Conference Committees: Procedures
How do conference committees work?
There are no formal rules governing conference committee procedures. Because they are intended to be flexible negotiating sessions to iron out differences between House and Senate versions of a bill, conferences may adopt any rules they wish - or none at all. Each conference has a different "climate" depending on the politics and the personalities involved in the particular issue on the table. Some conferences trade proposals in structured debate with formal votes on each one, while others engage in free-form discussions culminating in someone stating a consensus proposition and putting the idea to a straw vote.
Conference Committee Procedures
Congress can send the President only one bill for enactment into law. The House and Senate therefore need to reconcile the differences between their two versions through negotiation, and then formally agree to one final version to send forward.
The influence of the President is strong during conference committee negotiations: conferees want to avoid a veto of the final bill. The White House becomes part of the negotiations behind the scenes.
Conference committees are a tremendously important stage of the legislative process because they become the final opportunity to take existing language out of a bill, or put new language in. Conference reports cannot be amended on the House or Senate floor. The full body can only vote them up or down. So, whatever the conferees do to the language is the final word.
Conference reports consist of two documents: the final compromise version of the bill and the Statement of Managers, explaining their decisions (e.g. “the House receded from its position on Title II, the Senate concurred in the House language on Title V, etc.”)
Conference committees are temporary panels. They are convened for the purposes of settling differences on a single bill and then are dissolved when the work they produce – the final version of a particular bill – has been debated by the full House and Senate and adopted or rejected. The final compromise text they produce, known as the conference report, must be adopted by a majority vote in both chambers before it can be sent to the President. The President’s options are: to sign the bill into law, veto it, or allow it to become law without his signature [if the Congress is still in session. It is considered “pocket-vetoed” if the Congress is out of session.]
How Conferees Are Chosen
Conference committees are made up of House and Senate Members known informally as "conferees," and formally as “managers.”
House conferees are chosen by the chairs of the committee[s] going to conference, but the Speaker does the final appointing, so there is room to appeal to the Speaker if a committee chairman decides to leave someone out. Speakers have, at times, granted Members “limited conferee” status. Limited conferees can be at the negotiating table for parts of the bill that directly concern them, but not for the entire measure.
Senate conferees are also chosen by the committee chairs – the President pro tem formally appoints them, but it is a purely symbolic authority. The leaders play no role in conferee selection, and there is no appealing a chairman’s choice of which Senators he/she wishes to take to conference. However, Senate committee chairs tend to bend over backwards to include those that wish to be appointed. This is because the Senate’s rules give individual Senators lots of opportunities for “procedural payback,” should they be disappointed.
Given the obvious size difference between the chambers, the House always has more conferees than the Senate. However, each chamber's delegation has only a single vote. So, the two delegations have equal weight at the table, regardless of their respective sizes. The head of the House delegation can take a straw poll or a head count, or gather the opinion of his team any way he/she wants, but the House can only vote “yes” or “no” as a unit on any proposal on the table. The same is true of the Senate delegation.
When negotiations are completed, and a final text has been produced, a majority of the House delegation, and a majority of the Senate delegation, must sign the conference report to connote their approval. Not all conferees have to be in agreement. If a majority of the conferees from each chamber have signed the measure, it can then be brought forward for debate on the House and Senate floor.
Rules And Restrictions On Conferees
At least one open meeting is required to finalize the conference version of a bill. This one meeting may be strictly pro forma or be a substantive negotiation. Informal meetings among the staff and Members pre-conferencing issues through an exchange of emails or phone calls can settle many issues before the formal get together. These off stage negotiations can occur with all, or just some, of the conferees.
House and Senate rules restrain the negotiating room conferees technically have through a rule defining the “Scope of Differences.” The common understanding of this principle is that conferees can forge a compromise based on the House bill language, the Senate bill language, or something in between. The “Scope of Differences,” in theory, doesn’t permit introducing brand new concepts not already in either the House or Senate bill.
However, violations of the “Scope of Differences” are common. The momentum for passage at this very last stage of the process is so strong that bringing down an entire conference report on a point of order for any technical reason is unlikely. House Members can count on their leadership getting waivers from the House Rules Committee to prevent points of order from being offered during floor consideration by the full House. Senate conferees will seek the Majority Leader’s help in getting a unanimous consent agreement covering the conference report that stipulates there will be no points of order once the conference report hits the Senate floor.
Debating And Amending A Conference Report
The House and Senate must both consider the final conference report and both must adopt it by a majority vote before this final version of the legislation can be sent to the President.
The House and Senate have different rules of procedure that govern debating a conference report. In the Senate, debate time on a conference report is unlimited, so Senators potentially can filibuster a conference report.
House Members always debate a conference report under time restrictions, usually a rule from the House Rules Committee. So a vote on final passage of the report is guaranteed. Debate rarely exceeds one hour.
Therefore, as a matter of strategy, conference reports go to the House first 99% of the time for debate and passage. Passage by the House builds momentum toward final enactment, putting pressure on the Senate to avoid a filibuster and hold a vote on final passage.
A conference report cannot be amended in either body. It’s a take it or leave it vote on final adoption.
Amendments Between The Houses – The Ping Pong Game
The rules of the House and Senate permit an alternative to holding a conference.
The process is known as “Amendments between the Houses.” It is done by trading motions back and forth: motions to concur in the language of the other body, motions to concur with amendments to the language of the other body, or motions to recede from the original language of that chamber, and concur with or without amendments to the language of the other.
This volley of motions goes back and forth until reconciliation of all differences is achieved. The ping pong game is so complicated it puts effective control over the issue back into the hands of the respective committees of jurisdiction and the majority party leadership. The average Member doesn’t even try to keep up.
The advantage of “Amendments between the Houses” from the committee leadership’s perspective is that it generates no requirement to produce a time-consuming paper trail; it is speedier than the conference committee process; and control over the process reverts to the party and committee leadership, and out of the public eye.
The disadvantage of this process for the public is precisely that there is no access to witness the negotiating process, minimal floor debate to clarify the issues, and no paper trail, and therefore no legislative history for the courts or federal agencies, who may be need clarification of legislative intent in the future.