Bar Journal - June 1, 2001
The New Hampshire General Court: A Legislative Primer
By: Attorney John D. MacIntosh
COMPOSITION AND BACKGROUND
The New Hampshire General Court is made up of two houses. The House of Representatives consists of four hundred (400) members, elected from 195 legislative districts. The Senate has twenty-four (24) members, elected from 24 single-member legislative districts. Senate seats are generally hotly contested races, whereas many members of the House run against little or no opposition. Members of both the House and Senate receive $200 for each two year session, with the exception of the Speaker of the House and President of the Senate who receive $250. There is substantial turnover in the General Court. In an average election year almost 25% of the House and Senate will consist of new members. At the present time, Republicans control both the House and the Senate. The Senate consists of 13 Republicans and 11 Democrats, while the Republican margin in the House is more than 2 to 1.
The New Hampshire General Court may be one of the few legislative forums in this country where lawyers are "under-represented". At the present time, there are fewer than 15 lawyer-members of the House and Senate. In the Senate, 2 of the 5 members of the Judiciary Committee are practicing lawyers, while in the House, 6 of 20 members of the Judiciary Committee are lawyers.
THE BEGINNING OF THE LEGISLATIVE PROCESS
The only persons who may submit legislative proposals are the 424 members of the General Court. Anyone who wishes to propose a new statute or change in law must find a sponsor in the House or Senate. This applies equally to citizens, heads of state agencies and to the Governor.
An idea for legislation must first be drafted into appropriate language and put into the form of a bill. This begins with a legislative services request (LSR). The requestor of the legislation must supply sufficient information to draft the bill at the time of filing of the LSR. One of the functions of the Office of Legislative Services (OLS), located on the first floor of the State House, is to help legislators draft bills. Once drafted, each bill must be approved and signed by the sponsoring legislator and any co-sponsors.
The Constitution requires that any bill which proposes new means of raising money (revenue) for the state must originate in the House. All other bills, resolutions and proposed constitutional amendments may originate in either the House or the Senate. The stateís fiscal note law requires that all bills affecting the finances of the state, county and/or municipal government must be accompanied by an estimate of the billís fiscal impact. The drafting attorney at OLS makes the initial determination of whether a bill needs a fiscal note and, if so, it is then forwarded to the Legislative Budget Assistant (LBA) to prepare the actual fiscal note statement which is attached to the bill. This is often done after input from the state department which may be affected by or has oversight for the legislation in question. The drafted bill is then given to the Clerk of the body of which the prime sponsor is a member and its number (e.g., HB 1, SB 1, CACR 1, etc.) and title ("An act relative to the regulation of the legal profession") are read. It is then referred to a particular committee by the Speaker of the House or Senate President. At the present time, there are 21 permanent or "standing" committees in the House and 18 in the Senate with jurisdiction over various subject matters. After referral to committee, the bill is printed and copies made available through the Sergeant-at-Arms office in the House (Room 318 in the State House). Any citizen may obtain a copy of any bill from this office. Copies of bills, calendars and other legislative information can be obtained through the stateís legislative website, www.gencourt.state.nh.us.
THE PUBLIC HEARING
The real work on a bill takes place in the legislative committee to which it is assigned. This begins with the public hearing. It is here where the public, lobbyists and other members of the General Court present their views on legislation, often offering amendments. Every bill introduced and referred to a committee must have a public hearing unless the rules are suspended by two-thirds of the members present in either the House or Senate. Public notice of hearings is published in the House or Senate calendar. All hearings are held in committee rooms located in either the Legislative Office Building or State House.
The chair of the committee to which a bill has been referred opens the public hearing by announcing the billís number, title and introducing the prime sponsor. Persons who wish to speak are asked to sign up with the committee clerk prior to the hearing. In the House this typically involves signing a "pink card" indicating who you represent, your position and how long you would like to speak. The Senate uses a sign-up sheet where you register your position (opposed or support) and whether you would like to speak to the bill itself. As a matter of courtesy, the chair will allow any member of the House or Senate to speak to the bill first before calling on the public. When called upon to testify, a person should address the chair and committee members, identify himself or herself and the interest he or she represents, and then proceed with his/her statement on the bill being heard. Written testimony is strongly encouraged because it creates a permanent record which non-attending members can read at a later date. It is generally wise to limit oneís remarks to no more than five minutes and address only the subject matter (bill) at hand. It is the duty of the chair to call to order any speaker who does not keep his or her remarks to the point. In order to avoid redundancy, the speaker should also tailor his or her remarks to points not already stated by previous speakers.
The purpose of the public hearing is to provide committee members with testimony and information relevant to a particular bill being heard, not to argue or inquire. Only committee members may ask questions of the persons testifying. Speakers may not ask questions of the committee members or of other members of the public who may have submitted testimony before. Once all those present at the hearing who wish to speak have spoken, the chairman declares the public hearing closed. In exceptional cases, a long or controversial hearing may be "suspended" to another day in order to permit further testimony.
One purpose of the public hearing is to cause legislators to see the bill from different perspectives. Legislators may wish to examine these perspectives more closely by conducting their own research and/or using staff in order to analyze different point of view. Committee staff is limited, however, and as a result research and written testimony from informed speakers is often welcome.
Sometime after the public hearing the committee holds an executive session where the bill is discussed and voted on. After the public hearing, but prior to the executive session, it is common for committee chairs to assign the bill to a "study committee" consisting of two or three members to analyze the bill in detail. The purpose of the study committee is to report back its findings to the entire legislative committee. Under the stateís right-to-know law, study committee meetings and executive sessions are open to the public and any citizen may attend as an observer. Following the executive session, the committee submits a "report" on the bill to the clerk. In the Senate the report would include one of the following recommendations: "ought to pass", "ought to pass as amended", "inexpedient to legislate", "re-refer to committee" or "refer to interim study" (re-refer to committee is a report in the first year of the session). In the House the report would include one of the following recommendations: "ought to pass", "ought to pass with amendment", "re-refer to committee", "inexpedient to legislate" or "refer to interim study". Re-refer to committee in the House is a committee report only in the first year of the session, while refer for interim study is used only in the second year of the session for the House and Senate. This year the House adopted a new rule which allows a committee to "retain" a bill for further study. It is essentially the same as having a bill "re-referred." In most cases, the House and Senate, voting as a whole, adopt the committee recommendations. It is somewhat unusual to see a committee report overturned on the floor of the House or Senate, but it does happen on occasion. This fact attests to the degree to which committees are respected for their subject-matter expertise and recognition that most of the legislatureís substantive work on a bill takes place in its committees.
One or more committee members who disagree with the majority view may submit a "minority report" for the purpose of putting their views in the permanent record. The "majority" and "minority" reports (or "blurbs" as they are called) are published in the House and Senate calendars prior to the vote on the floor. A minority report in the legislative calendar does not automatically mean there will be a floor fight on a particular bill. Legislators filing a minority report may simply wish to point out to the full House or Senate that there are substantive differences of opinion on a particular piece of legislation.
ACTION BY THE HOUSE OR SENATE
Bills may be acted upon after the committee report appears in the House or Senate Calendar which are published regularly during the legislative session. Amendments proposed by the committee which make changes to the bill are also printed in the calendar.
Action on a bill reported out by a committee is taken on the billís second reading, so once again the billís number and title are read to the full body. It is at this point where the floor debate is held and amendments may be offered. If the bill is passed, it is ordered to third reading, together with other bills that have reached the same stage, and the body votes to pass them all together.
A bill is considered killed when the body votes to adopt a committee report of "inexpedient to legislate" or when a motion from the floor to "indefinitely postpone" is adopted. A bill may also be "laid on the table." This often occurs when the proponents of a bill see that there are not enough votes to pass it at that time, but may be able to muster more support at a later date. A tabled bill may be "taken off the table" and voted on at any later session. It is not uncommon for controversial bills to remain on the table for months, and even to the last day of the session, before they are voted on. Motions to reconsider the recommendation adopted by the House or Senate may be made, but are limited by rules and are only rarely successful. Any bill killed in the first year of the session is not permitted to be considered in the second year of the session without the approval of a majority of the Rules Committee and two-thirds vote of the House.
After a bill has passed the body in which it originated, it is sent to the other body where it again goes through the process of reading, referral to committee, public hearing and report to the full body. The exception to this rule in the House and Senate are bills containing an appropriation. In the case of an appropriation, the bill is first referred to the Finance Committee in the House or Senate. An additional exception to this rule in the House is a bill addressing licensure and/or certification or a bill affecting criminal penalties. In the case of a bill in the House addressing licensure and/or certification, it is referred to the Executive Department and Administration Committee, or, if it involves criminal penalties, to the Criminal Justice and Public Safety Committee. The bill can be sent to these committees either directly or after a policy committee has studied the substance of the bill and reported it out as "ought to pass" or "ought to pass as amended." If the bill contains an appropriation, the House or Senate Finance Committee then studies the billís fiscal impact, holds a public hearing, and produces a committee report of its own.
To become a law, a bill must be passed in the same form by both the House and Senate before it is sent to the Governor. If a bill has been amended by the body where it did not originate, it is sent back to the originating body where the amended bill is voted on in one of three ways:
- The originating body may approve (concur with) amendments made by the other body, in which case the bill is sent to the Governor;
- It may disapprove (nonconcur with) changes made by the other body but express a willingness to seek compromise. In that case, it requests a committee of conference between the two bodies with the presiding officers of each body (the Speaker of the House and Senate President) then appointing members to a conference committee to iron out differences; or
- If the originating body does not concur with the other bodyís amendment and does not request a committee of conference, the bill dies.
Conference committee reports are presented in written form and distributed to members of both bodies. The chairman of a committee of conference must give notice of the time and the place of meeting one day in advance of such meeting to the House Clerk so that the meeting can be posted. Conference reports are then acted upon by both bodies by either accepting or rejecting the report.
When a bill passes both houses, it is sent to the Enrolled Bills Committee which uses OLS to examine the bills for problems, such as technical errors, clerical mistakes or formal imperfections (such as incorrect citations to laws). In case of any such errors, the committee reports the bill back to both houses with an enrolled bill amendment. If the bill passes muster, the committee issues an "enrolling report." Once the enrolling report is read in each house, the bill is forwarded to the Secretary of State who transmits it to the Governor. The bill may be recalled from the Governor anytime before he or she acts on it by a majority vote of whichever body last has possession. This is fairly rare.
THE GOVERNORíS ROLE
The Governor has five days to act on a bill. She may sign it into law, veto it, or do nothing. When the Legislature is in session, the Governor must act within five days (excluding Sundays and holidays) or the bill becomes law without her signature. When the Legislature is not in session, the Governorís failure to act has the opposite effect; that is, the bill dies. This is called a "pocket veto." If the Governor vetoes a bill, it returns to the body where it originated with a veto message explaining her action. The Legislature may overturn a veto and pass it into law without the Governorís approval with a two-thirds vote in each body of those present. The bill then becomes law without the Governorís signature. If there is less than a two-thirds vote in either house, the veto is upheld. It is very rare for a veto to be overturned in New Hampshire. Each bill states in its last paragraph when it goes into effect. Most bills go into effect sixty (60) days after passage or on January 1 of the following year. The one area where the Governor has no voting role is with proposed constitutional amendments (CACRs). A proposed constitutional amendment requires three-fifths approval of the entire membership of both the House and Senate. If it passes with these majorities, it goes directly to the voters on the ballot at the next general election. A constitutional amendment requires approval by two-thirds of those voting in the general election.
The author and editors thank the publishers of The Handbook of New Hampshire Elected Officials ("Blue Book") for their permission in reprinting this article, with minor additions and changes. The "Blue Book" is a valuable guide for anyone interested or involved in the state legislative process. It is published bi-annually and is available through Northeast Information Services, P. O. Box 842, Concord, New Hampshire 03301 Phone: (603) 880-5300.