Welcome to the 20th installment of “Considered Forthwith.”
This weekly series looks at the various committees in the House and the Senate. Committees are the workshops of our democracy. This is where bills are considered, revised, and occasionally advance for consideration by the House and Senate. Most committees also have the authority to exercise oversight of related executive branch agencies.
This week’s entry is a little different than usual. With Congress out of session until Sept. 8, there is not much going on in the standing committees. When they do get back, there will be a ton of work to get done, not the least of which will be a health care reform bill and a climate change bill. There are also 13 appropriations bills to handle. Everyone of these will certainly end up in a conference committee. This seems an opportune time to discuss that process.
Under Article I Section 7 of the Constitution, a bill must pass both the House and Senate with the exact same wording before it may be sent to the president for final approval. Since the members of both houses have their own prerogatives and the ability to amend bills, usually only the most routine bills (like naming post offices) go unamended. One notable exception was the additional appropriation of funds to the Cash for Clunkers program.
On less complicated and/or controversial bills, the houses will often “ping-pong” the legislation, giving each the chance to just accept the other chamber’s amendments and finally pass the bill. This is essentially what happened with Cash for Clunkers. The added wrinkle was that the House was out of session for more than a month while the Senate debated the bill. Had the Senate even changed a comma, the House would not be back pass the updated version and the program would have died for want of money. In fact, this is what the Republicans tried to do, but failed.
Going to conference
When the “ping-pong” method fails or is obviously not feasible, the two houses pass resolutions request a conference with the other. Could these resolutions be voted down or filibustered? It’s conceivable. However, if a bill has garnered enough support to pass both chambers, there is no reason to believe that a resolution to go to conference would fail to gain the same support.
For what it’s worth, this item either flew under the radar or we have forgotten about it, but President Obama is planning to let the health care reform battle play itself out in Senate. Then he is planning to get involved more directly during the conference process. The president has no formal role in the process, but it is an opportunity to do some arm-twisting, dealing, and bullying from the pulpit.
Without a doubt, this is the key part of the conference committee process. The people who negotiate the final product will obviously bring their own biases to the bargaining table. For this reason, it is vital to pick conference committee members who will likely return a bill that the majority party leadership will find acceptable.
According to the rules of the House (pdf), the Speaker selects the members of the committee:
11. The Speaker shall appoint all select, joint, and conference committees ordered by the House. At any time after an original appointment, the Speaker may remove Members, Delegates, or the Resident Commissioner from, or appoint additional Members, Delegates, or the Resident Commissioner to, a select or conference committee. In appointing Members, Delegates, or the Resident Commissioner to conference committees, the Speaker shall appoint no less than a majority who generally supported the House position as determined by the Speaker, shall name those who are primarily responsible for the legislation, and shall, to the fullest extent feasible, include the principal proponents of the major provisions of the bill or resolution passed or adopted by the House.
Similarly, the power to appoint conferees from the Senate falls to the presiding officer. These appointments are subject to a debatable (and thus subject to a Senate filibuster) resolution, so it is important to select committee members who will be acceptable to a majority of the chamber. Just like standing committees, members of the minority parties are included in the conference committee, but this is not always particularly important since the minority can be frozen out of the substantive part of negotiations. See more discussion below.
In actual practice, though, the chairs and ranking members of the relevant standing committees usually have the inside track on appointment to the conference committee. Additionally, the parties’ leaderships are heavily involved in the process on major bills. This means that the final vote on the conferees is often not controversial, but the behind-the-scenes process may be highly contentious. That said, the Democrats when they were in the minority, did sometimes attempt to filibuster these resolutions when they felt excluded from conference committees.,
For the health care reform bill, that means the Democrats will almost certainly appoint Max Baucus, Chris Dodd, Henry Waxman, George Miller and Charlie Rangel (presumably among others) to the conference committee on whatever bills emerge.
There is no upper or lower limit to the number of members that each chamber may appoint to a conference committee. Indeed, committees that deal with large omnibus bills are often huge and split into subcommittees to work are various sections of the bill under consideration. The 1981 Omnibus Reconciliation Act set a record with 250 members working on different parts of the bill in conference. (No link, but noted in Congress and Its Members by Davidson, Oleszek, and Lee on page 268.)
During this process, the houses may also pass resolutions expressing what they would like to see ultimately emerge. The conferees are not formally bound to such resolutions, but there is always the possibility that the full body will vote down the final conference report (i.e. the final bill).
Conference committees are, for all intents and purposes, a forum for negotiations. Ultimately, they must report out a bill that both chambers will find acceptable and pass. This requires a simple majority of committee members to vote for passage. Like regular standing committees, there are always more majority party members than minority party members, meaning a united group of Democratic Senators and Representatives can report out a Democratic bill that will likely pass both chambers and be signed into law. Keep in mind that the conference committee is intended to be a negotiation between the House and Senate, not between Democrats and Republicans.
It is important to remember that there is a time limit on debate on conference committee reports in the Senate. Therefore, it is not subject to a filibuster. Additionally, amendments are not allow as this would pretty much defeat the point of having a conference committee. If either chamber fails to pass the final bill, it dies.
Another important point is that the conference committee cannot add new material, nor can it remove anything that is included in both versions. Using the example of Cap-and-Trade and the climate change bill:
1. If Cap and Trade is not included in either bill sent in from the two chambers, it cannot be inserted into the final bill.
2. If it is in both in identical form, the program could not be touched by the conference committee, but other provisions of the bill are up for negotiations.
3. If it is in both bills, but in different forms, the program stays, but the terms can be negotiated.
4. If it is in one bill but not the other, the program could be cut entirely, included as is, or included in a modified form.
This is why it is important to pass bills with favored policies (like a public option, for example) in at least one of the chambers and to appoint conferees who will fight for those policies. This is also the reason why it is not necessarily the worst possible situation if the House passes a public option, but the Senate does not as Orrin Hatch threatened today.
Davidson, Oleszak and Lee note (page 206) that there are four basic types of negotiations formats used in conference committees. Note that this process might take days or weeks and include multiple meetings.
Traditional: The conferees all come together and hash out the differences in the bill in a familiar negotiating format until they reach a compromise on all of differences in the bills.
Offer-counter offer: Often used for tax measures, this is a format favored in union-management negotiations. One side will make an offer. The other side will retire to consider the offer and come back with their own counter offer. Eventually, a final compromise report will emerge.
Subcommittee: As noted above, omnibus bills are usually too large for a committee to tackle wholesale. On bills like this, the committee may divide itself up into subcommittees and negotiate the various conflicting provisions piecemeal. After all of the subcommittees are done, the final bill is assembled and voted upon. This, of course, illustrates the basic problem with “must pass” omnibus bills. Even the members on the conference committee don’t know what all is included in the bill.
Pro-forma: The conference committee must meet initially for an opening session and meet to vote on final approval. Beyond that, there are no requirements for actually holding formal negotiating sessions. When they were in the majority, Congressional Republicans were particularly fond of conducting negotiations among themselves in private, calling a meeting of the committee, and voting as a bloc on the report/bill that they had previously hammered out. Democrats, feeling they had been frozen out of negotiations, retaliated by sometimes filibustering and otherwise delaying the naming of conference committee members on subsequent conference committee resolutions.
When the Democrats took over in 2007, the leadership pledged to both open the process and legitimately include Republicans in the process. Health care reform and climate change will be some of the first major bills on which the Democrats can live up to these promises. With the veto crayon wielding George W. Bush in the White House and only bare majorities in Congress the Dems in the 110th Congress did not have the opportunity to push for major legislation like these measures before now.
Openness and power
Even with the Democrats new openness rules, there are no guarantees that the public will be able to see anything other than the opening session and final vote on C-Span or streaming on line when the conference committees start to meet this fall. Even if we do see some actual bargaining, it is not only possible, but probable, that the actual Democratic proposals will be worked out ahead of time. Considering the commitment to obstruction path on which the GOP seems set, there really seems little reason to include them in the process anyway.
There has been some criticism of the conference committee system for putting too much power into a largely unaccountable group of Senators and Representatives. Others point out that these members are simply acting on behalf of the leadership of their respective chambers and not significantly changing policy. I tend to side with the latter view, but I do think the process should be more open. At any rate, if you are following health care reform and/or climate change, be sure to keep up with the conference committee appointments.
For more about other committees, check out my previous work:
Senate and House Budget Committees
Senate Energy and Natural Resources Committee
Senate and House Armed Services Committees
Small Business Committees
Senate Environment and Public Works Committee
House Select Committee on Energy Independence and Global Warming
The Committee Primer
House Education and Labor Committee
Senate Finance Committee
Senate HELP Committee
Senate Judiciary Committee
House Energy and Commerce Committee
House Ways and Means Committee
House and Senate Appropriations Committees
House Intelligence Committee
House Judiciary Committee
House and Senate Ethics Committees
House Science and Technology Committee
House Financial Services Committee
House Rules Committee
The Role of Committees