Fighting the Man: Changing Bad Laws in the American Legal System
By Joshua E. Rodgers (“Intern Josh”) and John M. Phillips
Laws are written by mere mortals and are approved and passed by the same. All laws are written with good intentions in the best interests of society as a whole. Unfortunately, good laws can later become bad. This can happen when an older law, that was passed decades ago, no longer applies to modern/current situations (e.g. intellectual property rights). Another way that good laws go bad is when an unforeseen flaw in the text of the law allows people to manipulate and take advantage of the law and use it to their sole benefit (e.g. Stand Your Ground). So, once that flaw is discovered, how does one go about changing the law? Turns out, it’s an incredibly complex process with many opportunities to fail.
The United States Constitution provides that, “Congress shall have power… to make all law which shall be necessary and proper;” each state has similar provisions under their own constitutions. Generally, a proposed change to a bad law (a Bill) can be introduced and passed through the House of Representatives (HOR), then through the Senate (SEN), and finally approved by the Governor or President. In actuality, however, there are multiple opportunities for a bill to fail. Clearly, it can be very discouraging for people to “fight the good fight” to change bad laws with all the bureaucratic obstacles that are presented to them. First, the bad law must be identified and a proposal to change the law must be drafted into a Bill. That, in itself, is a difficult process that often leads to a dead end for most efforts to change bad law. However, if a bill is successfully drafted, the ensuing process is exponentially more difficult. To better illustrate the complexities of changing bad laws, below is a breakdown of the steps needed to be taken, as well as the opportunities for the bill to fail (also: Lobbyists have several opportunities throughout this lengthy process to influence the decisions of voters of the Bill… another obstacle for justice). This is the process for Federal laws, but it is very similar to how State laws are changed; the only exception is that State usually have two bills that travel separately through the HOR and SEN concurrently.
Steps to change a bad law: (Federal laws)
1) The Bill is introduced to the HOR
2) The HOR assigns the bill into one of their many Committees, or Subcommittees
3) Committee has meetings to discuss the Bill
4) Committee conducts Public Hearings to collect information and testimony from opponents and supporters [Lobbyists] 5) Committee conducts Mark-Ups for edits and revisions to reflect information gathered from the Public Hearings [Failure: bill is tabled] 6) Committee conducts Final Reading and Votes on Bill [Failure: bill ends] 7) Committee files a Report that explains the purpose and justification for the Bill
8) The Bill is put on the Calendar for HOR
9) Committee of the Whole; At least 1/4 of the HOR opens the debate and the Bill is read
10) After debates, the Bill is read a second time along with significant proposed amendments to the Bill
11) Debate closes
12) Each of the proposed amendments of the Bill during the debate are voted on by the HOR [Failure: send back to committee] 13) House Vote [Failure: bill ends] 14) Bill moves to the Congressional Budget Office to confirm it adheres to spending and revenue constraints in the Budget. [Failure: sent back to the HOR] 15) Bill is introduced to the SEN
16) The SEN assigns the bill into one of their Committees
17) Committee has meetings to discuss the Bill
18) Committee conducts Public Hearings to collect information and testimony from opponents and supporters [Lobbyists] 19) Committee conducts Mark-Ups for edits and revisions to reflect information gathered from the Public Hearings [Failure: bill is tabled] 20) Committee conducts Final Reading and Votes on Bill [Failure: bill ends] 21) Committee files a Report that explains the purpose and justification for the Bill
22) The Bill is put on the Calendar for SEN
23) Bill is called up by a senator
24) Bill is debated including all the proposed amendments to the bill [Failure: filibuster or return to committee] 25) Debates end and SEN Chair conducts final reading of the Bill
26) The Bill is Voted on; due to filibusters, a super-majority of 60% is needed to pass [Failure: bill ends] 27) If the SEN has proposed amendments to the Bill, it is sent back to the HOR
28) The HOR can approve as amended, or assign to a Conference to negotiate changes [Failure: no compromise = bill ends] 29) The Conference submits a Report to both the HOR and SEN [Failure: either side could reject the report = bill ends] 30) Once the Bill is passed by SEN, through the HOR and Conference, there is a 2-day wait in which a senator could recommit the Bill [Failure: bill is tabled] 31) Finally, the Bill arrives at the office of the President (or Governor at the State level)
32) The President decides whether to approve or disapprove the Bill [Failure: rejected, but could still pass with a 2/3 majority vote in Congress (both HOR and SEN)]
As you can imagine, each of these steps involves some variant of a bureaucratic procedures, which complicates the process even further. Along with the Lobbyists and Filibusters, it is easy to see why poorly written laws, such as Stand Your Ground, remain in our Statutes for decades even when they are clearly bad law. It is up to the People to constantly push your State Representatives and Senators to change these bad laws. Our votes put these lawmakers in office and our voice as constituents are spoken through these representatives. Let our voices be heard!