Conference Committee Deliberations

Conference Committee Deliberations
Walter J. Oleszek
Government and Finance Division
The Constitution requires that proposed laws must pass the House and Senate in
absolutely identical form before they can be sent to the White House for presidential
consideration. Different procedural techniques are used to achieve “bicameral ignition,”
but the one usually employed for controversial measures is to establish a conference
committee. Composed of conferees chosen from each chamber — usually from the
committee(s) that reported the legislation — the conference committee’s job is to iron out
differences when the House and Senate pass dissimilar versions of the same bill. Because
conference committees make significant policy decisions, it is little surprise that these
bicameral units are sometimes called “the third house of Congress.”
To understand the work of conference committees, it is useful to discuss (1) several
features common to inter-chamber negotiations, (2) how conferences are organized, and
(3) the authority of conferees. Worth noting is that many lawmakers anticipate that
certain legislation will eventually reach the conference committee stage, and they will take
purposeful pre-conference actions to bolster their negotiating leverage with the other
body. For instance, either chamber may adopt floor amendments that may be used as
“bargaining material” in conference.
Common Features
Three features commonly influence conference bargaining. First, conferences
typically operate in an agreement-oriented context. Conferees are accustomed to the give-
and-take, bargains, and trade-offs that characterize inter-chamber negotiations. Second,
the general objectives of the conferees are to uphold their chamber’s position in
conference to the extent practicable, to fashion a compromise agreement that attracts the
support of at least a majority of each house’s conferees, and, finally, to craft a conference
report that will pass the House and Senate and be signed by the President. Third, the
conferees from each chamber function under the “unit rule.” This means that the two
houses each have one vote, with a majority in each conference delegation deciding how
it is to be cast on the various issues in bicameral disagreement. Often, there is no need
for formal votes because conferences may opt to make decisions informally by
consensus or through “straw votes” on issues that might be revisited again during the
conference. To be sure, the conference decision that is determinative is when at least a
majority of the conferees from each chamber agree to sign the conference report.

Organization of a Conference
There are no formal rules that outline how conference meetings are to be organized.
Routinely, the principals from each chamber or their respective staffs conduct pre-
conference meetings so as to expedite the bargaining process when the conference
formally convenes. Informal practice also determines who will be the overall conference
chairman (each house has its own leader). Rotation is usually the practice when matched
pairs of panels (the tax or appropriations panels, for example) convene in conference
regularly. For standing committees that seldom meet in conference, the choice of who
will chair the conference is generally resolved by the conference leaders from each
chamber. The decision on when and where to meet and for how long are a few
prerogatives of the chair, who consults on these matters with his or her counterpart from
the other body.
Another organizational feature merits mention. The number of conferees selected
from each chamber usually varies, with recent years witnessing an increase in the overall
size of conference delegations. Big conferences may influence how the work of this
bicameral panel is carried out. The conference may subdivide into smaller groups called
Authority of Conferees
House Rule XXII and Senate Rules XXVIII and XLIV, as well as the respective
precedents of each chamber, outline the authority and limitations of the conferees from
each house. Few formal rules guide the bargaining process, and they only may be invoked
through points of order when the conference report (the compromise accord) is submitted
to the House and Senate for consideration. Conferees are not to reconsider provisions
agreed to by both houses. They are to meet at least once in open session unless specific
steps are taken to close sessions for reasons such as national security. (Needless to say,
much conference bargaining occurs in secret as various conferees discuss in private how
to iron out differences.) Conferees, too, are not to include new matter in their report. In
brief, they are not to exceed the scope of differences committed to them by either
chamber. “Scope” is a technical term that can be illustrated generally as follows:
Provision ofProvision ofContents Permitted
1st Chamber2nd Chamberin Conference Report
Nothing Nothing Nothing
A BA or B or In Between
ANothingA or Current Law or
In Between
The point to remember is that these few rules can be waived or not be invoked in
either chamber. As one former Senate leader said: “Conferences are marvelous. They’re
mystical. They’re alchemy. It’s absolutely dazzling what you can do.” Stated another
way, if conferees have the votes, they have large discretionary authority in making
bicameral adjustments.