Emerging Trends in The Social and Behavioral Sciences

Lawmaking

Item

Title

Lawmaking

Author

Carson, Jamie L.

Owens, Mark E.

Research Area

Social Institutions

Topic

Legal Institutions

Abstract

The goal of this essay is to present foundational and cutting‐edge research that has influenced how researchers study the lawmaking process within American politics. By assessing the most influential research on legislative politics to date, we are able to highlight the research that is moving the discipline forward. Specifically, we focus not only on the outcomes produced by the lawmaking process but also the institutional influences that shape what ultimately becomes law. Our discussion outlines how institutional rules and procedural context are important considerations in determining how legislative chambers and the executive interact to govern and create new laws. This is especially important as the polarization among the public and political elites continues to grow and reflects fluctuations in party divisions during the past century. These changes in the political context of each institution have created challenges in the lawmaking process, necessitating new and unorthodox procedures to deal with these difficulties as they arise. We also provide guidance in discussing new questions, which have not yet been fully addressed by scholars to date, as well as where to look for new sources of data that will help researchers begin to find answers to those questions. We believe that expanding upon existing research agendas will provide greater opportunities to learn more about the important role of both chambers and the executive in designing and implementing legislation.

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Identifier

etrds0202

extracted text

Lawmaking
JAMIE L. CARSON and MARK E. OWENS

Abstract
The goal of this essay is to present foundational and cutting-edge research that has
influenced how researchers study the lawmaking process within American politics.
By assessing the most influential research on legislative politics to date, we are able
to highlight the research that is moving the discipline forward. Specifically, we focus
not only on the outcomes produced by the lawmaking process but also the institutional influences that shape what ultimately becomes law. Our discussion outlines
how institutional rules and procedural context are important considerations in determining how legislative chambers and the executive interact to govern and create new
laws. This is especially important as the polarization among the public and political
elites continues to grow and reflects fluctuations in party divisions during the past
century. These changes in the political context of each institution have created challenges in the lawmaking process, necessitating new and unorthodox procedures to
deal with these difficulties as they arise. We also provide guidance in discussing new
questions, which have not yet been fully addressed by scholars to date, as well as
where to look for new sources of data that will help researchers begin to find answers
to those questions. We believe that expanding upon existing research agendas will
provide greater opportunities to learn more about the important role of both chambers and the executive in designing and implementing legislation.

INTRODUCTION
Lawmaking is the process by which a policy solution is proposed, considered
in the legislature, and if passed, forwarded to the desk of the executive to be
signed or vetoed. If the bill is enacted into law, the policy will be implemented
and monitored until another change is made. Laws are adapted in response
to changes or problems that arise within our own society, which makes the
lawmaking process such an interesting and rich line of research. The legislative process by which decisions have been made at the federal and state level
has rarely changed over time; however, because decisions are made collectively, the context within each chamber alters the probability that a change in
the law will be a long-term solution or a simple fix.
The foundation of the lawmaking process in the United States emerges
from the legislative process, which will be the focus of our discussion in this
Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Stephen Kosslyn.
© 2015 John Wiley & Sons, Inc. ISBN 978-1-118-90077-2.

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

essay. However, as research questions become more complex, it is important
to test how the enforcement and interpretation of laws may have an effect
beyond simply legislation. This relates to the regulatory power of government agencies over specific industries through the use of administrative rules
(c.f. Bertelli, 2012; Carpenter, 2010; Lewis, 2010; Yackee & Yackee, 2010). Furthermore, how a court rules on a given case may set a precedent that extends
coverage of the enforcement of a statute (c.f. Bullock & Gaddie, 2009; Melnick, 1983). As administrative rules and court rulings increasingly become
tools to evade the longer legislative process, we have begun to see the executive and judicial branch increase their own autonomy and control over the
lawmaking process.
Our intent is to highlight research that has advanced the legislative subfield by identifying important trends and providing a general foundation of
how laws are developed in the United States. Specifically, we discuss those
political forces that influence the fate of legislation in the US Congress. Scholars have found that electoral considerations, polarization, timing within the
session, and supermajority thresholds contribute to this process in multiple ways. A comprehensive understanding of the lawmaking process provides scholars with the opportunity to better understand the interactions
between the legislature and executive, which already set defined boundaries
and observations to test theories that integrate multiple subfields within the
study of American politics.
FOUNDATIONAL RESEARCH
A discussion of how laws are made often begins with a simplified expectation
of how Congress initiates most standard legislation. The consistent process
by which Congress considered legislation, for most of the twentieth century,
provides examples of a straightforward and repeatable framework that can
easily be understood. The important actors in Congress could be identified
because of their significant authority at different stages throughout the process, such as party leaders and committee chairs. These positions are also a
reflection of a legislator’s membership in the majority party and seniority
within the chamber. Their power is reinforced by the institutional norms of
apprenticeship and specialization, which fostered reciprocity between lawmakers (Matthews, 1960).
This story is representative of an era characterized as the “Textbook
Congress” lasting from the 62nd Congress (1911–1913) to the 94th Congress
(1975–1977) (c.f. Rohde, 1991; Shepsle, 1989; Sinclair, 1997). This period was
initiated by a transfer of power from the Speaker to the larger chamber in
1910. The Speaker was removed from the Rules Committee, members of
Congress could now call for the discharge of a bill from the committee, and

Lawmaking

3

committee positions and chairmen became elected by the caucus (Brown,
1922; Hasbrouck, 1927). This change, popularly known as the Cannon
Revolt, diminished the influence of party leaders by decentralizing the
Speaker’s power over the caucus (Cooper & Brady, 1981). By abolishing the
hierarchical control the Speaker held over the legislative process, committee
chairmen became empowered to play larger roles within the chamber
(Polsby, 1968).
The institutionalization of Congress allowed more legislators in the House
to play an active role within their given sphere of influence. This was especially true for legislators with greater tenure, given that both parties abided
by the norm of seniority in the selection of a chairman for each committee
(Kingdon, 1989). Owing to the large number of committees in both chambers, many legislators were provided the opportunity to serve as a committee
chair, diluting legislative authority across both chambers. The Legislative
Reorganization Act of 1945 consolidated these dispersed policy jurisdictions
into fewer committees and reduced the number of committees by 29 in the
House and 18 in the Senate. This changed the lawmaking process by reducing
the number of committee chairs, but enhanced the authority of any remaining
chairs within each chamber by enhancing their gatekeeping power. However,
the growing ideological divide between northern and southern Democrats
threatened the party’s central role in policymaking because defections led
to the emergence of the Conservative Coalition as a voting bloc (Brady &
Bullock, 1980).
The Textbook Era ended in the mid-nineteen seventies (1973–1977), specifically as the House delegated more control to party leaders over the lawmaking process (Davidson, 1990). Through the Subcommittee Bill of Rights of
1973, House Democrats divorced the choice of subcommittee chairs from the
parent committee chairman, diluting the power of committee chairs without
reducing the power of party leaders.1 In addition, party leaders in 1974 were
given the tool of multiple referral, providing an alternative path to pass legislation by assigning sections of a bill to separate committees. The literature
focuses on these events as an important milestone in our study of congressional lawmaking and the beginning of the post-reform congress. As a result,
previous research emphasized the competition between committees and the
Speaker over which positions provided the greatest source of partisan control
in determining policy outcomes (c.f. Ornstein, 1975; Rohde, 1991).

1. The Democratic caucus decided that subcommittee chairs would be chosen by seniority on the
committee, subcommittee chairmen would receive their own budget and staff, and at the beginning of
each Congress committee chairs could be elected by a secret ballot if only 20% of the members requested
a secret vote (Rohde, 1991).

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

These changes reflect lawmakers’ understanding that a cohesive caucus
provides a strategic advantage for the majority to control the passage of legislation by delegating power to leaders. The elections of 1968 and 1974 generated substantial turnover by introducing junior Democratic members from
the northern states who were more likely to be liberal (Sinclair, 1981). This
member replacement contributed to greater party unity among Democrats,
generating new demands within the caucus to limit the powers of committee chairs. Moreover, the emerging polarization between the parties made the
opposition from the minority stronger, also increasing the demand for reform
within the majority party. The institutional changes in the US House of Representatives during the 1970s raised a number of questions about party success
in Congress, procedural choice, and the sharing of power between chambers
and the executive in the lawmaking process.
CUTTING-EDGE RESEARCH
New questions have emerged with respect to what influences the legislative
behavior of individual elected officials. As elected officials tasked with representing their constituencies, there is an expectation that legislators evaluate
the potential electoral consequences before any legislative activity. However,
the context of a decision can generate variation in how legislators participate within the chamber. Both approaches provide alternative explanations
of how laws are made by identifying the factors that contribute to a legislator’s preferred policy outcome.
The continued success of incumbent politicians in their quest for reelection has encouraged research in the relationship between legislative actions
and incumbent vote share. Incumbent politicians have multiple advantages
in how they can increase their popularity, which does impact the larger lawmaking process. Legislators have the opportunity to advertise their work,
claim credit for popular policies in the district, and influence the policy process in a way that clearly promotes the incumbent’s position on an issue (c.f.
Mayhew, 1974). However, the success of these strategies in representing constituents relies on the salience of the issue within the electorate. Therefore,
constituents are often thought of in two ways: interested constituencies, such
as interest groups and single-issue activists, and the mass public. By considering the behavior of the constituents we can recognize legislators’ attempt to
appeal to various voters in an effort to develop their reelection constituency
(c.f. Arnold, 1990). As representatives, legislators work to deliver on the campaign promises they made as a candidate to specific constituencies (Sulkin,
2011). Incumbents must balance their support for the preferences of their constituency and goals of their political party, because taking an unfavorable
position could result in electoral defeat (Canes-Wrone, Brady, & Cogan, 2002;

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Carson & Engstrom, 2005). Also, incumbents are punished by the electorate
in the following elections, when they vote as a loyal partisan on divisive and
salient votes, which may split the two parties (Carson, Koger, Lebo, & Young,
2010). By understanding the benefits and consequences of activities that are
the core foundation of the electoral connection, new cleavages that allow
researchers to better determine the relationships surrounding the lawmaking
process appear in the behaviors of politicians.
Partisan theories of lawmaking challenge the expectation that most decisions reflect the best outcome for the majority of the population under a
majority vote. In a setting without any restrictions, the selection of a policy
alternative should reflect the version that benefits the median legislator (c.f.
Black, 1948; Krehbiel, 1998; Weingast, 1989). However, by setting the agenda
and restricting what gets scheduled for a vote, the majority party is able to
control the policy alternatives presented to lawmakers. Thus, the Speaker
of the House, in coordination with the House Rules Committee, is able to
manipulate the choice of the median voter by issuing special rules with
the intention of biasing policy decisions in the majority’s favor (c.f. Cox &
McCubbins, 2005; Roberts, 2010). It is important to note that the majority
party is far more willing to give party leaders the power to determine policy
alternatives when parties are homogeneous, as well as distinct from one
another (c.f. Aldrich, 1995; Aldrich & Rohde, 2000). Furthermore, party
leaders in the US House also have powers of positive agenda control
to bring a bill to the floor out of order (c.f. Finocchiaro & Rohde, 2008).
The counterargument is that the preferences of individual legislators still
matter and constrain the success of the majority party (c.f. Krehbiel, 1998;
Schickler & Rich, 2003). For example, how much leaders restrict policy
alternatives to generate policy outcomes depends on the willingness of the
median legislator to support the party.
Recent studies have recognized that the party receives heightened loyalty
from its members on procedural votes, because a legislator’s vote may be
separate from their position on the underlying issue (c.f. Cox & Poole, 2002;
Jenkins, Crespin, & Carson, 2005; McCarty, Poole, & Rosenthal, 2006; Tiefer,
1989). The same relationship exists in the Senate, but results in a somewhat
different story (Lee, 2009; Theriault, 2008). The loyalty of fellow partisans on
procedural votes is vital to the Senate Majority party’s ability to efficiently
manage the chamber, given the absence of restrictive rules (Den Hartog &
Monroe, 2011). This hook has encouraged a more in-depth consideration of
the lawmaking process in the US Senate. Our current understanding of the
Senate as an institution is expanding beyond the importance of the filibuster,
which is one of the institution’s most unique processes (c.f. Binder & Smith,
1997; Koger, 2010; Madonna, 2011; Wawro & Schickler, 2006).

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

FUTURE RESEARCH
Previous research has used roll call votes or enactments as manageable
samples of legislative activity to compare trends across time, with the
justification that new laws affect society and allow for comparisons between
Congress and the executive branch. As a result, new research has emerged
on divided government and effective governance by passing landmark legislation (c.f. Clinton & Lapinski, 2006; Mayhew, 1991). Future research can
now look beyond what laws are passed, compared to the major legislation
considered, to understand the demand for certain policy changes. From
the opposition’s perspective, keeping a bill from being considered is just as
efficient as defeating a bill by an up-or-down vote. In addition, by collecting
more data about how a bill is amended, researchers can estimate how much
a proposed bill changes through the lawmaking process as other legislators
contribute to the final version (c.f. Carson, Madonna, Owens, & Sievert,
2012; Gelman, Lynch, Madonna, & Owens, 2012).
When studying individual legislative behavior, non-roll-call-based measures such as bill sponsorship and bill cosponsorship have been analyzed to
observe an incumbent’s supportive position of the legislation (c.f. Schiller,
1995, 2006; Meinke, 2008). However, a legislator’s specific issue position
cannot be easily matched, given multiple sections within a bill, if we
expect interested constituencies to have particularized policy demands.
One way to increase the number of observations where a legislator offers
an observed position on the floor is to consider amendment sponsorship.
Each amendment can be viewed as an individual reaction by the chamber
to the bill under consideration (c.f. Carson, Madonna, & Owens, 2013;
Crespin, Rohde, & Vander Wielen, 2011; Den Hartog & Monroe, 2011; King,
Orlando, & Rohde, 2012b). As information about the day-to-day activities
of politics becomes readily available to voters, there is the opportunity for
incumbents to benefit electorally from their floor activity (Sulkin, 2011;
Carson, Madonna, Owens, & Sievert, 2012).
Roll call votes are still valuable given they record a common binary choice
that can measure a legislator’s position on an issue relative to others in the
chamber. One advantage of studying the lawmaking process is the wealth of
information that allows for scientific comparisons of how each actor within
an institution behaves in relation to the same vote. Two examples of research
that incorporates this comparison are NOMINATE and IDEAL, which provide measures of the probability a legislator is liberal or conservative on two
dimensions (c.f. Poole & Rosenthal, 1997; Clinton, Jackman, & Rivers, 2004).
With these measures of legislator ideologies, researchers can better measure
trends in aggregate and individual legislator behaviors, especially the effects
of polarization. Moreover, because of the high frequency in which votes are

Lawmaking

7

taken, these estimates are stable across relevant congresses, which assist in
comparing how institutional contexts have evolved.
Analyzing the lawmaking process allows researchers to better understand
the relevant interactions when institutions bargain with one another. This
may even help in identifying the cause of a contentious signing statement or
an executive order. In addition, there is a well-defined opportunity to measure a legislator’s attempt to craft a position or earn credit for addressing an
issue concerning their constituents. Another reason to consider legislative
activity beyond bills enacted into law is the notion that “congressman seem
to have gotten into trouble by being on the wrong side in a roll call vote, but
who can think of one where a member got into trouble for being on the losing
side? (Mayhew, 1974, p. 118).” This potentially places a legislator’s responsibility to govern at odds with the goal of being reelected. The challenge with
evaluating the lawmaking process is determining the scope of one’s sample and the time-consuming nature of coding data using detailed resources
such as the Congressional Record. After that, the well-bounded constraints and
steps within the lawmaking process allow for future research to contribute to
our understanding of what influences policy compromise or gridlock. In the
event that the high transaction costs of lawmaking create gridlock, short-term
policy changes can be instituted efficiently when the president acts unilaterally (c.f. Howell, 2003).
By comprehensively studying lawmaking, researchers can generate
stronger inferences about the strategies and adaptive behavior of the
minority party (King, Orlando, & Rohde, 2012a; Krehbiel & Wiseman, 2012;
Smith, 2007, 2014). This also allows for predictions of the extent to which the
rules of the House narrow the appeal of a policy to the larger public, while
the Senate’s rules promote compromises that will broaden the appeal of a
proposal. Thus, the constitutional requirement that both chambers pass an
identical version of the bill serves as the mechanism that leads the bicameral
process to moderate the final policy outcome, compared to whether the
original proposal had been adopted. Moreover, it is the size of the majority
party coalition in the Senate that provides aids in the adoption of major
policy reforms (Carson, Madonna, & Lynch, 2011).
There is also much to be gained in applying new methods that use seminal theories from the past to draw inferences about the lawmaking process.
By continuing to add additional longitudinal data to test hypotheses within
the subfield, researchers have the opportunity to compare how the number
of bills or length a policy is considered may vary at different periods in time
and across issues. Recently, appropriation bills have been used because they
have fixed deadlines and are essential to the operation of the government (c.f.
Woon & Anderson, 2012). Also, dollar amounts allow studies to quantify the
degree policy proposals change throughout the lawmaking process (Fenno,

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

1966; Kiewiet & McCubbins, 1991). The increasing polarization in Washington from the early 1980s onward has coincided with the increasing political
salience of the national debt, which has affected how the government is able
to budget and appropriate funds. Perhaps a more important need in the subfield is an exogenous measure of the public’s demand for policy. One example
is how often an issue was mentioned in the editorial pages of the New York
Times, which allows for the observation of issues that were important to the
public but may not have been enacted into law (c.f. Binder, 2003). There is
great promise in any attempt to expand this measure, but it requires one to
determine the policy issues for which constituencies are willing to punish or
reward their representative’s position.
Historical data and cases allow studies to validate the generalizability of
lawmaking theories through America’s political development, by testing
whether conclusions are consistent under different institutional circumstances. We can observe the development of procedural reforms, as well
as the institutional precedents that foreshadowed how lawmakers are
able manipulate the policy process. Studying lawmaking can isolate the
importance of certain actors’ influence across multiple decision points. There
is also variation in electoral accountability of incumbents historically, such
as the institution of the direct election of senators or the more recent threats
of a challenge within the party’s primary (c.f. Jacobson, 2013; Meinke, 2008).
Furthermore, as the executive branch became more institutionalized over
time, there is the opportunity to study variation in congressional oversight
of the bureaucracy and president (Ragsdale & Theis, 1997).
The institutional reforms within the executive and legislative branch in the
past 40 years have provided new and alternative ways to pass legislation to
overcome institutional challenges that would continue to protect the status
quo. However, these reforms have not limited the previous precedents
within the institutions. New reforms have sought to address the challenge
at hand by balancing the goals of efficiency and deliberation, as well as
the electoral interests of the majority party (c.f. Binder, 1997, 2006; Dion,
1997; Valelly, 2009).2 This has provided a niche industry studying the effects
individual chamber-specific procedures have on policy outcomes or what is
considered on the floor. For instance, the motion to recommit is the vote to
send a proposal back to the committee; however, if it is recommitted with
instructions, the motion serves a similar purpose as an amendment and is
immediately voted on the floor (c.f. Krehbiel & Mierowitz, 2002; Roberts,
2005). The omnibus bill combines multiple individual bills into one proposal
to make the proposal more popular by tying the fate of multiple shared
benefits to one bill (c.f. Krutz, 2001). On the other hand, Senate-specific
2. The one exception in this instance would be in 1806, when the Senate removed the motion to proceed with the previous question (Binder & Smith, 1997; Smith, 1989).

Lawmaking

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procedures such as the blue slip, when used strategically, can provide the
minority party with significant influence in blocking a nomination (c.f.
Binder, 2007; Binder & Maltzman, 2002; Black, Madonna, & Owens, 2011).
Another example is the motion to table, which is often used by the Senate
majority party to quickly dispose of minority-sponsored proposals (Carson,
Madonna, & Owens, 2012; Den Hartog & Monroe, 2011; King, Orlando, &
Rohde, 2012a; Marshall, Prins, & Rohde, 1997; Smith, Ostrander, & Pope,
2013). In addition, leaders have utilized other unorthodox procedures to
forgo the committee system by bringing controversial bills directly to the
floor, or skipping the subcommittee stage in recent years.
Given the repeated and stable interactions in the lawmaking process, there
are always opportunities for new questions about how particular decisions
can impact laws to build from the theoretical foundations that have been set
forth by scholars of the House, Senate, and the Presidency. Lawmaking is a
complex process and the scope of a research question may bias the expected
influence of each institution, if all are not considered together. The conclusions drawn from one chamber, such as the House of Representatives, are
indeed instructive of the legislative behavior at that stage. However, one
should be cautious before inferring that any bias introduced by the House
majority party will endure following debate in the Senate, or be found within
the bill as it is signed into law. Therefore, future research on bicameralism and
the interactions between the President and Congress are opportunities for
new research to examine which legislation is likely to become law by building from these current emerging trends.
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Kingdon, J. W. (1989). Congressmen’s voting decisions. Ann Arbor: University of Michigan Press.
Koger, G. (2010). Filibustering: A political history of obstruction in the house and senate.
Chicago, IL: University of Chicago Press.
Krehbiel, K. (1998). Pivotal politics: A theory of U.S. lawmaking. Chicago, IL: University
of Chicago Press.
Krehbiel, K., & Mierowitz, A. (2002). Minority rights and majority power: Theoretical consequences of the motion to recommit. Legislative Studies Quarterly, 27(2),
191–217.
Krehbiel, K. & Wiseman, A. E. (2012). Minority party influence in competitive partisan legislatures. Typescript: Vanderbilt University.
Krutz, G. S. (2001). Hitching a ride: Omnibus legislation in the U.S. congress. Columbus:
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Lee, F. (2009). Beyond ideology: Politics, principals, and partisanship in the U.S. senate.
Chicago, IL: University of Chicago Press.

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Lewis, D. E. (2010). The politics of presidential appointments: Political control and bureaucratic performance. Princeton, NJ: Princeton University Press.
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rule XXII on winning coalition sizes in the U.S. senate. American Journal of Political
Science, 55(2), 276–288.
Marshall, B., Prins, B. C., & Rohde, D. W. (1997). Fighting fire with water: Partisan
procedural strategies and the senate appropriation committee. Congress and the
Presidency, 26(2), 114–132.
Matthews, D. R. (1960). U.S. senators and their world. New York, NY: Vintage Books.
Mayhew, D. (1974). Congress: The electoral connection. New Haven, CT: Yale University
Press.
Mayhew, D. R. (1991). Divided we govern. New Haven, CT: Yale University Press.
McCarty, N., Poole, K. T., & Rosenthal, H. (2006). Polarization in America: The dance
of ideology and unequal riches. Cambridge: Massachusetts Institute of Technology
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Meinke, S. (2008). Institutional change and the electoral connection in the senate:
Revisiting the effects of direct election. Political Research Quarterly, 61(3), 445–457.
Melnick, R. S. (1983). Regulation and the courts: The case of the clear air act. Washington,
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Publishers.
Polsby, N. (1968). The institutionalization of the U.S. house of representatives. American Political Science Review, 62(1), 144–168.
Poole, K. T., & Rosenthal, H. (1997). Congress: A political-economic history of roll-call
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Ragsdale, L., & Theis, J. J., III (1997). The institutionalization of the American presidency, 1924–92. American Journal of Political Science, 41(4), 1280–1318.
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Roberts, J. M. (2010). The development of special orders and special rules in the U.S.
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Rohde, D. W. (1991). Parties and leaders in the postreform house. Chicago, IL: University
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Schickler, E., & Rich, A. (2003). Controlling the floor: Parties as procedural coalitions
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Schiller, W. J. (1995). Senators as political entrepreneurs: Using bill sponsorship to
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Schiller, W. J. (2006). Building careers and courting constituents: U.S. senate representation 1889–1924. Studies in American Political Development, 20(2), 185–197.
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Sinclair, B. (1981). Majority party leadership strategies for coping with the new U.S.
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Sinclair, B. (1997). Unorthodox lawmaking: New legislative processes in the U.S. congress.
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appropriations. Legislative Studies Quarterly, 37(4), 409–436.

JAMIE L. CARSON SHORT BIOGRAPHY
Jamie L. Carson is an Professor of Political Science at the University of
Georgia. He received his PhD from Michigan State University in 2003 where
he was a fellow in the Political Institutions and Public Choice Program. His
primary research interests are in American politics and political institutions,
with an emphasis on congressional politics and elections, American political
development, and separation of powers. His research has appeared in journals such as the American Political Science Review, American Journal of Political
Science, Journal of Politics, Legislative Studies Quarterly, Political Analysis, and
Political Research Quarterly. His new book, Ambition, Competition, and Electoral
Reform: The Politics of Congressional Elections Across Time, coauthored with
Jason Roberts at the University of North Carolina at Chapel Hill, is available
from the University of Michigan Press.

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

MARK E. OWENS SHORT BIOGRAPHY
Mark E. Owens is a Visiting Assistant Professor of Politics at Bates College.
In 2014, he received his Ph.D from the University of Georgia. His research is
broadly related to American politics, with specific interests in political institutions, bicameralism, and how historical changes in political institutions
have altered the lawmaking process. Earlier in his life, he was also a staffer
for two former US Representatives.
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Lawmaking
JAMIE L. CARSON and MARK E. OWENS

Abstract
The goal of this essay is to present foundational and cutting-edge research that has
influenced how researchers study the lawmaking process within American politics.
By assessing the most influential research on legislative politics to date, we are able
to highlight the research that is moving the discipline forward. Specifically, we focus
not only on the outcomes produced by the lawmaking process but also the institutional influences that shape what ultimately becomes law. Our discussion outlines
how institutional rules and procedural context are important considerations in determining how legislative chambers and the executive interact to govern and create new
laws. This is especially important as the polarization among the public and political
elites continues to grow and reflects fluctuations in party divisions during the past
century. These changes in the political context of each institution have created challenges in the lawmaking process, necessitating new and unorthodox procedures to
deal with these difficulties as they arise. We also provide guidance in discussing new
questions, which have not yet been fully addressed by scholars to date, as well as
where to look for new sources of data that will help researchers begin to find answers
to those questions. We believe that expanding upon existing research agendas will
provide greater opportunities to learn more about the important role of both chambers and the executive in designing and implementing legislation.

INTRODUCTION
Lawmaking is the process by which a policy solution is proposed, considered
in the legislature, and if passed, forwarded to the desk of the executive to be
signed or vetoed. If the bill is enacted into law, the policy will be implemented
and monitored until another change is made. Laws are adapted in response
to changes or problems that arise within our own society, which makes the
lawmaking process such an interesting and rich line of research. The legislative process by which decisions have been made at the federal and state level
has rarely changed over time; however, because decisions are made collectively, the context within each chamber alters the probability that a change in
the law will be a long-term solution or a simple fix.
The foundation of the lawmaking process in the United States emerges
from the legislative process, which will be the focus of our discussion in this
Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Stephen Kosslyn.
© 2015 John Wiley & Sons, Inc. ISBN 978-1-118-90077-2.

1

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

essay. However, as research questions become more complex, it is important
to test how the enforcement and interpretation of laws may have an effect
beyond simply legislation. This relates to the regulatory power of government agencies over specific industries through the use of administrative rules
(c.f. Bertelli, 2012; Carpenter, 2010; Lewis, 2010; Yackee & Yackee, 2010). Furthermore, how a court rules on a given case may set a precedent that extends
coverage of the enforcement of a statute (c.f. Bullock & Gaddie, 2009; Melnick, 1983). As administrative rules and court rulings increasingly become
tools to evade the longer legislative process, we have begun to see the executive and judicial branch increase their own autonomy and control over the
lawmaking process.
Our intent is to highlight research that has advanced the legislative subfield by identifying important trends and providing a general foundation of
how laws are developed in the United States. Specifically, we discuss those
political forces that influence the fate of legislation in the US Congress. Scholars have found that electoral considerations, polarization, timing within the
session, and supermajority thresholds contribute to this process in multiple ways. A comprehensive understanding of the lawmaking process provides scholars with the opportunity to better understand the interactions
between the legislature and executive, which already set defined boundaries
and observations to test theories that integrate multiple subfields within the
study of American politics.
FOUNDATIONAL RESEARCH
A discussion of how laws are made often begins with a simplified expectation
of how Congress initiates most standard legislation. The consistent process
by which Congress considered legislation, for most of the twentieth century,
provides examples of a straightforward and repeatable framework that can
easily be understood. The important actors in Congress could be identified
because of their significant authority at different stages throughout the process, such as party leaders and committee chairs. These positions are also a
reflection of a legislator’s membership in the majority party and seniority
within the chamber. Their power is reinforced by the institutional norms of
apprenticeship and specialization, which fostered reciprocity between lawmakers (Matthews, 1960).
This story is representative of an era characterized as the “Textbook
Congress” lasting from the 62nd Congress (1911–1913) to the 94th Congress
(1975–1977) (c.f. Rohde, 1991; Shepsle, 1989; Sinclair, 1997). This period was
initiated by a transfer of power from the Speaker to the larger chamber in
1910. The Speaker was removed from the Rules Committee, members of
Congress could now call for the discharge of a bill from the committee, and

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3

committee positions and chairmen became elected by the caucus (Brown,
1922; Hasbrouck, 1927). This change, popularly known as the Cannon
Revolt, diminished the influence of party leaders by decentralizing the
Speaker’s power over the caucus (Cooper & Brady, 1981). By abolishing the
hierarchical control the Speaker held over the legislative process, committee
chairmen became empowered to play larger roles within the chamber
(Polsby, 1968).
The institutionalization of Congress allowed more legislators in the House
to play an active role within their given sphere of influence. This was especially true for legislators with greater tenure, given that both parties abided
by the norm of seniority in the selection of a chairman for each committee
(Kingdon, 1989). Owing to the large number of committees in both chambers, many legislators were provided the opportunity to serve as a committee
chair, diluting legislative authority across both chambers. The Legislative
Reorganization Act of 1945 consolidated these dispersed policy jurisdictions
into fewer committees and reduced the number of committees by 29 in the
House and 18 in the Senate. This changed the lawmaking process by reducing
the number of committee chairs, but enhanced the authority of any remaining
chairs within each chamber by enhancing their gatekeeping power. However,
the growing ideological divide between northern and southern Democrats
threatened the party’s central role in policymaking because defections led
to the emergence of the Conservative Coalition as a voting bloc (Brady &
Bullock, 1980).
The Textbook Era ended in the mid-nineteen seventies (1973–1977), specifically as the House delegated more control to party leaders over the lawmaking process (Davidson, 1990). Through the Subcommittee Bill of Rights of
1973, House Democrats divorced the choice of subcommittee chairs from the
parent committee chairman, diluting the power of committee chairs without
reducing the power of party leaders.1 In addition, party leaders in 1974 were
given the tool of multiple referral, providing an alternative path to pass legislation by assigning sections of a bill to separate committees. The literature
focuses on these events as an important milestone in our study of congressional lawmaking and the beginning of the post-reform congress. As a result,
previous research emphasized the competition between committees and the
Speaker over which positions provided the greatest source of partisan control
in determining policy outcomes (c.f. Ornstein, 1975; Rohde, 1991).

1. The Democratic caucus decided that subcommittee chairs would be chosen by seniority on the
committee, subcommittee chairmen would receive their own budget and staff, and at the beginning of
each Congress committee chairs could be elected by a secret ballot if only 20% of the members requested
a secret vote (Rohde, 1991).

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

These changes reflect lawmakers’ understanding that a cohesive caucus
provides a strategic advantage for the majority to control the passage of legislation by delegating power to leaders. The elections of 1968 and 1974 generated substantial turnover by introducing junior Democratic members from
the northern states who were more likely to be liberal (Sinclair, 1981). This
member replacement contributed to greater party unity among Democrats,
generating new demands within the caucus to limit the powers of committee chairs. Moreover, the emerging polarization between the parties made the
opposition from the minority stronger, also increasing the demand for reform
within the majority party. The institutional changes in the US House of Representatives during the 1970s raised a number of questions about party success
in Congress, procedural choice, and the sharing of power between chambers
and the executive in the lawmaking process.
CUTTING-EDGE RESEARCH
New questions have emerged with respect to what influences the legislative
behavior of individual elected officials. As elected officials tasked with representing their constituencies, there is an expectation that legislators evaluate
the potential electoral consequences before any legislative activity. However,
the context of a decision can generate variation in how legislators participate within the chamber. Both approaches provide alternative explanations
of how laws are made by identifying the factors that contribute to a legislator’s preferred policy outcome.
The continued success of incumbent politicians in their quest for reelection has encouraged research in the relationship between legislative actions
and incumbent vote share. Incumbent politicians have multiple advantages
in how they can increase their popularity, which does impact the larger lawmaking process. Legislators have the opportunity to advertise their work,
claim credit for popular policies in the district, and influence the policy process in a way that clearly promotes the incumbent’s position on an issue (c.f.
Mayhew, 1974). However, the success of these strategies in representing constituents relies on the salience of the issue within the electorate. Therefore,
constituents are often thought of in two ways: interested constituencies, such
as interest groups and single-issue activists, and the mass public. By considering the behavior of the constituents we can recognize legislators’ attempt to
appeal to various voters in an effort to develop their reelection constituency
(c.f. Arnold, 1990). As representatives, legislators work to deliver on the campaign promises they made as a candidate to specific constituencies (Sulkin,
2011). Incumbents must balance their support for the preferences of their constituency and goals of their political party, because taking an unfavorable
position could result in electoral defeat (Canes-Wrone, Brady, & Cogan, 2002;

Lawmaking

5

Carson & Engstrom, 2005). Also, incumbents are punished by the electorate
in the following elections, when they vote as a loyal partisan on divisive and
salient votes, which may split the two parties (Carson, Koger, Lebo, & Young,
2010). By understanding the benefits and consequences of activities that are
the core foundation of the electoral connection, new cleavages that allow
researchers to better determine the relationships surrounding the lawmaking
process appear in the behaviors of politicians.
Partisan theories of lawmaking challenge the expectation that most decisions reflect the best outcome for the majority of the population under a
majority vote. In a setting without any restrictions, the selection of a policy
alternative should reflect the version that benefits the median legislator (c.f.
Black, 1948; Krehbiel, 1998; Weingast, 1989). However, by setting the agenda
and restricting what gets scheduled for a vote, the majority party is able to
control the policy alternatives presented to lawmakers. Thus, the Speaker
of the House, in coordination with the House Rules Committee, is able to
manipulate the choice of the median voter by issuing special rules with
the intention of biasing policy decisions in the majority’s favor (c.f. Cox &
McCubbins, 2005; Roberts, 2010). It is important to note that the majority
party is far more willing to give party leaders the power to determine policy
alternatives when parties are homogeneous, as well as distinct from one
another (c.f. Aldrich, 1995; Aldrich & Rohde, 2000). Furthermore, party
leaders in the US House also have powers of positive agenda control
to bring a bill to the floor out of order (c.f. Finocchiaro & Rohde, 2008).
The counterargument is that the preferences of individual legislators still
matter and constrain the success of the majority party (c.f. Krehbiel, 1998;
Schickler & Rich, 2003). For example, how much leaders restrict policy
alternatives to generate policy outcomes depends on the willingness of the
median legislator to support the party.
Recent studies have recognized that the party receives heightened loyalty
from its members on procedural votes, because a legislator’s vote may be
separate from their position on the underlying issue (c.f. Cox & Poole, 2002;
Jenkins, Crespin, & Carson, 2005; McCarty, Poole, & Rosenthal, 2006; Tiefer,
1989). The same relationship exists in the Senate, but results in a somewhat
different story (Lee, 2009; Theriault, 2008). The loyalty of fellow partisans on
procedural votes is vital to the Senate Majority party’s ability to efficiently
manage the chamber, given the absence of restrictive rules (Den Hartog &
Monroe, 2011). This hook has encouraged a more in-depth consideration of
the lawmaking process in the US Senate. Our current understanding of the
Senate as an institution is expanding beyond the importance of the filibuster,
which is one of the institution’s most unique processes (c.f. Binder & Smith,
1997; Koger, 2010; Madonna, 2011; Wawro & Schickler, 2006).

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

FUTURE RESEARCH
Previous research has used roll call votes or enactments as manageable
samples of legislative activity to compare trends across time, with the
justification that new laws affect society and allow for comparisons between
Congress and the executive branch. As a result, new research has emerged
on divided government and effective governance by passing landmark legislation (c.f. Clinton & Lapinski, 2006; Mayhew, 1991). Future research can
now look beyond what laws are passed, compared to the major legislation
considered, to understand the demand for certain policy changes. From
the opposition’s perspective, keeping a bill from being considered is just as
efficient as defeating a bill by an up-or-down vote. In addition, by collecting
more data about how a bill is amended, researchers can estimate how much
a proposed bill changes through the lawmaking process as other legislators
contribute to the final version (c.f. Carson, Madonna, Owens, & Sievert,
2012; Gelman, Lynch, Madonna, & Owens, 2012).
When studying individual legislative behavior, non-roll-call-based measures such as bill sponsorship and bill cosponsorship have been analyzed to
observe an incumbent’s supportive position of the legislation (c.f. Schiller,
1995, 2006; Meinke, 2008). However, a legislator’s specific issue position
cannot be easily matched, given multiple sections within a bill, if we
expect interested constituencies to have particularized policy demands.
One way to increase the number of observations where a legislator offers
an observed position on the floor is to consider amendment sponsorship.
Each amendment can be viewed as an individual reaction by the chamber
to the bill under consideration (c.f. Carson, Madonna, & Owens, 2013;
Crespin, Rohde, & Vander Wielen, 2011; Den Hartog & Monroe, 2011; King,
Orlando, & Rohde, 2012b). As information about the day-to-day activities
of politics becomes readily available to voters, there is the opportunity for
incumbents to benefit electorally from their floor activity (Sulkin, 2011;
Carson, Madonna, Owens, & Sievert, 2012).
Roll call votes are still valuable given they record a common binary choice
that can measure a legislator’s position on an issue relative to others in the
chamber. One advantage of studying the lawmaking process is the wealth of
information that allows for scientific comparisons of how each actor within
an institution behaves in relation to the same vote. Two examples of research
that incorporates this comparison are NOMINATE and IDEAL, which provide measures of the probability a legislator is liberal or conservative on two
dimensions (c.f. Poole & Rosenthal, 1997; Clinton, Jackman, & Rivers, 2004).
With these measures of legislator ideologies, researchers can better measure
trends in aggregate and individual legislator behaviors, especially the effects
of polarization. Moreover, because of the high frequency in which votes are

Lawmaking

7

taken, these estimates are stable across relevant congresses, which assist in
comparing how institutional contexts have evolved.
Analyzing the lawmaking process allows researchers to better understand
the relevant interactions when institutions bargain with one another. This
may even help in identifying the cause of a contentious signing statement or
an executive order. In addition, there is a well-defined opportunity to measure a legislator’s attempt to craft a position or earn credit for addressing an
issue concerning their constituents. Another reason to consider legislative
activity beyond bills enacted into law is the notion that “congressman seem
to have gotten into trouble by being on the wrong side in a roll call vote, but
who can think of one where a member got into trouble for being on the losing
side? (Mayhew, 1974, p. 118).” This potentially places a legislator’s responsibility to govern at odds with the goal of being reelected. The challenge with
evaluating the lawmaking process is determining the scope of one’s sample and the time-consuming nature of coding data using detailed resources
such as the Congressional Record. After that, the well-bounded constraints and
steps within the lawmaking process allow for future research to contribute to
our understanding of what influences policy compromise or gridlock. In the
event that the high transaction costs of lawmaking create gridlock, short-term
policy changes can be instituted efficiently when the president acts unilaterally (c.f. Howell, 2003).
By comprehensively studying lawmaking, researchers can generate
stronger inferences about the strategies and adaptive behavior of the
minority party (King, Orlando, & Rohde, 2012a; Krehbiel & Wiseman, 2012;
Smith, 2007, 2014). This also allows for predictions of the extent to which the
rules of the House narrow the appeal of a policy to the larger public, while
the Senate’s rules promote compromises that will broaden the appeal of a
proposal. Thus, the constitutional requirement that both chambers pass an
identical version of the bill serves as the mechanism that leads the bicameral
process to moderate the final policy outcome, compared to whether the
original proposal had been adopted. Moreover, it is the size of the majority
party coalition in the Senate that provides aids in the adoption of major
policy reforms (Carson, Madonna, & Lynch, 2011).
There is also much to be gained in applying new methods that use seminal theories from the past to draw inferences about the lawmaking process.
By continuing to add additional longitudinal data to test hypotheses within
the subfield, researchers have the opportunity to compare how the number
of bills or length a policy is considered may vary at different periods in time
and across issues. Recently, appropriation bills have been used because they
have fixed deadlines and are essential to the operation of the government (c.f.
Woon & Anderson, 2012). Also, dollar amounts allow studies to quantify the
degree policy proposals change throughout the lawmaking process (Fenno,

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

1966; Kiewiet & McCubbins, 1991). The increasing polarization in Washington from the early 1980s onward has coincided with the increasing political
salience of the national debt, which has affected how the government is able
to budget and appropriate funds. Perhaps a more important need in the subfield is an exogenous measure of the public’s demand for policy. One example
is how often an issue was mentioned in the editorial pages of the New York
Times, which allows for the observation of issues that were important to the
public but may not have been enacted into law (c.f. Binder, 2003). There is
great promise in any attempt to expand this measure, but it requires one to
determine the policy issues for which constituencies are willing to punish or
reward their representative’s position.
Historical data and cases allow studies to validate the generalizability of
lawmaking theories through America’s political development, by testing
whether conclusions are consistent under different institutional circumstances. We can observe the development of procedural reforms, as well
as the institutional precedents that foreshadowed how lawmakers are
able manipulate the policy process. Studying lawmaking can isolate the
importance of certain actors’ influence across multiple decision points. There
is also variation in electoral accountability of incumbents historically, such
as the institution of the direct election of senators or the more recent threats
of a challenge within the party’s primary (c.f. Jacobson, 2013; Meinke, 2008).
Furthermore, as the executive branch became more institutionalized over
time, there is the opportunity to study variation in congressional oversight
of the bureaucracy and president (Ragsdale & Theis, 1997).
The institutional reforms within the executive and legislative branch in the
past 40 years have provided new and alternative ways to pass legislation to
overcome institutional challenges that would continue to protect the status
quo. However, these reforms have not limited the previous precedents
within the institutions. New reforms have sought to address the challenge
at hand by balancing the goals of efficiency and deliberation, as well as
the electoral interests of the majority party (c.f. Binder, 1997, 2006; Dion,
1997; Valelly, 2009).2 This has provided a niche industry studying the effects
individual chamber-specific procedures have on policy outcomes or what is
considered on the floor. For instance, the motion to recommit is the vote to
send a proposal back to the committee; however, if it is recommitted with
instructions, the motion serves a similar purpose as an amendment and is
immediately voted on the floor (c.f. Krehbiel & Mierowitz, 2002; Roberts,
2005). The omnibus bill combines multiple individual bills into one proposal
to make the proposal more popular by tying the fate of multiple shared
benefits to one bill (c.f. Krutz, 2001). On the other hand, Senate-specific
2. The one exception in this instance would be in 1806, when the Senate removed the motion to proceed with the previous question (Binder & Smith, 1997; Smith, 1989).

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9

procedures such as the blue slip, when used strategically, can provide the
minority party with significant influence in blocking a nomination (c.f.
Binder, 2007; Binder & Maltzman, 2002; Black, Madonna, & Owens, 2011).
Another example is the motion to table, which is often used by the Senate
majority party to quickly dispose of minority-sponsored proposals (Carson,
Madonna, & Owens, 2012; Den Hartog & Monroe, 2011; King, Orlando, &
Rohde, 2012a; Marshall, Prins, & Rohde, 1997; Smith, Ostrander, & Pope,
2013). In addition, leaders have utilized other unorthodox procedures to
forgo the committee system by bringing controversial bills directly to the
floor, or skipping the subcommittee stage in recent years.
Given the repeated and stable interactions in the lawmaking process, there
are always opportunities for new questions about how particular decisions
can impact laws to build from the theoretical foundations that have been set
forth by scholars of the House, Senate, and the Presidency. Lawmaking is a
complex process and the scope of a research question may bias the expected
influence of each institution, if all are not considered together. The conclusions drawn from one chamber, such as the House of Representatives, are
indeed instructive of the legislative behavior at that stage. However, one
should be cautious before inferring that any bias introduced by the House
majority party will endure following debate in the Senate, or be found within
the bill as it is signed into law. Therefore, future research on bicameralism and
the interactions between the President and Congress are opportunities for
new research to examine which legislation is likely to become law by building from these current emerging trends.
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Aldrich, J. H., & Rohde, D. W. (2000). The republican revolution and the house appropriations committee. The Journal of Politics, 62(1), 1–33.
Arnold, R. D. (1990). Logic of congressional action. New Haven, CT: Yale University
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Bertelli, A. M. (2012). The political economy of public sector governance. New York, NY:
Cambridge University Press.
Binder, S. A. (1997). Minority rights and majority rule: Partisanship and the development
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Carson, J. L., Madonna, A. J., & Owens, M. E. (2013). Partisan efficiency in an
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Carson, J. L., Madonna, A. J., Owens, M., & Sievert, J. A. (2012). Building a record:
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party unity voting: An assessment of agenda effects. Party Politics, 18(6), 1–26.

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Davidson, R. H. (1990). The advent of the modern congress: The legislative reorganization act of 1946. Legislative Studies Quarterly, 15(3), 357–373.
Den Hartog, C., & Monroe, N. (2011). Agenda setting in the US senate: Costly consideration and majority party advantage. New York, NY: Cambridge University Press.
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Kiewiet, D. R., & McCubbins, M. D. (1991). The logic of delegation. Chicago, IL: University of Chicago Press.
King, A., Orlando, F. J., & Rohde, D. W. (2012a). Beyond motions to table: Exploring
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King, A., Orlando, F. J., & Rohde, D. W. (2012b). Between introduction and passage:
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Mayhew, D. R. (1991). Divided we govern. New Haven, CT: Yale University Press.
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appropriations. Legislative Studies Quarterly, 37(4), 409–436.

JAMIE L. CARSON SHORT BIOGRAPHY
Jamie L. Carson is an Professor of Political Science at the University of
Georgia. He received his PhD from Michigan State University in 2003 where
he was a fellow in the Political Institutions and Public Choice Program. His
primary research interests are in American politics and political institutions,
with an emphasis on congressional politics and elections, American political
development, and separation of powers. His research has appeared in journals such as the American Political Science Review, American Journal of Political
Science, Journal of Politics, Legislative Studies Quarterly, Political Analysis, and
Political Research Quarterly. His new book, Ambition, Competition, and Electoral
Reform: The Politics of Congressional Elections Across Time, coauthored with
Jason Roberts at the University of North Carolina at Chapel Hill, is available
from the University of Michigan Press.

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

MARK E. OWENS SHORT BIOGRAPHY
Mark E. Owens is a Visiting Assistant Professor of Politics at Bates College.
In 2014, he received his Ph.D from the University of Georgia. His research is
broadly related to American politics, with specific interests in political institutions, bicameralism, and how historical changes in political institutions
have altered the lawmaking process. Earlier in his life, he was also a staffer
for two former US Representatives.
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Lawmaking
JAMIE L. CARSON and MARK E. OWENS

Abstract
The goal of this essay is to present foundational and cutting-edge research that has
influenced how researchers study the lawmaking process within American politics.
By assessing the most influential research on legislative politics to date, we are able
to highlight the research that is moving the discipline forward. Specifically, we focus
not only on the outcomes produced by the lawmaking process but also the institutional influences that shape what ultimately becomes law. Our discussion outlines
how institutional rules and procedural context are important considerations in determining how legislative chambers and the executive interact to govern and create new
laws. This is especially important as the polarization among the public and political
elites continues to grow and reflects fluctuations in party divisions during the past
century. These changes in the political context of each institution have created challenges in the lawmaking process, necessitating new and unorthodox procedures to
deal with these difficulties as they arise. We also provide guidance in discussing new
questions, which have not yet been fully addressed by scholars to date, as well as
where to look for new sources of data that will help researchers begin to find answers
to those questions. We believe that expanding upon existing research agendas will
provide greater opportunities to learn more about the important role of both chambers and the executive in designing and implementing legislation.

INTRODUCTION
Lawmaking is the process by which a policy solution is proposed, considered
in the legislature, and if passed, forwarded to the desk of the executive to be
signed or vetoed. If the bill is enacted into law, the policy will be implemented
and monitored until another change is made. Laws are adapted in response
to changes or problems that arise within our own society, which makes the
lawmaking process such an interesting and rich line of research. The legislative process by which decisions have been made at the federal and state level
has rarely changed over time; however, because decisions are made collectively, the context within each chamber alters the probability that a change in
the law will be a long-term solution or a simple fix.
The foundation of the lawmaking process in the United States emerges
from the legislative process, which will be the focus of our discussion in this
Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Stephen Kosslyn.
© 2015 John Wiley & Sons, Inc. ISBN 978-1-118-90077-2.

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

essay. However, as research questions become more complex, it is important
to test how the enforcement and interpretation of laws may have an effect
beyond simply legislation. This relates to the regulatory power of government agencies over specific industries through the use of administrative rules
(c.f. Bertelli, 2012; Carpenter, 2010; Lewis, 2010; Yackee & Yackee, 2010). Furthermore, how a court rules on a given case may set a precedent that extends
coverage of the enforcement of a statute (c.f. Bullock & Gaddie, 2009; Melnick, 1983). As administrative rules and court rulings increasingly become
tools to evade the longer legislative process, we have begun to see the executive and judicial branch increase their own autonomy and control over the
lawmaking process.
Our intent is to highlight research that has advanced the legislative subfield by identifying important trends and providing a general foundation of
how laws are developed in the United States. Specifically, we discuss those
political forces that influence the fate of legislation in the US Congress. Scholars have found that electoral considerations, polarization, timing within the
session, and supermajority thresholds contribute to this process in multiple ways. A comprehensive understanding of the lawmaking process provides scholars with the opportunity to better understand the interactions
between the legislature and executive, which already set defined boundaries
and observations to test theories that integrate multiple subfields within the
study of American politics.
FOUNDATIONAL RESEARCH
A discussion of how laws are made often begins with a simplified expectation
of how Congress initiates most standard legislation. The consistent process
by which Congress considered legislation, for most of the twentieth century,
provides examples of a straightforward and repeatable framework that can
easily be understood. The important actors in Congress could be identified
because of their significant authority at different stages throughout the process, such as party leaders and committee chairs. These positions are also a
reflection of a legislator’s membership in the majority party and seniority
within the chamber. Their power is reinforced by the institutional norms of
apprenticeship and specialization, which fostered reciprocity between lawmakers (Matthews, 1960).
This story is representative of an era characterized as the “Textbook
Congress” lasting from the 62nd Congress (1911–1913) to the 94th Congress
(1975–1977) (c.f. Rohde, 1991; Shepsle, 1989; Sinclair, 1997). This period was
initiated by a transfer of power from the Speaker to the larger chamber in
1910. The Speaker was removed from the Rules Committee, members of
Congress could now call for the discharge of a bill from the committee, and

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3

committee positions and chairmen became elected by the caucus (Brown,
1922; Hasbrouck, 1927). This change, popularly known as the Cannon
Revolt, diminished the influence of party leaders by decentralizing the
Speaker’s power over the caucus (Cooper & Brady, 1981). By abolishing the
hierarchical control the Speaker held over the legislative process, committee
chairmen became empowered to play larger roles within the chamber
(Polsby, 1968).
The institutionalization of Congress allowed more legislators in the House
to play an active role within their given sphere of influence. This was especially true for legislators with greater tenure, given that both parties abided
by the norm of seniority in the selection of a chairman for each committee
(Kingdon, 1989). Owing to the large number of committees in both chambers, many legislators were provided the opportunity to serve as a committee
chair, diluting legislative authority across both chambers. The Legislative
Reorganization Act of 1945 consolidated these dispersed policy jurisdictions
into fewer committees and reduced the number of committees by 29 in the
House and 18 in the Senate. This changed the lawmaking process by reducing
the number of committee chairs, but enhanced the authority of any remaining
chairs within each chamber by enhancing their gatekeeping power. However,
the growing ideological divide between northern and southern Democrats
threatened the party’s central role in policymaking because defections led
to the emergence of the Conservative Coalition as a voting bloc (Brady &
Bullock, 1980).
The Textbook Era ended in the mid-nineteen seventies (1973–1977), specifically as the House delegated more control to party leaders over the lawmaking process (Davidson, 1990). Through the Subcommittee Bill of Rights of
1973, House Democrats divorced the choice of subcommittee chairs from the
parent committee chairman, diluting the power of committee chairs without
reducing the power of party leaders.1 In addition, party leaders in 1974 were
given the tool of multiple referral, providing an alternative path to pass legislation by assigning sections of a bill to separate committees. The literature
focuses on these events as an important milestone in our study of congressional lawmaking and the beginning of the post-reform congress. As a result,
previous research emphasized the competition between committees and the
Speaker over which positions provided the greatest source of partisan control
in determining policy outcomes (c.f. Ornstein, 1975; Rohde, 1991).

1. The Democratic caucus decided that subcommittee chairs would be chosen by seniority on the
committee, subcommittee chairmen would receive their own budget and staff, and at the beginning of
each Congress committee chairs could be elected by a secret ballot if only 20% of the members requested
a secret vote (Rohde, 1991).

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

These changes reflect lawmakers’ understanding that a cohesive caucus
provides a strategic advantage for the majority to control the passage of legislation by delegating power to leaders. The elections of 1968 and 1974 generated substantial turnover by introducing junior Democratic members from
the northern states who were more likely to be liberal (Sinclair, 1981). This
member replacement contributed to greater party unity among Democrats,
generating new demands within the caucus to limit the powers of committee chairs. Moreover, the emerging polarization between the parties made the
opposition from the minority stronger, also increasing the demand for reform
within the majority party. The institutional changes in the US House of Representatives during the 1970s raised a number of questions about party success
in Congress, procedural choice, and the sharing of power between chambers
and the executive in the lawmaking process.
CUTTING-EDGE RESEARCH
New questions have emerged with respect to what influences the legislative
behavior of individual elected officials. As elected officials tasked with representing their constituencies, there is an expectation that legislators evaluate
the potential electoral consequences before any legislative activity. However,
the context of a decision can generate variation in how legislators participate within the chamber. Both approaches provide alternative explanations
of how laws are made by identifying the factors that contribute to a legislator’s preferred policy outcome.
The continued success of incumbent politicians in their quest for reelection has encouraged research in the relationship between legislative actions
and incumbent vote share. Incumbent politicians have multiple advantages
in how they can increase their popularity, which does impact the larger lawmaking process. Legislators have the opportunity to advertise their work,
claim credit for popular policies in the district, and influence the policy process in a way that clearly promotes the incumbent’s position on an issue (c.f.
Mayhew, 1974). However, the success of these strategies in representing constituents relies on the salience of the issue within the electorate. Therefore,
constituents are often thought of in two ways: interested constituencies, such
as interest groups and single-issue activists, and the mass public. By considering the behavior of the constituents we can recognize legislators’ attempt to
appeal to various voters in an effort to develop their reelection constituency
(c.f. Arnold, 1990). As representatives, legislators work to deliver on the campaign promises they made as a candidate to specific constituencies (Sulkin,
2011). Incumbents must balance their support for the preferences of their constituency and goals of their political party, because taking an unfavorable
position could result in electoral defeat (Canes-Wrone, Brady, & Cogan, 2002;

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Carson & Engstrom, 2005). Also, incumbents are punished by the electorate
in the following elections, when they vote as a loyal partisan on divisive and
salient votes, which may split the two parties (Carson, Koger, Lebo, & Young,
2010). By understanding the benefits and consequences of activities that are
the core foundation of the electoral connection, new cleavages that allow
researchers to better determine the relationships surrounding the lawmaking
process appear in the behaviors of politicians.
Partisan theories of lawmaking challenge the expectation that most decisions reflect the best outcome for the majority of the population under a
majority vote. In a setting without any restrictions, the selection of a policy
alternative should reflect the version that benefits the median legislator (c.f.
Black, 1948; Krehbiel, 1998; Weingast, 1989). However, by setting the agenda
and restricting what gets scheduled for a vote, the majority party is able to
control the policy alternatives presented to lawmakers. Thus, the Speaker
of the House, in coordination with the House Rules Committee, is able to
manipulate the choice of the median voter by issuing special rules with
the intention of biasing policy decisions in the majority’s favor (c.f. Cox &
McCubbins, 2005; Roberts, 2010). It is important to note that the majority
party is far more willing to give party leaders the power to determine policy
alternatives when parties are homogeneous, as well as distinct from one
another (c.f. Aldrich, 1995; Aldrich & Rohde, 2000). Furthermore, party
leaders in the US House also have powers of positive agenda control
to bring a bill to the floor out of order (c.f. Finocchiaro & Rohde, 2008).
The counterargument is that the preferences of individual legislators still
matter and constrain the success of the majority party (c.f. Krehbiel, 1998;
Schickler & Rich, 2003). For example, how much leaders restrict policy
alternatives to generate policy outcomes depends on the willingness of the
median legislator to support the party.
Recent studies have recognized that the party receives heightened loyalty
from its members on procedural votes, because a legislator’s vote may be
separate from their position on the underlying issue (c.f. Cox & Poole, 2002;
Jenkins, Crespin, & Carson, 2005; McCarty, Poole, & Rosenthal, 2006; Tiefer,
1989). The same relationship exists in the Senate, but results in a somewhat
different story (Lee, 2009; Theriault, 2008). The loyalty of fellow partisans on
procedural votes is vital to the Senate Majority party’s ability to efficiently
manage the chamber, given the absence of restrictive rules (Den Hartog &
Monroe, 2011). This hook has encouraged a more in-depth consideration of
the lawmaking process in the US Senate. Our current understanding of the
Senate as an institution is expanding beyond the importance of the filibuster,
which is one of the institution’s most unique processes (c.f. Binder & Smith,
1997; Koger, 2010; Madonna, 2011; Wawro & Schickler, 2006).

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

FUTURE RESEARCH
Previous research has used roll call votes or enactments as manageable
samples of legislative activity to compare trends across time, with the
justification that new laws affect society and allow for comparisons between
Congress and the executive branch. As a result, new research has emerged
on divided government and effective governance by passing landmark legislation (c.f. Clinton & Lapinski, 2006; Mayhew, 1991). Future research can
now look beyond what laws are passed, compared to the major legislation
considered, to understand the demand for certain policy changes. From
the opposition’s perspective, keeping a bill from being considered is just as
efficient as defeating a bill by an up-or-down vote. In addition, by collecting
more data about how a bill is amended, researchers can estimate how much
a proposed bill changes through the lawmaking process as other legislators
contribute to the final version (c.f. Carson, Madonna, Owens, & Sievert,
2012; Gelman, Lynch, Madonna, & Owens, 2012).
When studying individual legislative behavior, non-roll-call-based measures such as bill sponsorship and bill cosponsorship have been analyzed to
observe an incumbent’s supportive position of the legislation (c.f. Schiller,
1995, 2006; Meinke, 2008). However, a legislator’s specific issue position
cannot be easily matched, given multiple sections within a bill, if we
expect interested constituencies to have particularized policy demands.
One way to increase the number of observations where a legislator offers
an observed position on the floor is to consider amendment sponsorship.
Each amendment can be viewed as an individual reaction by the chamber
to the bill under consideration (c.f. Carson, Madonna, & Owens, 2013;
Crespin, Rohde, & Vander Wielen, 2011; Den Hartog & Monroe, 2011; King,
Orlando, & Rohde, 2012b). As information about the day-to-day activities
of politics becomes readily available to voters, there is the opportunity for
incumbents to benefit electorally from their floor activity (Sulkin, 2011;
Carson, Madonna, Owens, & Sievert, 2012).
Roll call votes are still valuable given they record a common binary choice
that can measure a legislator’s position on an issue relative to others in the
chamber. One advantage of studying the lawmaking process is the wealth of
information that allows for scientific comparisons of how each actor within
an institution behaves in relation to the same vote. Two examples of research
that incorporates this comparison are NOMINATE and IDEAL, which provide measures of the probability a legislator is liberal or conservative on two
dimensions (c.f. Poole & Rosenthal, 1997; Clinton, Jackman, & Rivers, 2004).
With these measures of legislator ideologies, researchers can better measure
trends in aggregate and individual legislator behaviors, especially the effects
of polarization. Moreover, because of the high frequency in which votes are

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7

taken, these estimates are stable across relevant congresses, which assist in
comparing how institutional contexts have evolved.
Analyzing the lawmaking process allows researchers to better understand
the relevant interactions when institutions bargain with one another. This
may even help in identifying the cause of a contentious signing statement or
an executive order. In addition, there is a well-defined opportunity to measure a legislator’s attempt to craft a position or earn credit for addressing an
issue concerning their constituents. Another reason to consider legislative
activity beyond bills enacted into law is the notion that “congressman seem
to have gotten into trouble by being on the wrong side in a roll call vote, but
who can think of one where a member got into trouble for being on the losing
side? (Mayhew, 1974, p. 118).” This potentially places a legislator’s responsibility to govern at odds with the goal of being reelected. The challenge with
evaluating the lawmaking process is determining the scope of one’s sample and the time-consuming nature of coding data using detailed resources
such as the Congressional Record. After that, the well-bounded constraints and
steps within the lawmaking process allow for future research to contribute to
our understanding of what influences policy compromise or gridlock. In the
event that the high transaction costs of lawmaking create gridlock, short-term
policy changes can be instituted efficiently when the president acts unilaterally (c.f. Howell, 2003).
By comprehensively studying lawmaking, researchers can generate
stronger inferences about the strategies and adaptive behavior of the
minority party (King, Orlando, & Rohde, 2012a; Krehbiel & Wiseman, 2012;
Smith, 2007, 2014). This also allows for predictions of the extent to which the
rules of the House narrow the appeal of a policy to the larger public, while
the Senate’s rules promote compromises that will broaden the appeal of a
proposal. Thus, the constitutional requirement that both chambers pass an
identical version of the bill serves as the mechanism that leads the bicameral
process to moderate the final policy outcome, compared to whether the
original proposal had been adopted. Moreover, it is the size of the majority
party coalition in the Senate that provides aids in the adoption of major
policy reforms (Carson, Madonna, & Lynch, 2011).
There is also much to be gained in applying new methods that use seminal theories from the past to draw inferences about the lawmaking process.
By continuing to add additional longitudinal data to test hypotheses within
the subfield, researchers have the opportunity to compare how the number
of bills or length a policy is considered may vary at different periods in time
and across issues. Recently, appropriation bills have been used because they
have fixed deadlines and are essential to the operation of the government (c.f.
Woon & Anderson, 2012). Also, dollar amounts allow studies to quantify the
degree policy proposals change throughout the lawmaking process (Fenno,

8

EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

1966; Kiewiet & McCubbins, 1991). The increasing polarization in Washington from the early 1980s onward has coincided with the increasing political
salience of the national debt, which has affected how the government is able
to budget and appropriate funds. Perhaps a more important need in the subfield is an exogenous measure of the public’s demand for policy. One example
is how often an issue was mentioned in the editorial pages of the New York
Times, which allows for the observation of issues that were important to the
public but may not have been enacted into law (c.f. Binder, 2003). There is
great promise in any attempt to expand this measure, but it requires one to
determine the policy issues for which constituencies are willing to punish or
reward their representative’s position.
Historical data and cases allow studies to validate the generalizability of
lawmaking theories through America’s political development, by testing
whether conclusions are consistent under different institutional circumstances. We can observe the development of procedural reforms, as well
as the institutional precedents that foreshadowed how lawmakers are
able manipulate the policy process. Studying lawmaking can isolate the
importance of certain actors’ influence across multiple decision points. There
is also variation in electoral accountability of incumbents historically, such
as the institution of the direct election of senators or the more recent threats
of a challenge within the party’s primary (c.f. Jacobson, 2013; Meinke, 2008).
Furthermore, as the executive branch became more institutionalized over
time, there is the opportunity to study variation in congressional oversight
of the bureaucracy and president (Ragsdale & Theis, 1997).
The institutional reforms within the executive and legislative branch in the
past 40 years have provided new and alternative ways to pass legislation to
overcome institutional challenges that would continue to protect the status
quo. However, these reforms have not limited the previous precedents
within the institutions. New reforms have sought to address the challenge
at hand by balancing the goals of efficiency and deliberation, as well as
the electoral interests of the majority party (c.f. Binder, 1997, 2006; Dion,
1997; Valelly, 2009).2 This has provided a niche industry studying the effects
individual chamber-specific procedures have on policy outcomes or what is
considered on the floor. For instance, the motion to recommit is the vote to
send a proposal back to the committee; however, if it is recommitted with
instructions, the motion serves a similar purpose as an amendment and is
immediately voted on the floor (c.f. Krehbiel & Mierowitz, 2002; Roberts,
2005). The omnibus bill combines multiple individual bills into one proposal
to make the proposal more popular by tying the fate of multiple shared
benefits to one bill (c.f. Krutz, 2001). On the other hand, Senate-specific
2. The one exception in this instance would be in 1806, when the Senate removed the motion to proceed with the previous question (Binder & Smith, 1997; Smith, 1989).

Lawmaking

9

procedures such as the blue slip, when used strategically, can provide the
minority party with significant influence in blocking a nomination (c.f.
Binder, 2007; Binder & Maltzman, 2002; Black, Madonna, & Owens, 2011).
Another example is the motion to table, which is often used by the Senate
majority party to quickly dispose of minority-sponsored proposals (Carson,
Madonna, & Owens, 2012; Den Hartog & Monroe, 2011; King, Orlando, &
Rohde, 2012a; Marshall, Prins, & Rohde, 1997; Smith, Ostrander, & Pope,
2013). In addition, leaders have utilized other unorthodox procedures to
forgo the committee system by bringing controversial bills directly to the
floor, or skipping the subcommittee stage in recent years.
Given the repeated and stable interactions in the lawmaking process, there
are always opportunities for new questions about how particular decisions
can impact laws to build from the theoretical foundations that have been set
forth by scholars of the House, Senate, and the Presidency. Lawmaking is a
complex process and the scope of a research question may bias the expected
influence of each institution, if all are not considered together. The conclusions drawn from one chamber, such as the House of Representatives, are
indeed instructive of the legislative behavior at that stage. However, one
should be cautious before inferring that any bias introduced by the House
majority party will endure following debate in the Senate, or be found within
the bill as it is signed into law. Therefore, future research on bicameralism and
the interactions between the President and Congress are opportunities for
new research to examine which legislation is likely to become law by building from these current emerging trends.
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JAMIE L. CARSON SHORT BIOGRAPHY
Jamie L. Carson is an Professor of Political Science at the University of
Georgia. He received his PhD from Michigan State University in 2003 where
he was a fellow in the Political Institutions and Public Choice Program. His
primary research interests are in American politics and political institutions,
with an emphasis on congressional politics and elections, American political
development, and separation of powers. His research has appeared in journals such as the American Political Science Review, American Journal of Political
Science, Journal of Politics, Legislative Studies Quarterly, Political Analysis, and
Political Research Quarterly. His new book, Ambition, Competition, and Electoral
Reform: The Politics of Congressional Elections Across Time, coauthored with
Jason Roberts at the University of North Carolina at Chapel Hill, is available
from the University of Michigan Press.

14

EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

MARK E. OWENS SHORT BIOGRAPHY
Mark E. Owens is a Visiting Assistant Professor of Politics at Bates College.
In 2014, he received his Ph.D from the University of Georgia. His research is
broadly related to American politics, with specific interests in political institutions, bicameralism, and how historical changes in political institutions
have altered the lawmaking process. Earlier in his life, he was also a staffer
for two former US Representatives.
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