Resolving Legislative Differences in Congress: Conference Committees and Amendments Between Houses
Resolving Legislative Differences in Congress:
Conference Committees and Amendments
Between the Houses
Updated November 26, 2008
Analyst on the Congress and Legislative Process
Government and Finance Division
Resolving Legislative Differences in Congress:
Conference Committees and Amendments
Between the Houses
The Constitution requires that the House and Senate approve the same bill or
joint resolution in precisely the same form before it is presented to the President for
his approval or veto. To this end, both houses must pass the same measure and then
attempt to reach agreement about its provisions.
The House and Senate may be able to reach agreement by an exchange of
amendments between the houses. Each house has one opportunity to amend the
amendments from the other house, so there can be Senate amendments to House
amendments to Senate amendments to a House bill. House amendments to Senate
bills or amendments are privileged for consideration on the Senate floor; Senate
amendments to House bills or amendments generally are not privileged for
consideration on the House floor. In practice, the House often disposes of
amendments between the houses under the terms of a special rule reported by the
Rules Committee. The Senate sometimes disposes of House amendments by
unanimous consent, but the procedures associated with the exchange of amendments
can become complicated.
Alternatively, the House and Senate can disagree to each other’s positions on
a bill and then agree to create a conference committee to propose a package
settlement of all their disagreements. Most conferees are drawn from the standing
committees that had considered the bill initially. The House or Senate may vote to
instruct its conferees before they are appointed, but such instructions are not binding.
Conferees generally are free to negotiate in whatever ways they choose, but
eventually their agreement must be approved by a majority of the House conferees
and a majority of the Senate conferees. The conferees are expected to address only
the matters on which the House and Senate have disagreed. They also are expected
to resolve each disagreement within the scope of the differences between the House
and Senate positions. If the conferees cannot reach agreement on an amendment, or
if their agreement exceeds their authority, they may report that amendment as an
amendment in true or technical disagreement.
On the House and Senate floors, conference reports are privileged and
debatable, but they are not amendable. The Senate has a procedure to strike out
portions of the conference agreement that are considered, under Senate rules, to be
“out of scope material” or “new directed spending provisions.” The House also has
a special procedure for voting to reject conference report provisions that would not
have been germane to the bill in the House. After agreeing to a conference report,
the House or Senate can dispose of any remaining amendments in disagreement. Only
when the House and Senate have reached agreement on all provisions of the bill can
it be enrolled for presentation to the President.
In troduction ......................................................1
The Need for Resolution............................................2
Selection of the Measure............................................2
Two Methods of Resolution..........................................6
Amendments Between the Houses.....................................7
Consideration of Senate Amendments by the House.......................8
Consideration of House Amendments by the Senate......................10
The Informal Alternative to Conference...............................12
The Stage of Disagreement.........................................13
Arranging for a Conference.........................................14
Selection of Conferees.............................................15
Restrictions on the Authority of Conferees.............................18
Conference Procedures and Reports..................................22
Floor Consideration of Conference Reports............................26
Amendments in True Disagreement..................................30
Amendments in Technical Disagreement..............................34
House Consideration of Nongermane Senate Amendments................37
Resolving Legislative Differences in
Congress: Conference Committees and
Amendments Between the Houses
The process of resolving the legislative differences that arise between the House
of Representatives and the Senate is one of the most critical stages of the legislative
process. It is also potentially one of the most complicated. Each chamber continues
to be governed by its own rules, precedents, and practices; but at this stage, each
house also must take into account the preferences and, to some extent, the procedures
of the other.
This report1 summarizes the procedures the two houses of Congress use most
frequently to resolve their legislative differences. It is based upon an interpretation
of the rules and published precedents of the House and Senate, and an analysis of the
application of these rules and precedents in recent practice. It bears emphasizing that
this report is not exhaustive nor is it in any way an official statement of House or
Senate procedures. It may serve as a useful introduction or general guide, but it
should not be considered an adequate substitute for a study of House and Senate rules
and precedents themselves, or for consultations with the parliamentarians of the
House and Senate on the meaning and possible application of the rules and
Readers may wish to study the provisions of the rules — especially House Rule
XXII — and examine the applicable precedents as explained in House Practice: A
Guide to the Rules, Precedents, and Procedures of the House, especially pp. 307-342
(on “Conferences Between the Houses”) and pp. 813-839 (on “Senate Bills;
Amendments Between the Houses”), and in Riddick’s Senate Procedure (Senate
Document No. 101-28), especially pp. 126-143 (on “Amendments Between Houses”)
and pp. 449-493 (on “Conferences and Conference Reports”).
1 This report was written by Stanley Bach, formerly a Senior Specialist in the Legislative
Process at CRS. Dr. Bach has retired, but the listed author updated the report and is
available to answer questions concerning conference committees and amendments between
The Need for Resolution
Before Congress can submit a bill or joint resolution to the President for his
approval or disapproval, the Senate and the House of Representatives must agree on
each and every provision of that measure.2
It is not enough for both houses to pass versions of the same measure that are
comparable in purpose but that differ in certain technical or even minor details; the
House and Senate must agree on identical legislative language. Nor is it enough for
the two chambers to approve separate bills with exactly the same text; the House and
Senate both must pass the same bill. In sum, both chambers of Congress must pass3
precisely the same measure in precisely the same form before it can become law.
Each of these requirements — agreement on the identity of the measure (e.g.,
H.R. 1 or S. 1), and agreement on the text of that measure — is considered in turn in
the following sections of this report.
Selection of the Measure
Because both chambers must pass the same measure before it can become law,
at some point during the legislative process the House must act on a Senate bill or the
Senate must act on a House bill. Congress usually meets this requirement without
difficulty or controversy. In some cases, however, selecting the measure may require
some parliamentary ingenuity and can have policy and political consequences.
After either house debates and passes a measure, it sends (or “messages”) that
bill to the other chamber. If the second house passes the first house’s bill without any
amendments, the legislative process is completed: both houses have passed the same
measure in the same form.4 If the second house passes the bill with one or more
amendments, both chambers have acted on the same measure; now they must resolve
the differences between their respective versions of the text if the measure is to
2 Each house may interpret the same legislative language differently; these differences
sometimes emerge from a comparison of House and Senate committee reports and floor
debates. Deliberate ambiguity in the language of legislation can be used to promote
agreement between the two chambers.
3 This requirement also applies to joint resolutions proposing constitutional amendments and
to concurrent resolutions, even though neither are sent to the White House for the
President’s signature or veto. House and Senate resolutions, on the other hand, do not
require action by “the other body.” Throughout this report, the terms “bill” and “measure”
are used interchangeably to refer to all bills and resolutions on which House and Senate
differences are to be resolved.
4 In this report, terms such as “first chamber” and “second house” are used to refer only to
the order in which the House and Senate complete initial floor action on a measure.
In most cases, either the House or the Senate can be the first chamber to act.
However, the Constitution requires that all revenue measures originate in the House,
and the House traditionally has insisted that this prerogative extends to
appropriations as well as tax measures.5 Thus, the House normally acts first on such
a measure, and, consequently, it is a House-numbered bill or joint resolution that
Congress ultimately presents to the President for enacting appropriations or tax laws.
In some cases, the proponents of a measure may decide that one house or the
other should act first. For example, a bill’s supporters may first press for floor action
in the chamber where they think the measure enjoys greater support. They may hope
that success in one house may generate political momentum that will help the
measure overcome the greater opposition they expect in the second chamber.
Alternatively, one house may defer floor action on a bill unless and until it is passed
by the other, where the measure is expected to encounter stiff opposition. The House
leadership, for example, may decide that it is pointless for the House to invest
considerable time, and for Representatives to cast possibly unnecessary and
politically difficult votes, on a controversial bill until after an expected Senate
filibuster on a comparable Senate bill has been avoided or overcome.
As these considerations imply, major legislative proposals frequently are
introduced in both houses — either identical companion bills or bills that address the
same subject in rather different ways. If so, the appropriate subcommittees and
committees of the House and Senate may consider and report their own measures on
the same subject at roughly the same time. Thus, when one house passes and sends
a bill to the other, the second chamber may have its own bill on the same subject that
has been (or is soon to be) reported from committee and available for floor
consideration. In such cases, the second chamber often acts initially on its own bill,
rather than the bill received from the other house.6
This is particularly likely to happen when the committee of the second house
reports a bill that differs significantly in approach from the measure passed by the
first chamber. The text selected for floor consideration generally sets the frame of
reference within which debate occurs and amendments are proposed. In most cases,
the House or Senate modifies, but does not wholly replace, the legislative approach
embodied in the bill it considers. It is usually advantageous, therefore, for a
committee to press for floor consideration of its approach, rather than the approach
proposed by the other house.
5 From time to time, Senate committees and even the Senate as a whole may take some
action on a Senate appropriations or tax measure. However, on the infrequent occasions
when the Senate has passed such a bill and sent it to the House, the House often has returned
it to the Senate on the ground that the bill infringed on the House’s constitutional
prerogatives, as interpreted by the House. The resolutions that the House has adopted for
this purpose often are called “blue slip” resolutions.
6 This may occur for strategic or institutional as well as procedural reasons, as when the
House refuses to consider a Senate bill that the House finds to be in violation of its
constitutional prerogative to originate revenue measures. Also, the two houses may prefer
to retain the House or Senate bill number if one is more familiar than the other to the bills’
supporters outside of Congress.
In large part for this reason, the House (or the Senate) often acts on its own bill
even though it has already received the other chamber’s bill on the same subject.
Under these circumstances, however, it would not be constructive for the House to
pass its bill and then send it to the Senate. If the House were to do so, then each
chamber would have in its possession a bill passed by the other, but both chambers
would not yet have acted on the same measure. To avoid this potential problem, the
second house often acts initially on its own bill, and then it also acts on the other
chamber’s bill on the same subject. The usual practices of the House and Senate for
doing so differ slightly.
The House customarily debates, amends, and passes the House bill and,
immediately thereafter, takes up the counterpart Senate bill. The floor manager then
moves to “strike out all after the enacting clause” of the Senate bill (the opening lines
of every bill — “Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled”) and replace the stricken text with
the full text of the House bill as just passed. The House often agrees by unanimous
consent to consider the Senate bill and approves the House substitute routinely. The
Senate bill, as amended, then is passed by voice vote or without objection, and the
House lays its own bill on the table (which disposes of it adversely).
In some cases, the special rule under which a House bill is considered also
includes provisions for such action on the Senate bill. For instance, a special rule
After the passage of H.R. 1, it shall be in order to take from the Speaker’s table
the bill S. l and to move to strike out all after the enacting clause of the said
Senate bill and insert in lieu thereof the provisions contained in H.R. 1 as passed
by the House.
In this way, the House actually passes two bills on the same subject and with
identical provisions, but it is the Senate bill (which both chambers now have passed)
that is the subject of further action.
The Senate acts in a comparable fashion, although it usually does not pass its
own bill. Instead, the Senate debates and amends its bill, and agrees to third reading
and engrossment of the bill, as amended.7 The Senate then takes up the House bill
by unanimous consent, strikes out all after the enacting clause, inserts the amended
text of the Senate bill, and passes the House bill, as it has been amended by the
Senate’s amendment in the nature of a substitute. The Senate bill that was debated
and amended is never actually passed; after passing the House bill, the Senate
indefinitely postpones further proceedings on its own bill.
If the first house’s bill has been referred to committee in the second chamber
and is still there, it is first necessary to discharge the committee from further
consideration of the bill. This also is normally accomplished routinely, either by
unanimous consent or, in the House, pursuant to the provisions of a special rule. To
7 Third reading and engrossment is a technical and noncontroversial stage in both houses
that marks the conclusion of the amending process and precedes the vote on final passage.
avoid the need for this action, the Speaker often leaves a Senate bill on “the
Speaker’s table,” instead of referring it to the appropriate House committee, if there
is reason to expect that the House will soon act on a companion House bill.
Similarly, a House bill may be taken up on the Senate floor without first being
referred to committee when a companion Senate bill has been reported from
committee and is on the Senate’s legislative calendar.
By these devices, the House and Senate arrange to act on the same bill, even if
they have passed that measure with fundamentally different texts. In most cases,
these arrangements are noncontroversial and routine. Under some circumstances,
however, complications and difficulties can arise.
The House operates under a rule which requires that all amendments must be
germane to the measure being considered; the Senate does not.8 Unless the Senate
imposes a germaneness requirement on itself by unanimous consent (which it often
does), most measures are subject to whatever nongermane floor amendments
Senators wish to offer. Consequently, the Senate may select a House bill on one
subject as a convenient “vehicle” and amend it to include provisions on other,
unrelated subjects. Sometimes the use of unrelated legislative vehicles is accepted
by both the House and the Senate as a useful, or even necessary, device to cope with
different political and parliamentary conditions prevailing in the two chambers.
Although such situations are relatively unusual, problems sometimes arise that make
neutral vehicles useful for resolving them.
During the 95th Congress, for example, President Carter submitted a massive
proposal for major new national energy legislation. The Democratic leadership of
the House chose to consider the President’s entire program in a single bill, and
eventually the House passed H.R. 8444. In the Senate, on the other hand, the
Democratic majority leadership concluded that an omnibus bill would inspire a
filibuster that probably could not be broken; consequently, the Senate debated and
amended five separate bills that collectively dealt with the same subjects as H.R.
A dilemma now arose. If the Senate passed its five bills and sent them to the
House, the House would face different bills on different aspects of the President’s
program, which was precisely the situation the House had sought to avoid by
consolidating the various proposals in H.R. 8444. Yet if the Senate attempted to pass
the House bill, the feared filibuster was likely to develop. To resolve the dilemma,
the Senate selected four neutral vehicles: minor House bills that had been awaiting
Senate action. To each of these bills the Senate added the texts of one or more of its
energy bills as well as provisions of the single House bill (H.R. 8444). It was on
these bills that the House and Senate eventually resolved their differences over
national energy legislation, even though the four bills originally had been for the
relief of Jack R. Misner and Joe Cortina, and to suspend import duties on competition
bobsleds and luges for the Lake Placid Winter Olympic Games and on certain doxo-
rubicin hydrochloride antibiotics. In this instance, then, selecting the measure was
8 Senate rules require floor amendments to be germane only when offered to general
appropriations bills or budget measures, or after the Senate has invoked cloture.
complicated by the differing situations in the two houses, and was arranged through
the use of four unrelated vehicles.9
Resorting to such convoluted procedures is unusual. Normally, the selection of
the measure is arranged routinely, as the House and Senate proceed toward the more
difficult task of resolving their differences over the substance, not the form, of
Two Methods of Resolution
Once the House and Senate have passed different versions of the same measure,
there are basically two methods they can use to resolve the differences between their
One method involves a conference committee — a panel of members
representing each house that attempts to negotiate a version acceptable to both
chambers. Historically, Congress has sent most major bills to conference
The other method makes a conference committee unnecessary by relying instead
on amendments between the houses — Senate amendments to the House position,
or House amendments to the Senate position, or both. The two houses shuttle the
measure back and forth between them, each chamber proposing an alternative to the
position of the other or insisting on its own position, in the hope that both houses
eventually will agree on the same position.
The essential nature of each method can be described relatively simply.
However, potential complications abound. Occasionally, some combination of the
two methods may be used. For example, the House and Senate may begin the
process of resolving their differences by amending each other’s amendments. Then
they may decide to go to conference if the first method is not totally, or even par-
tially, successful. Alternatively, the two houses may decide immediately to create a
conference committee that is able to resolve some, but not all, of the differences
between their two versions. If so, the two chambers may accept whatever agreements
the conferees have reached, and then attempt to deal with the remaining
disagreements through an exchange of amendments between the houses.
Under some circumstances, the process can become even more complicated.
Certain patterns of action are most common, but the possible variations make the
procedures at this stage of the legislative process the most difficult to predict with
any assurance. Moreover, either house may refuse to act at any time and at any stage
of this process, and if that chamber remains adamant in its refusal to act, the measure
9 Once the conferees completed their work, the House agreed to an unusual special rule
under which it cast one vote to approve all four conference reports.
In general, the House or Senate cannot take any action by either method unless
it is in formal possession of the “papers” — the official copies of the measure and
whatever amendments, motions, and accompanying messages have been approved
by the House and Senate. In attempting to resolve their differences, the two
chambers act sequentially, not simultaneously.
Amendments Between the Houses
The need to resolve differences arises when one house passes a measure that the
second chamber subsequently passes with one or more amendments.10 It is these
amendments that create the differences between the two houses. The differences may
be resolved by one chamber accepting the amendments of the other or by proposing
new amendments that the other house agrees to accept.
Within limits to be discussed, the measure may be sent back and forth between
the House and Senate, each house amending the amendments of the other, in the hope
that one chamber will agree to the proposals from the other. When the amending
opportunities are exhausted, one house must accept the position of the other or the
bill can die for lack of agreement. Alternatively, at any stage during this process,
either house can request a conference, thereby proposing to use the other method for
resolving their differences. (Then, if the conference is not totally successful, it may
be necessary to return once again to amendments between the houses.)
The second chamber’s amendments to the bill are the text that is subject to11
amendments between the houses, and that text may be amended in two degrees.
Assume that the House has passed H.R. 1 and the Senate has passed the same bill
with an amendment. When the Senate sends the bill back to the House, the House
may amend the Senate amendment; technically, the House concurs in the Senate
amendment with a House amendment. This House amendment to the Senate
amendment is a first-degree amendment.
When the Senate receives from the House the bill with the House amendment
to the Senate amendment, the Senate may concur in the House amendment to the
10 Note that, at this point, both houses have agreed to everything in the text except the
portion amended by the second chamber. Thereafter, neither chamber should propose
changes in portions of the text to which both have agreed.
11 A measure normally can be amended in two degrees on the House or Senate floor. An
amendment offered to the text of the measure itself is an amendment in the first degree.
While a first degree amendment is pending (that is, after it has been offered but before it has
been voted on), an amendment may be offered to the amendment. Such an amendment to
a pending amendment is an amendment in the second degree. Although more complicated
situations may arise, both chambers generally prohibit third degree amendments. (In the
House, however, a substitute for a first degree amendment is amendable.) Roughly the same
principles apply to amendments between the houses. For more detailed descriptions of these
procedures, see CRS Report 98-853, The Amending Process in the Senate, by Betsy Palmer
and CRS Report 98-995, The Amending Process in the House of Representatives,
Christopher M. Davis.
Senate amendment. If the Senate does so, the differences between the chambers have
been resolved. Alternatively, the Senate may amend the House amendment —
technically, the Senate concurs in the House amendment to the Senate amendment
with a further Senate amendment. This further Senate amendment is a second-degree
When the bill and the accompanying papers (that is, the various House and
Senate amendments and messages) are now returned to the House, that chamber may
not propose a further amendment. That would be a prohibited amendment in the
third degree.12 The House may concur in the final Senate amendment, in which case
the differences are resolved, or it may disagree to the Senate amendment. (Note that
this is the first point at which disagreement has been expressed; a later section of this
report discusses the importance of reaching the stage of disagreement.)
If the House disagrees to the final Senate amendment (or to any Senate
amendment at some earlier stage), the Senate may recede from its amendment and
concur in the last position offered by the House (thereby achieving agreement), or the
Senate may insist on its amendment. In turn, if both chambers are adamant, the
House may insist on its disagreement, the Senate may adhere to its amendment, and
the House finally may adhere to its disagreement.13 If this stage is reached, the bill
is almost certain to die unless one house or the other recedes from its last position.
(This same sequence of events can begin in the Senate, with the subsequent actions
of the chambers reversed.)
The two houses may reach agreement at any stage of this process if one chamber
concurs in the amendment of the other or recedes from its own amendment.
Alternatively, stalemate could be reached more quickly — for instance, if the
chambers refuse to alter their original positions and proceed directly through the
stages of disagreement, insistence, and adherence, bypassing the intermediate stages
at which they could offer new proposals in the form of first- and second-degree
amendments between the houses. Fortunately, the House and Senate rarely reach the
point of insistence and then adherence.
Consideration of Senate Amendments by the House
The House may consider on the floor a House-passed measure with Senate
amendments under several circumstances: (1) instead of sending the bill to a
conference committee, (2) in the process of sending it to conference, or (3) after the
measure has been considered by a conference. This section discusses House action
on Senate amendments either instead of or before consideration in conference.
12 The House or Senate may consider a third degree amendment by unanimous consent. In
the House, it also may be considered under suspension of the rules or pursuant to a special
13 The terms “recede,” “insist,” and “adhere” have technical meanings in the legislative
process. When the House or Senate “recedes,” it withdraws from a previous position or
action. To “insist” and to “adhere” have essentially the same meaning but are terms used
at different stages of the process.
House actions on Senate amendments after conference are discussed in later sections
of this report on amendments in true and technical disagreement.
A bill that the House has passed and that the Senate has amended and returned
to the House usually remains at “the Speaker’s table” until it is taken up again on the
House floor. It may be referred to a House committee at the discretion of the
Speaker, but referral to committee is not mandatory and rarely occurs. The Speaker
is most likely to refer the bill to committee if the Senate amendments are major in
scope and nongermane in character, and especially if the Senate amendments would
fall within the jurisdiction of a House committee that had not considered the bill
At this stage of the legislative process, the bill and the Senate amendments to
it are not privileged for floor consideration by the House — in other words, it is not
in order for the House to consider the Senate amendments to the bill — unless the
Senate amendments do not include any authorization, appropriation, or revenue
provisions that House rules require to be considered in Committee of the Whole. The
bill and Senate amendments become privileged for House floor consideration only
after the House has reached the stage of disagreement.
The only motion that can be made on the House floor at this stage is a motion
to go to conference with the Senate. This motion can take two forms. If the Senate
has passed a House bill with Senate amendments, the motion proposes that the House
disagree to the Senate amendments and request or agree to a conference with the
Senate. If the Senate has disagreed to House amendments to a Senate bill and
returned the bill to the House, the motion proposes instead that the House insist on
its amendments and request or agree to a conference. In either case, the motion is
entertained at the Speaker’s discretion, and may be made only at the direction of the
committee (or committees) with jurisdiction over the subject of the measure. The
same result is achieved far more often by unanimous consent.
If the Senate amendments require consideration in Committee of the Whole, it
is not in order to move to concur in the Senate amendments (thereby reaching
agreement), or to move to concur in the Senate amendments with House amendments
(thereby proposing a new House position to the Senate). However, such actions
frequently are taken by unanimous consent. The House floor manager may ask
unanimous consent, for instance, to take the bill, H.R. 1, with Senate amendments
thereto from the Speaker’s table and concur in the Senate amendments. Another
Member, generally a minority-party member of the committee of jurisdiction, often
reserves the right to object, usually only for the purpose of asking the floor manager
to explain the purpose of the request and the content of the Senate amendments.
Their discussion usually establishes that the Senate amendments are either desirable
or minor and, in any case, are acceptable to the Representatives who know and care
the most about the measure. The reservation of objection then is withdrawn; the
unanimous consent request is accepted, and the differences between the House and
Senate are thereby resolved. In similar fashion, the House may — again, by
14 The same applies to a Senate bill with Senate amendments to House amendments, and to
a House bill with Senate amendments to House amendments to Senate amendments.
unanimous consent — concur in some or all of the Senate amendments with House
It bears repeating that, if there is objection to a unanimous consent request to
concur in Senate amendments (with or without House amendments), no motion to
that effect can be made if the amendments require consideration in Committee of the
Whole. However, at least two alternatives are available. First, the Speaker may
recognize the floor manager to move to suspend the rules and concur in the Senate
amendments (again, with or without House amendments). Motions to suspend the
rules may be considered, at the discretion of the Speaker, on a Monday or Tuesday,
or Wednesday. The Speaker also may entertain motions to suspend the rules on other
days by unanimous consent or pursuant to a special rule. Such a motion is debatable
for forty minutes, it is not amendable, and it requires support from two-thirds of the
Members present and voting. Second, the Rules Committee may report, and the
House may agree to, a special rule making in order a motion to concur (with or
without amendments). In fact, the special rule even may be drafted in such a way
that the vote to agree to the rule is also the vote to concur in the Senate amendments.
Such a resolution is known as a self-executing rule, and may take the following form:
Resolved, That immediately upon the adoption of this resolution the bill (H.R.
1), together with the Senate amendments thereto, is taken from the Speaker’s
table to the end that the Senate amendments be, and the same are hereby, agreed
There are additional rules and precedents concerning the consideration of certain
Senate amendments in Committee of the Whole, the germaneness of House
amendments to Senate amendments, and the relative precedence of the motion to
concur and the motion to concur with amendments. However, these rules and
precedents are not often invoked at this stage of House proceedings because the
measure and the Senate amendments are either sent directly to conference or they are
disposed of by a means that waives these rules and precedents: unanimous consent,
suspension of the rules, or special rules. Some of these possibilities are far more
likely to arise during House floor action on Senate amendments in true or technical
disagreement, and they are discussed in later sections on those subjects.
Consideration of House Amendments by the Senate
When the Senate receives a bill with House amendments, it normally is held at
the desk. The motion to proceed to consideration of the amendments is privileged
and, therefore, not debatable. (The motion to proceed normally is debatable.)
Moreover, the consideration of these amendments suspends, but does not displace,
the pending or unfinished business. Paragraph 3 of Rule VII provides:
The Presiding Officer may at any time lay, and it shall be in order for a
Senator to move to lay, before the Senate, any bill or other matter sent to the
Senate by the President or the House of Representatives for appropriate action
allowed under the rules and any question pending at that time shall be suspended
for this purpose. Any motion so made shall be determined without debate.
Normally, the majority leader asks the presiding officer to lay before the Senate
the House message on a bill; such a message may state that the House has passed a
certain Senate bill with amendments that are stated in the message. The message also
may inform the Senate that the House has requested a conference. It usually is not
necessary to call up the House amendments by use of a nondebatable motion; they
usually are considered by unanimous consent. But unanimous consent probably is
made easier to obtain by the knowledge that the nondebatable motion is in order (and,
therefore, that extended debate is not possible).
In many situations, House amendments are not called up on the Senate floor
until after a process of consultations and negotiations as is characteristic of the
Senate. The majority and minority floor managers can be expected to consult with
each other and to decide if the House amendments are acceptable or if the two
Senators can agree on amendments to those House amendments. Whatever
agreement the floor managers reach also is discussed with other interested Senators
in the hope of achieving general concurrence. If such concurrence is reached, it is
reflected in an expeditious floor decision to agree to the House amendments, with or
without further Senate amendments.
If such an agreement is not reached, then a variety of parliamentary options are
available for acting on House amendments.15 If the goal is to return the
amendment(s) to the House to further the legislative process, then the basic choices
before the Senate are to propose a change to the House amendment(s), agree to the
House amendment(s), or to disagree to the House amendment(s). More formally, the
three central motions to dispose of House amendments prior to the stage of
disagreement are (1) that the Senate concur in the House amendment(s) with Senate
amendment(s), (2) that the Senate concur in the House amendment(s), or (3) that the
Senate disagree to the House amendment(s). Any of these motions are debatable and,
therefore, subject to being filibustered.
It is possible for multiple motions to dispose of a House amendment to be
pending at the same time. The motions are listed above in their order of precedence;
a motion can be understood to have precedence over another if it may be offered
while the other is pending and it is disposed of first. Thus, with a motion to disagree
pending, a motion to concur and a motion to concur with an amendment could be
offered and would be voted on first. If a motion to concur with an amendment were
pending, however, neither a motion to concur nor a motion to disagree could be
offered until the Senate disposed of the motion to concur with an amendment.
Furthermore, if the House has proposed several amendments to the Senate bill
(or Senate amendment), then the Senate could take different actions on each of the
House amendments. When the Senate receives multiple amendments from the
House, it considers them in the order that they affect the Senate text. A single motion
can be made to dispose of several amendments, as long as it is the same form of
disposition (for example, to concur), but such a motion would be subject to division.
15 For a full list of available motions and their relative precedence, see Riddick’s Senate
Procedure, pp. 127-130.
At least in part due to the potential for procedural complexity in relation to
consideration of House amendments, in recent Congresses the majority leader has
used his right of preferential recognition to offer a motion to concur in House
amendments, as well as all the other available amendatory motions related to it. This
process has been referred to as “filling the tree.” The procedural effect of filling the
tree — or offering all of the amendatory motions available in a particular
parliamentary situation — is that no Senator can propose an alternative method of
acting on the House amendments until the Senate disposes of (or lays aside by
unanimous consent) one of the pending motions.
Filling the tree does not affect the right of Senators to debate the motions
regarding House amendments at length. It does not, therefore, bring the Senate any
closer to final disposition of the House amendments. If, however, the majority leader
can build a coalition of at least 60 Senators (assuming no vacancies in the Senate) in
order to invoke cloture, then he can fill the tree to block other Senators from having
an opportunity to propose other ways of disposing of House amendments, including
perhaps the opportunity to propose Senate amendments to the House amendments
prior to Senate disposition of the House amendments. In recent Congresses, the
majority leader has “filled the tree” and then filed a cloture motion in order to end
consideration of an underlying question. If the Senate agrees to invoke cloture on a
motion to dispose of the House amendments, such as a motion to concur, then all
other pending motions of a higher precedence fall. The motion on which cloture was
invoked can then be considered for a maximum of 30 additional hours.
The Informal Alternative to Conference
If the House and Senate versions of a measure are submitted to conference, the
conference committee must meet formally and, if it resolves some or all of the
differences between the houses, prepare both a conference report and a joint
explanatory statement. To avoid these and other requirements, the two chambers
may use the process of sending amendments between the houses as an informal
alternative that achieves much the same purpose and result as would a conference16
The purpose of a conference committee is to negotiate a settlement of the
legislative differences between the two chambers. But these negotiations do not have
to take place in the official setting of a conference committee meeting. They also can
occur through informal discussions among the most interested Representatives and
Senators and their staffs. If such informal discussions are successful, their results can
be embodied in an amendment between the houses.
As the second house nears or reaches completion of floor action on a measure,
the staffs of the respective House and Senate committees are likely to be comparing
16 In the 110th Congress, many congressional observers reported an increase in the number
of major bills on which differences were resolved through informal negotiations and
amendments between the houses. For more information on this trend, see CRS Report
RL34611, Whither the Role of Conference Committees: An Analysis, by Walter J. Oleszek.
the two versions of the bill and seeking grounds for settling whatever differences
exist. After initial staff discussions, the House and Senate committee leaders
themselves may become involved. If these informal and unofficial conversations
appear productive, they may continue until a tentative agreement is reached, even
though no conference committee has yet been created. If the tentative agreement
proves acceptable to other interested Representatives and Senators, a conference
committee may be unnecessary.
Instead, when the bill with the second house’s amendments has been returned
to the first chamber, the majority floor manager may, under the appropriate rules or
practices of that house, call up the bill and propose that the House or Senate (as the
case may be) concur in the second chamber’s amendments with some amendments.
He or she then describes the differences between the House and Senate versions of
the measure and explains that the proposed amendments represent a compromise that
is agreeable to the interested members of both houses. The floor managers may
express their confidence that, if the first house accepts the amendments, the other
chamber also will accept them.
If the first house does agree to the amendments, the second chamber then
considers and agrees to them as well, under its procedures for considering amend-
ments of the “other body.” In this way, the differences between the House and
Senate are resolved through the kind of negotiations for which conference com-
mittees are created, but without resort to a formal conference committee.
The Stage of Disagreement
Since the purpose of conference committees is to resolve legislative dis-
agreements between the House and Senate, it follows that there can be no conference
committee until there is disagreement — until the House and Senate formally state
their disagreement to each other’s positions. A chamber reaches this stage either by
formally insisting on its own position or by disagreeing to the position of the other
house, and so informing the other house. Once the House or Senate reaches the stage
of disagreement, it cannot then agree to (concur in) a position of the other chamber,
or agree with an amendment, without first receding from its disagreement.
The stage of disagreement is an important threshold. Before this threshold is
reached, the two chambers presumably are still in the process of reaching agreement.
Thus, amendments between the houses, as an alternative to conference, are couched
in terms of one chamber concurring in the other’s amendments, or concurring in the
other’s amendments with amendments. For example, when the House concurs in
Senate amendments with House amendments, the House does so because it does not
accept the Senate amendments — in fact, it disagrees with them. But the House does
not state its disagreement explicitly and formally at this stage because crossing the
threshold of disagreement has significant procedural consequences, especially in the
Whereas House amendments are always privileged in the Senate, most Senate
amendments are not privileged in the House before the House has reached the stage
of disagreement. Moreover, the order of precedence among certain motions is
reversed in the House (but not in the Senate) after the stage of disagreement has been
reached. Before the stage of disagreement, the order of precedence among motions
in both chambers favors motions that tend to perfect the measure further; after the
stage of disagreement in the House, the order of precedence is reversed, with
precedence being given to motions that tend to promote agreement between the
chambers. Before the stage of disagreement, for example, a motion to concur with
an amendment has precedence over a motion to concur; after the stage of
disagreement in the House, a motion to recede and concur has precedence over a
motion to recede and concur with an amendment.
The precedence among motions before and after the stage of disagreement can
become important during the process of exchanging amendments between the houses.
It is most likely to matter after a conference committee has reported and the House
and Senate are considering amendments in true or technical disagreement. For this
reason, a more detailed discussion of the subject is reserved to the sections on such
Arranging for a Conference
If the differences between the House and Senate cannot be resolved through the
exchange of amendments between the houses, two possibilities remain. First,
stalemate can lead to the death of the legislation if both chambers remain adamant.
Or second, the two houses can agree to create a conference committee to discuss their
differences and seek a mutually satisfactory resolution. Historically, major bills have
been sent to a conference committee, either after an unsuccessful attempt to resolve
the differences through amendments between the houses or, more often, without such
an attempt having even being made.
The process of arranging for a conference can begin as soon as the second house
passes the bill at issue, either with one or more amendments to parts of the measure
or with a single amendment in the nature of a substitute that replaces the entire text
approved by the first chamber. The second house then may simply return the bill,
with its amendments, to the first chamber if there is reason to believe that the first
house might accept the amendments, or that amendments between the houses can be
used successfully as an informal alternative to conference. It also may do so if the
second house wishes to act first on an eventual conference report, because the
chamber that asks for a conference normally acts last on the conference report.
Alternatively, and more commonly, the second house may pass the bill and
immediately insist on its amendments and also request a conference with the first17
chamber. By insisting on its amendments, the second chamber reaches the stage of
17 In the Senate, there are three procedural steps the Senate must take to send a bill to
conference. The steps are usually taken by unanimous consent, and without this consent
they have to potential to be time-consuming. For more information, see CRS Report
disagreement. The bill, the second house’s amendments, and the message requesting
a conference, then are returned to the first house. The first house is not obliged to
disagree to the second chamber’s amendments and agree to the requested conference.
The first house also has the options, for example, of refusing to act at all or
concurring in the second chamber amendments, with or without amendments. When
one chamber requests a conference, however, the other house normally agrees to the
If the second chamber just returns the bill and its amendments to the first house
without insisting on its amendments, the first house may disagree to the amendments
and request a conference. The bill, the amendments, and the message requesting the
conference then are returned to the second chamber, which usually insists on its
amendments (thereby reaching the stage of disagreement) and agrees to the
Thus, there are essentially two direct routes to conference. (There are more
indirect routes, of course, if an attempt is first made to resolve the differences
through an exchange of amendments.) The second house may begin the process by
insisting on its amendments and requesting the conference. If this does not occur, the
first house then may begin the process by disagreeing to the second chamber’s
amendments and requesting the conference itself. The first route is likely to be
followed when the need for a conference is a foregone conclusion.
However, strategic considerations also may influence how the Senate and House
agree to go to conference, especially in view of the convention that the chamber
which asks for the conference normally acts last on the conference report. With this
in mind, proponents of the legislation may prefer one route to the other. For
example, House or Senate conferees can avoid the possibility of facing a motion in
one house to recommit the conference report (with or without instructions) if they
have arranged for the other house to act first on the report.18 By the same token, if
Senate opponents are expected to filibuster the conference report, proponents may
prefer for the Senate to agree to a House request for a conference, so that the Senate
will act first on the report. This arrangement avoids compelling Representatives to
cast difficult votes for or against a conference report that may not reach a vote in the
Senate. On the other hand, a bill’s supporters could prefer that the House agree to
the conference and then vote first on the report, with the hope that a successful House
vote might improve the prospects for later success on the Senate floor.
Selection of Conferees
After either house requests or agrees to a conference, it usually proceeds
immediately to select conferees, or managers as they also may be called. The
selection of conferees can be critically important, because it is this group —
RS20454, Going to Conference in the Senate, by Elizabeth Rybicki.
18 This possibility is discussed in the section on floor consideration of conference reports.
sometimes a small group — of Representatives and Senators who usually determine
the final form and content of major legislation.
In the House, clause 11 of Rule I authorizes the Speaker to appoint all members
of conference committees, and gives him certain guidelines to follow:
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 Members 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.
These guidelines carry weight as admonitions but they necessarily give the Speaker
considerable discretion, and her exercise of this discretion cannot be challenged on
the floor through a point of order.
In the Senate, the presiding officer is almost always authorized to appoint “the
managers on the part of the Senate.” Should the Senate fail to give the presiding
officer this authority, however, Senators would elect their conferees. A motion to
elect certain Senators as conferees is both debatable and amendable.
Before the formal announcement of conferees in each chamber, a process of
consultation takes place that vests great influence with the chairman and the ranking
minority member of the committee (and sometimes the subcommittee) that had
considered the bill originally. These Representatives and Senators almost always
serve as conferees. Furthermore, they usually play an influential, and often a
controlling, role in deciding the number of conferees from their respective chambers,
the party ratio among these conferees, and which of their committee colleagues shall
be appointed to the conference committee. In the House, the Speaker often accepts
without change the list developed by the House committee leaders; the presiding
officer in the Senate always does so.
If the bill at issue had been considered by more than one committee in either
house, all the involved chairmen and ranking minority members from that chamber
normally participate in determining its roster of conferees, and the conferees usually
are drawn from both or all of those committees. In such cases, the party leaders in
each house are more likely to become involved in the selection process — in
determining the total number of House or Senate conferees and the division of
conferees between or among the committees of jurisdiction, as well as in choosing
individual members to serve. From time to time, the Speaker also exercises the
authority granted in the rule to appoint a Representative who offered a key successful
floor amendment, even if he or she is not on the committee(s) that reported the
In some cases — and especially in cases of multiple committee jurisdiction —
House or Senate conferees may be appointed for limited purposes: for example, only
for the consideration of Title I of the House version, or only for the consideration of
a particular (and possibly nongermane) Senate amendment. Such conferees are
expected to limit their participation in the conference to consideration of the matters
for which they are appointed. This practice protects the preponderant influence in
conference of the appropriate House and Senate standing committees.
Each house determines for itself the size of its delegation to the conference
committee. The House and Senate need not select equal numbers of conferees, and
they frequently do not. However, unequal numbers of House and Senate managers
do not affect the formal power of either house in conference decisions. The
conference report requires approval by a majority of the House conferees and a
majority of the Senate conferees, rather than a majority of all conferees. Each house
usually appoints an odd number of conferees to avoid tie votes.
After the House or Senate decides to go to conference (either by requesting the
conference or agreeing to a request from the other house), its conferees usually are
appointed immediately. Between these two steps, however, both houses have an
opportunity (although usually only a momentary opportunity) to move to instruct the19
conferees. For example, the managers may be instructed to insist on the position
of their house on a certain matter, or even to recede to the position of the other house.
Instructions are not binding in either house. They are only admonitions, or
advisory expressions of position or preference. No point of order lies in either the
House or the Senate against a conference report on the ground that conferees did not
adhere to the instructions they received.
In the Senate, a motion to instruct is debatable and amendable. In the House,
such a motion is debated under the one-hour rule, and a germane amendment to the
instructions is in order only if the House does not order the previous question during
or at the end of the first hour of debate. In neither house can conferees be instructed
to take some action that exceeds their authority. In the House, clause 7 of Rule XXII
also bars instructions that “include argument.” Only one valid motion to instruct is
in order in the House before its conferees are named, whether or not the motion is
agreed to; but if a motion to instruct is ruled out of order, another motion to instruct
may be made.
Under the precedents of the House, a member of the minority party is entitled
to recognition to move to instruct. The Speaker normally looks first to senior
minority party members of the committee that reported the measure at issue. This
recognition practice can be used to try to control the instructions that are proposed;
19 Because the motion to instruct may be made only before the conferees are named, it is less
likely to be viewed as a challenge to the intentions of the Members appointed as managers.
for example, instructions on one subject may be precluded if the ranking minority
member seeks recognition to offer a motion to instruct on another subject.20
In the House, but not in the Senate, motions to instruct also are in order after
House conferees have been appointed but have failed to report an agreement.21
Clause 7(c)(1) of House Rule XXII provides in part:
A motion to instruct managers on the part of the House, or a motion to
discharge all managers on the part of the House and to appoint new conferees,
shall be privileged —
(A) after a conference committee has been appointed for 20 calendar days
and 10 legislative days without making a report....
By precedent, more than one proper motion to instruct is in order when made
pursuant to this clause, and the minority party does not enjoy preferential recognition
in offering such motions. According to clause 7(c)(2), the Speaker “may designate
a time in the legislative schedule on that legislative day for consideration” of the
motion to instruct.
Restrictions on the Authority of Conferees
In principle, there are significant restrictions on the kinds of policy agreements
that House conferees can accept. In practice, however, these restrictions are not as
stringent as they might seem at first.
Because conference committees are created to resolve disagreements between
the House and Senate, the authority of House conferees is limited to the matters in
disagreement between the two houses. House conferees have no authority to change
matters that are not in disagreement — that is, either matters that appear in the House
and Senate versions of the measure in identical form, or matters that were not
submitted to the conference in either the House or the Senate version.
Furthermore, as House conferees consider each matter in disagreement, their
authority is limited by the scope of the differences between the House and Senate
positions on that matter. The House’s managers may agree on the House position,
the Senate position, or some middle ground. But they may not include a provision
in a conference report that does not fall within the range of options defined by the
House position at one extreme and the Senate position at the other. If, for example,
the House proposes to appropriate $1 billion for a certain purpose and the Senate
proposes $2 billion instead, the House conferees may agree on $1 billion or $2 billion
20 However, the House may amend the instructions (if it has not already ordered the previous
question on the motion). Such an amendment must be germane to either the House or
Senate versions of the bill, but not necessarily to the instructions to which the amendment
21 It is possible for Senate conferees to be instructed by resolution while a bill is in
or any intermediate figure. But they may not agree on a figure that is less than $1
billion or more than $2 billion. To do so would exceed the scope of the differences
between the House and Senate positions on that matter in disagreement.
The concept of “scope” relates to specific differences between the House and
Senate versions of the same measure, not to the implications or consequences of
these differences. Thus, House conferees on a general appropriations bill may agree
on the higher (or lower) of the House and Senate positions on each appropriation
item, even though the sum of their agreements is higher (or lower) than the total sum
proposed in either the House or the Senate version of the bill (unless the two versions
explicitly state such a total). Also, if one house proposes to amend some existing law
and the other chamber does not, the scope of the differences over this matter
generally is bounded by the proposed amendments, on the one hand, and the pertinent
provisions of existing law, on the other. Thus, the House conferees may agree on the
proposed amendments or on alternatives that are closer to existing law.
Thus, there are significant restrictions on the authority of House conferees: their
authority is restricted by the scope of the differences between the House and Senate
over the matters in disagreement between them.22 However, it is far easier to make
this statement than to apply it in all cases. It becomes much more difficult to define
the scope of the differences when the differences are qualitative, not quantitative as
in the example above. Moreover, how difficult it is to define the scope of the
differences also depends on how the second chamber to act on the measure has cast
the matters in disagreement.
If one house takes up a measure from the other and passes the measure with a
series of amendments to the first chamber’s text, then the matters in disagreement in
conference are cast in terms of two or more discrete amendments approved by the
second house to pass the bill. These amendments usually are numbered for
convenient reference. The two versions of the measure can be compared side by side
to identify the provisions that are identical in both versions and those that are the
subject of disagreements. Therefore, it is possible to identify both the matters in
disagreement and the House and Senate positions on each of them.
However, the second chamber that acts on a measure typically casts its version
in the form of an amendment in the nature of a substitute for the entire text passed
by the first house. In such cases, only one amendment is submitted to conference,
even though that single amendment may encompass any number of specific
differences between the House and Senate versions of the measure. In fact, the text
of the bill as passed by one house and the text of the other house’s amendment in the
nature of a substitute may embody wholly different approaches to the subject of the
measure. The two versions may be organized differently and may address the same
subject in fundamentally different ways.
22 Clause 5 of House Rule XXII also restricts the authority of House conferees to include
certain kinds of Senate amendments in conference reports on general appropriations bills.
These restrictions are discussed in the section on amendments in technical disagreement.
Second house substitutes make it much harder, if not impractical, to specifically
identify each matter in disagreement and the scope of the differences over that matter.
When a second chamber substitute is in conference, therefore, the conferees must
have somewhat greater room for maneuver. Technically, the House and Senate are
in disagreement over the entire text of the measure; substantively, the policy
disagreements may be almost as profound. In such cases, the conferees resolve the
differences between the House and Senate by creating a third version of the measure
— a conference substitute for both the version originally passed by the first house
and the amendment in the nature of a substitute approved by the second house.
This latitude may be necessary, but it also means that the conference substitute
could take the form of a third and new approach to the subject at hand — an approach
that had not been considered on the floor of either house. To inhibit such a result,
clause 9 of House Rule XXII states that:
Whenever a disagreement to an amendment has been committed to a conference
committee, the managers on the part of the House may propose a substitute that
is a germane modification of the matter in disagreement. The introduction of any
language presenting specific additional matter not committed to the conference
committee by either House does not constitute a germane modification of the
matter in disagreement. Moreover, a conference report may not include matter
not committed to the conference committee by either House and may not include
a modification of specific matter committed to the conference committee by
either or both Houses if that modification is beyond the scope of that specific
matter as committed to the conference committee.
Notwithstanding this specificity, determining whether a conference substitute
includes some new “matter” is far more difficult than determining whether the
conferees’ agreement on an appropriation for a program falls within the scope of the
differences between the funding levels originally proposed by the House and Senate.
If the House conferees have exceeded their authority in any one respect in
agreeing to a conference report, that report as a whole is tainted and so is subject to
a point of order on the House floor.23 However, there are at least three reasons why
it is relatively unusual for a point of order to be made and sustained against a
conference report. First, House conferees are aware of the limits within which they
are to negotiate, and they usually try not to exceed their authority. Second, conferees
frequently are presented with second chamber substitutes and, in those cases, they
have somewhat greater discretion in the agreements they can reach.
Third, even if the House managers propose a conference report that exceeds
their authority, there are several ways in which they can protect their report against
being subject to a point of order on the House floor. If the conferees were
negotiating over separate numbered amendments and their agreement concerning one
or more of the amendments is beyond their authority, they can report those
amendments back to the House and Senate as amendments in technical disagreement.
However, conferees may not report back in disagreement on part of an amendment
23 Conference reports also are subject to points of order if they violate certain provisions of
the Budget Act.
in the nature of a substitute. Alternatively, the House can approve a conference
report by a two-thirds vote under suspension of the rules, a procedure which does not
allow points of order to be made on the floor. Finally, and perhaps most important
in current practice, the House Rules Committee may propose that the House approve
a special rule waiving any or all points of order against a conference report and
against its consideration.
Even if a conference report is ruled out of order, it may then be possible to
propose precisely the same agreements that were contained in the report in the form
of amendments between the houses (if the amendments are not in the third degree
and do not contain non-germane matter).
The Senate’s rules and precedents embody roughly the same principles
regarding restrictions on the authority of its conferees. Paragraphs 2 and 3 of Senate
Rule XXVIII state, in part, that
2. (a) Conferees shall not insert in their report matter not committed to them by
either House, nor shall they strike from the bill matter agreed to by both Houses.
(b) If matter which was agreed to by both Houses is stricken from the bill a point
of order may be made against the report, and if the point of order is sustained, the
report is rejected or shall be recommitted to the committee of conference if the
House of Representatives has not already acted thereon.
(c) If new matter is inserted in the report, a point of order may be made against
the conference report and it shall be disposed of as provided under paragraph 4.
3. (a) In any case in which a disagreement to an amendment in the nature of a
substitute has been referred to conferees —
(1) it shall be in order for the conferees to report a substitute on the same subject
(2) the conferees may not include in the report matter not committed to them by
either House; and
(3) the conferees may include in their report in any such case matter which is a
germane modification of subjects in disagreement.
Historically, the Senate has interpreted its rules and precedents affecting the
content of conference reports in ways that grant conferees considerable latitude in
reaching agreements with the House. According to Riddick’s Senate Procedure, for
example, a “conference report may not include new ‘matter entirely irrelevant to the
subject matter,’ not contained in the House- or Senate-passed versions of a measure
as distinct from a substitute therefor.”24 And regarding conference substitutes, Senate
precedents state that, “in such cases, they [the conferees] have the entire subject
before them with little limitation placed on their discretion, except as to
24 Riddick’s Senate Procedure, p. 484.
germaneness, and they may report any germane bill.”25 Under current practice, the
Senate takes a commonsense approach to deciding whether new matter is sufficiently
relevant to constitute “a germane modification of subjects in disagreement.”
The authority of Senate conferees is further limited by paragraph 8 of Senate
Rule XLIV. A Senator can raise a point of order against provisions of a conference
report if they constitute “new directed spending provisions.” Paragraph 8 defines a
“new directed spending provision” as:
... any item that consists of a specific provision containing a specific level of
funding for any specific account, specific program, specific project, or specific
activity, when no specific funding was provided for such specific account,
specific program, specific project, or specific activity in the measure originally
committed to the conferees by either House.
Paragraph 8 of Senate Rule XLIV applies only to provisions of conference
reports that would provide for actual spending. In other words, it applies only to
discretionary and mandatory spending provisions and not to authorizations of
appropriations.26 Discretionary spending is provided in appropriations acts, and
generally funds many of the programs, agencies, and routine operations of the federal
government. Mandatory spending, also referred to as direct spending, is provided in
or controlled by authorizing law, and generally funds entitlement programs, such as
Social Security and Medicare.27
The Senate can waive both of these restrictions on the content of conference
reports by a three-fifths vote of Senators duly chosen and sworn (60 Senators
assuming no vacancies). The process for waiving a point of order, as well as the
effect of a successful point of order raised under either of these rules, are discussed
in a later section of this report on floor consideration of conference reports.
Conference Procedures and Reports
Rules of procedure guide and constrain the legislative activities of both the
House and Senate. So it is striking that there are almost no rules governing
procedure in conference. The members of each conference committee can select
their own chairman. They also can decide for themselves whether they wish to adopt
any formal rules governing such matters as debate, quorums, proxy voting, or
amendments, but usually they do not. The only rules imposed by the two houses
governing conference committee meetings concern approval of the conference report
and the openness of meetings to all conferees and to the public.
25 Ibid., p. 463.
26 For more information on the applicability of Paragraph 8 of Rule XLIV, see a letter from
the Majority Leader inserted into the Congressional Record (Congressional Record, daily
edition, vol. 153 (September 24, 2007), pp. S11993-S11994).
27 For more information on discretionary and direct spending, see CRS Report RS20371,
Overview of the Authorization-Appropriations Process, by Bill Heniff Jr.
A majority of the House managers and a majority of the Senate managers must
approve and sign the conference report. Decisions are never made by a vote among
all the conferees combined. All votes take place within the House delegation and
within the Senate delegation. This is why there is no requirement or necessity for the
two houses to appoint the same number of conferees; five Senate conferees, for
example, enjoy the same formal collective power in conference as 25 House
Until the mid-1970s, conference meetings were almost always closed to the
public; now they are open unless a specific decision is made to close part or all of a
meeting. Paragraph 8 of Senate Rule XXVIII states that:
Each conference committee between the Senate and the House of
Representatives shall be open to the public except when managers of either the
Senate or the House of Representatives in open session determine by a rollcall
vote of a majority of those managers present, that all or part of the remainder of
the meeting on the day of the vote shall be closed to the public.
The comparable House rule is even more stringent. Clause 12 of House Rule XXII
requires a majority vote on the House floor to close part or all of a conference
meeting. In other words, House conferees cannot vote to close a conference
committee meeting unless they have been authorized to do so by a specific rollcall
vote of the House. This difference between House and Senate rules has not been a
source of public contention because efforts to close conferences normally are made
only when they must deal with national security matters. When House managers
want the authority to close part or all of a formal conference meeting, they usually
offer a motion to this effect at the time the House arranges to go to conference.
House rules place additional requirements on conference committee meetings.
According to clause 12 of House Rule XXII, managers “should endeavor to ensure”
that meetings only occur if every House manager has been given notice and an
opportunity to attend. The House rule also explicitly states that all matters in
disagreement are open to discussion at an conference meeting. If a point of order is
made and sustained on the House floor that conferees met in violation of clause 12
(or that they never met at all), the conference report is rejected and the House is
considered to have requested a further conference with the Senate.
Similarly, the Senate has agreed that it is “sense of the Senate” that conferees
should hold “regular, formal meetings of all conferees that are open to the public,”
that conferees should be given “adequate notice” of such meetings, and that all
conferees should be given an opportunity to “participate in full and complete
debates” of the matters before the conference.28
Few other rules govern conference proceedings nor do conference committees
often vote to establish their own rules. Instead, they generally manage without them.
This absence of rules reflects the basic nature of the conference committee as a
28 The “Sense of the Senate on Conference Committee Protocols” was included in the
Honest Leadership and Open Government Act of 2007 (P.L. 110-81, sec. 515).
negotiating forum in which the negotiators should be free to decide for themselves
how to proceed most effectively.
In some cases, conferences are rather formal. One delegation puts a proposal
on the table; the other delegation considers it and responds with a counter proposal.
In other cases, conferences resemble free-form discussions in which the issues and
the matters in disagreement are discussed without any apparent agenda or direction
until the outlines of a compromise begin to emerge. In recent years, conferences on
massive omnibus bills have even created “sub-conferences” to seek agreements
which then can be combined into a single conference report.
Sometimes customary practices develop among members of House and Senate
committees who meet with each other regularly in conference. For example, they
may alternate the chairmanship from one conference to the next between the
committee or subcommittee chairmen from each house. Conference bargaining also
can be facilitated by preliminary staff work. Staff may prepare side-by-side
comparisons of the House and Senate versions so that the conferees can understand
more easily how the two houses dealt with the same issues or problems.29
Furthermore, senior staff may engage in preliminary negotiations among themselves,
seeking agreements acceptable to their principals, so that the members themselves
can concentrate on the more intractable disagreements.
When the conferees reach full agreement, staff prepare a conference report
which indicates how each amendment in disagreement has been resolved. For
example, the report may propose that the Senate recede from certain of its
amendments to the House bill, that the House recede from its disagreement to certain
other Senate amendments, and that the House recede from its disagreement to the
remaining Senate amendments and concur in each with a House amendment (the text
of which is made part of the report). When the conferees have considered a single
amendment in the nature of a substitute, the report proposes that the House which
originated the bill recede from its disagreement to the other house’s substitute, and
concur in that amendment in the nature of a substitute with a substitute amendment
that is the new version of the bill on which the conference committee has agreed.
Two copies of the conference report must be signed by a majority of House
conferees and a majority of Senate conferees. No additional or minority views may
be included in the report. From time to time, a manager’s signature may be
accompanied by an indication that he or she does not concur in the conference
agreement on a certain numbered amendment. This does not make the report subject
to a point of order in the House so long as a majority of House conferees have agreed
on each numbered amendment. House rules require that House conferees be given
an opportunity to sign the conference agreement at a set time and place. At least one
29 The preparation of such documents is not required, but they are particularly useful to help
conferees identify and compare the corresponding House and Senate provisions of large and
complex bills. These “side-by-sides”, as they often are called, sometimes are available from
the House or Senate committee of jurisdiction. However, they are not generally available
for public distribution to the same extent as House and Senate reports and documents, for
copy of the final conference agreement must be made available for review by House
managers with the signature sheets.
The conference report itself is not the most informative document, because it
does not describe the nature of the disagreements that confronted the conferees.
Therefore, the rules of both houses require that a conference report be accompanied
by a joint explanatory statement. According to paragraph 6 of Senate Rule XXVIII,
this statement is to be “sufficiently detailed and explicit to inform the Senate as to the
effect which the amendments or propositions contained in such report will have upon
the measure to which those amendments or propositions relate.” Clause 7(e) of
House Rule XXII contains a comparable requirement. Normally, this joint
explanatory statement summarizes the House, Senate, and conference positions on
each amendment in disagreement (or each provision, in the case of second chamber
and conference substitutes). The statement also is prepared in duplicate and signed
by majorities of both House and Senate conferees.
The house that agreed to the conference normally acts first on the conference
report.30 Because this is an established practice, not a requirement of either House
or Senate rules, the order of consideration can be reversed, if that is strategically
advantageous. For example, the House may wish to delay acting on a report until
after the Senate has voted on it because of the possibility that the report may fall
victim to a Senate filibuster. Alternatively, Senate conferees may agree that the
House should act first if the report is likely to enjoy greater support in the House, in
the belief (or hope) that the House vote will increase the prospects for approving the
report in the Senate.31
Also, the first house to consider a conference report has the option of voting to
recommit the report to conference. If and when either house agrees to the report, the
effect of that vote is to discharge that house’s conferees, so there no longer is a
conference committee to which the report can be recommitted. Therefore, the second
house to consider the report does not have the option of recommitting it; it only may
accept or reject the report. Sometimes, therefore, the supporters of a bill arrange for
one house or the other to act first on the conference report in order to avoid the
possibility of a successful recommittal motion. Whatever the case may be, the
conferees must see to it that the house they want to act first takes the papers out of
If conferees cannot agree on any of the amendments before them, or if they
cannot agree on all matters encompassed by one house’s bill and the other’s
substitute, they may report back in disagreement. The House and Senate then can
seek a resolution of the differences either through a second conference or through an
exchange of amendments and motions between the houses. Conferees also may
report in total disagreement if they have reached an agreement on a bill and a second
chamber substitute which, in some respect, violates their authority. In such a case,
30 This practice is stated in Section XLVI of Jefferson’s Manual.
31 Rather than violate the customary order for considering conference reports, the same end
can be achieved by arranging for one house to request the conference instead of agreeing to
a request by the other.
their disagreement is technical, not substantive. After the House receives or the
Senate agrees to the report in disagreement, the conferees’ actual agreement is
presented as a floor amendment to the amendment in disagreement, at which point
considerations of the conferees’ authority no longer apply. Alternatively, the
conferees may submit their report to the House and Senate even though it violates
their authority in one or more respects, and then, in the House, the Rules Committee
can propose and the House can adopt a resolution protecting the report against points
Floor Consideration of Conference Reports
A conference report may be presented or filed at almost any time the House or
Senate is in session, but not when the Senate is in executive session or when the
House has resolved into Committee of the Whole. A conference report is unlikely
to be considered immediately because both the House and Senate have layover and
availability requirements that apply to conference reports.
In the House, conference reports are subject to a three day “layover”
requirement. Clause 8(a) of Rule XXII prohibits consideration of a conference report
until the third day (usually excluding weekends and legal holidays) after the report
and joint explanatory statement has been available in the Congressional Record.
These requirements do not apply during the last six days of a session.32 In addition,
copies of the report and the statement must be available for at least two hours before
consideration of the report begins. Clause 2(b) applies the same requirements and
conditions to amendments reported from conference in disagreement. However, the
House may waive these restrictions by adopting a resolution reported from the Rules33
Committee for that purpose.
A conference report that meets the availability requirements is considered as
having been read when called up for consideration in the House. If a report does not
meet one or more of the requirements but is called up by unanimous consent, it must
be read. However, the House normally agrees by unanimous consent to have the
joint explanatory statement read instead of the report, and then it also agrees to
dispense with the reading of the statement.
Conference reports are highly privileged in the House, and may be called up at
almost any time that another matter is not pending. When called up, the report is
considered in the House (not in Committee of the Whole), under the one-hour rule.
Clause 8(d) of Rule XXII requires that this hour be equally divided between the
32 In contemporary practice, adjournment resolutions usually are not approved until very
shortly before the adjournment takes place. This often makes it impossible to know when
the “last six days” begin. To achieve the same end, the House may adopt, as the end of the
session approaches, a resolution reported from the Rules Committee that triggers certain
provisions of House rules and waives others for the duration of the session.
33 Such a resolution always is in order, notwithstanding the usual requirement that a two-
thirds vote is necessary for the House to consider a resolution from the Rules Committee on
the same day the resolution is reported.
majority and minority parties, not necessarily between proponents and opponents.
The two floor managers normally explain the agreements reached in conference and
then yield time to other Members who wish to speak on the report. If both floor
managers support the report, a Member who opposes it is entitled to claim control of
one-third of the time for debate. Before a second hour of debate can begin, the
majority floor manager moves the previous question. If agreed to, as it invariably is,
this motion shuts off further debate and the House immediately votes on agreeing to
the conference report.
Any points of order against a conference report in the House must be made or
reserved before debate on the report begins (or before the joint explanatory statement
is read). A conference report can be protected against one or more points of order if
the Rules Committee reports and the House adopts a resolution waiving the
applicable rules, or if the report is considered under suspension of the rules.
In the Senate, paragraph 1 of Senate Rule XXVIII requires that a conference
report must be “available on each Senator’s desk” before the Senate may consider it.
In addition, under paragraph 9 of that same rule it is not in order to vote on the
adoption of a conference report unless it has been available to Members and the
general public for at least 48 hours before the vote. This availability requirement can
be waived by three-fifths of Senators duly chosen and sworn (60 Senators if there are
no vacancies). It can also be waived by joint agreement of the Majority and Minority
Leader in the case of a significant disruption to Senate facilities or to the availability
of the internet. Under the rule, a report is considered to be available to the general
public if it is posted on a congressional website or on a website controlled by the
Library of Congress or the Government Printing Office. The report and
accompanying statement normally are not printed in the Senate section of the Record
if they have been printed in the House section. Conference reports also normally are
printed only as House documents.
Conference reports are privileged in the Senate. The motion to consider a report
on the Senate floor is in order at most times,34 and it is not debatable. The Senate’s
usual practice is to take up conference reports by unanimous consent at times
arranged in advance among the floor and committee leaders. Under a standing order
the Senate adopted at the close of the 106th Congress in December 2000, the reading
of a conference report no longer is required if the report “is available in the Senate.”
When considered on the Senate floor, a conference report is debatable under
normal Senate procedures; it is subject to extended debate unless the time for debate
is limited by unanimous consent or cloture, or if the Senate is considering the report
under an expedited procedures established by law (such as the procedures for
considering budget resolutions and budget reconciliation measures under the Budget
Act). Paragraph 7 of Senate Rule XXVIII states that, if time for debating a
conference report is limited (presumably by unanimous consent), that time shall be
equally divided between the majority and minority parties, not necessarily between
proponents and opponents of the report. Consideration of a conference report by the
34 Several exceptions — for example, while the Journal is being read or a quorum call is in
progress — are listed in paragraph 1 of Rule XXVIII.
Senate suspends, but does not displace, any pending or unfinished business; after
disposition of the report, that business again is before the Senate.
A point of order may be made against a conference report at any time that it is
pending on the Senate floor (or after all time for debate has expired or has been
yielded back, if the report is considered under a time agreement). If a point of order
is sustained against a conference report on the grounds that conferees exceeded their
authority, either by including “new matter” (Rule XXVIII) or “new directed spending
provisions”(paragraph 8 of Rule XLIV) in the conference report, then there is a
special procedure to strike out the offending portion(s) of the conference
recommendation and continue consideration of the rest of the proposed
compromise.35 Under the new procedure, a Senator can make a point of order
against one or more provisions of a conference report. If the point of order is not
waived (see below), the presiding officer rules whether or not the provision is in
violation of the rule. If a point of order is raised against more than one provision, the
presiding officer may make separate decisions regarding each provision.
Senate rules provide further that when the presiding officer sustains a point of
order against a conference report on the grounds that it violates either the prohibition
of “new matter” or “new directed spending provisions,” the matter is to be stricken
from the conference recommendation. After all points of order raised under this
procedure are disposed of, the Senate proceeds to consider a motion to send to the
House, in place of the original conference agreement, a proposal consisting of the
text of the conference agreement minus the “new matter” or “new directed spending
provision” that was stricken.36 Amendments to this motion are not in order. The
motion is debatable “under the same debate limitation as the conference report.”37
In short, the terms for consideration of the motion to send to the House the proposal
without the offending provisions are the same as those that would have applied to the
conference report itself.
If the Senate agrees to the motion, the conference recommendation as altered by
the deletion of the “new matter” or “new directed spending provision” would be
returned to the House in the form of an amendment between the houses. The House
would then have an opportunity to act on the amendment under the regular House
procedures for considering Senate amendments discussed in earlier sections of this
35 For more information, see CRS Report RS22733, Senate Rules Changes in the 110th
Congress Affecting Restrictions on the Content of Conference Reports, by Elizabeth
36 The form of the motion depends on what the House and Senate sent to conference. Very
often, a House bill and a Senate amendment are sent to conference. The motion in that case
would be for the Senate to recede from its amendment and concur in the House bill with a
further Senate amendment consisting of the conference committee compromise without the
“new matter” or “new directed spending provision.” If a Senate bill and House amendment
were sent to conference, the motion would be that the Senate recede from its disagreement
to the House amendment and concur in the House amendment with a further amendment.
37 Paragraph 4(b)(2) of Rule XXVIII; Paragraph 8(b)(2) of Rule XLIV.
Senate rules also create a mechanism for waiving these restrictions on
conference reports. Senators can move to waive points of order against one or several
provisions, or they can make one motion to waive all possible points of order under
either Rule XXVIII or Rule XLIV, paragraph 8. A motion to waive all points of
order is not amendable, but a motion to waive points of order against specific
provisions is. Time for debate on a motion to waive is limited to one hour and is
divided equally between the majority leader and the minority leader, or their
designees. If the motion to waive garners the necessary support, the Senate is
effectively agreeing to keep the matter that is potentially in violation of either rule in
the conference report.
The rules further require a three-fifths vote to sustain an appeal of the ruling of
the Chair and limit debate on an appeal to one hour, equally divided between the
party leaders or their designees. The purpose of these requirements is to ensure that
either method by which the Senate could choose to apply these rules, through a
motion to waive or through an appeal of the ruling of the Chair, requires a three-fifths
vote of the Senate (usually 60 Senators). A simple majority (51 Senators if there are
no vacancies and all Senators are voting) cannot achieve the same outcome.
Conference reports may not be amended on the floor of either house. Conferees
are appointed to negotiate over the differences between the versions of the same bill
that the two houses have passed; the delegations return to their respective chambers
with identical recommendations in the form of a report that proposes a package
settlement of all these differences. The House and Senate may accept or reject the
settlement but they may not amend it directly. If conference reports were amendable,
the process of resolving bicameral differences would be far more tortuous and
As noted in previous sections, the house that agrees to the request for a
conference normally acts first on the report. The first chamber to act may vote to
agree or not agree to the report, or it may agree to a preferential motion to recommit
the report to conference, with or without non-binding instructions. Successful
recommittal motions are quite unusual, in part because such an action implies that
the conferees should and could have reached a more desirable compromise. If the
first house agrees to the report, the second house only has the options of approving
or disapproving the report. At this stage, the report cannot be recommitted. A vote
by either house to agree to a conference report has the effect of automatically
discharging its conferees and disbanding the conference committee; thus, there is no
conference committee to which the second house could recommit the report.
The defeat of a conference report in either house may kill the legislation, but
only if no further action is taken, such as requesting a second conference or
proposing a new position through an amendment between the houses. For lack of
time, a second conference may not be practical near the end of a Congress, when
many conference reports are considered.
The vote to agree to a conference report normally completes that house’s action
on the measure, assuming the other house also approves the report. However, some
conference reports, especially those on general appropriations bills, may be
accompanied by one or more amendments in either true or technical disagreement.
Furthermore, House rules include special procedures for coping with conference
report provisions, originating in the Senate, that would not have been germane floor
amendments to the bill in the House. These possibilities are discussed in separate
sections that follow.
Amendments in True Disagreement
It is generally in the interests of both the House and Senate managers and their
parent chambers for the conferees to reach full agreement. Each house already has
passed a version of the legislation and has entrusted the responsibility for resolving
its differences with the other house to members who usually were actively involved
in developing and promoting the measure. Nonetheless, conferees sometimes cannot
reach agreement on all the amendments in disagreement. In such a case, the
conferees may return to the House and Senate with a partial conference report dealing
with the amendments on which they have reached agreement, but excluding one or
more amendments that remain in disagreement. The result is complicated and
potentially confusing procedural possibilities that, fortunately, do not often arise in
The house that agreed to the conference first debates and votes on the partial
conference report. After the report is approved, the reading clerk reads or designates
the first amendment in disagreement, and the majority floor manager offers a motion
to dispose of the amendment. When this process begins in the House, for example,
the floor manager may move that the House insist on its disagreement to a Senate
amendment. Agreeing to this motion implies that the House adamantly supports its
original position and that the House wishes the Senate to recede from its amendment.
Alternatively, the floor manager may move that the House either (1) recede from its
disagreement to the Senate amendment and concur in that amendment, or (2) recede
and concur with a House amendment. In the latter case, this House amendment
(which must be germane to the Senate amendment) may be the position that the
House managers had been advocating in conference, or it may be a new compromise
position they have developed. By agreeing to this motion, the House supports the
negotiating position of its conferees and asks the Senate to concur in this new House
After the House disposes of the first amendment in disagreement, it acts in
similar fashion on each of the other amendments that were not resolved in
conference. The House then sends all the papers to the Senate with a message
describing its actions. If the Senate agrees to the partial conference report and to the
House position on all the amendments in disagreement on which Senate action is
required, the legislative process is completed and the bill may be enrolled for
However, the Senate may agree to the partial conference report (which is rarely
controversial), but not accept the House position on one or more of the amendments
in disagreement. Instead, the Senate may vote to insist on its original position,
support the negotiating position of its managers, or propose a new bargaining
position to the House. If the House has insisted on its disagreement to a Senate
amendment, the Senate may continue to insist on its amendment. If the House has
receded from its disagreement to a Senate amendment and concurred in that
amendment with a House amendment, the Senate may disagree to the House
amendment or it may concur in the House amendment with a further Senate
amendment (if such a Senate amendment would not be an amendment in the third
If one or more amendments remain in disagreement at the end of this process,
either method of resolution may be pursued again. The amendments may be
“messaged” back and forth between the houses until one chamber accepts the
position of the other or until stalemate is reached. Alternatively, either house may
request a further conference to consider the amendments that remain in disagreement.
The same or new conferees may be appointed. Only the amendments in
disagreement are submitted to the new conference. The managers may not re-open
matters that were resolved in the partial conference report that both houses approved
because these matters are no longer in disagreement. But the partial conference
report cannot become law until all the remaining disagreements have been resolved.
If the second conference is successful, the managers submit a second report for action
on the House and Senate floor. If not, the legislation, including the partial conference
report, probably is dead for that Congress.
Amendments in true disagreement rarely arise when conferees are presented
with a second chamber substitute. In such a situation, there is only one amendment
before the conference. The conferees either reach agreement or they do not; they may
not report only part of the substitute as an amendment in disagreement. If the
conferees report back in total disagreement, the House and Senate then can vote to
insist on their original positions or propose new versions of the legislation. This
hardly ever occurs; but when it does, the bill may die for lack of further action or the
two houses may agree to a new conference to consider the same issues once again.
Instead, amendments in true disagreement generally have arisen when the
second chamber has passed a bill with a series of separate amendments. Since this
has happened most often to general appropriations bills that originate in the House
(and on which the Senate requests conferences), the House usually has acted first on
partial conference reports and amendments in disagreement.
The possibility of amendments in disagreement can make it exceedingly difficult
to anticipate what will happen to a measure that is sent to conference. It is not simply
a question of whether or not the conferees will be able to resolve all the amendments
in disagreement by reaching compromises that fall within the scope of the differences
between the House and Senate versions. If a number of amendments are considered
in conference, the managers may reach agreement on some, but not on others. And
what then happens to the amendments reported in disagreement depends on the
motions that are made and agreed to by the House and Senate.
Furthermore, the recourse to amendments in disagreement creates new
possibilities that were not available in conference. In conference, the managers’
options are defined and limited by the scope of the differences between the House
and Senate positions before them. However, when the House and Senate act on an
amendment in disagreement, they are not subject to this restriction. The concept of
“the scope of the differences” is a restriction on the authority of managers in
conference; it is not a restriction on amendments between the houses.38 So, for
example, the House may amend a Senate amendment in disagreement with a new
House position (or technically, the House may recede from its disagreement to the
Senate amendment and concur in the Senate amendment with a House amendment)
that goes beyond the scope of either house’s original position.
Thus, it is possible, though not very likely in practice, that (1) the conferees
could report an amendment in disagreement, (2) the first chamber to act could
propose a new position in the form of an amendment to the amendment in
disagreement, (3) the second chamber could respond with a further amendment that
constitutes a new position of its own, and (4) conferees could be appointed for a
second time to attempt to resolve the differences between these two new positions
on the same subject. In this second conference, the same general policy question
would be at issue, but the scope of the differences between the House and Senate
versions (and consequently the options open to the conferees) would not be the same.
To add to the uncertainties, several other complications can occur in the House
as it acts on each amendment in disagreement. These options arise from the different
order of precedence among certain motions in the House (but not in the Senate) that
prevails before and after the House reaches the stage of disagreement, and the
opportunities for crossing and re-crossing that threshold. These complications have
arisen most often during action on amendments in disagreement to general
Before the House reaches the stage of disagreement, the order of precedence
favors motions that tend to perfect the measure further; after the stage of
disagreement, the order of precedence is reversed and favors motions that tend to
promote agreement between the houses. Thus, if a motion to concur in a Senate
amendment is made on the House floor before the stage of disagreement, a motion
to concur with an amendment has precedence and may be offered and voted on while
the motion to concur is pending. The motion to concur with an amendment has
precedence because it tends to perfect the measure. If the House agrees to the motion
to concur with an amendment, the straight motion to concur automatically falls
without a vote, even though it had been offered first.39
After the House has reached the stage of disagreement, however, a motion that
the House recede from its disagreement and concur in a Senate amendment has
precedence over a motion to recede and concur with an amendment. The motion to
recede and concur tends to promote agreement more directly than the motion to
recede and concur with an amendment. If a preferential motion to recede and concur
38 However, floor amendments to amendments in disagreement still must meet normal
requirements for floor amendments. For example, a House amendment to a Senate
amendment in disagreement to a general appropriations bill still must be germane and may
not propose a new unauthorized appropriation, even though the Senate amendment in
disagreement may itself provide an unauthorized appropriation.
39 Such motions are not likely to be made in practice, for reasons discussed in the section on
House consideration of Senate amendments.
is made and carries, no vote occurs on the motion to recede and concur with an
amendment, even if that motion already had been made.
As if this were not complicated enough, the motion to recede and concur is
divisible in the House, as is the motion to recede and concur with an amendment.
Any Representative may demand that it be divided into two proposals: first, that the
House recede from its disagreement to the Senate amendment; and second, that the
House then concur in the Senate amendment (or concur in it with an amendment,
depending on which motion has been made). Following a demand for the division
of the motion, the House first considers whether it should recede from its
disagreement. But if the House votes to recede, it crosses back over the threshold of
disagreement; consequently, the precedence of motions reverses, and a motion to
concur with an amendment takes precedence over a motion to concur.
As a result, the possibilities that may arise on the House floor as the House
considers each amendment in disagreement depend: first, on which motion is made
by the floor manager; second, on what motions have precedence over that motion;
and third, on whether an attempt is made to change the order of precedence by
demanding a division of the first motion.
Suppose that the clerk reads an amendment in disagreement and the floor
manager moves that the House recede from its disagreement to that amendment and
concur therein. Because the House and Senate reached the stage of disagreement
before they appointed their conferees, a motion to recede and concur with a House
amendment does not have precedence. However, if any Member demands a division
of the motion to recede and concur, the House first debates and votes on whether to
recede. Normally, the House does vote to recede because rejecting this motion would
imply that the House is unwilling to consider either the Senate amendment or any
compromise version. But when the House recedes from its disagreement, it crosses
back over the threshold of disagreement and the order of precedence among motions
is reversed. When the House then considers the second half of the divided motion
— to concur in the Senate amendment — another Member may move instead that
the House concur in the Senate amendment with an amendment, because the motion
to concur with an amendment now has precedence over the motion to concur. Only
if the House rejects the motion to concur with an amendment would it then vote on
the original proposal to concur in the Senate amendment.
Suppose instead that, after an amendment in disagreement has been read, the
floor manager moves that the House recede and concur with an amendment. The
stage of disagreement having been reached, a simple motion to recede and concur has
precedence and may be offered. But if this motion is divided, the House votes first
on whether to recede. And if the House does recede, the threshold of disagreement
again is re-crossed and the motion to concur with an amendment has precedence over
the second half of the divided motion — that the House concur. Thus, the
amendment originally proposed in the motion to recede and concur with an
amendment may be offered again as a motion to concur with an amendment — after
a preferential motion to recede and concur has been offered, after that motion has
been divided, and after the House has voted to recede.40
The array of possible complications on the Senate floor is more limited. First,
the order of precedence of motions in the Senate is not reversed after the stage of
disagreement has been reached. Second, Senators may not demand the division of
a motion to recede and concur or of a motion to recede and concur with an
Even in the House, Representatives seldom use the opportunities available to
them. Amendments in true disagreement rarely arise and, when they do, the House
usually accepts the floor manager’s motions to dispose of them. The sheer
complexity of some of the parliamentary maneuvers described above probably
discourages Members from attempting them, for fear that they are more likely to
create confusion than achieve some strategic advantage. Nonetheless, the possibility
of amendments in true disagreement and the various options for dealing with each
of them on the floor make it dangerous to predict with confidence exactly what will
happen to a measure once it has been submitted to conference.
Amendments in Technical Disagreement
As discussed in earlier sections of this report, there are important restrictions on
the content of conference reports. Conferees may deal only with the matters that are
in disagreement between the House and Senate, and they must resolve each of these
matters by reaching an agreement that is within the scope of the differences between
the House and Senate positions. If a conference report violates these restrictions in41
any one respect, the entire report is subject to a point of order.
Yet conferees sometimes find it desirable or necessary to exceed their authority.
For example, changing circumstances may make it imperative for Congress to
appropriate more money for some program than either the House or the Senate
initially approved. Or the conferees may decide that a bill should include provisions
on a subject that was not included in the version passed by either house. In such
cases, the conferees may be able to achieve their purpose, without subjecting their
report to a point of order, by using the device of amendments in disagreement. In
doing so, they take advantage of the fact that the restrictions that apply to provisions
of conference reports do not govern amendments between the houses.
40 Additional complications are possible. If a motion to concur with an amendment, or to
recede and concur with an amendment, is made and rejected, another such motion could be
made proposing a different germane amendment. Alternatively, if the previous question is
not ordered on a motion to concur with an amendment (or a motion to recede and concur
with an amendment), a germane second degree amendment could be offered to the
41 As discussed earlier, however, the Senate interprets its rules in a way that gives its
conferees considerable latitude, and the House can waive points of order by adopting a
special rule for that purpose.
If the conferees wish to exceed their authority in resolving one of the
amendments in disagreement, they can exclude this amendment from the conference
report; instead, they present to the House and Senate a partial conference report and
an amendment in disagreement. This is called an amendment in technical
disagreement. There is no substantive disagreement between the House and Senate
conferees; they report the amendment in disagreement only for technical reasons —
to avoid the restrictions that apply to conference reports.
The first house considers the partial conference report and then the amendment
in technical disagreement.42 When that amendment is presented (in the House, for
example) the floor manager moves that the House recede from its disagreement to the
Senate amendment and concur therein with an amendment that is the decision made
in conference. Because this conference recommendation is considered outside of the
conference report — as part of a motion to dispose of an amendment in technical
disagreement — no point of order lies against the motion or the proposed amendment
on the grounds that the amendment exceeds the scope of the differences or proposes
a subject not committed to conference by either house. However, the proposed
amendment still must be germane in the House.
If the first house votes for the motion, the second chamber acts on the partial
conference report and then on the first house’s amendment to the amendment in
technical disagreement. When the amendment is presented, the floor manager moves
that the Senate concur in the House amendment (assuming that the House acted first).
If the Senate agrees to this motion, the process of resolution is completed.
Until recently, conferees used this device regularly, although for a somewhat
different purpose, to complete congressional action on general appropriations bills.
The rules of the House generally prohibit such bills from carrying unauthorized
appropriations and changes in existing law (“legislation”). The procedures of the
Senate, however, are not as strict. Under a number of conditions, the Senate may
consider floor amendments to general appropriations bills that would not have been
in order in the House. If approved by the Senate, these amendments are sent to
conference and constitute amendments in disagreement with the House. They are
properly before the conference and the conferees may accept them without violating
the restrictions on their authority that have been mentioned so far.
This situation could create a significant problem for the House. On a general
appropriations bill, conferees could present the House with a conference report that
is not amendable but that includes matter that could not even have been considered,
much less approved, by the House when it first acted on the bill on the floor. The
remedy for the House can lie in the use of amendments in technical disagreement.
Clause 5 of House Rule XXII states that House conferees may not agree to a
Senate amendment to a general appropriations bill if the amendment would violate
the prohibitions in the House’s rules against unauthorized appropriations and
42 The House usually acts first on partial conference reports and amendments in technical
disagreement because they arise most often on general appropriations bills which originate
in the House (and on which the Senate usually requests conferences).
legislation on such bills (in clause 2 of Rule XXI), “unless specific authority to agree
to the amendment first is given by the House by a separate vote with respect thereto.”
Otherwise, the same clause provides, the Senate amendment in question “shall be
reported in disagreement by the conference committee back to the two Houses for
disposition by separate motion.” The same two options are available to conferees in
the case of a Senate amendment proposing to appropriate funds in any bill that is not
a general appropriations bill.
In practice, House conferees never seek separate House floor votes in advance.
Instead, the conferees report any amendments to which Rule XXII, clause 5(a),
applies as amendments in technical disagreement. After the House agrees to the
partial conference report, it considers these amendments. As each of the Senate
amendments is presented to the House, the majority floor manager offers a motion
that the House recede from its disagreement and either concur in the Senate
amendment or concur in it with a House amendment. In either case, the floor
manager’s motion incorporates the agreement reached in conference. After the
House agrees to these motions, the Senate approves the partial report and then agrees
to corresponding motions to dispose of the amendments that require Senate action.
Whereas the House has dealt with most or all of the amendments separately, the
Senate usually has disposed of most or all of them en bloc by unanimous consent.
(The House may dispose of a number of such amendments en bloc, also by
unanimous consent, when they are noncontroversial and when the floor manager
proposes that the House recede and concur in each of them.)
By this means, the House could respond, on a case-by-case basis, to Senate
amendments to general appropriations bills that would not have been in order in the
House. This procedure enabled the House to protect itself against having simply to
vote for or against a conference report containing such Senate amendments (or
modifications of them), and, therefore, having to choose between rejecting the report
(and jeopardizing the bill) or violating the principles of its own rules. By voting on
the motions made by the House floor manager, the House could decide in each
instance whether to accept the judgment of its conferees that wisdom or necessity
dictated an exception to a strict separation of appropriations from both authorizations
and changes in existing law. Moreover, the House and Senate have the same options
for dealing with amendments in technical disagreement that are available for
disposing of amendments in true disagreement.
Thus, amendments in technical disagreement have been a useful device to deal
with the differences between House and Senate rules governing matters that may be
included in general appropriations bills. This device was convenient for
appropriations conferees because the Senate typically passed House appropriations
bills with many separate, numbered amendments. Consequently, the conferees could
report as many of these amendments as necessary as amendments in technical
disagreement. In the last several Congresses, however, there have been far fewer
amendments in technical disagreement accompanying appropriations conference
In many instances, the Senate has passed House appropriations bills with
amendments in the nature of substitutes, and it is not possible to report back from
conference with part of such an amendment in disagreement. Also, the House Rules
Committee has reported, and the House has adopted, special rules waiving points of
order against many of the appropriations conference reports. Anticipating that their
reports would receive this protection, appropriations conferees could include all their
agreements within their reports, without regard for considerations of scope or the
matters in disagreement, and without fear that they would make their reports
vulnerable to points of order on the House floor.
House Consideration of Nongermane
The contrast between House and Senate rules and procedures governing general
appropriations bills poses one problem for bicameral relations that arises during the
process of resolving legislative differences. A remedy has been the use of
amendments in technical disagreement. Another and similar problem results from
the contrast between House and Senate rules concerning the germaneness of
amendments — a problem for which the House has devised a somewhat different
House rules require amendments to be germane (unless this requirement is
waived by a special rule). By contrast, Senate rules require that amendments be
germane only when offered to general appropriations measures or budget measures
(both budget resolutions and reconciliation bills) or when offered after the Senate has
invoked cloture. In addition, the Senate sometimes imposes a germaneness
requirement on itself as part of unanimous consent agreements governing
consideration of individual measures, although such agreements may include
exceptions that make specific nongermane amendments in order.
Consider the potential consequences of this difference for the House. The
Senate may pass a House bill with one or more nongermane amendments. Each of
these amendments is “conferenceable” (an unofficial term that is used from time to
time by participants in the legislative process) as an amendment in disagreement
between the House and Senate. The conferees may include it (or a modification of
it) in their conference report without violating their authority. However, this
situation could force the House into an up-or-down vote on a conference report
including nongermane matters that were not debated on the House floor, that would
have been subject to points of order if offered as House floor amendments, and that
might not even have been considered by the appropriate House committees.
The remedy for the House appears in clause 10 of House Rule XXII. This
clause creates an opportunity for the House to identify nongermane matter originating
in the Senate and to consider it separately. (Of course, the House can adopt a special
rule reported from the Rules Committee that waives the point of order this clause
Clause 10 states that when the House begins consideration of a conference
report or a motion to dispose of a Senate amendment to which the House has
disagreed, a Member may make a point of order (before debate begins) against matter
contained in the report or the motion on the grounds that the matter in question would
not have been germane if it had been offered as a House floor amendment to the
measure (in the form the measure passed the House).43 If the Speaker sustains the
point of order (thereby establishing that the matter in question is nongermane), the
Member then may move that the House reject the nongermane matter. This motion
is debatable for 40 minutes, to be equally divided between and controlled by
proponents and opponents. After the House votes on the motion, another such point
of order may be made against different nongermane matter; and if it is sustained,
another motion to reject is in order.
If the House defeats any and all motions to reject, the House thereby decides to
retain the nongermane matter. The House may vote not to reject nongermane
language for at least two reasons. First, a majority of Representatives may support
the nongermane matter on its merits; or second, the House may conclude that the
Senate is so insistent on its nongermane language that rejecting it could seriously
jeopardize enactment of the entire bill.
If the House does vote to reject any nongermane matter in a conference report,
the report is considered as having been rejected. This is consistent with the principle
that conference reports are not amendable. Clause 10(d)(2) states that, in most cases,
the House then proceeds automatically to decide “whether the House shall recede and
concur in the Senate amendment with an amendment consisting of so much of the
conference report as was not rejected.” In other words, the House votes to amend the
Senate amendment with a House amendment that consists of the remainder of the
conference agreement without the nongermane matter.44
If the Senate accepts this new House amendment, resolution is reached. If not,
the Senate may disagree to the House amendment and request a new conference with
the House. In this way, the House can isolate nongermane Senate matter for separate
consideration, but neither chamber can impose its will on the other.
Clause 10(d)(3) makes in order three possible motions, in an established order
of precedence, that Members may make if the House votes to reject nongermane
matter contained not in a conference report but in a motion that the House recede and
concur in a Senate amendment, with or without amendment. In brief, these motions
allow the House to amend the Senate amendment or to again disagree to it, perhaps
also requesting a new conference with the Senate to resolve this disagreement.
43 The Speaker first entertains any points of order against the report as a whole (on grounds
of scope, for example) before entertaining points of order concerning germaneness.
44 If the House rejects nongermane matter in a conference report accompanying a Senate
measure that the House had amended, the House votes instead on insisting further on the
House amendment to the Senate bill.