Whither the Role of Conference Committees: An Analysis
Whither the Role of Conference Committees:
August 12, 2008
Government and Finance
Whither the Role of Conference Committees:
Conference committees have long been known as the “third house of Congress.”
They are often the principal forum for resolving bicameral differences on major
measures when the House and Senate pass dissimilar versions of the same bills.
Current developments suggest, however, that the “third house” characterization might
require modification. It is not that conference committees are unimportant, it is that
another method for adjusting and reconciling bicameral differences on significant
legislation has taken on greater prominence in the contemporary Congress. This
method is the exchange of amendments between the houses — the so-called “ping
If the conference committee is being somewhat eclipsed by the ping pong
procedure as a way to achieve bicameral reconciliation on consequential measures,
that would represent an important institutional development. This apparent
development requires attention and analysis. Accordingly, this report’s purposes are
fundamentally twofold: to examine the reasons for the heightened salience of the
ping pong approach and to consider several implications that seem to flow from
using this procedure rather than convening conferences to resolve inter-chamber
disagreements on major legislation.
To fulfill these two purposes, the report will examine six issues. First, it will
provide an overview of the methods Congress employs to achieve bicameral
agreement on legislation. Second, it will briefly discuss how each chamber gets to
conference, underscoring how the convening of conferences in the Senate can be
effectively blocked, even if a majority of Senators would agree to send the measure
to conference. Third, it will examine several factors that have apparently contributed
to the more conspicuous use of the ping pong method on significant measures.
Fourth, procedures are usually not isolated actions; they are employed in a
policy, political, and legislative context. Hence, the report will use three case
examples to illustrate in a concrete setting the factors that might trigger use of ping
ponging over the convening of conference committees. Fifth, the report will discuss
several reasons for, and implications of, ping ponging amendments back-and-forth
between the chambers instead of forming conference committees to achieve
bicameral agreement on legislation. Lastly, summary observations will be presented,
including why the exchange of amendment pattern has seemingly evolved to become
a more important feature of bicameral lawmaking activity.
This report will be updated if circumstances warrant such action.
In troduction ......................................................1
Achieving “Bicameral Ignition” on Legislation...........................3
Ping Ponging in the Spotlight....................................7
Getting to Conference: House and Senate Procedure ......................7
The Senate’s Difficulty in Convening Conferences.......................10
Senators and Extended Debate...................................10
Exclusion of Minority Conferees From Bicameral Negotiations........14
Three Case Examples..............................................16
Energy Independence and Security Act (H.R. 6).....................16
Ethics and Lobbying Reform (S. 1)...............................21
Reauthorization of SCHIP (H.R. 976).............................24
Bypassing the Conference Stage: Reasons and Implications................27
Further Enhancement of the Role of Party Leaders...................28
Limits on the Role of Committees and Their Leaders.................29
Marginal Role of the Minority Party..............................30
Constraints on the Deliberative Process ...........................31
Avoidance of Political/Procedural Concerns........................32
Lack of Transparency..........................................35
List of Tables
Table 1. Methods of Bicameral Resolution on Public Laws, 1992-2007.......5
Whither the Role of Conference
Committees: An Analysis
Conference committees have long been known as “the third house of Congress.”
In a bicameral legislature like the U.S. Congress, they are usually the principal forum
for reconciling major bills passed in dissimilar form by the two houses. These
bicameral units often write the final version of major measures that both chambers
will vote upon. As one Senator said, conferences are “where the final touches are put
on legislation which constitutes the laws of the country.”1 A House member stated,2
“Let’s face it, the conference committee is where it all happens.” Or as a
congressional scholar put it, in “the legislative process, all roads lead to the3
Current developments suggest, however, that the “third house” characterization
might require modification. It is not that conference committees are unimportant, it
is that another method for adjusting and reconciling bicameral differences on
significant legislation has taken on greater prominence in the contemporary4
Congress. This method is the exchange of amendments — or “messages” —
1 Congressional Record, vol. 146, October 13, 2000, p. S10520.
2 Janet Hook, “In Conference: New Hurdles, Hard Bargaining,” Congressional Quarterly
Weekly Report, September 6, 1986, p. 2082.
3 John Manley, The Politics of Finance: The House Committee on Ways and Means (Boston,
Little, Brown, 1970), p. 239.
4 According to Senate precedents addressing messages from the House: “If the messages
involve Senate-passed bills with House amendments or House-passed bills with Senate
amendments, or Senate amendments with House amendments thereto, they are held at the
Desk [in the chamber] until a request from the floor is made to dispose of them. Generally,
when a request is made from the floor to lay such messages before the Senate, the Senate
will concur in the House amendments, or concur in the House amendments with
amendments, or send such bills which have passed both Houses with amendments to
conference.” Regarding measures passed by both houses, Senate precedents also state:
“Messages from the House of Representatives on measures which have already passed the
Senate and the House of Representatives with amendments, when received in the Senate,
are held at the desk for further disposition. Generally, such proposals, which have
privileged status to be laid before the Senate [meaning a motion to call them up is not
subject to a filibuster], are either sent to conference, or a motion is made to concur in the
between the houses, the so-called “ping pong” procedure. Some lawmakers even
state that conferences are becoming a thing of the past. A member of the Senate
noted, “Processing bills by exchanging messages [amendments] with the House is
becoming the norm rather than the exception. Formal conferences are becoming
If the conference committee is being somewhat eclipsed by the ping pong
procedure as an important way to achieve bicameral reconciliation on consequential
legislation, that would represent an important institutional change. This apparent
development merits some attention and analysis. Accordingly, this report’s purposes
are fundamentally twofold: to examine the reasons for the heightened salience of the
ping pong approach and to consider several reasons for and the implications that
seem to flow from using this procedure rather than convening conferences to resolve
inter-chamber disagreements on major legislation.
To fulfill these two purposes, the report is organized into six sections as follows.
First, it will provide an overview of the methods Congress employs to achieve inter-
chamber agreement on legislation, including ping pong’s place in the bicameral
resolution process. Second, it will briefly discuss how each chamber gets to
conference, underscoring how the convening of conference committees in the Senate
can be effectively blocked, even if a majority of Senators would agree to send the
measure to conference. Third, it will examine why there seems to be more reliance
in recent years on the ping pong method in reconciling bicameral differences on
significant legislation than on the conference committee route.
Important to underscore at the outset is that informal negotiations among key
bicameral actors suffuse the lawmaking process. Unsurprisingly, confidential
bargaining to achieve mutually acceptable agreements is part and parcel of both the
conference committee and the amendment exchange procedure. Key bicameral
actors typically craft policy compromises in closed session and then use the
amendment exchange method to win House-Senate agreement on them.6 On Capitol
Hill, private negotiating sessions and discussions among House and Senate members
are a day-to-day occurrence; these confidential meetings influence lawmaking from
the introduction of a bill to bicameral reconciliation.
Procedures usually are not isolated actions; they are employed in a policy,
political, and legislative context. Hence, the fourth section of the report provides an
overview of three case examples to illustrate in a concrete setting the factors that may
trigger use of ping ponging over the convening of conference committees. The three
House amendments thereto.” See Floyd M. Riddick and Alan S. Frumin, Senate Procedure:
Precedents and Practices (Washington., DC: GPO, 1992), p. 1515. For pertinent House
precedents regarding amendments between the houses, see Wm. Holmes Brown and Charles
W. Johnson, House Practice: A Guide to the Rules, Precedents, and Procedures of the
House (Washington, DC: GPO, 2003).
5 Congressional Record, vol. 154, April 24, 2008, p. S3387.
6 Bicameral participants might also convene a perfunctory conference committee to ratify
decisions made during closed bargaining sessions.
measures are the Energy Independence and Security Act (H.R. 6); the Honest
Leadership and Open Government Act (S. 1); and the reauthorization of the State
Children’s Health Insurance Program (or SCHIP, H.R. 976). A brief summary of the
key elements associated with ping ponging each bill will conclude the discussion.
These three bills were selected because they were the only ones in 2007 where the
Senate majority leader employed a strategic maneuver called “filling the amendment
tree” during the bicameral resolution stage.7 This procedural device is a way for the
majority leader to protect an informally negotiated bicameral compromise from
To be sure, there are other significant measures where ping ponging without any
tree-filling has occurred in the Senate. The tree-filling maneuver may not have been
necessary or appropriate because, for example, the bicameral compromise enjoyed
broad bipartisan support; tree-filling might create more legislative problems than it
could solve, such as arousing the ire of lawmakers who wanted to offer amendments
of their own; or deadline pressures prompted agreement to the bicameral accord.
Still, tree-filling can sometimes be a useful procedure in facilitating passage of
priority legislation, which is why these measures were chosen for examination.
Fifth, the report will discuss several reasons for, and implications of, ping
ponging amendments back-and-forth between the chambers instead of forming
conference committees to achieve bicameral agreement on legislation. Lastly,
summary observations will be presented, including why the exchange of amendment
pattern has seemingly evolved to become a more important feature of bicameral
Achieving “Bicameral Ignition” on Legislation
Under the Constitution, before measures can be sent to the White House for
presidential consideration, they must pass the House and Senate with exactly the
same bill number and legislative text. The issue, then, is how to unite what the
Constitution divides when one chamber agrees to a measure at variance with a
comparable bill adopted by the other house? Although the Constitution is silent on
the matter, Congress has devised three basic methods or procedures to achieve
7 An amendment “tree” is a chart or diagram that, among other things, shows the number and
types of amendments that may be pending to a measure or matter before any amendment is
voted upon. There are a maximum number of amendments permitted by a particular chart
or diagram (i.e., the tree), and once that number is reached, the tree is “filled.” After that,
no further amendments are in order until one of the so-called “limbs” (or amendments) on
the tree is disposed of. The Senate majority leader is able to fill the tree rather easily,
because he is granted preferential recognition by the Senate’s presiding officer. The result:
the majority leader is recognized by the presiding officer to propose amendments back-to-th
back until a tree is filled. Worth a brief mention is that the 110 Senate has reportedly
witnessed more tree-filling than in any other recent Congress. See Congressional Record,
vol. 154, May 6, 2008, pp. S3754-S3757.
First, one house enacts unchanged the other’s bill. Most measures (anywhere
from 63 to around 85 percent in a biennial Congress) are enacted into law when one
chamber adopts verbatim the legislation received from the other body. One
chamber’s deference to the other house’s bill has various explanations, ranging from
the lack of controversy to political necessity because time is running out in a
legislative session. The hike over time in the percentage of measures “rubber
stamped” into enactment (see Table 1) probably reflects a number of factors (setting
aside their noncontroversial character), such as Members’ electoral imperative — the
urge felt by many to claim credit for passing constituency-focused legislation — and
the artful drafting of legislation to assure that it has broad bipartisan and bicameral
appeal. To be sure, House and Senate members and their staff aides often consult
informally prior to a bill’s introduction in either chamber to facilitate its approval by
the second-acting house without amendment.
The other two methods specifically deal with reconciling bicameral differences
when the two chambers pass different versions of the same bill. The House and
Senate can message — or “ping pong” — amendments back-and-forth between them
until substantive disagreements on a measure are worked out. With the ping pong
— or exchange of amendments — approach, one chamber may adopt the other
house’s amendments or further modify the other’s amendments until both finally8
agree to identical language for all the provisions of the legislation. As a legislative
When the House or Senate passes a measure, it is sent to the other chamber for
further consideration. If the second chamber passes the measure with one or
more amendments, it is then sent back to the originating chamber. In modern
practice, the second chamber typically substitutes its version of a measure as a
single amendment to the measure as passed by the first chamber. The first
chamber then may accept the amendment or propose its own further amendment.
In this way, the measure may be messaged back and forth between the House and
Senate in the hope that both houses will eventually agree to the same version of9
The ping pong method of bicameral reconciliation is “frequently used in the
closing days of a Congress to save time,” wrote a congressional journalist. “Bills
may be sent back and forth on an hourly basis until there is a meeting of the minds,
or one side backs down, or the two chambers give up in failure.”10 A week before
Christmas 2007, for example, the House and Senate agreed to enact the Consolidated
Appropriations Act for Fiscal Year 2008 (H.R. 2764). With Congress unable to enact
largely because of sharp conflicts over spending priorities between congressional
Democrats and President Bush, as well as with congressional Republicans — the
8 There is a technical limit to the number of times measures can be shuffled between the
chambers. The third-degree amendment prohibition — amendments to amendments to
amendments are not in order — applies to amendments between the House and Senate. This
parliamentary principle can be set aside if either chamber wants to do so.
9 CRS Report 98-812, Amendments Between the Houses, by Elizabeth Rybicki.
10 Richard Cohen, National Journal, July 28, 2001, p. 2396.
two chambers opted to use the ping pong route. Given clashes between Democrats
and Republicans and lawmakers anxious to depart for the holiday season, political
and temporal considerations were among the factors that prompted use of the
amendment exchange method as the preferred way to reconcile inter-chamber
differences on H.R. 2764.
Roughly 11% to 24% of public laws enacted during recent biennial Congresses
took the ping pong, or “amendments between the houses,” route. The 12% figure for
the 2005-2007 period, as indicated by Table 1, represents a 50% decline from the
103rd Congress (1993-1995). However, the numerical dropoff does not reflect the
higher policy significance of the legislation subject to the ping pong method in recent
years compared with earlier Congresses.
Table 1. Methods of Bicameral Resolution on Public Laws,
CongressPublicLawsby one chamber ofthe version sent tobetween theConferencea
it by the otherhouses
Sources: Data compiled by CRS analysts from the House Final Calendars. Data from the first sessionth
of the 110 Congress are from the Legislative Information System (LIS).
a. If both chambers appointed conferees, the measure was included in the count of conference
committee, even if some differences were resolved through amendment exchange.
Bicameral ignition may also occur when the House and Senate agree to establish
a conference committee. Each chamber selects a number of conferees from the
relevant committees of jurisdiction to reconcile the items in bicameral disagreement.
Only a relatively small number of public laws passed by a Congress (anywhere from
around 5% to 13%, as revealed in Table 1) reach the conference stage, but these are
often the most complex, controversial, and consequential. On some occasions a
combination of the two approaches — ping pong and a conference committee, or vice
versa — will be employed to reconcile matters in bicameral disagreement.11 For
example, the chambers may start out using the ping pong procedure but then convene
a conference committee to reconcile outstanding disagreements.
It is quite common for House and Senate committee and party leaders, along
with relevant staff, to conduct private, pre-conference negotiations prior to the formal
convening of a conference. These might be characterized as “virtual” conferences.
For example, meeting behind closed doors, “Senate and House leaders are taking the
unusual step of negotiating a final bill to address the nation’s housing crisis even
before the Senate adopts its own version, trying to short-circuit a legislative process
that might otherwise drag well into the summer.”12 In these cases, sometimes the
creation of a conference committee “will be more an indication that a deal is done
than a forum to find one.”13
Private negotiating sessions also occur regularly, as noted earlier, with the
exchange of amendment procedure. For example, confidential negotiations occurred
when the House passed a genetic nondiscrimination measure (H.R. 493) on April 25,
2007, which the Senate considered the following year (April 24). The Senate
replaced the language in H.R. 493 with a complete substitute and returned the bill,
as amended, to the House, where it was cleared on May 1 for presidential
consideration. The point is that the Senate’s complete substitute was the result of
informal bicameral negotiations. As the ranking Senator on the relevant committee
of jurisdiction stated a few days before the House approved the substitute: “It has
even been preconferenced with the House side. So we are pretty sure that once it
11 Until the mid-1990s, conferences on appropriations bills virtually always reported a
number of discrete amendments in disagreement. By long-standing practice, the House
initiates appropriations bills, and the Senate would then adopt a series of amendments to the
House-passed measure. Appropriations conferences would report a partial conference report
to their respective chambers, which would be agreed to. Then each chamber would consider
the amendments still in disagreement, which reflected either true (a policy clash) or
technical (a rule violation, for example) differences. Thus, appropriations conferences often
observed a two-step process: the House would first agree to a partial conference report and
then address the amendments in disagreement; both matters would then be sent to the
Senate, which would first adopt the partial conference report and then consider the
amendments in disagreement forwarded to it by the House. This practice stopped after
Republicans captured control of Congress in November 1994. No longer does the Senate
adopt discrete amendments to House-passed appropriations bills. Instead, the Senate
Appropriations Committee follows the practice of other standing committees by striking the
entire text of the House-passed bill and replacing it with a complete substitute (the Senate’s
version of the money bill). One reason for the change was to expedite congressional action
on appropriations measures. Another explanation for the change was the increasing
willingness of the House Rules Committee to issue special rules granting a blanket waiver
of points of order against conference reports. As a result, considering Senate amendments
in disagreement outside the formal conference report because they violated various
procedural rules was no longer necessary. For additional relevant material, see CRS Report
12 Jeffrey H. Birnbaum, “Lawmakers Seek Shortcut In Negotiating House Bill,” The
Washington Post, June 7, 2008, p. D1.
13 Gary Andres, “A Deal or No Deal,” The Washington Times, June 8, 2006, p. A19.
finishes here it will go right over to the House and the House will take care of it
too.... We let them into the process early so that everybody would know what was
Ping Ponging in the Spotlight
Recently, legislative analysts and others have noted an increase in the use of the
exchange of amendment procedure for bicameral reconciliation. Difficulties in
creating conference committees for several major bills elevated the ping pong
procedure to greater prominence in resolving inter-chamber differences on
legislation. As former Senate Parliamentarian Robert Dove stated, “There’s no
question that amendments between the houses has been used more [today] than it has
in the past, but that’s because Senators blocking [legislation] from going to
conference has happened more often.”15 A congressional scholar and former House
staff director calculated the extent to which major bills were resolved by establishing
conference committees or using the ping pong approach during equivalent periods
of the GOP-controlled 109th Congress (2005-2007) and the Democratically controlled
Of major bills approved by the House and Senate that required some action
to resolve differences between the two versions, 11 out of 19 (58 percent) were
settled by conferences in the current Congress compared with 18 out of 19 (95
percent) in the previous Congress.
Put another way, the current 110th Congress has been negotiating eightth
times as many bills as the 109 Congress outside the conference process. This
is done by using the “pingpong” approach of bouncing amendments between the16
houses until a final agreement is achieved.
In short, the current reality is that major bills often cannot reach the conference stage,
leaving informal negotiations and “amendments between the houses” as the
alternative methods for resolving bicameral differences on major legislation.
Getting to Conference:
House and Senate Procedure
Briefly, the two most-used methods for getting to conference are unanimous
consent, with House Rule XXII available if an objection is made, and special rules
from the Rules Committee.
14 Congressional Record, vol. 154, April 23, 2008, p. S3300.
15 Emily Pierce and Jennifer Yachnin, “Tactical Skirmishes Intensified in 110th Congress,”
Roll Call, January 22, 2008, p. B-16.
16 Don Wolfensberger, “Have House-Senate Conferences Gone The Way of the Dodo?” Roll
Call, April 28, 2008, p. 8.
A routine request is for a lawmaker to ask and receive unanimous consent to go
to conference on a measure. “Mr. Speaker, I ask unanimous consent to take from the
Speaker’s table the bill H.R. 1234 with the Senate amendments thereto, disagree to
the amendments of the Senate, and ask for a conference with the Senate.”17
(Members request unanimous consent because Senate amendments at this stage of
the proceedings are not “privileged” — meaning they cannot be called up “at
practically any time for immediate consideration when no other business is
pending.”)18 If a lawmaker objects, the Member who requested unanimous consent
could then invoke clause 1 of House Rule XXII. This rule permits legislation to reach
conference by majority vote of the House if a member of the committee(s) of original
jurisdiction, typically the chair, is authorized by his or her panel to offer the
following motion:19 “Mr. Speaker, by direction of the Committee on ____, I move
to take from the Speaker’s table the bill H.R. 1234, with a Senate amendment thereto,
disagree to the Senate amendment, and ask for [or agree to] a conference with the
Second, the Rules Committee can report a special rule sending a measure to
conference. This procedural resolution requires a majority vote of the House for
adoption. The special rule would contain language such as: “That upon the adoption
of this resolution it shall be in order to take from the Speaker’s table the bill (H.R.
1234), with the Senate amendment thereto, disagree to the Senate amendment and
ask for a conference with the Senate.” Special rules are privileged, debated under the
hour rule, and cannot be amended unless the “previous question” — a motion that,
if agreed to, ends debate and requires a vote on the pending matter (the special rule)
— is rejected. Rarely is the previous question motion defeated by vote of the House
Simply put, the House is an institution whose formal rules and precedents
emphasize “majority rule.” Requests to go to conference are difficult to reject,
because they are typically framed as “party-line” votes by majority party leaders.
17 Typically, a House bill with Senate amendments is held at the Speaker’s “desk.” Since
Senate amendments at this stage are not “privileged” — meaning they have no right-of-way
to the floor — some other way is required to dispose of them if a lawmaker objects to a
unanimous consent request to take them up. For a detailed study of resolving bicameral
differences, see CRS Report 98-696, Resolving Legislative Differences in Congress:
Conference Committees and Amendments Between the Houses, by Elizabeth Rybicki.
18 John V. Sullivan, How Our Laws Are Made (Washington, DC: GPO, 2007), p. 25.
Precedents state that “motions in the House to dispose of the [Senate] amendment are not
privileged and require unanimous consent or a special rule from the Committee on Rules,
the only exception being a motion to ask or agree to a conference under rule XXII clause 1.”
See Wm. Holmes Brown and Charles W. Johnson, House Practice: A Guide to the Rules,
Precedents, and Procedures of the House (Washington, DC: GPO, 2003), p. 841.
19 More specifically, House Rule XXII, clause 1 states: “A motion to disagree to Senate
amendments to a House proposition and to request or agree to a conference with the Senate,
or a motion to insist on House amendments to a Senate proposition and to request or agree
to a conference with the Senate, shall be privileged in the discretion of the Speaker if offered
by direction of the primary committee and of all reporting committees that had initial
referral of the proposition.”
Seldom, for example, are special rules or Rule XXII motions turned down by the
An infrequently used procedure to get to conference is suspension of the rules,
a motion that requires a two-thirds vote for approval. A Member will say, “Mr.
Speaker, I move to suspend the rules and take from the Speaker’s table the bill H.R.
and ask for a conference with the Senate.” The supermajority vote limits use of the
suspension procedure as a method for getting to conference.
Unlike the “majority rule” principle of the House, the Senate is a “minority rule”
institution. Its rules and precedents grant large parliamentary prerogatives to each
senator, such as the right of extended debate. As one senator exclaimed: “The only
thing [that] it’s easy to do in the Senate is slow things down. The Senate is 100
human brake pads.”20 Slowing the Senate down can occur even if a Senator merely
threatens to filibuster a measure or matter. In today’s Senate, there is often neither
the time nor the votes to terminate dilatory debate, or a filibuster; so a talkathon
threat is sometimes enough to prevent action on legislation. A three-fifths vote of the
entire membership (if no vacancies, 60 of 100 senators), as prescribed in Senate Rule
XXII, is required to end a filibuster. If the Senate is narrowly divided and
ideologically polarized, it is often impossible to attract the 60 votes.
To convene a conference, it is generally the case that the majority leader or the
majority floor manager will ask and receive unanimous consent when he/she makes
this request: “Mr. President, I ask unanimous consent that the Senate insist on its
amendments [or disagree to the House amendments to the Senate bill], request a
conference with the House on the disagreeing votes thereon, and that the Chair be
authorized to appoint conferees.” Notice that there are three distinguishable parts to
this request: insist (or disagree), request, and authorize the appointment of conferees.
If a lawmaker objects to the unanimous consent request, then the majority leader or
floor manager would have to move each step separately, and each motion is subject
to extended debate.
As former Senate Parliamentarian Dove noted: “The three steps are usually
bundled into a unanimous consent agreement and done within seconds. But if some
senators do not want a conference to occur and if they are determined, they can force
three separate cloture votes to close debate and that takes time. It basically stops the
whole process of going to conference.”21 And if cloture (closure of debate) as
outlined in Rule XXII were invoked on each part, Senators keen on preventing a
conference still could offer innumerable motions to instruct conferees (who are yet
20 Associated Press, “Democrats to Forgo Control in Brief Edge,” The Washington Times,
November 29, 2000, p. A4.
21 Carl Hulse and Robert Pear, “Feeling Left Out on Major Bills, Democrats Turn to Stalling
Others,” New York Times, May 3, 2004, p. A8.
to be officially named by the Senate) — and each instruction motion is subject to a
The Senate’s Difficulty in Convening Conferences
A number of commonly occurring factors explains why the Senate sometimes
experiences delay or difficulty in getting to conference. For example, Senate (and
House) leaders — who want or expect to go to conference — may delay the
appointment of conferees, because there is a dispute over conferee selection: the
number to be chosen and the party ratio. At issue in these cases might be concern
over the representation of diverse views in conference. Limiting the size of the
conference delegation could block certain lawmakers from serving on the conference
committee. Conversely, increasing the number of conferees could ensure that certain
Members would serve on the conference committee. Party leaders, too, may want to
conduct informal pre-conference negotiations with the White House (or House)
before the Senate officially names conferees. Delay in forming a conference may be
a tactic to pressure the other body to concede on certain policies in bicameral
disagreement. Or delay might be a form of “hostage politics:” the naming of
conferees on a certain bill will not occur until the other body appoints conferees on
a different measure in bicameral dispute.
Three other overlapping reasons, however, largely account for the contemporary
Senate’s difficulty in convening conferences. Each merits additional discussion.
They are the Senate’s tradition of extended debate (the filibuster); the polarization
that characterizes the modern Senate; and the exclusion of minority party conferees
from participating in the bicameral bargaining process.
Senators and Extended Debate
The reality or threat of extended debate has long been part of the Senate. So
why has it now come into relatively recent prominence as a blocking tactic with
respect to the convening of conferences — thus focusing more emphasis on the ping
pong method? Part of the answer is the rise of the “individualist” Senate.
Congressional scholars state that Senators today take for “granted that they — and
their colleagues — [will] regularly exploit the powers the Senate rules [give] them.
[They are] increasingly outward directed, focusing on their links with interest groups,
policy communities, and the media more than on their ties to one another.”23
Internal incentives to employ extended debate sparingly have given way to other
incentives (requests by outside groups to engage in dilatory actions on certain
measures, for example) that encourage lawmakers to push their own agendas even
if the Senate’s lawmaking activities might grind to a halt. Another part (discussed
22 For more information, see CRS Report RS20454, Going to Conference in the Senate, by
23 Barbara Sinclair, “The New World of U.S. Senators,” in Lawrence C. Dodd and Bruce I.
Oppenheimer, eds., Congress Reconsidered, 8th ed. (Washington, DC: CQ Press, 2005), p.
below) deals with the polarization — intense partisan and policy conflict — that
characterizes Senate deliberations involving each party’s priority issues.
Filibustering the Senate’s three-part request to go to conference with the House
is of recent vintage. The first major instance of this delaying action, so far as is
known, occurred during the closing days of the 103rd Congress (1993-1995). It
happened on a campaign finance reform proposal. With Congress slated to adjourn
by October 7, 1994, critics of a campaign reform plan launched their precedent-
establishing filibuster the week of September 19. The opponents objected to the
routine motion to convene a conference on the campaign reform bill (S. 3) and the
House amendments thereto. As a Senate proponent of S. 3 stated:
We attempted to move to conference just prior to the August  recess, but
that request was objected to by one of our colleagues. Under the rules of the
Senate, the motion to disagree with the amendments of the House to a Senate
bill, as well as a request for a conference and the appointment of conferees, are
debatable motions. We have been unable to obtain unanimous consent on this24
On September 22, the Senate voted 96 to 2 vote to invoke cloture on the motion
to disagree to the House amendments to S. 3. In a strategic move, campaign reform
opponents opted to vote for cloture to “run out the clock.” Under Rule XXII, if
cloture is invoked, 30 more hours of debate are permitted, a parliamentary right
which is usually exercised infrequently. In this case, however, opponents of S. 3
“used every minute, talking straight through the night and through most of Sept. 2325
before the Senate voted 93-0 to disagree with the House.” Seven days later the
Senate failed (52 to 46) to invoke cloture on the motion to request a conference and
the bill died. The Senate’s majority leader (Democrat George Mitchell of Maine)
declared: “In the 210 years in the history of the United States Senate, never — until26
last week — has there been a series of filibusters on taking a bill to conference.”
24 Congressional Record, vol. 140, September 21, 1994, p. 25031.
25 Beth Donovan, “Republicans Plan Filibusters, Imperiling Senate Schedule,”
Congressional Quarterly Weekly Report, September 24, 1994, p. 2655.
26 Ceci Connolly, “Legislation Goes Overboard as Legislators Eye Exits,” Congressional
Quarterly Weekly Report, October 1, 1994, p. 2755. There were several earlier instances
of somewhat comparable delays in getting to conference. For example, on September 15,
1992, the majority leader lamented that the Senate had to invoke cloture in order to proceed
to conference with the House on the Neighborhood Schools Improvement Act (S. 2). Cloture
was successfully invoked (85 to 6) on the motion to disagree to the House amendments to
S. 2. “It is extraordinary that the Senate should be required to go through this procedure,”
exclaimed the majority leader, “and then even more extraordinary that not a single word has
been stated publicly as to why the Senate is being required to go through this procedure” on
a bill that passed the Senate by a 92 to 6 vote. See Congressional Record, vol. 138,
September 15, 1992, p. S13442. On July 20, 1993, the majority leader asked unanimous
consent that the Senate agree to the three-part motion to go to conference with the House
on the Hatch Act Reform Amendments (H.R. 20). A senator objected to that request. In
response, the majority leader stated: “Sixty-eight Senators voted to pass [H.R. 20], and now
what is as routine a request as there can be in the Senate, simply to name Senators to meet
Growing partisan tensions in the Senate are a major factor triggering dilatory
activity that can prevent the convening of conference committees.27 In addition, the
Senate is filled with lawmakers willing to exploit the chamber’s procedural rules to
accomplish their objectives. Mitchell’s service as majority leader (1989 to 1995)
occurred during a time when the Senate — long known for comity among its
members and the willingness of senators to compromise and resolve policy
differences — was becoming a more polarized and partisan institution. Various long-
and short-term developments produced this result; they have been analyzed and
discussed in numerous sources, but several merit mention.28
Heightened partisan feelings between Democrats and Republicans are due in
large measure to a significant demographic development. A national resorting of the
two parties’ constituency bases has produced large policy differences between them.
For instance, the South was once a Democratic bastion. Today, it is largely a
Republican stronghold as conservative Democrats became conservative
Republicans.29 The outcome, as journalist David S. Broder wrote, is two Senate
with House colleagues to work on a conference on the bill, we have a filibuster, or threat of
a filibuster, that prevents us from taking action unless we now drop everything else, file a
motion to end the filibuster and spend a few more days on a bill which we have already
debated and discussed at length and just voted for by an overwhelming margin.” See
Congressional Record, vol. 139, July 20, 1993, p. S8955. On the California Desert
Protection Act (S. 21), a senator “slowed the usually pro forma step of sending the bill to
conference.” On September 22, 1994, the Senate voted 73 to 20 to invoke cloture on the
motion to disagree to the House amendments to S. 21. Subsequently, on October 4, 1994,
the majority leader reached an agreement with opponents of the bill to send the measure to
conference. He asked and received unanimous consent “that the Senate request a conference
with the House on the disagreeing votes of the two Houses, and that the Chair be authorized
to appoint conferees.” See Congressional Record, vol. 140, September 22, 1004, p. 25454
and October 4, 1994, p. 27482.
27 One notion of “partisan” involves the electoral competitiveness and intensity of views
between the two parties that sometimes inhibits their ability to work together effectively to
resolve major issues. As a result, in the contemporary Congress, there is a tendency for
“civility to lose out to conflict, compromise to deadlock, deliberation to sound bites, and
legislative product to campaign issues.” See David Brady and Morris Fiorina, “Congress
in the Era of the Permanent Campaign,” in Norman J. Ornstein and Thomas E. Mann, eds.,
The Permanent Campaign and Its Future (Washington, D.C.: American Enterprise Institute
and The Brookings Institution, 2000), p. 156.
28 See, for example, Ronald Brownstein, The Second Civil War: How Extreme Partisanship
Has Paralyzed Washington and Polarized America (New York: The Penguin Press, 2007);
Jon Bond and Richard Fleisher, eds., Polarized Politics: Congress and the President in a
Partisan Era (Washington, DC: CQ Press, 2000); and Barbara Sinclair, “The New World
of U.S. Senators,” in Lawrence C. Dodd and Bruce I. Oppenheimer, eds., Congressth
Reconsidered, 8 ed. (Washington, DC: CQ Press, 2005), pp. 1-22.
29 There are various explanations to account for the rise of the two-party South. Some
emphasize the role of the civil rights movement in promoting the registration of black voters,
parties “more cohesive internally and further apart from each other
philosophically.”30 Or as a GOP senator put it: “Today, most Democrats are far left;
most Republicans are to the right; and there are very few in between.”31 Little
surprise, therefore, that we see a large number of party-line votes (a majority of one
party facing off against a majority of the other party) and an increase in party
cohesion on those votes. “Both Republicans and Democrats are standing with their
own party against the other on about 90 percent of the [contested] votes, a level of
lockstep uniformity unimaginable only a generation or two ago.”32
Among other factors contributing to sharper partisanship in the Senate are the
!a 24/7 news cycle that focuses on party conflict and scandal;
!interest groups aligned with each party that expect lawmakers to toe-
the-line on their preferred issues or face electoral recriminations;
!lawmakers’ constant need to raise campaign funds from many of
these same party-aligned groups that often closely monitor the votes
!the influx of former House members into the Senate, many of whom
bring a more confrontational governing style to the chamber;
!the reality of top party leaders being targeted by opposition Senators
for electoral defeat;
!the use of ethics as a partisan weapon; and
!today’s often negative “take-no-prisoners” senatorial elections.
These many elements combine to make management of today’s Senate difficult,
especially on controversial issues and when the partisan divide is narrow. “There [is]
nothing here [the majority party] can do without some degree of cooperation from a
very robust 49-vote minority,” remarked a Senate minority leader.33 Or as a former
Senate majority leader stated:
I think the toughest job in the whole city [is] being the majority leader in
the Senate, and not just because I had it but because I got to see what it was all
which encouraged conservatives to leave the Democratic party and become Republicans.
Others point to migration of prosperous retirees, many of them Republican, from northern
states to the South. See Nelson W. Polsby, How Congress Evolves: Social Bases of
Institutional Change (New York: Oxford University Press, 2004), pp. 80-108. Further, there
are traditional and historical southern cultural characteristics that might have facilitated the
region’s drift toward the Republican party, such as its large number of white evangelicals,
lack of strong unions, and deep-seated support of the military.
30 David S. Broder, “Don’t Bet on Bipartisan Niceties,” The Washington Post, January 1,
31 Kathy Kiely and Wendy Koch, “Committee Shaped by Party Ties,” USA Today, October
32 Brownstein, The Second Civil War, p. 14.
33 Carl Hulse, “Senate G.O.P. Leader Adapts to an Unexpected Role,” New York Times,
November 30, 2006, p. A20.
about. The President has the whole administration, the Speaker has the Rules
Committee, but the leaders of the Senate, on both sides of the aisle, they lead
because of who they are and the power of persuasion they have and the respect
for the position they hold. Nothing in the Constitution gives them special34
Cooperation across party lines, in brief, is sometimes hard to come by for two
basic reasons: the arsenal of parliamentary tools that any senator can employ to
frustrate policymaking and a Senate which is increasingly partisan and whose
members employ public relations (or “message”) strategies — the war of words —
to advance party-preferred objectives. The tone of partisan warfare that often
surrounds debate on many important issues makes it difficult for either side to
achieve compromises that can pass the Senate. Partisan polarization in the Senate,
wrote a congressional scholar, “has made constructing the necessary deals
considerably tougher; the two parties’ notions of what constitutes good public policy
have little overlap.”35
Exclusion of Minority Conferees
From Bicameral Negotiations
A specific catalyst made Senate formation of conference committees during the
early 2000s highly problematic: the exclusion of minority party members from
conference committee participation. As a Senate committee chair told a group of his
chamber’s minority party conferees, “We don’t expect you to sign [the conference
report], so we don’t expect you to be needed” in the bargaining sessions.36 Four other
examples underscore the exclusionary point.
! In 2000, a minority party senator lamented: “I have been appointed
to conference committees in the Senate in name only, where my
name will be read by the [presiding officer] and only the conference
of Republicans goes off and meets, adopts a conference report, signs
it, and sends it back to the floor without even inviting me to attend
!A year later another Senator stated: “After much talk of
bipartisanship, the other side locked out the Democrats from the
conference committee....We were invited to the first meeting and
told we would not be invited back, that the Republican majority was
going to write the budget all on their own, which they have done.”38
34 Congressional Record, vol. 153, December 18, 2007, p. S15817.
35 Barbara Sinclair, Party Wars: Polarization and the Politics of National Policy Making
(Norman, OK: University of Oklahoma Press, 2006), p. 227.
36 Daniel J. Parks, “Bush Starts to Deal on Budget, Only Hardening Resolve of Some,” CQ
Weekly, April 28, 2001, p. 904.
37 Congressional Record, vol. 146, May 16, 2000, p. S3991.
38 Congressional Record, vol. 147, May 4, 2001, p. S4377.
!In 2003, a minority party senator said: “Once this [class action] bill
leaves the Senate floor, Democrats have no bargaining power.
We’re not invited to any conferences.”39
!Two years later, another minority party lawmaker declaimed: “On
issue after issue, we have had conferences where the minority was
excluded so that the majority could ram through unpopular
provisions as part of an un-amendable conference report.”40
Members of the House minority have also been excluded from participating in
conference negotiations. In one case, the ranking member of the Committee on Ways
and Means, along with several party colleagues, crashed a conference meeting held
in the chairman’s Capitol hideaway. Only majority party members were present
except for two minority party senators sympathetic to the majority’s policy goals.41
Another ranking House minority committee member exclaimed that conferences “are
simply conferences between a few well-connected people on the majority side of the
aisle, with no real consultation with the minority.”42
The House minority, unlike its counterpart in the Senate, has no effective way
to block the formation of conference committees given the “majority rule” bias of its
procedures. To be sure, the House minority can express its anger or frustration at
being excluded from conference negotiations through various dilatory actions, such
as forcing votes on repetitious motions to adjourn the House, or, as House Rule XXII,
clause 7 states, offering numerous motions to instruct conferees “after a conference
committee has been appointed for 20 calendar days or 10 legislative days.”
Senators, as noted earlier, have formidable parliamentary means to protest their
exclusion from conference negotiations. “We don’t think a conference can truly be
a conference if only one party is represented,” stated a Senate minority leader. He
added that until minority conferees are assured of being present at all conference
meetings, “we are unable to provide consent to go to conference.”43 Decisions to
prevent the convening of conference committees by the minority leader were made
on a case-by-case basis.
In lieu of convening a conference committee, the minority leader recommended
that the Senate follow two other approaches to reach bicameral agreement on
39 Mark Wegner and April Fulton, “Crashing the Party,” National Journal, November 8,
40 Congressional Record, vol. 151, July 25, 2005, p. S8832.
41 Kate Schuler, “Democrats Crash Conference Meeting,” CQ Weekly, November 1, 2003,
42 Congressional Record, vol. 149, November 5, 2003, p. H10395.
43 Congressional Record, vol. 150, February, 2004, p. S550. Upset at the exclusionary
practice, a minority party Senator noted that if the majority party’s conferees ignored the
minority’s viewpoints, floor consideration of the conference report could trigger the
“procedural nuclear weapon” — the filibuster. See “GOP Leaders Take a Short Time-Out
in Final Push on Omnibus Energy Bill,” CQ Today, October 2, 2003, p. 5.
legislation. First, persuade the other chamber to pass Senate bills without making
changes to them. Second, conduct pre-conference bargaining sessions with the other
chamber and then either “confirm our agreements in a formal conference once the
negotiations have been completed”44 or approve them using the ping pong approach.
In sum, the convening of conference committees by unanimous consent is no
longer the routine matter it once was. “Historically in the Senate,” remarked a
senator, “when we passed a bill, we automatically went to conference. That has
changed.” Now, advocates of getting to conference have to secure unanimous
consent, “or we do not get to conference.”45 That was also the case before —
obtaining unanimous consent — but winning approval of those requests today is
often much harder to attain.
If the regular order is going to conference on major legislation, with majority
and minority conferees as full participants, that pattern has generally not been the
case in recent Congresses. Instead, there has been a noticeable shift away from
convening formal conferences — largely because of disagreements in the Senate —
toward House-Senate majority leadership-dominated “informal conferences.” Once
this House-Senate group settles their differences through informal negotiations, the
ping pong approach has been employed to win bicameral approval of the leaders’
work product. As a congressional correspondent wrote:
Once the penultimate stage in the life of any bill as a forum for House and
Senate members to work out their differences, the conference committee has fallen
on hard times, shoved aside in the last five years by partisanship and legislative
The preferred alternative revolves around informal meetings mainly among
senior Democratic [or Republican] lawmakers, who gather to cut a final deal and
then bat the finished product back and forth between the House and Senate until46
it is approved.
A look at why the back-and-forth process was utilized on three measures may
provide a better understanding of ping pong’s role in the contemporary bicameral
Three Case Examples
Energy Independence and Security Act (H.R. 6)
44 Congressional Record, vol. 150, February 4, 2004, p. S551.
45 Hulse and Pear, “Feeling Left Out on Major Bills, Democrats Turn to Stalling Others,”
46 Carl Hulse, “In Conference: Process Undone By Partisanship,” New York Times,
September 26, 2007, p. A1.
On December 17, 2007, President Bush signed H.R. 6 into law (P.L. 110-140).
However, the bill’s path to enactment was filled with twists and turns and procedural
obstacles that made agreement difficult among the House, Senate, and Executive.
The House moved first to enact H.R. 6 on January 18, 2007, because the bill limited
tax subsidies for oil and gas companies. (The Constitution requires the House to
initiate revenue measures.) The legislation also encouraged the development of
alternative energy sources, such as solar or windmill.
There is another reason for the rather rapid House action: H.R. 6 was part of
Speaker Nancy Pelosi’s “first 100 legislative hours” agenda, which Democrats
campaigned on in the November 2006 elections. H.R. 6 was referred to four
committees but none of them formally considered the legislation by holding hearings,
markups, and issuing committee reports. The measure was brought up in the House
on January 18, 2007, under a closed rule; it was agreed to by a 264 to 163 vote.
H.R. 6 was then sent to the Senate where it was placed on the legislative
calendar rather than being referred because of its tax provisions to the Finance
Committee. Senate Democrats planned “to assemble their own energy package” with
the Energy and Natural Resources Committee, along with other panels, contributing
to this endeavor.47 In fact, the majority leader assembled a bipartisan energy package
from the recommendations put forward by the Energy, Environment, and Commerce
Committees and offered it as a complete substitute — the functional equivalent of a
separate policy proposal — for H.R. 6. As the majority leader noted, the bill we
begin debate on today (June 11) is “a substitute to H.R. 6.”48
On June 21, after procedural delays and intense lobbying by various
stakeholders (automobile companies, environmental groups, and so on), the Senate
by a 65 to 27 vote passed a comprehensive energy measure as an amendment (the
aforementioned leadership substitute) to H.R. 6. A noteworthy Senate provision was
an increase — from 25 to 35 miles per gallon by 2020 — in the corporate average
fuel economy (CAFÉ) standards for cars and light trucks. However, the Senate
rejected raising taxes on oil and gas. H.R. 6, as amended, was returned to the House.
On August 4, the House passed its version of comprehensive energy legislation
(H.R. 3221). Unlike H.R. 6, which repealed about $14 billion in tax breaks for the
oil and gas industry, H.R. 3221 addressed a wide range of energy issues: global
warming, renewable energy, innovative energy technologies, and much more. It was
the product of nearly a dozen committees. Like most major bills, H.R. 3221 was
considered under a special rule from the Rules Committee, which made in order
back-to-back consideration of two measures. The House first considered and agreed
to the comprehensive energy bill (H.R. 3221). Then the House debated and passed
a separate bill (H.R. 2776) that raised taxes on oil and gas with the revenue going
to pay for the energy programs identified in H.R. 3221. Finally, as the special rule
directed, the text of H.R. 2776 as passed by the House was added “as new matter at
47 Jeff Tollefson, “House Passes Bill to Cut Oil Subsidies,” CQ Weekly, January 22, 2007,
48 Congressional Record, vol. 153, June 11, 2007, p. S7418.
the end of H.R. 3221.”49 The entire energy package (H.R. 3221) was sent to the
Senate on September 4 and placed on the legislative calendar. Cloture was twice
required — once on the motion to proceed and once on the bill itself. To date, it has
not passed the Senate.
Instead, senior committee and leadership staff aides from the two chambers
began informal discussions in the Fall about how to reconcile their differences on the
various energy provisions contained in the House-passed version of H.R. 6; the
Senate leader’s substitute for H.R. 6; and H.R. 3221.50 Arguably complicating the
discussions was a procedural issue. What bill were the two sides conferring on: H.R.
6 or H.R. 3221? The usual practice in going to conference is for each chamber to
pass different versions of a measure but with the same bill number. A majority
leadership spokesperson noted, however, that participants can “work around” those
procedural concerns, and they did.51 Informal staff negotiations continued, but
relatively little progress was made in settling differences and in “producing one bill
that has a chance of passing both chambers.”52
As a party, Senate Republicans were divided on whether there would be a
formal or informal energy conference. On one side were minority members who
wanted to convene a formal conference and even wrote to the majority leader
“criticizing the informal talks and asking for a conference.”53 On the other side were
minority members who had placed “holds” on going to conference, in part because
they objected to House action repealing tax breaks for the oil and gas industry.54
They also objected to the majority leader’s unanimous consent request to go to
conference.55 The minority leader favored going to conference but recognized that
the chances were “pretty slim.”56 The majority leader underscored that the House and
Senate would move forward on the energy legislation “one way or the other” and
“regardless of whether there is a conference.”57
49 Ibid., August 4, 2007, p. H9715.
50 Coral Davenport, “Procedural Difficulties Deal a Setback to Energy Legislation, Talks
Continue,” CQ Today, September 21, 2007, p. 10.
51 Darren Goode, “Reid Wants To Proceed To Conference By End Of The Week,” National
Journal’s CongressDailyAM, October 3, 2007, p. 9.
52 Coral Davenport, “Getting to Conference Seems to Be Energy Legislation’s Biggest
Hurdle,” CQ Today, October 24, 2007, p. 19.
54 A hold, a Senator explained, is “a notice by a Senator to his or her party leader of an
intention to object to bringing a bill or nomination to the floor for consideration.”
Congressional Record, vol. 148, April 17, 2002, p. S2850. See CRS Report RL34255,th
Senate Policy on “Holds”: Action in the 110 Congress, by Walter Oleszek.
55 Congressional Record, vol. 153, October 19, 2007, pp. S13146-S13147.
56 Darren Goode, “Dems Moving Forward on Tax Provisions,” National Journal’s Congress
DailyAM, October l2, 2007, p. 14.
In the end, unable to convene a conference committee, the bicameral majority
leadership bypassed it. The Speaker consulted extensively with the relevant House
and Senate committee chairs, as well as the majority party caucus, to forge common
ground on H.R. 6, as amended by the Senate. The “dealmaking pattern,” according
to one account, involved “Senate committee chairmen working with their House
counterparts while talking to the Speaker.”58 Hard bargaining continued for weeks
and when Congress reconvened following its traditional Thanksgiving recess, it was
anticipated that key negotiators from each chamber would reach a bicameral accord
by early December. And this turned out to be the case, in part because of the
favorable external context — high gasoline prices with a barrel of oil nearing $100,
as well as heightened national and world concern about global warming. These
outside circumstances encouraged lawmakers to back the informally crafted
bicameral compromise despite complaints from both sides of the aisle.
On December 6, the House took up and concurred in the leadership-designed
House amendment to the Senate amendment to H.R. 6. The House amendment —
hammered out in private negotiations by the House and Senate majority leadership
— contained provisions in the originally passed H.R. 6, the Senate leadership’s
substitute, and H.R. 3221. Further, the House majority leadership ensured that the
House amendment would be considered under a restricted procedure. The
amendment was taken up under the terms of a special rule (H.Res. 846): one hour of
debate, no amendments, no motion to recommit, and a vote on final passage. The
House voted 235 to 181 to adopt the revamped H.R. 6, which now included two
controversial provisions known to be opposed by various senators (the repeal of oil
and gas tax breaks and a requirement that utilities produce 15 percent of their
electricity from alternative sources by 2020). The legislation was transmitted to the
Senate. Meanwhile, President Bush was threatening to veto the energy bill, in large
measure because of those two provisions.
The next day, December 7, the Senate began debate on the motion to concur in
the House amendment — the bicameral accord negotiated without a conference —
to the Senate amendment to H.R. 6. As soon as the majority leader called up the
bicameral accord, he immediately filed cloture on the motion to concur.
Subsequently, the Senate tried unsuccessfully (53 to 42) to invoke cloture on the
motion to concur.59 The cloture motion failed to attract the required 60 votes (three-
fifths of the Senate membership) largely because of senatorial opposition to the
elimination of tax incentives for the oil and gas industry and the renewable electricity
provision. As the minority leader stated, “the bill we are voting on today is a massive
tax hike and a utility rate increase for consumers across the Southeast.”60 Still,
senators from both parties continued to negotiate so that an energy package might
clear their chamber.
58 Alan K. Ota, “Senate Chairmen Play Larger Role With Pelosi,” CQ Today, December 4,
2007, p. 1. The Senate majority leader relied on his committee chairs to discuss
compromises with the Speaker. “I really believe in the committee process,” he said. “That’s
why I have empowered committee chairs to do their committee work.” Ibid., p. 28.
59 Congressional Record, vol. 153, December 7, 2007, p. S15009.
60 Ibid., p. S15007.
On December 12, the majority leader tried another approach to win Senate
passage of an energy package. He “filled the tree” on the motion to concur to the
House amendment with a revamped Senate energy package. He also filed cloture on
the motion to concur to the revised Senate amendment. To mobilize the required 60
votes to invoke cloture, the Senate amendment was carefully crafted to garner
sufficient support. For example, the renewable electricity mandate was dropped and
energy taxes were modified; both changes were made with an eye toward wooing
wavering senators.61 “Both sides were using whatever inducements they could to get
us to vote” their way, said a senator.62 The next day the Senate failed to invoke
cloture (59 to 40) to end debate on the majority leader’s revamped energy package.
Later that same day, the majority leader received unanimous consent to
withdraw his pending motion to concur and to offer a motion to concur in the
House’s amendment with another revised Senate energy amendment. It basically
contained the energy provisions negotiated originally by the key bicameral leaders,
minus the controversial tax and electricity provisions. The Senate then agreed to H.R.
On December 18, the House adopted a special rule that authorized the majority
leader (or his designee) to offer a motion that the House concur in the Senate
amendment.64 The chair of the Energy and Commerce Committee made that motion
to concur on behalf of the majority leader, which the House agreed to by a vote of
314 to 100.65 With passage of H.R. 6, as amended, by both chambers, the measure
was cleared for presidential consideration. The next day, December 19, 2007, H.R.
A summary of the ping ponging of the energy bill sets out in bold relief the
operation of the exchange of amendment procedure.
!H.R. 6. This bill reduced tax subsidies for oil and gas and redirected
those revenue savings to the production of alternative fuels. It was
passed by the House and sent to the Senate.
!S. Amendment to H.R. 6. The Senate replaced the text of H.R. 6
with a complete substitute that represented its approach to
comprehensive energy reform. A key feature of the Senate plan was
higher fuel standards for cars and light trucks. However, the Senate
rejected tax increases on oil and gas production. The Senate
returned H.R. 6, as amended, to the House.
61 Congressional Record, vol. 153, December 13, 2007, pp. S15388-S15389.
62 Richard Rubin and Kathleen Hunter, “Burning for Victory, Democrats Come Up Short,”
CQ Today, December 14, 2007, p. 1.
63 Congressional Record, vol. 153, December 13, 2007, p. S15432.
64 Congressional Record, vol. 153, December 18, 2007, pp. H16651-H16658. The special
rule (H.Res. 877) provided for House consideration of the Senate amendment to the House
amendment to the Senate amendment to H.R. 6.
65 Ibid., pp. H16738, H16752.
!H.R. 3221. The House adopted a separate bill, which was its
comprehensive approach to energy. The measure was sent to the
Senate, but it was not acted upon because of senatorial opposition to
various provisions, such as the repeal of tax provisions supported by
the oil and gas industry.
!H. Amendment to S. Amendment to H.R. 6. Unable to convene a
conference, informal negotiations between key House and Senate
party and committee leaders produced an alternative to the Senate’s
energy plan (the aforementioned complete substitute). The House
passed this amendment, but it contained controversial provisions that
aroused senatorial opposition, such as the repeal of tax subsidies for
oil and gas producers.
!S. Amendment to H. Amendment to S. Amendment to H.R. 6.
Unable to overcome resistance by senators opposed to ending tax
subsidies for the oil and gas industry and other controversial
provisions contained in the House amendment, the Senate deleted
those provisions and passed another version of energy legislation as
a Senate amendment to the House amendment. H.R. 6, as further
amended by the Senate, was returned to the House.
!Enactment Into Law. The House adopted the Senate amendment
without change, clearing the amended version of H.R. 6 for
presidential consideration. The measure was signed into law by the
To sum up, the principal factors that precipitated use of the ping pong approach
were large concerns among certain Senators about raising taxes on the oil and gas
industry and requiring utility companies to use alternative energy sources to produce
electricity. These lawmakers exercised their parliamentary prerogatives to block the
convening of a conference committee on H.R. 6. As a result, House and Senate party
leaders decided to use the amendment exchange procedure with the Speaker taking
a lead role in negotiating the final compromise with appropriate House and Senate
committee leaders. Further, with the first session nearing an end, and with the
American public dismayed about the high price of gasoline at the pump, both parties
acted to pass the energy bill.
Ethics and Lobbying Reform (S. 1)
The 110th Congress enacted a major ethics and lobbying reform measure (S. 1),
which was signed into law (P.L. 110-81). The legislation was titled the Honest
Leadership and Open Government Act. The Senate passed its version of S. 1 on
January 18, 2007, by a 96 to 2 vote. Six days later S. 1 was received in the House
and held at the desk. The House enacted a companion honest leadership bill (H.R.
2316) on May 24, 2007, by a 396 to 22 vote. That same day the House also agreed
to the Lobbying Transparency Act (H.R. 2317). Subsequent to House passage of the
legislation, a spokesperson for the Senate majority leader stated that the leader
“intends to move as quickly as possible to not only appoint conferees, but to get the
final bill done as well.”66 On June 28, the majority leader failed to receive
unanimous consent so the Senate might convene a conference with the House. The
Senate’s minority leader also backed the convening of a conference committee on S.
A number of Senators, however, opposed the appointment of conferees. They
were fearful that an earmark transparency provision adopted as part of S. 1, and
which was agreed to by a 98 to 0 vote, would either be weakened in conference or not
included at all in the conference report. These senators wanted a guarantee from the
majority leader that the Senate’s earmark language would not be changed by the
conference committee. That guarantee was not forthcoming from the majority leader.
It would “not say much about my leadership if we negotiated [earmark reform] out
here on the floor of the Senate as to what was going to be in the conference
committee. That is what the conferees are all about,” said the majority leader.68
The sponsor of the earmark reform provision also proposed that the Senate
simply adopt the earmark changes as part of the Senate’s rules. “Why can’t we just
accept that part here and go to conference with all of these other provisions in which
you know our Members are interested?” He even asked the unanimous consent of
the Senate to adopt two resolutions to accomplish that goal, but a senator objected
to his request.69 The majority leader, who opposed the idea, gave no public reason
so far as is known as to why he did not favor adopting the senator’s earmark reforms
as part of the internal rules of the Senate.70 However, other Senators indicated why
66 Mark Wegner and Christian Bourge, “Senate Dems Preparing For Conference On
Lobbying Bill,” National Journal’s CongressDailyPM, June 1, 2007, p. 8.
67 Mark Wegner, “McConnell: Still Time To Pass Lobby Bill Before Recess,” National
Journal’s CongressDailyPM, July 20, 2007, p. 1. In remarks to reporters, the minority
leader stated that it was important to pass S. 1 before the August recess even without a
formal conference committee. “Either way, I think we ought to wrap the bill up. I’d rather
have the Republicans at the table than not. But I do think it’s time to act.” See Kenneth
Doyle, “McConnell OKs Plan to Pass Lobby Bill Without Convening Conference
Committee,” Daily Report for Executives, July 23, 2007, p. A-1.
68 Congressional Record, vol. 153, June 28, 2007, pp. S8667-S8668. See Martin Kady,
“Senate Republicans Block Conference on Lobbying Overhaul Legislation,” CQ Today,
June 27, 2007, p. 3.
69 Ibid., p. S8668.
70 It was reported that Senate “aides and lawmakers for weeks have speculated that [the
majority leader] either hopes to change [the earmark provisions contained in S. 1] during
conference or to use them as a bargaining chip with Senate negotiators during the talks.”
John Stanton and Susan Davis, “Ethics Bill Will Return to Floor,” Roll Call, July 19, 2007,
p. 30. Worth noting is that the majority leader did reportedly offer to put the author of the
earmark reform provision on the conference committee. That offer was reportedly rejected.
“The majority leader is trying to be clever,” said the earmark sponsor. “Everybody knows
Democrats are going to control the conference, 4 to 3, and they will vote 4 to 3 to kill
earmark reform. Being on the conference committee won’t do a thing to protect earmark
reform.” Chris Strohm and Ben Schneider, “New Roadblocks Delay Conferences,” National
Journal’s CongressDailyAM, July 17, 2007, pp. 1, 14.
the earmark reforms were not adopted as part of chamber rules. Changes were
required, said a lawmaker, to “make the language workable.”71
In the end, the Speaker and Senate majority leader decided to bypass the
conference stage and negotiate informally with key lawmakers to produce a
bicameral compromise that both chambers might pass by the August 2007 recess.
They achieved their goal. Intensive private negotiations led to a rewrite of ethics and
lobbying reform. When the Democratic leaders unveiled their ethics and lobbying
package on July 30, it received generally positive responses from outside groups as
well as many rank-and-file lawmakers in both chambers. The next day, and as a sign
of wide support among House members for the leadership’s package, the House
amendment to S. 1 was taken up under a procedure (suspension of the rules)
requiring a two-thirds vote for passage, permitting no amendments from the floor,
and allowing for only 40 minutes of debate. Further, motions to recommit are not
permitted when the House suspends its rules to pass legislation. The House
overwhelmingly (411 to 8) agreed to the House amendment to S. 1.
S. 1, as amended by the House, was returned to the Senate for its review of the
compromise package. Critics of the leadership’s negotiated compromise strongly
objected to the revised ethics and lobbying measure, especially because they believed
it weakened the earmark changes which the Senate had adopted unanimously on
January 18, 2007. Senate opponents of the leadership-crafted agreement recognized
they confronted an uphill battle — eventually unsuccessful — to block or change the
House amendment. Several procedural and political factors account for this result.
First, when the majority leader asked the presiding officer to lay S. 1 with the
House amendment before the Senate, he immediately filed a cloture motion to close
debate on the House amendment. Further, he then “filled the amendment tree” on the
motion to concur in the House amendment to S. 1. His action prevented opponents
of the package from attempting to alter the House amendment to their liking before
the Senate voted on whether to agree to the cloture motion. Adoption of cloture
would cut off the possibility of lengthy debate (i.e., a filibuster) on the motion to
Worth noting is that most measures or matters typically require 60 votes (or
three-fifths of the total membership) to invoke cloture. In this case, a two-thirds vote
was required to close debate because Senate Rule XXII (cloture) stipulates that on
a measure or motion to amend Senate rules, an “affirmative vote [to invoke cloture]
shall be two-thirds of the Senators present and voting.” Plainly, S. 1, as amended by
the House, contained changes to Senate rules, such as new requirements regarding
the transparency of earmarks. In the end, the Senate invoked cloture on the majority
leader’s motion to concur in the House amendment by an 80 to 17 vote.72
71 Congressional Record, vol. 153, August 2, 2007, p. S10714.
72 Congressional Record, vol. 153, August 2, 2007, p. S10716. On this particular vote, only
66 votes were required to invoke cloture — assuming every senator votes — because a
senator was ill and unable to participate in Senate proceedings.
Second, the minority party was divided on the ethics and lobbying package.
Many supported its passage, including the minority leader, despite misgivings about
some of the provisions. As one minority senator was reported to say, it would be
“hard to vote against a lot of good things [in the ethics and lobbying package]
because there are some bad things there. We vote on imperfect legislation every
Third, the political circumstances made it difficult for many lawmakers to vote
against an ethics and lobbying reform package, especially with the August work
period looming and the potential for constituents asking Members how they voted on
what seemed like a “good government” initiative. (Recall that the “culture of
corruption” was a theme used during the November 2006 elections.) In the judgment
of one Senate minority staff aide, “There have been [corruption] investigations and
questions involving some members, and the natural instinct is to do something — or
anything, even if anything is bad — simply to look productive.” He further opined:
“We’re looking at the path of least resistance versus good legislation, and typically
in these situations, the former rather than the latter wins out.”74
To conclude, both parties recognized that public dismay with the Congress over
lobbying scandals, combined with the promises made by House and Senate majority
party leaders to enact ethics and lobbying reforms, prompted enactment of S. 1. The
inability to create a conference committee can be largely attributed to a relatively
small number of Senators who were concerned that the earmark reforms they
successfully championed would be dropped or diluted by the conferees. Thus, the
exchange of amendment procedure was employed with each chamber’s party leader
in charge of the informal negotiating process. Most party members in each chamber
supported the final compromise, and S. 1 (the bill number symbolized its priority
status) passed with large majorities in each house.
Reauthorization of SCHIP (H.R. 976)
The State Children’s Health Insurance Program (SCHIP) was created more than
a decade ago as part of the Balanced Budget Act of 1997 (P.L. 105-33). SCHIP
provides “federal matching funds to states and territories to provide health insurance
to certain low-income children”75 whose families are not poor enough to qualify for
Medicaid. In 2007, both the House and Senate took steps to reauthorize and expand
73 Tory Newmyer, “Senate Moves on Ethics Bill,” Roll Call, August 2, 2007, p. 24.
74 Chris Frates and Josephine Hearn, “[A Senator] Pledges Ethics Fight,” Politico, August
1, 2007, p. 12. Because the congressional Democratic leadership was worried that President
Bush might “pocket veto” S. 1 during Congress’s August recess, they delayed sending the
legislation to the White House until Congress returned and had an opportunity to override
any veto by a two-thirds vote of each chamber. See John Stanton, “Leaders Holding Ethics
Bill,” Roll Call, August 13, 2007, p. 3.
75 CRS Report RL30473, State Children’s Health Insurance Program (SCHIP): A Brief
Overview, by Elicia J. Herz, Chris L. Peterson, and Evelyne P. Baumrucker.
The House agreed to its version of the reauthorization bill (H.R. 3162) on
August 1, by a vote of 225 to 204.76 The closeness of the vote underscores the
concern that many lawmakers had with the legislation.77 Called CHAMP (Children’s
Health and Medicare Protection Act), the House bill expanded coverage by adding
5 million uninsured children to the 6 million children currently covered by the
program; increasing spending for SCHIP by an estimated $50 billion over five years;
and making various changes to Medicare, such as reducing seniors’ co-payments for
preventive care. To offset the spending increases, the legislation proposed cutting
a program in which private insurers provide benefits to the elderly (Medicare
Advantage) and hiking by 45 cents the cigarette tax per pack. The legislation was
forwarded to the Senate, but that chamber took no action on the bill.
On the day before the House passed CHAMP, July 31, the Senate began
consideration of its approach to reauthorizing SCHIP. The Senate used a House-
passed bill (H.R. 976) — The Small Business Tax Relief Act — as the vehicle for
reauthorizing SCHIP. Why? Because the SCHIP bill reported by the Senate Finance
Committee contained tax provisions, and the Constitution, as noted earlier, requires
revenue-raising measures to be initiated by the House. Thus, when H.R. 976 was
taken up, the Finance chair offered a complete substitute. The substitute replaced all
the text in H.R. 976 with the measure (S. 1893) reported by the Finance Committee.
The Senate’s version of the SCHIP reauthorization was narrower than the
House’s. For example, the Senate proposed a $35 billion expansion compared with
the House’s nearly $50 billion addition to SCHIP, and the Senate’s substitute did not
include changes to Medicare, as did the House’s bill. On August 2, the Senate passed
its version of SCHIP by a 68 to 31 vote, setting the stage for the convening of a
conference committee.78 Meanwhile, President Bush said he opposed both chambers’
bills and would not sign either into law.79 He advocated a $5 billion expansion of
When lawmakers returned to Capitol Hill following the August recess, a top
priority was to reconcile bicameral differences on SCHIP. (The program was set to
expire at the end of September.) On September 4, the Senate majority leader asked
unanimous consent to appoint conferees on the SCHIP bill (H.R. 976), but his
request was objected to by the minority leader who said the request was “a little
76 Congressional Record, vol. 153, August 1, 2007, pp. H9502-H9503.
77 As a lawmaker stated: “This nearly 500-page bill is being rammed through the House with
the Rules Committee meeting at 1 a.m. this morning and with no Members even allowed to
propose fixes or alternatives because we are told it is absolutely imperative that Congress
act to provide government-run health care coverage to more Americans.” See Congressional
Record, vol. 153, August 1, 2007, p. H9293. Another Member exclaimed that H.R. 3162
is really about “cutting Medicare. They are doing it under the guise of covering children.”
Ibid., p. H9297.
78 Congressional Record, vol. 153, August 2, 2007, p. S10761.
79 Alex Wayne, “Tough Negotiations Ahead on Children’s Health Care Expansion,
Medicare,” CQ Today, August 3, 2007, p. 5.
premature.”80 It was reported that minority party members “want assurances ahead
of a conference that the final bill will closely resemble the Senate-passed legislation
in scope and spending rather than the more ambitious and expensive House bill.”81
Such assurances were not provided by the bicameral majority leadership.
Accordingly, top majority party and committee leaders of each house met
informally to determine a course of action given the impasse in the Senate. In the
end, unable to convene a conference committee, negotiations among House and
Senate majority leaders and key GOP Senators produced a compromise that largely
resembled the Senate-passed measure. House Democratic leaders realized that their
expansive SCHIP bill could not pass the Senate, so they crafted a compromise (a
House amendment to the Senate amendment to H.R. 976) that might pass that
chamber. Senior House committee leaders were upset with the compromise, because
they reportedly believed their side conceded too much to Senate negotiators. At the
same time, they pointed to the political necessity of passing the SCHIP
reauthorization. “[W]e have no choice but to send something to the president’s desk
or be accused of not doing something on children’s health insurance” remarked a
House committee chair.82
On September 25, the House agreed to the negotiated compromise —
technically the House amendment to the Senate amendment — by a 265 to 159 vote,
short of the two-thirds required to override the president’s expected veto. The next
day the Senate majority leader called up the message from the House with respect to
H.R. 976.83 Immediately, the majority leader filed cloture on the motion to concur
with the House amendment. He then “filled the tree” on the motion to concur to
prevent opponents from offering amendments to the leader’s motion that could
undermine or delay passage of the SCHIP reauthorization before the September 30
expiration deadline.84 On September 27, the Senate voted (69 to 30) to invoke
cloture; it then passed the motion to concur to the House’s amendment by a 67 to 29
vote, clearing the measure for presidential consideration.85
As promised, President Bush vetoed the SCHIP reauthorization on October 3,
in large measure because it was too costly: he wanted to spend $5 billion more on the
80 Congressional Record, vol. 153, September 4, 2007, p. S11002.
81 Alex Wayne, “Children’s Health Bill Dealt a Setback as Sept. 30 Deadline Looms,” CQ
Today, September 5, 2007, p. 12.
82 Alex Wayne, “Congress Expected to Vote Next Week on SCHIP Bill Close to Senate
Version,” CQ Today, September 19, 2007, p. 6.
83 The message from the House stated: “Resolved, That the House agree to the amendments
of the Senate to the bill (H.R. 976) ‘an Act to amend the Internal Revenue Code of 1968 to
provide tax relief for small businesses, and for other purposes,’ with amendments.”
Congressional Record, vol. 153, September 25, 2007, p. S12122.
84 Congressional Record, vol. 153, September 26, 2007, pp. S12122-S12123.
85 Congressional Record, vol. 153, September 27, 2007, pp. S12206-S12207, S12255.
program, not Congress’s $35 billion.86 The House, acting first, failed on October 18
to override the president’s veto, but lawmakers in both chambers continued their
efforts to expand the children’s health insurance program.87
In summary, consideration of SCHIP aroused strong views in the two parties
and the two chambers. The measure passed the House in a close vote. It easily was
agreed to in the Senate, in part because the final version of the legislation was
narrower and less costly than the House’s original bill. A number of Senators
blocked the appointment of conferees, because they wanted commitments that any
compromise that emerged from conference would comport with their views. Unable
to create a conference committee, majority party leaders turned to the ping pong
method, which included informal negotiations among a limited number of House and
Senate majority party lawmakers along with a few minority party Senators. Their
privately negotiated compromise — a House amendment to the Senate amendment
to H.R. 976 — was subsequently agreed to by both chambers, but President Bush
vetoed the SCHIP reauthorization.
Bypassing the Conference Stage:
Reasons and Implications
The recent tendency to bypass the conference stage underscores that House-
Senate interrelationships change and adapt to the broader legislative-political
environment of which they are a part. Compared with the 1950s or 1960s, today’s
Congress is more open, partisan, workload-packed, and deadline-driven; there are
many more interest groups that influence and monitor legislative proceedings; and
individual lawmakers are not reluctant to utilize parliamentary tools to advance their
objectives. Because these developments have sometimes made the convening of
conference committees problematic, the exchange of amendment procedure — and
the concomitant informal negotiations that accompany it — has become a more
efficient method for resolving bicameral differences on major legislation.
Several of the reasons for the heightened importance of the ping pong approach,
and the implications that flow from its use on major legislation, seem directly or
indirectly related to at least six factors (setting aside the earlier discussion about the
relative ease of blocking the appointment of conferees in the Senate). The six are (1)
a further enhancement of the role of party leaders; (2) limits on the role of
86 Sheryl Gay Stolberg and Carl Hulse, “Bush Vetoes Health Bill Privately, Without
Fanfare,” New York Times, October 4, 2007, p. A17.
87 Congress sent another SCHIP reauthorization bill (H.R. 3963) to the White House, which
the president also vetoed. See CRS Report RS22746, SCHIP: Differences Between H.R.
Peterson. Four continuing resolutions provided funding for SCHIP through December 31,
2007, with the Medicare, Medicaid, and SCHIP Extension Act (P.L. 110-173, enacted
December 29, 2007) providing funds through March 31, 2009. See CRS Report RL30473,
State Children’s Health Insurance Program (SCHIP): A Brief Overview, by Elicia J. Herz,
Chris L. Peterson, and Evelyne P. Baumrucker. Also see Alex Wayne, “After Medicare
Vote, SCHIP Gets Another Look,” CQ Today, July 11, 2008, p. 1.
committees and their leaders; (3) a marginal role of the minority party; (4) constraints
on the deliberative process; (5) the avoidance of procedural/political issues; and (6)
the lack of transparency.
Whether these factors are causes or effects of ping ponging, or both, merits brief
mention. Because cause and effect are hard to disentangle, it is probably safe to say
that the six factors reflect both ingredients to one degree or another. For example,
the apparent increase in reliance on ping ponging might be viewed as either a cause
or effect of enhanced party leadership influence. A cause because party leaders today
play a larger role throughout all lawmaking stages, including bicameral negotiations.
The preference of party leaders, in short, might be to utilize amendment exchange
rather than conference committees so as to better ensure the achievement of party-
preferred goals. An effect because difficulties in creating conference committees have
provided central party leaders with more opportunities to step in and assume wider
responsibility for reconciling bicameral differences on major legislation through the
ping pong (and informal negotiating) method. Perhaps more useful than making
judgments about cause and effect is to consider whether difficulties in forming
conference committees helped to encourage these six developments.
Further Enhancement of the Role of Party Leaders
By any reasonable test, the four Capitol Hill party organizations play active roles
in the lawmaking process. Their organizational elements (party caucuses or
committees, for example) are active, party leaders are increasingly prominent, and
party voting is at comparatively high levels. Given sharp conflicts between the two
parties on key policy issues and narrow margins of party control, rank-and-file
lawmakers generally recognize the need for strong leadership for their substantive
and political agenda to succeed. The partisan polarization in Congress contributes
to strengthened party leadership, especially in the House. Nevertheless, “majority
party senators expect their leader to exploit majority status for partisan advantage.”88
If conference committees cannot be convened because of dilatory practices —
or if time constraints prevent their use — the principal negotiators on major
legislation are often House and Senate majority leaders, along with a limited number
of other key lawmakers. On SCHIP, for example, House majority leaders indicated
that if the Senate was unable to convene a conference because of blocking actions by
various senators, they would meet informally with their Senate leadership
counterparts to negotiate a compromise. As one account noted, the top House and
Senate majority leaders “met for nearly two hours” working “to reach a final
agreement on compromise [SCHIP] legislation.”89
Regardless of the reasons that prevent the convening of conference committees,
the exchange of amendments procedure highlights the powerful negotiating role of
central party leaders. They are strategically positioned to fashion major bicameral
leadership compromises, perhaps with little input from rank-and-file members, the
88 Sinclair, Party Wars, p. 192.
89 Steve Teske, “House, Senate Lawmakers Continue Work On SCHIP Compromise
Reauthorization Bill,” Daily Report for Executives, September 19, 2007, p. A-45.
committee(s) of original jurisdiction, or the minority party. In short, the ping pong
approach on major legislation is illustrative of the centralization of party control that
characterizes the contemporary House and, to a lesser extent, the Senate. In the
Senate, majority party leaders recognize that the ping pong method avoids a potential
series of probably impossible-to-break filibusters associated with the appointment of
Limits on the Role of Committees and Their Leaders
The drift toward centralized party authority has tightened leadership influence
over committees and their chairs. Six-year term limits for House committee and
subcommittee chairs,90 as well as comparable six-year term limits for Senate
Republicans, restrict the ability of committee chairs to accrue independent authority,
as occurred during earlier decades when pundits sometimes referred to the leaders of
committees as the “dukes” or “barons” of Capitol Hill. Use of the ping pong
procedure on the majority party’s priorities can mean that committee leaders and
members exercise generally minimal influence over the compromises reached by
each chamber’s top party leaders.
The aforementioned energy bill (H.R. 6) is an example of committee members
with expertise on the issue criticizing the process by which the measure was jointly
assembled by each chamber’s majority leaders. Press reports indicated, for example,
that as “many as 40 Democrats were reported to have signed a letter of complaint [to
party leaders]” expressing their dismay at the secret development of the energy
compromise.91 As a committee chair stated:
H.R. 6 is not the product of a formal conference, but rather the result of
amendments being passed between the House and Senate as a means of resolving
the differences between their respective bills. I have noted in the past, and will
continue to note, that I find this manner of legislating to be unsatisfactory and
unwise. Given the difficulty experienced by the Senate in going to conference
on this bill this year, however, this process is the best that we can hope for under
the circumstances .... One of the reasons this [ping pong] process is inferior to
that of a formal conference is the lack of a conference report and, thus, the lack
of a written legislative history detailing why certain policies were adopted and
90 It is worth noting that Democratic Caucus Rules do not require term limits for House
chairs. For example, it was reported recently that a majority party lawmaker pointed out that
when the “issue of term limits has come up in the Democratic Caucus, it has been
overwhelmingly defeated.” He suggested that the House rule imposing term limits on chairs
would be changed “when Democrats re-do their rules package next year.” See Mike
Soraghan, “Spotlight Back On Pelosi,” The Hill, June 10, 2008, p. 11. Rule 14 of Houseth
Republican Conference rules for the 110 Congress states: “No individual shall serve more
than three consecutive terms as Chairman or Ranking Member of a standing, select, joint,th
or ad hoc Committee or Subcommittee beginning with the 104 Congress.”
91 John J. Fialka and David Rogers, “House Passes Vast Energy Bill; Senate Overhaul
Seen,” Wall Street Journal, December 7, 2007, p. A10.
92 Congressional Record, vol. 153, December 28, 2008, p. E2665.
In sum, unless committee leaders and members are invited to participate in the
closed bicameral negotiations, they may have little or no say on the contents of the
final leadership-produced compromise. “If we don’t go to conference, there’s no
need for us to legislate on anything really,” exclaimed a House chair, underscoring
how the ping pong approach has shifted power from House and Senate committees
to House and Senate party leaders.
Marginal Role of the Minority Party
Just as there have been cases of minority party exclusion from conference
committees, as mentioned earlier, the same holds true in the case of the amendment
exchange method. Minority party members have been excluded from these bicameral
negotiating sessions, unless their input is sought by the leaders in charge of the back-
and-forth amendment procedure. Moreover, such participation is more likely to
involve minority Senators than minority House members. The contributions of
minority party Senators might be important in devising a product that can attract not
only a majority but also the supermajority vote often required to enact legislation in
that chamber. For example, on the SCHIP legislation, two minority Senators “took
part in the health talks but no [minority] House members did.”93
The benefits of an inter-chamber bargaining process where all sides participate
was underscored by a spokesperson for a House minority leader. Both parties’ views
are considered, the process is likely to be perceived as fair because it comports with
the regular order, and a stronger and more credible bicameral product is likely to be
the outcome. As the spokesperson explained:
The conference process serves to allow Members to buy into a final bill.
Sometimes there are tweaks and changes that have to be made, but it allows buy-
in. Absent that kind of process, you’re really getting a majority-driven bill94
without bipartisan support.
Majority party lawmakers might reply that they understand the principle of
minority rights, but contend that the other side often prefers obstructionism to
cooperation so as to prevent the majority party from accomplishing its agenda. As
a result, minority lawmakers may be excluded from participating in the processes for
bicameral reconciliation. Ironically, because the Senate sometimes blocks the
convening of conference committees, this may mean that Senators who normally
would be chosen as conferees are likely to be excluded from the ping pong
93 Carl Hulse, “In Conference: l Process Undone By Partisanshiip,” New York Times,
September 26, 2007, p. A23.
94 Emily Pierce and Jennifer Yachnin, “Tactical Skirmishes Intensified in 110th Congress,”
Roll Call, January 22, 2008, p. B-16. On a different but related matter that aroused the
concern of minority lawmakers because they were not part of crafting a bill brought to the
House floor, the ranking panel member stated: “When we were not a part of the process,
when we don’t have any input into the policy, there is over a 95 to 100 percent [chance that]
we are going to be ‘noes’ regardless of the substance of the bill.” Congressional Record,
vol. 154, June 24, 2008, p. H5905.
Constraints on the Deliberative Process
What constitutes good public policy is often unclear but it is more likely to be
achieved through a deliberative, or reasoned, process where all major issues and
views are debated and discussed. A conference process that involves lawmakers with
specialized expertise from both parties and both chambers arguably provides for a
wider range of interests and preferences to be considered and debated. The
amendments (the bicameral compromises) that are ping ponged between the houses
are usually crafted in private by a relatively small number of Members, largely from
the majority party. To be sure, once these privately negotiated House amendments
or Senate amendments to legislation are taken up in each chamber, there is generally
time for lawmakers to debate and amend the bicameral accords.95 The deliberative
process, however, could be constrained in the House by special rules from the Rules
Committee or in the Senate by tree-filling: offering all the amendatory motions that
can be pending at one time.
The two chambers and the two parties have their differences, but a rigorous and
vigorous exchange of views in a conference setting might better — compared with
the exchange of amendments method — expose weaknesses in the legislation,
promote thorough analysis, generate bipartisan support, or encourage consideration
of new ideas and perspectives. In the judgment of a senior House minority member,
bypassing the conference stage increases the likelihood that you “get legislation that
is not well thought out because it hasn’t been tugged and hauled [by] all sides.”96
Needless to say, conference committees are not always models of inclusiveness and
the wide-ranging examination of alternatives.97
95 A recent example of extensive debate associated with the amendment exchange procedure
is the Foreclosure Prevention Act (H.R. 3221). The Senate, for example, engaged in
considerable debating and amending of the motion to concur in the amendments of the
House to the amendments of the Senate to the foreclosure bill. As the Senate minority
leader stated: “We are going to have an opportunity ... to legislate like the Senate has long
been accustomed to legislating. We are actually going to offer amendments. They are going
to be related to the bill, and we are going to get started.” Congressional Record, vol. 154,
June 18, 2008, p. S5741. See Emily Pierce, “Senate Turns to Legislating on Housing Bill,”
The Hill, June 23, 2008, p. 18.
96 Carl Hulse, “In Conference: Process Undone By Partisanship,” New York Times,
September 26, 2007, p. A23.
97 See, for example, Stephen D. Van Beek, Post-Passage Politics: Bicameral Resolution in
Congress (Pittsburgh: University of Pittsburgh Press, 1995) and Lawrence D. Longley and
Walter J. Oleszek, Bicameral Politics: Conference Committees in Congress (New Haven,
Conn.: Yale University Press, 1989).
Avoidance of Political/Procedural Concerns
Sharp partisanship, particularly since the mid-1990s, has been resurgent on
Capitol Hill for reasons highlighted in the previous discussion on polarization. Close
elections, narrow margins of control in each chamber, and significant policy
differences are among the factors that influence the political/procedural actions of
House and Senate members and party leaders. House and Senate majority leaders,
as a result, have an incentive to counter minority party actions aimed at forcing
vulnerable majority party lawmakers to cast tough votes that might cause them
electoral difficulties in the next election. The next two parts of this section highlight
several formal House and Senate procedural rules governing conference committees
that majority party leaders might want to avoid or circumvent because of political
House. After the House has agreed to go to conference but before the
conferees are officially named by the Speaker, the chamber may adoption a motion
to instruct their conferees (for example, to uphold the House’s position on a certain
policy issue). A member of the minority party is granted priority to offer this motion
and only one can be made at this stage. Instructions are nonbinding on the soon-to-be
named conferees, but they do serve various purposes. One of these is political.
Instruction motions can be framed to force votes on “hot button” issues that could
cause electoral problems for majority party members who hold closely contested
seats. Furthermore, if a conference cannot reach agreement within 20 calendar days
and ten legislative days, then an unlimited number of motions to instruct are in order.
Minority party members can offer repetitive motions to instruct so as to compel votes
on their election-year and political priorities. (Party leaders sometimes avoid this
issue by delaying the appointment of conferees until the pre-conference negotiations
are near completion.)
The House might also take steps to recommit the conference report with
instructions if the other body has not discharged its conferees by acting first and
favorably on the conference report. A minority party Member is given priority by the
Speaker to offer the motion to recommit the conference report with instructions,
which might be drafted to require a vote on a single isolated issue that might cause
political “heartburn” for the majority party. There are no motions to instruct with the
ping pong method.
The ping pong method also disallows use of the motion to recommit with
respect to House or Senate amendments to legislation. During the initial
consideration of bills or joint resolutions, the minority leader, or his designee, is
guaranteed the right to offer a motion to recommit by House Rule XIII, clause 6. The
minority party’s right to offer the recommital motion does not apply under Rule XIII
“to a Senate bill or resolution for which the text of a House-passed measure has been
substituted.” It further does not apply to amendments between the houses, such as
a House amendment to a Senate amendment as was the case mentioned earlier with
respect to H.R. 6 (the energy bill.)
Motions to recommit measures during their initial floor consideration are of two
types: simple (return a bill or joint resolution to committee) or with instructions (the
minority party’s policy alternative which the full House votes upon.) Recent
Congresses have witnessed use of the motion to recommit with instructions to
compel vulnerable majority party members to vote on minority-crafted alternatives
that, if adopted, might undermine the core intent of the legislation and/or provoke
political problems back home for majority party lawmakers. In the 110th Congress,
for example, since “switching to the minority, Republicans have launched a
coordinated effort to use recommital motions to force Democrats to cast
uncomfortable votes or make unwelcome changes to bills.”98 The “House
amendments to Senate-passed bills” approach avoids potential procedural maneuvers
associated with artfully worded recommittal motions and attendant political
headaches for the majority leadership.
Another House rule that applies to conference reports but not to the exchange
of amendment procedure involves earmarks. Earmarks, in brief, are provisions often
included in appropriations bills or their accompanying committee reports that set
aside specific funds for projects or programs in Members’ districts. They are also
included in other types of measures. Earmarks have been a source of controversy in
recent years because of their increase in both number and cost, not to mention
scandals associated with their use.
Under House rules, conference reports are not to be considered unless they and
their accompanying joint explanatory statements include a list of congressional
earmarks and their sponsors. This House rule (Rule XXI, clause 9) does not apply to
amendments between the houses. Lamented one House member, the “point of order
that I would have liked to have raised against the provisions that may include
earmarks [do not] lie against the bill because it is not a conference report, because it’s
a House amendment to a Senate amendment.”99
Senate. The threat of a filibuster potentially influences nearly everything that
the Senate does, including amendments between the chambers. These amendments
are also subject to filibusters and nonrelevant amendments, unless cloture is invoked
or limits are placed on both the debate and amendment process by unanimous consent
agreements. However, if the political circumstances are right and the House and
Senate majority leadership is involved and committed, as in the case of energy, ethics
and lobbying, and SCHIP, then the odds favor action rather than inaction with the
ping pong method. There are, it seems, fewer procedural obstacles to overcome with
the exchange of amendment procedure compared to convening conference
committees. As a Senate parliamentary expert pointed out, “Notwithstanding these
potential difficulties [filibusters and an uncontrolled amendment process], the use of
98 Kathleen Hunter, GOP Continues to Vex Democrats on Procedure,” CQ Today, November
7, 2007, p. 30. Under House Rule XIII, clause 6(c), the Rules Committee is not to report a
special rule “that would prevent the motion to recommit a bill or joint resolution from being
made,” including one offered by the minority leader or his designee. However, the Rules
Committee may report “special rules precluding a motion to recommit at subsequent stages;
that is, during consideration of amendments between the Houses.” See Wm. Holmes Brown
and Charles W. Johnson, House Practice: A Guide to the Rules, Precedents, and Procedures
of the House (Washington, GPO, 2003), p. 813.
99 Congressional Record, vol. 153, December 6, 2007, p. H14257.
amendments between the houses can ... be highly efficient” in achieving bicameral
New rules affecting conference reports — but not the exchange of amendment
procedure — were adopted by the 110th Senate.101 One of the changes provided for
enhanced enforcement of an existing Senate rule (Rule XXVIII), prohibiting the
“airdropping” of items into conference reports. “Air drops” are measures or matters
inserted into conference reports without first being enacted by the House or Senate.
These are considered violations of “scope,” a parliamentary principle which also
applies to the House.
In brief, scope means that conferees are to consider only the matters in
disagreement between the chambers, they are not to include new matter, nor are they
to delete matter agreed to by both chambers. Under the previous Rule XXVIII, a
scope point of order upheld by the presiding officer would effectively kill the
conference report. Under the revised Senate rule, if a point of order is sustained
against airdropped items, that does result in rejection of the conference report, but the
offending material is deleted and the remaining matter can be returned to the House
for its consideration using the exchange of amendment procedure.
For example, when a Rule XXVIII point of order was raised against a
conference report for first time under the new procedure, it was sustained by the
presiding officer. He then stated: “Under the rule, the Senate now considers the
question of whether the Senate should recede from its amendment to the House bill
and concur with a further amendment [the conference report minus the offending
material].”102 The Senate agreed to the motion put by the presiding officer.
The Senate also created a brand new rule (Rule XLIV). A key feature of this
rule is the public disclosure of earmarks. Before a conference report can be
considered, sponsors of earmarks must be identified through lists, charts, or other
means and made publicly available on a congressional website for at least 48 hours.
The majority leader or appropriate committee chair must certify (in a statement on
the Senate floor, for example) that these requirements have been met before it is in
order to vote on a conference report.
Rule XLIV also permits a Senator to “raise a point of order against one or more
provisions of a conference report if they constitute new directed spending provisions”
which are “targeted to a specific State, locality, or Congressional district, other than
through a statutory or administrative formula-driven or competitive award
100 Martin B. Gold, Senate Procedure and Practice (New York: Rowman & Littlefield
Publishers, Inc., 2004), p. 121.
101 CRS Report RS22733, Senate Rules Changes in the 110th Congress Affecting Restrictions
on the Content of Conference Reports, by Elizabeth Rybicki.
102 Congressional Record, vol. 153, November 7, 2007, p. S14043. There was an
unsuccessful attempt to waive the ruling of the presiding officer by the required 60 votes of
process.”103 Worth noting is that paragraph 8 of Rule XLIV applies to discretionary
and mandatory spending and not to authorizations of appropriations. The point of
discussing these two rule changes — the revisions to Rule XXVIII and the new Rule
XLIV — is to underscore that amendments between the houses are not subject to
their formal procedures and requirements.104
Lack of Transparency
Private negotiations among a limited number of participants is a fundamental
characteristic of bicameral negotiations on major bills. As for the amendment
exchange method, transparency and open deliberations are minimized if combined
with a special rule limiting amendments in the House and tree-filling in the Senate,
which closes off amendment opportunities for Members. Unlike the joint
explanatory statement accompanying a conference report, there is no required public
“paper trail”or written record of the decisions made during the informally negotiated
amendment exchange procedure, except for whatever material is spread on the record
during House and Senate floor debate. There are also no layover requirements for
the exchange of amendment procedure, but there are for conference reports. Layover
rules give Members an opportunity to read about the decisions made in a conference
committee prior to floor action. Layover rules, however, may be waived by special
rules from the House Rules Committee and the need for cloture provides Senators
with the opportunity to read the amendments associated with the ping pong method.
Still, the conference route seems to provide the potential for more openness and
transparency compared to the ping pong method. Three reasons buttress this
First, conference committees produce two formal products that are publicly
available: the conference report (the legal language) and the joint explanatory
statement (an explanation of the conference report). Under House rules (Rule XIII,
clause 7), the “joint explanatory statement shall be sufficiently detailed and explicit
to inform the House [and Senate] of the effects of the report on the matters
committed to conference.” Conference reports and joint explanatory statements are
printed in the Congressional Record. Joint explanatory statements are not required
by the exchange of amendments procedure. (However, there are examples of ping
ponged measures where something akin to a joint explanatory statement is printed
103 Senate Rule XLIV provides a detailed definition of what constitutes a “congressionally
directed spending item.” It also establishes a procedure for waiving any or all points of
order raised against a conference report under this Senate rule.
104 For further information on the House and Senate’s earmark reforms, see CRS Report
RL34462, Earmark Reform: Comparison of New House and Senate Procedural Rules, byth
Sandy Streeter; CRS Report RS22733, Senate Rules Changes in the 110 Congress
Affecting Restrictions on the Content of Conference Reports, by Elizabeth Rybicki; CRS
Report RS22867, Earmark Disclosure Rules in the Senate: Member and Committee
Requirements, by Megan Suzanne Lynch; and CRS Report RS22866, Earmark Disclosure
Rules in the House: Member and Committee Requirements, by Megan Suzanne Lynch.
in the Congressional Record, as in the case of S. 1, the Honest Leadership and Open
Second, House and Senate rules stipulate that meetings of conference
committees shall be open to the public; these rules also identify the procedures for
closing the public sessions. To emphasize their commitment to open conferences,
the majority leaders of each chamber pledged that conferences in the 110th Congress
would be open to public observation.106 In Section 515 of the Honest Leadership and
Open Government Act (P.L. 110-81), the Senate agreed to the following protocol:
“conference committees should hold regular, formal meetings of all conferees that
are open to the public.” If there is a presumption of openness for conference
committees, there is nothing comparable for the private negotiating sessions
associated with the ping pong method.
Third, transparency of conference proceedings can sometimes be an important
strategic component of the lawmaking process. Televising conferences over C-
SPAN (the Cable Satellite Public Affairs Network), which has occurred several times
in recent years, could be part of the strategy for influencing conference
decisionmaking by generating public opinion for or against particular issues.
In at least one instance, according to the House chair of a conference committee,
the entire proceedings were open to public view. As the chair stated, this was the
first tax conference in his memory that was held “entirely with the public permitted
complete access, televised over the internal television [network] for the entire time
of the conference. There were no separate conference meetings. All of the
conference meetings were public.”107 The chair of the Senate conferees agreed with
this assessment. On tax conferences, he said, nearly “all of the toughest decisions
come down to private negotiations between the two chairmen.... In this conference,
however, all discussions were aired publicly.”108 The rationale for complete openness
was to blunt any allegations from opponents that untoward deals were being made
in secret. There have been no instances of television coverage of the private
negotiations associated with the ping pong method.
Although Table 1 does not reflect a numerical increase in the ping pong
method, its recent use on major bills is something that does seem significant.
Volleying amendments between the houses on consequential legislation is outside
what might be considered the “regular order” — the creation of a conference
committee, the usual venue for reconciling bicameral differences on major measures.
105 Congressional Record, vol. 153, August 2, 2007, pp. S10708-S10714.
106 See Lynn Sweet, “New Congress, New Rules,” The Hill, December 7, 2006, p. 27 and
Erin Billings and Emily Pierce, “Reid Prepares for Senate Changeover,” Roll Call,
November 9, 2006, on-line edition.
107 Congressional Record, vol. 150, October 7, 2004, p. H8656.
108 Congressional Record, vol. 150, October 9, 2004, p. S10929.
As a result, there are at least five issues associated with ping ponging that merit
First, the more prominent role of ping ponging may reflect the gradual
institutionalization of a leadership-influenced bicameral bargaining process that has
been evolving for several years. Bicameral bargaining is not a static process; it has
undergone many changes over the years. The “old” conference style, where a limited
number of conferees from a single committee in each chamber haggle over inter-
chamber differences, no longer suffices as the prime method for reaching bicameral
compromises. Today, party leaders exercise large influence in achieving and
coordinating inter-chamber agreement on major bills, often resorting to the ping pong
method for this purpose. The bicameral role of party leaders results from various
developments, such as the need to mobilize support for party-preferred policies from
a diverse array of engaged actors (interest groups, executive officials, nonconferee
lawmakers, bloggers, and so on.)
Second, there is arguably little significant difference between convening
“virtual” conferences, where bicameral compromises are worked out in private
among key lawmakers, and employing the amendment exchange method where inter-
chamber accords are also hammered out in closed meetings by a select number of
House and Senate leaders. There are differences, however. The threat or reality of
a filibuster in today’s Senate appears so severe that it has produced a changed
bicameral dynamic for reconciling House-Senate differences on legislation. Further,
there are numerous House and Senate rules and practices triggered by the conference
method that can be avoided by the ping pong approach. These include such things
as potential controversies involving conferee selection, the instruction of conferees,
or scope violations.
Third, the bargaining dynamic associated with ping ponging may have its roots
in Senate developments that have occurred over several decades. The thrust of these
changes has led to a more individualistic and partisan Senate where lawmakers’
individual or partisan preferences sometimes take precedence over institutional
requirements. Congressional scholars have examined how the Senate has changed
over several decades, and these changes influence today’s conferee appointment
process. A capsule summary might include the following developments.
During the 1970s, there was an increase in the number of filibusters and other
delaying tactics as the chamber witnessed a heightened sense of influence on the part
of each Senator. Many Senators, regardless of party, were more willing to employ
their formidable parliamentary prerogatives to advance individual goals even if that
meant blocking the Senate’s business or foiling the agenda-setting authority of the
majority leader. Professor Richard F. Fenno, Jr., a noted legislative scholar, studied
how the 1950s Senate evolved from a “communitarian” institution, where Members
were expected to use filibusters sparingly and only for high-stakes national issues,
to today’s “individualistic” Senate. He found that with “more openness, more media
visibility, more candidate-centered elections,” more interest groups, more political
obligations, and more staff, Members became independent entrepreneurs unwilling
to submerge their personal and political objectives “to the norms of any
By the late 1980s and 1990s, the Senate seemed to become increasingly
contentious, “with polarization along partisan and ideological lines that largely
coincide.”110 This pattern continued into the 2000s. Given any lawmaker’s ability
to stall legislative action, and a narrowly divided chamber’s oft-inability to invoke
cloture, it became much more difficult for the Senate to convene conference
committees. As a result, majority party leaders in both houses turned to amendment
exchanges and informal negotiations to iron out bicameral differences. This
negotiating pattern has persisted in recent years regardless of which party has been
in charge of the Congress.
Fourth, bypassing the conference stage is not without its own complications.
A brief summary of a 2008 housing measure (H.R. 3221) will help make the point.
Remember that the aforementioned H.R. 3221 started out as an energy bill with many
of its provisions folded into H.R. 6 (the energy case example) during the exchange
of amendments between the chambers. The bill remained in the Senate, however, and
became the vehicle to carry a major housing initiative. The Senate devised a package
of housing proposals that contained energy tax incentives and, as mentioned before,
the Constitution requires the House to originate tax measures. So the Senate deleted
the legislative text contained in H.R. 3221 and replaced it with housing and energy-
relevant proposals. The legislation passed the Senate on April 10, 2008, as a Senate
amendment to H.R. 3221. The amended bill was returned to the House, including
with a new title (the “Foreclosure Prevention Act”).111
On May 7, 2008, the House Rules Committee reported a procedural resolution
(H.Res. 1175) that made it in order for the House to take up H.R. 3221, with the
Senate amendments thereto. Worth underscoring are two points: first, Senate
amendments to House-passed measures lack privilege — an automatic right to the
floor — and require a special rule for this purpose; second, the House can respond
to Senate amendments in any way that it wants. In this case, the special rule
permitted the Financial Services chair to make a motion to concur in the Senate
amendments with three House amendments. All three were adopted by the House,
along with an amended title.112 H.R. 3221 became the “American Housing Rescue
and Foreclosure Prevention Act,” and was volleyed back to the Senate (the three
House amendments to the Senate amendments to H.R. 3221).
Things quickly became procedurally complicated in the Senate, leading to
complex parliamentary maneuvers. There were three motions for cloture; an
unsuccessful motion to refer the House amendments to the Banking Committee; tree-
filling by the majority leader; controversy over whether an amendment involving
109 Richard F. Fenno, Jr., “The Senate Through the Looking Glass: The Debate over
Television,” Legislative Studies Quarterly, August 1989, p. 316.
110 Barbara Sinclair, Party Wars, p. xvi.
111 Congressional Record, vol. 154, April 10, 2008, p. S2844.
112 Congressional Record, vol. 154, May 7, 2008, p. H3134 and May 8, pp. H3219-H3282.
energy tax incentives was germane to the housing bill; multiple amendments offered
to the House amendments; and other procedural twists and turns. In brief,
consideration of House amendments in the Senate provides numerous opportunities
for delay and produces complications that are procedurally and politically complex.
The Senate finally cleared all the procedural hurdles, and the housing bill, as
amended — renamed the “Housing and Economic Recovery Act” — was returned
to the other body for its consideration of the Senate amendments to the House
amendments to the Senate amendments to H.R. 3221. House negotiators returned to
the drawing board to develop a housing package (another House amendment(s) —
technically a third-degree amendment violation113) that the Senate could accept and
thus end the back-and-forth volley of proposals. To be sure, the respective House
and Senate chairs were in regular communication, working together to develop a
housing package (the new House amendment) that could pass the Senate.114 In the
end, the House on July 23 agreed to the inter-chamber negotiated compromise, which
included provisions addressing housing foreclosures and credit markets, by a 272 to
152 vote. Three days later, after the filing of cloture and tree-filling by the Senate
majority leader, the chamber voted 72 to 13 to concur in the amendment of the
House.115 On July 30, the legislation was signed into law (P.L. 110-289) by the
Lastly, the history of Congress is the history of change. Lawmaking processes
adapt in big and little ways to new pressures, actors, and events. Yet one constant is
that both chambers must pass a measure in absolutely identical fashion before it can
be sent to the White House for presidential consideration. Recall that Table 1
provides data on the methods used to secure bicameral concurrence on legislation.
What the table cannot reveal is that many respected individuals believe that a once
little-discussed method — the exchange of amendments between the houses —
113 Both chambers prohibit amendments in the third degree, meaning an amendment to an
amendment to an amendment. The third-degree prohibition applies to amendments between
the houses. “In short, after each chamber has passed the same bill for the first time (for
example, the House passes a House bill and the Senate passes the House bill with Senate
amendments), each chamber may have one opportunity to amend the amendments of the
other chamber.” See Senate Committee on Rules and Administration, Congressional
Handbook (Washington, DC: GPO, 1994), p. III-30.
114 Another financial crisis hit the housing market upon H.R. 3221’s return to the House.
Two large government-sponsored mortgage enterprises called Fannie Mae and Freddie Mac
encountered serious problems involving the lack of capital to cover their outstanding
obligations. As a result, there was thought of folding a Treasury Department funding
initiative to aid the two mortgage institutions into the housing bill, a “one vote, one
package” strategy. See David Rogers, “Frank Plans Quick Passage of Treasury Bill,”
Politico, July 15, 2008, p. 21. In the end, this is what occurred. See Benton Ives, “Mortgage
Relief on the Horizon,” CQ Weekly, July 28, 2008, pp. 2056-2058; Lori Montgomery and
Paul Kane, “Housing Bill Won’t ‘Perform Miracles’,” The Washington Post, July 27, 2008,
p. A1; and “Bush Signs Housing Assistance, Oversight Legislation Without Fanfare,” Daily
Report for Executives, July 31, 2008, p. A-2.
115 Congressional Record, vol. 154, July 26, 2008, p. S7506. Technically, the Senate agreed
to the motion to concur in the amendment of the House to the Senate amendment to the
House amendments to the Senate amendment to H.R. 3221.
recently has taken on larger importance in reconciling House-Senate differences on
major legislation. Whether this development is an anomaly, unique to recent
Congresses, or reflects the wave of the future is not clear. Prediction is very hard,
Yogi Berra is reputed to have said, especially about the future. One thing does seem
certain, however. If there are continuing issues in convening conference committees,
or circumstances warrant their calculated circumvention, institutional leaders seem
certain to employ the ping pong method or devise other ways to resolve bicameral
differences on legislation.