If you've learned about things like Separation of Powers and Checks and Balances, you know the tried and true notion that Congress makes the laws, the executive branch enforces them, and the judicial branch interprets them. But would it surprise you to hear that's not how it goes most of the time?
Today we explore who really writes the majority of legislation in the US, and how it got to be that way. We talk with Dan Cassino of Fairleigh Dickinson University, who breaks down that first step of the legislative process.
Transcript
Schoolhouse Rock Archival: “When I started I was just an idea!”
Hannah McCarthy: Wait, wait, wait, wait. Nick, we already did this.
Nick Capodice: Yeah
Hannah McCarthy: We did “how a bill really becomes a law.” And I'm even putting a link to it in the show notes so that we can put the kibosh on the whole Schoolhouse Rock thing.
Nick Capodice: That's fair. That little hopeful 1970s animated scrap of paper has gotten a lot of airtime here on Civics 101. Fine. But [00:00:30] Hannah, I want to focus on that first step of the legislative process and just that first step. And to do it, I would like you to imagine a senator lying in bed, unable to sleep, tossing and turning all night.
Hannah McCarthy: What could be interrupting their slumber?
Nick Capodice: Well, over the weekend, the senator was in their home state and they went for a walk along the beach and they saw, to their abject horror, a flotilla of trash; bottles and [00:01:00] cans and plastic bags, carpeting the shore. And the vision of it haunts their sleep.
Hannah McCarthy: How awful. Something must be done.
Nick Capodice: Something must be done. Exactly. And just before dawn, inspiration strikes. The weary senator flies back to DC, takes out a pen, writes some words down, and silently hands it to the Senate clerk.
Hannah McCarthy: Sounds like a Frank Capra film.
Nick Capodice: And this bill goes through committee. It's voted on. Claude Rains shows up and [00:01:30] eventually it makes its way to the desk of the president to be signed into law. Our senator watching on with a tear in the eye.
Hannah McCarthy: It's a story that I would really love to watch on a cold night, you know, But it's not really how laws are written, is it not?
Nick Capodice: Not even remotely.
Hannah McCarthy: So how are they written?
Nick Capodice: Well, Hannah, hold on to your hat. You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today [00:02:00] we are talking about who actually writes the laws that govern our country.
Dan Cassino: So, Nick. Here's what I'd ask. Have you ever actually read a bill.
Nick Capodice: That is the voice of the person who is dandled me on his knee and explained government to me more than anyone else in my life; Dan Cassino, professor of government and politics at Fairleigh Dickinson University.
Hannah McCarthy: Well, have you, Nick, I mean, answer the man's question. Have you ever read a bill?
Nick Capodice: Well, I've tried. I mean, I've started to read a few, but honestly, whenever I've tried to, you know, look over [00:02:30] a substantive piece of federal legislation like an economic spending bill or whatever, I give up pretty quickly because they're often over a thousand pages. But to illustrate what a regular old everyday bill is like, Dan picked one for us to look at.
Dan Cassino: So let's take a look at a bill that I think has a pretty good chance of coming up. Was sponsored by Chuck Grassley. It's Senate bill right now. 223. It's a bill to amend the Controlled Substances Act and here's here's what the bill says. Section 1 or 2 of the Controlled Substances [00:03:00] Act. 21 USC 802 is amended number one by Redesignating, paragraph 58 as paragraph 59 two by Redesignating. The second paragraph designated paragraph 57 relating definitions here as drug felony as paragraph 58 three between paragraphs 5758 so as resized re-designated and 59 as so redesignated two m's to the left. Now, that is gibberish. That doesn't make any sense.
Hannah McCarthy: That is gibberish. What is this law even about?
Dan Cassino: So what it what it actually means is that there is [00:03:30] a technical problem with the way the paragraphs are set up. So there's there's a paragraph under what is a serious drug felony in the US code and there's supposed to be a bunch of subheadings like this is what a serious drug felony is, and one of the subheadings is off, but they have a section there about the indentation. It's not indented enough, so it's not clear if we say serious drug felony, if it includes this subsection below where it says serious drug felony, you're like, well, that's the wrong paragraph number. It's not indented. Is it supposed to be indented? So that's what that bill does. It changes the indentations and moves [00:04:00] around a paragraph.
Nick Capodice: That bill about paragraphs and indentation passed in the Senate on February 1st, 2023. And the question is, did Senator Chuck Grassley write it?
Dan Cassino: It is beyond the scope of my imagination to imagine that Senator Chuck Grassley of Iowa sat down and said, let me just write this down. I think we need 57, needs to be 58. He doesn't know this. And why should he? That's not his job.
Hannah McCarthy: But [00:04:30] isn't that his job? Isn't the main job of members of Congress to write these bills?
Nick Capodice: Sort of? The main job of members of Congress is to listen to their constituents, the people they represent. But when it comes to the writing of the bills that become laws, that's not always in their wheelhouse.
Dan Cassino: I mean, if you read a bill like read the actual it's like looking at source code for a computer program. You're like, Oh, yeah. I mean, in theory this means something, but you can't figure out what it is because it has to refer to every part of the federal code that interacts [00:05:00] with.
Nick Capodice: Have you ever done any computer programing Hannah?
Hannah McCarthy: I have not, but I'm going to guess you have.
Nick Capodice: Yeah.
Three, two, one CONTACT!
Nick Capodice: Just a tiny bit. I used to subscribe to 3-2-1 Contact magazine, and they'd have these pages of code for a computer game that I would type into my apple, see. And I was terrible at it. And it never worked because the lines of code reference, other lines of code. And if any one of them had any mistakes at all, the whole thing would collapse like a house of cards. And if we're talking about proposed [00:05:30] bills, every line has to work with the federal code.
Dan Cassino: If you see an ad for a lawyer, they've got all those books by them. That's the federal code, right? It's huge. It's voluminous. You don't know what's in there. You've never read it. No one has ever read it. You couldn't read it if you wanted to read it.
Nick Capodice: To put it in perspective, Hannah; the federal code is 220 times longer than the Lord of the Rings trilogy with nary a riddle or a boulder throwing tree in sight.
Hannah McCarthy: I will have no slights thrown against the Lord of the Rings today.
Nick Capodice: Fair enough.
Dan Cassino: So [00:06:00] how do you know how to write a law? Well, legislators often have an idea of what they want to put into a law. But even when they have an idea on their own or suggest to them by a constituent, they don't actually put that into law. So what they actually do is we have a staff in Congress of Ghostwriters for Laws. This is the Office of Legislative Counsels. And the Office of Legislative Counsels actually takes what the legislator says they want to do and puts it into a version of an actual passable law that can interact with all the other types of laws in there. And [00:06:30] this is important because if you just put a law in the middle of it, that's a bomb going off in the middle of federal code. It will probably interact with all these other parts of federal code. It won't make any sense.
Nick Capodice: As of right now, the Office of the Legislative Counsel, who helps members of Congress write laws that aren't spaghetti code, that don't screw up or other bazillion laws. This council has 76 full time staff, most of them attorneys, and they are as nonpartisan as you can get.
Dan Cassino: They are actually, for members of Congress. They are the most respected office. Members of Congress [00:07:00] love these guys. They are totally neutral.
Hannah McCarthy: Okay. So bills can be tough to write because they're intended to become laws. And laws are technical by necessity because they interact with thousands of other laws. So members of Congress write bills to benefit their constituents, and they do so with the help of the Office of the Legislative Counsel.
Nick Capodice: Ehhhhh
Hannah McCarthy: What?
Nick Capodice: Well, I mean. Yeah, that's what I thought. That's what I thought when I set out to make [00:07:30] this episode, I thought that because I knew my checks and balances that the legislative branch writes the laws, the executive branch enforces them and the judicial branch interprets them. But Dan, Dan laid a big one on me and I have been wrestling with it ever since He did.
Hannah McCarthy: Let me have it Capodice.
Dan Cassino: Congress doesn't write the majority of their own bills, even through the Office of Legislative Council's. Rather, about two thirds of the bills that pass through Congress are initially written and proposed [00:08:00] by the executive agencies themselves.
Hannah McCarthy: What?
Nick Capodice: I know.
Hannah McCarthy: You're telling me that the executive branch is responsible for writing two thirds of our laws.
Nick Capodice: That's what I'm saying. Executive agencies. There are 438 executive agencies and subagencies, and some are colossal, like the Department of Defense and some are not like the Marine Mammal Commission.
Hannah McCarthy: Okay, you got to walk me through this. Can you give me an example?
Dan Cassino: Sure. All right. So one of the big things we [00:08:30] have to worry about, Congress supposed to worry about is interstate transit. Right. In the Constitution, you have to have interstate transportation. So we've got a problem. The Mississippi River.
Nick Capodice: Climb in the old paddle steamer Hannah and shout Mark Twain, because we're measuring the depth of the mighty Mississippi.
Dan Cassino: Now I'm going to take a flat bottom boat down the Mississippi River. And the problem I've got is that because of flooding and because of different levels of water in the Mississippi River, we have to change how much tonnage I can put on my flat [00:09:00] bottom boat going down the Mississippi River. Now, there's gonna be an agency whose job it is to regulate this. And Congress says we have no idea what the tonnage per square foot of hull space can be on a flat bottomed boat going down the Mississippi River, depending on the seasons. Of course, we have no idea what that's supposed to be. We're going to have an agency.
Nick Capodice: Congress knows very little about this, but they're the ones who pass laws according to the Constitution. So it sets up an executive agency. I'm just going to call it the FBBA Flat Bottom Boats Agency. [00:09:30] The president appoints the head of that agency and then the agency hires a ton of nonpolitical professional river and boat tonnage savvy folk to run it. They write rules that have the force of law, and things seem like they're going fine.
Dan Cassino: But we got a problem. We got a problem because there's all these other boats on the Mississippi. They're crowding things and Congress goes the agency, Hey, what is going on with you guys? You're supposed to be regulating the Mississippi River, regulating these flat bottom boats. We're having accidents. We're having delays. What is going on? And the agency goes, We can't help you, [00:10:00] man. We're just regulating the tonnage. We're regulating the boats. I can't regulate these other things that are going on in the river. So Congress says, fine, we're going to write a new law that will help you figure this out. So Congress does its oversight. It it hears from the agency that it needs a new law and the agency is then going to help Congress write the law. Now, the Office of Legislative Counsels is going to do the actual ghost writing on the law, But the agencies have their lawyers as well, and no one knows what is in [00:10:30] the law covering the agencies better than the agencies themselves do. It's about expertise. Congress created these agencies in order to give them in order to give Congress expertise to handle these problems. Congress doesn't want to deal with. Congratulations. These agencies now have more expertise than Congress does.
Hannah McCarthy: Okay. I was surprised to hear that stat, that two thirds of laws are written by executive agencies and not Congress. But it does make a lot of sense, doesn't it? You want the people who actually know about something [00:11:00] to be the ones to write the laws. Was it always this way?
Nick Capodice: No, it wasn't. First off, 200 years ago. The federal government wouldn't get involved in things like flat bottom boats. And second, this idea that agencies should have professional staff and not political staff. That happened after a fateful morning in 1881.
Dan Cassino: This goes back to the assassination of James Garfield,
The murder of James Garfield...up On the scaffolf high... My [00:11:30] name is Charles Guiteau..
Hannah McCarthy: The assassination of James Garfield.
Nick Capodice: Yeah, well, before Charles Guiteau killed President Garfield, all the people in these agencies were hired at the whim of the president.
Dan Cassino: We have to understand in the mid 19th century, the first nine months to a year, all the president did was appoint people jobs. He had thousands of jobs to fill. And so anyone who helped him out during the election. They got a job. This was called the spoils system thanks to Andrew Jackson.
Nick Capodice: But the reason [00:12:00] Garfield was assassinated was that a man felt he was owed a job. And that man was Charles Guiteau.
Dan Cassino: Who thought because he wrote a speech that he thought had been used to help James Garfield, he should be secretary of state, but he would settle for ambassador to England. So he shot the president. The president eventually died and they reformed it.
Nick Capodice: So the VP, Chester Arthur becomes the new president and nobody wants this to happen again. So Arthur signs a bill that mandates that if someone wants to work in an agency, [00:12:30] they can't just be handed the job as a favor from the president. They need to prove they know what they're doing in the civil service.
Hannah McCarthy: Oh, is this where we get the civil service exam?
Speaker7: It is!
Looking for a job with the state is a little different than looking for a job with the private sector. About 80% of state jobs are filled by people who have taken civil service exams. The exam process is made up of just three main steps...
Nick Capodice: If you want to work in the post office for the TSA, for the FBI, for customs, [00:13:00] for myriad agencies, you've got to take a test to prove you have a base understanding of that agency and its operations.
Hannah McCarthy: Now, so far, this is all pretty logical. People who know stuff help Congress make laws, and only people who prove they know stuff can get a job at those agencies. It's all about information.
Nick Capodice: Well, Hannah, I'm glad you said that. If you were in a particularly cynical mood and I asked you what the prime motivator was [00:13:30] for all political action, what would you say?
Hannah McCarthy: Honestly?
Nick Capodice: Yes.
Hannah McCarthy: Money. Lobbying. Outside interest groups spending tons of cash to influence politicians and to get their way.
Nick Capodice: Yeah, and I would tend to agree with you, but Dan changed my mind on this a little bit. He told me it's not necessarily about money. It's just about information. And I'll tell you what he means by that right after this break.
Hannah McCarthy: But first, before we talk about information, [00:14:00] Nick and I have an awful lot of it that we like to share with our listeners, If you like trivial, deep dives into the fun histories that make us the way we are, you will like our free newsletter, extra credit. It comes out every two weeks and you never know what's going to be in it. Sign up at our website civics101podcast.org.
Hannah McCarthy: We're back. You're listening to Civics 101 and we are talking about who writes the bills that become laws in the United States. And Nick, before the break, you said that contrary to what many of us think, [00:14:30] it's not all about the money.
Nick Capodice: That's correct.
Dan Cassino: It's never about the money. What it's about is information.
Nick Capodice: Again, that's Dan Cassino, professor of government and politics at Fairleigh Dickinson University.
Dan Cassino: We often talk about this in terms of outside interest groups. And the thing we really worry about in political science is outside interest groups performing called legislative capture. That is a situation where the outside interest group has all the information and therefore can [00:15:00] tell Congress whatever they like. And Congress is going to wind up doing what the agency wants. People talk about this in terms of, oh, you know, the NRA gives money to Congress and that's what drives it. It's never about the money.
Nick Capodice: Legislative capture, as in these interest groups like the NRA, the ACLU, the Sierra Club, the Christian Coalition, they capture the legislative branch because they hold all the cards. They know everything.
Dan Cassino: If the NRA has better information about gun laws [00:15:30] than Congress does, then they wind up being able to manipulate Congress and get Congress to whoever they want. The same thing is true of AARP. AARP knows more about Social Security and Medicare and problems with those programs than Congress does. And because of that, they can then dictate to Congress, Hey, you guys need to do this. We worry about this in terms of interest groups. But what people miss out on is that the most powerful interest groups are not the NRA and the AARP. The most powerful interest groups are, in fact, federal agencies, federal agencies advocating for themselves, saying we need more authority [00:16:00] to do something when those agencies are trusted. Their expertise gets trusted. So they are going to wind up having very influential in what bills get put forward and even writing what those laws actually are.
Nick Capodice: And I want to make this crystal clear, Hannah, because it's something I think everyone has been through in some way or another in their lives. We've worked together a long time, right?
Hannah McCarthy: Yeah, I think maybe six years at this point.
Nick Capodice: And, you know, there have been times that I've been like this specific aspect of my job is very complicated. I can't really explain it all. Let me just [00:16:30] take care of it.
Hannah McCarthy: I do, though in some aspects I think we all do that. We all have a particular set of skills, right?
Nick Capodice: Skills I've acquired over a very long career.
Hannah McCarthy: And we kind of become experts at that one thing.
Nick Capodice: Yeah, we've become known at our organization as the go to person for that skill, and we're covetous of it sometimes because we continue to do things the way we like and people depend on that skill and they ask us to do that thing over and over again and it benefits us. And it's not just in our work lives. Like if [00:17:00] you're the best tank in your guild in World of Warcraft, you're going to get asked to tank a lot of raids and you get better loot because you do and better gear because you do, which means you're going to be even more in demand.
Hannah McCarthy: Is that the first World of Warcraft reference that we have used in this show?
Nick Capodice: I think it might be the first, but being the one who knows everything about a topic, be it in our jobs or in school or in Azeroth, is an enormous power.
Dan Cassino: And that's very problematic, right? Because we want members of Congress to be exercising independent judgment, [00:17:30] to be looking at these bills and saying what they really want. And we get this idea of legislative capture. That becomes a real problem because the members of Congress are not really looking at it themselves. They're just kind of saying, because this agency says they need it or this interest group says they need it.
Nick Capodice: And I'm going to bring this back to money. Now, Hannah, you know what an iron triangle is?
Hannah McCarthy: Absolutely. We have had teachers asking us to do an episode on iron triangles for years.
Nick Capodice: Do you want to break it down real quick?
Hannah McCarthy: Okay, I'll do my best. Three points in a triangle, you have an executive agency like the Department of Agriculture. [00:18:00] That is point one. They want to get farmers money because that's what they do. Point two is the Agriculture Committee in Congress who also want to get farmers money. And point three are special interest groups representing the farmers themselves who naturally want more money, who help elect members of Congress who pass bills giving farmers more money. And this triangle is iron because it's unbreakable.
Dan Cassino: Everyone's trying to get everyone more money. And so you just get out of control spending. That's [00:18:30] not the actual story here, because members of Congress are not really motivated by raising money. Hold on.
Hannah McCarthy: Hold on here. What does he mean, "Members of Congress aren't motivated by raising money?"
Dan Cassino: They don't care that much. Think about it. If I'm a member of Congress and I raise a bunch of money, what can I do with it? I can use it to run for reelection. Okay, that's good. But if I have a choice between doing something that's going to upset my constituents and doing something to raise [00:19:00] going to get me money, I'm going to avoid upsetting my constituents at all costs because the only thing I can do with that money is try and win back the constituents that I've just upset. So I'm not going to do something that upset my constituents. Oil companies don't give money to members of Congress to make them like oil companies. They give money to members of Congress who already like oil companies to try and make sure they stay in office. The money is not changing anyone's vote on anything. What matters is the information. So if I am a member of Congress, an oil company [00:19:30] comes to me or farmer, or the Department of Agriculture comes to me and says, Hey, we need you to do this. I know, oh, I trust those guys. If AARP comes to me and says, Hey, Social Security, we need this technical fix in Social Security, I go, Oh, cool. Well, you guys know about this, and I don't want AARP to put me on a list of people they want to get rid of. So therefore, I'm going to do what you say. Does it matter that AARP gives me gives me money? Not really.
Nick Capodice: When I did an episode on Citizens United, check it out. Dear listener, link in the show notes, et cetera, [00:20:00] the thing that surprised me the most was that in the grand scheme of things, corporations and special interest groups were not giving the staggering sums of money I had expected to political campaigns. It was mostly wealthy, very wealthy individuals.
Dan Cassino: The NRA has been fantastically successful for 50 years, despite actually giving very little in federal elections. They don't have to because people trust them. And that trust is what's so important.
Nick Capodice: Now, hold on. Just a quick [00:20:30] clarifier here, because I feel a few of our listeners might disagree with this; people out there who don't trust the NRA or the ACLU or AARP. It is not we, the public, who have to trust special interest groups or executive agencies. Dan's talking about members of Congress. And to use his example of the NRA, if you're a senator who wants to pass a pro gun bill, you might not even know where to start. The NRA is going to help you out. They're going to give [00:21:00] you rock solid data, legal advice, polling stats. They'll just take care of it for you.
Dan Cassino: The thing people worry about is, oh, what if these agencies what if these interest groups start lying to members of Congress saying there's a problem when there isn't really one? And that almost never happens? Because the thing these agencies have, the most important thing these agencies have is credibility. They go to members of Congress, say, hey, or more likely, their staff member, we need you to do this. This needs to happen. Here's our report on this. If they lose credibility and people stop believing what they say, [00:21:30] they've got no pull. They've got nothing. Okay, look, iron triangles are real, but they are not about money. They're about information. Number one. And number two, they're much more complicated than a triangle. It's not just three things. The version I've seen in politics is the iron sphere. Like it's a sphere. It's like a Dyson sphere. Because everyone is working together, but it's all about information flow. That's all it is. Like the money. People. This is what I hate when people say, Oh, but they give all this money. Like, yeah, the money is for access. [00:22:00] That's all the money is. The money is for access. So I can give you the report I wrote. Except in New Jersey, where it kind of is about money, but that's beside the point.
Nick Capodice: That’s who really writes the bills today on Civics 101, and don’t worry NJ I love you and so does Dan, he lives there. This episode was written and produced by me Nick Capodice with you Hannah McCarthy. Our staff includes Senior Producer Christina Phillips, Producer Jacqui Fulton, and Executive Producer Rebecca Lavoie. Music in this episode by Broke for Free, Kelly Harrell & The Virginia String Band who sang that traditional song about Charles Guitau, Eric Kilkenny, HoliznaCCO, Sarah the Illstrumentalist, Autohacker, Eden Avery, Margareta, SPring Gang, Kilokaz, Moore and Gardner, Scanglobe, Scott Gratton, the Green Orbs, and the executive agent in charge of music beds that move along briskly, Chris Zabriskie. There was NO music by Queen in this episode even though I feel Flat Bottom Boats make the rockin world go round. Civics 101 is a production of NHPR, New Hampshire Public Radio.
Nick Capodice: