected (thus allowing, for example, an unmanageable number of amendments to be considered).
Debate and Vote on the Bill. The House debates and votes on the bill, as well as any amendments that might be allowed under the rule approved in Step 7. There are 435 members of the House of Representatives, although there can be vacancies, absent members, etc. A bill requires a simple majority (50 percent of the members voting, plus one) to pass. This means that if all seats are filled and all members are present and voting, the bill requires 218 votes to be approved. If the bill is approved, it is sent to the Senate.
Referral. The bill is referred to the committee or committees of jurisdiction in the Senate. Most trade-related bills go only to the Finance Committee.
Hearings. The Finance Committee has the option of holding hearings on the bill, either at the subcommittee or full committee level.
Mark-up. The committee holds a "mark-up" session on the bill, at which the bill can be amended (including the substitution of the bill with an entirely new bill). Again, this session can be held either at the subcommittee or full committee level, and may indeed have been held before the bill is received from the House.
Committee vote. The committee votes on the discharge of the bill to the full Senate. The bill can be approved with a recommendation that the full Senate pass the measure, approved without a recommendation, or defeated altogether.
Debate and Vote on the Bill. Assuming that time is scheduled for the bill, the Senate votes on the bill, as well as any amendments that might be proposed. There are 100 senators, although there can be vacancies, absent members, etc. A bill requires a simple majority (50 percent of the members voting, plus one) to pass. This means that if all seats are filled and all members are present and voting, the bill requires 51 votes to be approved. The vice president also serves as president of the Senate, and has the authority to cast the deciding vote whenever the Senate is equally divided. If for example the Senate is split 50-50 (or 49-49, 48-48, etc. when there are vacancies or absences), the vice presidentís vote will decide the matter -- if he is there to cast it.
Sent to President (If Identical). If the bill that the Senate approves is identical to the version approved by the House (a rare event), the bill is sent to the president. If it differs from the House bill in any respect, a conference committee is appointed of members representing both chambers of Congress.
Conference Committee. The conference committee must resolve all differences between the House and Senate versions of the bill. Once they achieve agreement on a conference bill, it is sent back to both houses. The differences between the House and Senate approaches to amendment can produce conflict in conference committees. If the Senate attaches a non-germane bill as an amendment to some other measure, the House conferees will often try to remove the amendment.
Adoption of the Conference Bill. The House and the Senate each vote (separately) on the conference committee bill. With one exception, no amendments are permitted at this stage; the House can vote to remove any matters that the Senate might have appended to the bill that are judged not to be "germane" (e.g., if they attached something not at all related to trade). If both of them approve the bill, it is sent to the president. They can alternatively vote to send the bill back to the conference for reconsideration.
Presidentís Signature (Or Veto). The president has ten working days in which to choose among three options. If he signs the bill, it becomes law. If he vetoes the bill, it goes back to Congress. If he does nothing, the outcome depends on whether Congress is in session. If Congress is in session, the bill becomes law without the presidentís signature. If Congress is not in session, the bill is "pocket vetoed" (i.e., does not become law, and Congress cannot vote to override the veto).
Opportunities for Opponents: None at this stage. All members of Congress have an unencumbered right to introduce bills.
Advantages of Fast Track: Bills considered under the fast track are introduced at the presidentís request by the leaders in both houses of Congress (or by other members that they designate). The language of this bill is proposed by the president, although in actual practice the specific terms of the bill (as well as the accompanying statement of administrative action) are a matter of negotiation with Congress prior to the formal introduction.
Opportunities for Opponents: If the leadership is opposed to a bill it can sometimes make enactment more difficult by referring it to multiple committees, thus multiplying the parliamentary difficulties for the sponsor.
Advantages of Fast Track: Bills considered under the fast track are normally referred to multiple committees because they deal with a range of subject matter, but all committees to which the bill has been referred must report it out within 45 legislative days. Even if all members of the committee oppose the bill, they cannot "bottle it up" beyond this period.
Opportunities for Opponents: It is at this stage that the vast majority of bills die. Most bills are never granted a formal hearing, and simply sit in committee until the end of a two-year congress (at which point they expire).
Advantages of Fast Track: No difference, but often the most important hearings will have been held before the bill is formally introduced.
Opportunities for Opponents: Any opponents of the bill who sit on the committee can seek to amend it.
Advantages of Fast Track: The bill cannot be amended.
Opportunities for Opponents: Any opponents of the bill who sit on the committee can seek to defeat the bill, or at least have it reported without a recommendation.
Advantages of Fast Track: The committee cannot kill the bill, but must instead report it to the full House.
Opportunities for Opponents: This is a particularly important step, because the opponents of a bill will want the opportunity to amend the proposal.
Advantages of Fast Track: The House Rules Committees is by-passed, as the fast-track law has already determined the rules under which the bill will be debated. This rules allows for no amendments, and provides inter alia for 20 hours of debate in each house of Congress.
Opportunities for Opponents: Those who seek to amend the bill in the House will often need to defeat the rule in order to have their amendment considered, but this maneuver rarely succeeds.
Advantages of Fast Track: There is no such step for fast-track bills.
Opportunities for Opponents: If the bill is defeated at this stage it is dead.
Advantages of Fast Track: Once the bill has been formally introduced, it cannot be amended at any stage in the process. This is true both in committees and on the floors of the two houses. The opponents can only seek to have it defeated by a straight yes-or-no vote.
Opportunities for Opponents: Same as Step 2.
Advantages of Fast Track: Same as Step 2.
Opportunities for Opponents: Same as Step 3.
Advantages of Fast Track: Same as Step 3.
Opportunities for Opponents: Same as Step 4.
Advantages of Fast Track: Same as Step 4.
Opportunities for Opponents: Same as Step 5.
Advantages of Fast Track: Same as Step 5.
Note that no rule is needed for floor debate. The Senate Rules Committee does not play the same role in that chamber as the similarly-named committee does in the House. In fact, the power of the House Rules Committee is so much greater than that of the Senate Rules Committee that -- their names notwithstanding -- these really cannot be considered "counterparts" to one another.
Opportunities for Opponents: The Senate takes a much more relaxed attitude towards the attachment of amendments, except when the amendment affects the budget. It is not unusual to see senators trying to attach a bill as a rider to some completely unrelated bill. The rules of the Senate are much more open than those of the House, and ordinarily there are no limits placed on the consideration of amendments or on the length of debate. In fact, the favored means for defeating an initiative are either to engage in "extended debate" (more commonly known as a filibuster), or to weigh the bill down with amendments. A filibuster is simply an extended debate in which the opponents of a bill refuse to yield the floor or to allow a vote. One effect of a filibuster is that it moves the number of votes needed for a bill up from the simple majority to 60 votes, as this is the number needed to invoke cloture (i.e., bring a filibuster to an end).
Advantages of Fast Track: The bill is immune from filibusters and amendments. There is however one development in recent years that erodes an advantage of the fast track over formal treaty ratification. Beginning with the NAFTA implementing legislation, it has been necessary to have another vote providing for a waiver of budget rules in order to approve the reduction in tariff revenue. Such a motion requires 60 votes. This is closer to the 67 votes needed for a treaty than the 50 votes needed for an ordinary bill.
Opportunities for Opponents: See Step 15.
Advantages of Fast Track: By definition, the senate bill is identical to the House version, The bill now goes to the president for his signature (Step 17), by-passing steps 15 and 16.
Opportunities for Opponents: A bill will die if the committee cannot resolve differences.
Advantages of Fast Track: This step is by-passed for fast-track bills.
Opportunities for Opponents: This is the last chance to defeat the bill in Congress, except when there is a fight on a veto override (see Step 18).
Advantages of Fast Track: This step is by-passed for fast-track bills.
Opportunities for Opponents: The opponents can seek a presidential veto.
Advantages of Fast Track: Because it is his initiative, the president will certainly sign a fast-track bill.
Opportunities for Opponents: It is very rare for a veto to be overridden.
Advantages of Fast Track: This step is by-passed for fast-track bills.