Conference Committees: In Decline
A big deal was made about having a House-Senate conference for the Dodd-Frank Financial Sector Reform bill. Why? Aren't conferences routine?
We are seeing fewer and fewer conference committees because, in a very disturbing trend, congressional leaders have avoided having them when major legislation is involved! The fact that there was an conference committee formed to resolve the House-Senate differences on the financial sector reform bill was indeed a rarity.
A Troubling Trend: Fewer Conferences
In the current Congress, significant and important measures such as the new health care reform law, the TARP bailout bill, the foreclosure crisis bill, a redo of the FISA electronic surveillance bill, and a huge omnibus continuing appropriations resolution were all processed without a conference. In 1987-88 (the 100th Congress) there were 66 conference committees. Twenty years later, in 2007-2008 (the 110th Congress), there were only 17 conference - a reduction of 75%!
Conference committees are temporary panels of House and Senate negotiators whose purpose is to reconcile the differences between the final House and Senate versions of a bill. The conference stage is often the most significant phase of the legislative process because those negotiations produce the final text of the bill that will likely become law.
It is deeply troubling that congressional leaders would deny media and public access to this most important stage of the legislative process.
Consequences of Fewer Conferences
There are several troubling consequences that arise from this trend of holding fewer conferences.
First, there is less access and transparency in the legislative process. The press is not allowed in, which means the public is not kept informed of the trade-offs being made.
Second, the chance to uncover real pitfalls in the bill that can occur in a true negotiating session, or to enhance the legislation through a true exchange of expertise and ideas, are lost if there is only limited and private negotiating taking place.
Third, conference reports cannot be amended when they’re debated on the House and the Senate floor. They have to be adopted or rejected as is. This means the average Member has no ability to impact the process if there are no openly scheduled conference negotiating sessions, only unannounced private ones.
Finally, it means most Members will be voting on the hearsay of others of what is in the bill. Without a conference, there is no paper trail – no conference report with explanations, comparisons, and statements for Members to study before they vote. And no conference report means no important legislative history for the courts that might hear cases based on the law in the future, or for federal agencies that must draft regulations for the implementation of the law in the short term.
Less reliance on conference committees in open session to produce the final text of a bill cedes virtually total control over the content of the legislation to the majority party leaders and back to the leaders of the committee[s] of jurisdiction. The rank and file Members – many of them your representative or mine – are totally shut out of the process.
Access and Transparency
Even when an official conference is held – as in the case of the mammoth economic stimulus bill in 2009 – it’s only to ratify the deal struck in private by a handful of leading lawmakers.
House and Senate rules require conference committees to be open to the public and press. Yet total openness would mean Members must negotiate a compromise in the presence of the media, lobbyists, and others. They may not ever admit so publicly, but they find it difficult to trade off specific provisions in order to gain a consensus on the overall bill, when the proponents of those provisions might be right there, watching them intently.
As a result, conferees do much of their work "off-stage,” consulting each other in private. Also "staff conferences" are sometimes held in advance of the public sessions with agreements worked out among the staff for the Members to ratify in the open session. All the tough decisions have already been made when they finally meet in public.
Aside from political reasons, conferences are sometimes closed when issues of national security are involved. Conferees must decide by a public vote in open session to close that session to the press and public. [House conferees must get permission from the full House first.]
Only about 20% of all public laws are enacted after a conference committee negotiation. The remaining 80% are done through another process called “amendments between the houses,” or, thanks to informal off-stage agreements reached in private, because one house simply accepted a version of the other chamber’s bill without any changes.