March 2004

Using the Internet to Watch a Bill Become a Law

by Michele Radosevich and Gail Stone

You probably had to learn how a bill becomes a law in a social studies class once. If you never had any further experience with the legislative process, chances are all you know is that a bill has to go through both the House and the Senate, and be signed by the executive, in order to become law. How standing committees, amendments, substitute bills, and conference committees figure into the process is probably a little hazy.

This lack of knowledge may be a detriment to your clients. Attorneys can and should be able to navigate the legislative process so that (1) they can competently use legislative history to ascertain the intent of the Legislature with regard to a particular statutory provision, and (2) they can use the process prospectively to obtain results for clients. Attorneys more accustomed to litigation than legislation often overlook this latter use, but clarifying an existing statute with a small amendment can be much faster and less expensive than litigation.

No matter how you plan on using the legislative process, however, you need to become familiar with it. You can do this without ever leaving your desk. Since 1997, the Legislature has maintained its records electronically and posted them on its website, www.leg.wa.gov. By using this tool, you can follow current or prior legislation electronically without ever setting foot in Olympia. Because the Legislature has automated its own records rather than rewriting them in lay terms, you will need some basic vocabulary and understanding of the process to get a complete picture of what is going on. What follows is a primer on how a bill becomes a law in Washington and how to find that information on the Legislature's website.

Step One: Pre-Introduction. All legislation begins in the Code Reviser's office. Whether the initial proposal is a polished product of one of the WSBA's sections or an idea a legislator jotted on the back of a napkin, it is reviewed and put in proper form for consideration by the Legislature. This process is confidential and often involves multiple drafts. Once the bill's proponent (usually a legislator or lobbyist) is satisfied with the draft, he or she asks that the bill be finalized as a House bill, a Senate bill, or as companion bills, which are identical drafts for introduction in each house. With final draft in hand, the legislator or lobbyist can line up sponsors for the bill. House members sponsor House bills; Senate members, Senate bills. They do so by signing the bill. The first signer is considered the prime sponsor. This part of the process may take place prior to the start of the legislative session.

Step Two: Introduction. Once the sponsors have signed the bill, the legislator or lobbyist drops the bill in the hopper, a wooden box in the Code Reviser's office. From there, the bill is given a number. Numbers are assigned sequentially. The House begins with HB 1000 in the first year of each biennium and the Senate begins with SB 5000. The new bills are sent to leadership staff in each house to propose tentative committee assignments. Staff must act quickly, because the assignment is made during that day's session, as the bill is read the first time. First reading (and for that matter second and third readings) is a somewhat anachronistic term, dating from the days long before instant printing meant that every legislator had copies of every bill. These days, only the first and last sentences of the bill are read aloud. When the bill is read the first time in open session, it is truly "introduced" to the public. At this point, you can begin tracking the bill on the web. From the Legislature's homepage (www.leg.wa. gov), choose "Bill Info." There you can type in the bill's number (or use the topical index to locate the number). This takes you to the bill history. At this stage, you can learn who sponsored the bill, when it was read the first time, and what committee it is in. You can also obtain a copy of the bill in either PDF or "regular" format. Unless you need to alter your copy of the bill (e.g., to propose amendments), the PDF file is far easier to read.

Step Three: Committee Consideration in House of Origin. The Washington Legislature meets for only 105 days in the first year of the biennium — i.e., odd-numbered years — and 60 days in the second. 2004 is a 60-day session. In order to keep the process moving quickly enough to deal with this deadline, the Legislature has devised strict timelines for action. These are called cutoffs. In the 105-day session, each house of the Legislature devotes approximately the first 50 days to committee hearings in a bill's house of origin. Thus, Senate bills are heard in Senate committees and House bills in House committees. If a bill is not reported out of its committee by the first cutoff, it is dead and will not normally receive further consideration. Thus, if the bill you are watching is going to pass, it normally will be scheduled for hearing early in the session. The hearing calendar is available electronically by clicking on "Legislative Info" rather than "Bill Info" and then choosing "Calendars." Hearing dates are published on Thursdays for the following week. Some of the hearings are televised by TVW, and audio for all hearings is available on TVW's website (www.tvw.org). Audio recordings of past hearings are available from TVW and from the committee staff of the committee in which the hearing was held.

As more bills are heard, the committee hearing calendar displays when executive session is scheduled on a bill. Contrary to what the name might connote, executive session is a public meeting of the committee where committee members bring up and consider amendments to bills, and where a vote is taken to send the bill out of committee for further consideration. If the committee in the house of origin adopts amendments, it is the practice to incorporate them within the text of the bill to create a substitute bill. The bill number does not change, but the letter "S" is added upfront, to create SHB 1000 or SSB 5000. At this stage, the text of the substitute becomes available on the bill history page of the legislative website.

After first reading and referral to committee, the next date noted in the bill history is the date on which the committee took executive action. The entry indicates whether a substitute was adopted and whether the committee recommended that the bill "do pass." Normally, all the bills voted on receive a do pass recommendation, because the committee chair will not schedule bills that lack committee support. Committee staff prepares a bill report, summarizing hearing testimony for and against the bill, and the main provisions of the bill as it emerged from committee, and showing the roll-call vote of the committee members. This is available in PDF format on the bill history page.

When bills emerge from standing committees, they normally go to the Rules Committee. However, if bills have a substantial fiscal impact, they will be referred to the House Appropriations Committee or Senate Ways and Means Committee for an examination of the bill's costs before being sent to the Rules Committee. If you are interested in the fiscal impact of a bill, you can go to the Office of Financial Management's website (www.ofm.wa.gov), where you can access the fiscal notes that the agency prepares for bills.

If the bill needs to stop in one of the fiscal committees, the committee may have only days in which to act on the bill. The cutoff date for the fiscal committees is normally three to five days after the subject area committee cutoff. Many bills die in one of the fiscal committees, either because of time or because the bill's price tag is higher than a majority of the committee can support.

Step Four: Rules Committees. The sole function of the Rules Committees ("Rules") is scheduling bills for action by the entire house. The committees meet frequently, usually scheduling no more than a couple days ahead. Although bills receive no substantive scrutiny in Rules, an enormous number of bills pile up here at the time of the first cutoff. Thus, it is inevitable that some bills are never scheduled for floor action, and die in Rules. The bill history shows when Rules places a bill on the calendar. It says the bill was placed on second reading, a term of art explained below.

Step Five: Floor Consideration. Once a bill is on the calendar, leadership controls the flow of bills. Only about 10 days are allotted for consideration of bills on the floor before the second cutoff acts to kill bills that have not passed that point. Leadership has evolved a number of strategies for moving bills as quickly as possible. Some days are devoted to noncontroversial bills. Some bills are placed together in thematic packages. Controversial bills are rarely scheduled until leadership has done a vote count and knows that the bill has sufficient votes for passage. Bills are not taken up in the order in which they appear on the official calendar—that document is simply a list of available bills. Supplemental flash calendars may be printed, showing which bills from the formal calendar will be considered next.

When a bill is taken up from the calendar, it is given second reading. Second reading is the stage for consideration of amendments from the floor. The committee's substitute bill is taken up first and normally adopted; then amendments to the substitute bill are considered. The amendments are taken up in the order in which they occur in the bill. The text of all amendments offered on the floor is available on the bill history page. The bill history page shows whether any amendments were adopted, but you have to look at the text of each amendment to see whether a particular amendment was adopted. The PDF version of the amendment shows in the upper right of the first page whether an amendment was adopted.

After the last amendment has been disposed of, the leadership asks that the rules be suspended so that the bill may be given its third reading. Third reading is the time for speeches for and against the bill, and the final vote. Historically, bills were never voted up or down on the same day they were amended, probably because the amendments were not readily available. Today, second and third readings nearly always occur one right after the other, but because the rules do not provide for this kind of speed, a minority may object to the procedure and force the bill to be laid over for 24 hours.

The vote on final passage requires a constitutional majority — 50 votes in the House and 25 in the Senate. Nearly all other actions require only a majority of those present and voting.

The bill history page reflects the dates for second and third readings, and the roll-call vote on final passage. If a significant number of floor amendments to the substitute are adopted, the bill is engrossed and the amendments incorporated within the text of the bill. If this is done, the letter E is added to the bill reference, e.g., ESHB 1000. There may also be a new bill report reflecting the changes made on the floor.

Step Six: On to the Other House. As bills pass the house of origin, they are sent across the rotunda to the other house, where they are read the first time and referred to committee. However, no further action is taken until the second cutoff, which occurs on or about the 65th day of a 105-day session. At this point, the bills that have not passed the house of origin are dead for the rest of the session.

Step Seven: Committee Again. The second cutoff marks the beginning of another committee work period devoted to bills that started in the opposite house. This period is substantially shorter than the first committee work period (in a long session, 20 days instead of 50), and hearings are often shorter. This probably does not adversely affect the quality of the committee's consideration, however, because the committee has often seen very similar proposals from members of its own house during the first committee work period.

Hearings and executive sessions are held just as they were during the first committee work period. The difference is that substitute bills are not used. Instead, when a committee in the second house wants to make substantial changes to a bill from the other house, a striking amendment is used. The amendment literally says that all the text following the words "be it enacted" is stricken and replaced with the second committee's preferred version of the bill. There is no special notation in the bill history for a striking amendment like there is for a substitute bill, so you need to look at the text of the amendment adopted by the committee to see if it indeed strikes the whole bill.

The committee's action is recorded just as it was during the earlier floor period, and the bill moves either to a fiscal committee or straight to Rules. A new bill report is prepared to reflect the bill as it emerged from committee. The third cutoff brings the committee work period to an end and kills any bills that have not yet emerged from committee in the second house.

Step Eight: Rules Again. By this point in time, the number of bills under active consideration has shrunk considerably. Although the number of bills is smaller, so is the time in which to take them up, so the pressure on the Rules Committee is much the same as before.

Step Nine: Final Passage in the Second House. Floor action in the second house involves the same steps as in the first. A bill must be taken from the calendar to the floor for second and third readings. The second house has about 10 days to complete this process before the final cutoff kills any bills that have not yet passed.

At this point, it becomes apparent that there are two kinds of bills — those with amendments by the second house and those without. For the latter, the process is suddenly over. If the second house passes the same numbered bill in the same form that the first house did, the bill moves smoothly to the Governor's desk. If the second house passes the same numbered bill but makes any changes to the work of the first house, the process is far from over.

Step Ten: Reconciliation. Under the cutoff system, approximately one week is devoted to reconciling the differing versions of bills that have passed both houses. Reconciliation may or may not involve a conference committee. The simplest method is for the bill to go back to the house of origin for concurrence in the other house's amendments. If the amendments are relatively minor, this may be easily accomplished. The second house concurs in the amendments and votes once more on final passage as amended.

It also may be possible for the proponents of the bill in the two houses to agree that some of the second house's amendments are okay, but not others. This may be done by concurring in less than all the amendments, but asking the other house to recede from its position as to others of its amendments. Along with the votes on the amendments, each house votes again on final passage as amended. When both houses have passed exactly the same bill, the process is complete.

Many times, however, the bill cannot be compromised by accepting one amendment but not another. Particularly, when the second house uses a striking amendment, it may not even be procedurally possible to vote individually on each of the changes. Then, the Legislature uses conference committees to work out a compromise version of the bill.

Conference committees are a frustrating part of the legislative process for legislators, lobbyists, and the public. They meet privately, so it is difficult to track what they are doing. They typically comprise six members — three from each house, four members of the majority, and two of the minority — so the power is concentrated in only a few people. If they are granted the powers of free conference, as they normally are, they can entirely rewrite the bill. And once the conference report emerges from the committee, the rest of the Legislature must vote for it or against it — they can no longer offer amendments.

With all these disadvantages, conference committees continue to be used frequently — because they work. A small number of legislators, meeting without press or lobbyists, can often reach agreements that elude larger groups of legislators or legislators under pressure from some special interest or another.

Both houses take up the conference report in quick succession. A vote is taken to adopt the conference report, effectively substituting the conference version of the bill for earlier ones. Then, each house votes again on final passage, once again requiring a constitutional majority. A final bill report is prepared to summarize the bill in the form in which it finally passed.

Sine Die. On or about midnight on the 105th day of a long session or the 60th day of a short session, the Legislature must constitutionally end its session by adjourning sine die, literally, "without a day" — that is, indefinitely. The bills that have passed go the Governor, who has a little over three weeks in which to analyze the bills and decide whether to sign, veto, or partially veto each one.

What happens to the rest of the bills? In the first year of the biennium, the odd-numbered year, the bills that never passed the first house remain right where they stopped and may be advanced in the following session. The bill history will normally note: "By resolution, reintroduced and retained in present status." The bills that have passed the first house, but not the second, are returned to the Rules Committee in the house of origin, where they have third-reading status. If the original proponents of the bill want to try again in the following session to pass it, they do not need to go through the committee process in the house of origin or even the floor-amendment process. Assuming the proponents have retained the votes for their version of the bill, they need only put the bill to a floor vote and send it along to the second house.

In the second year of the biennium, sine die effectively kills all bills that have not yet passed both houses. The proponents can bring back the same idea in the following session, but it will have a new bill number and they will have to start the process all over again.

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Michelle Radosevich chairs the WSBA's Legislative Committee and practices in Seattle. Gail Stone is the WSBA's director of legislative affairs in Olympia.

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