Instructing Senate Conferees

Prepared for Members and Committees of Congress

he Senate and House often create a conference committee to propose the final version of a
bill that the two houses have passed in different forms. Sometimes, the Senate votes to
instruct its conferees on the nature of the agreement they should reach. These instructions T

are not binding, and may not ask conferees to reach an agreement that goes beyond their
authority. Conferees may be instructed by motion only before they are appointed; thereafter, they
may be instructed by resolution, amendment, or motion to recommit. For more information on
legislative process, see
Inasmuch as conference committees are negotiating forums, the two houses impose few general
rules governing their work or restricting the content of the agreements they can reach. Instead, the
Senate and House leave it largely to conferees themselves to decide how they can conduct
negotiations most productively. Although practice nevertheless permits the Senate to instruct its
conferees, all such instructions are limited in the following two ways:
• Instructions to conferees are never binding. A point of order may never be
sustained against a conference report because it is not consistent with instructions
that the Senate gave its conferees; and
• It is not in order to instruct Senate conferees to reach some agreement that is not
within their authority as conferees.
In particular, rules of each house (in the Senate, Rule 28, paragraphs 2 and 3) require conferees to
restrict their agreements to the “scope of the differences” between the Senate and House
positions. In recent practice, however, any provisions may be considered to satisfy this
requirement as long as they meet a standard of “common sense relevance” to the matters in
disagreement (for detail on this “scope” requirement, see CRS Report 98-380, Senate Conferees:
Their Selection and Authority, by Elizabeth Rybicki).
To go to conference on a measure, the Senate must adopt three motions: to disagree with the
House version, request or agree to a conference, and authorize the chair to appoint Senate
conferees (for detail, see CRS Report RS20454, Going to Conference in the Senate, by Elizabeth
Rybicki). A motion to instruct conferees is in order only after these motions are agreed to, but
before the conferees are actually appointed. Normally, the Senate agrees to the three motions en
bloc by unanimous consent, and the presiding officer appoints the conferees immediately
thereafter. In some instances, however, some time may intervene between the agreement to the
motions and the appointment. After the conferees are named, the motion is no longer in order.
This motion may, for example, instruct Senate conferees to insist on, or to recede from, a certain
Senate position in conference; to accept, or not to accept, a certain House position; or to negotiate
a compromise position with the House that satisfies specified conditions. Inasmuch as the
instructions are not binding, motions to instruct may be stated in broad advisory language rather
than as specific legislative text.
A motion to instruct conferees is amendable, so that, for example, amendments could be offered
to add further instructions. The Senate may also entertain in succession several separate motions
to instruct conferees on the same measure. If a motion to instruct conferees contains more than

one separable proposition, such as instructions on different subjects, the motion will be divided
for voting if any Senator so demands. The motion to instruct conferees is debatable; therefore, it
may be subjected to filibuster, and potentially to cloture. The motion may also be laid on the
Once a measure is in conference, the Senate may no longer instruct its conferees by motion
(except by unanimous consent), but it sometimes does so by adopting a “sense of the Senate”
amendment to other legislation. In principle, it might also do so by resolution, but consideration
of such a resolution could, in effect, be blocked by an objection, which makes this vehicle for
instructing conferees difficult to utilize. Either an amendment or a resolution to instruct conferees
is debatable, but may be laid on the table, and the instructions it contains are amendable.
No motion to instruct conferees is in order after conferees have filed their report or while the
Senate is considering it. While the Senate is considering a conference report, however, if it is the
first house to do so, a motion to recommit the report to conference is in order, and this motion to
recommit may include instructions to the conferees. This motion, too, is debatable, but may be
laid on the table, and the instructions are amendable.
The Senate also may defeat a conference report, then agree to motions for a second conference.
(In addition, under certain conditions unusual today, it might adopt a partial conference report,
then agree to a second conference on provisions remaining in disagreement.) When motions for a
second conference are adopted, a motion to instruct conferees at the new conference is in order
until the new conferees are named, in the same way as initially.
In general, the Senate has not often instructed its conferees, perhaps in part because doing so
might limit the negotiating flexibility of conferees, and thereby their chances of success.
Nevertheless, the Senate may sometimes find it useful to have on record a formal expression of
its expectations for conferees. Instructions may afford conferees an indication of what kind of
provisions the Senate is likely to accept, especially when Senate floor amendments add provisions
that conferees may not favor. It is also possible that Senate conferees might use instructions as
grounds for maintaining their position in conference, and might even seek instructions for this
purpose. Finally, debate on a motion to instruct conferees may afford an opportunity to draw
attention to a particular policy question.
Richard S. Beth
Specialist on the Congress and Legislative Process, 7-8667