House Conferees: Restrictions on Their Authority

Prepared for Members and Committees of Congress

o resolve differences between House and Senate versions of a measure, Congress may
establish a conference committee, composed of a House and a Senate delegation. Its task is
to propose a final version of the measure, referred to as a conference report, for the T

approval of both houses. This report discusses rules that restrict the substance of what House
conferees may agree to include in a conference report. For more information on legislative
process, see
A conference has before it both a House and a Senate version of the same measure. In recent
practice, these most often take the form of a House measure as passed by the House and a
substitute for the entire text agreed to by the Senate, or vice versa. Often, the substitute from the
second chamber (formally, an amendment in the nature of a substitute) reflects the text of a
companion measure agreed to by that chamber. (Other possibilities exist, but all involve an
amendment or amendments by one house to a measure agreed to by the other.)
House Rule XXII, clause 9, authorizes House conferees to negotiate only on matters in
disagreement between the houses; that is, points on which the House and Senate versions of the
measure differ. This rule permits conferees to reach an agreement that constitutes a “germane
modification of the matter in disagreement.” Conferees may, for example, propose a “conference
substitute,” a new amendment in the nature of a substitute as an alternative to both versions
committed to conference. The conference proposal on each matter in disagreement must fall
within the “scope of the differences” between the House and Senate versions. In general, this
requirement means that conferees may not change or eliminate text agreed to by both houses, nor
may they introduce any “specific additional matter” not included in either version. Also, they may
not delete matter in such a way as to broaden the scope of the measure beyond both proposals.
If the two versions contain different provisions on the same subject, conferees must in general
retain a provision on that subject. They may accept either the House or Senate version, or may
propose a version intermediate between the two. The conference proposal may not be stronger
than the stronger version or weaker than the weaker version. If only one house has a provision on
a subject, then the position of the other house is implicitly that current law on the point should be
maintained. The conferees may include the provision, omit it, or propose a version intermediate
between it and current law.
In recent practice, conferees often include in their report provisions that either are entirely new or
otherwise violate the scope requirement. A conference report containing provisions “outside the
scope” is subject to a point of order in the House. If the Speaker sustains the point of order, the
entire conference report is out of order and cannot be considered, because a conference report is a
package agreement. It must be considered and disposed of as a unit; it may not be amended or
broken up.
In this situation, conferees often ask the Committee on Rules to report a special rule for
considering the conference report that waives the “scope” point of order. Alternatively, if little
opposition is expected, the conference report may be called up on a motion to suspend the rules,
which has the effect of waiving any points of order. The House may also waive points of order

against a conference report by unanimous consent. All these procedures are also available to
remedy other violations of conferees’ authority.
For “money bills,” conferees’ authority is subject to important additional restrictions. Rule XXII,
clause 5, restricts the authority of House conferees to accept Senate amendments to appropriation
bills that change existing permanent law (called “legislative amendments”) or make unauthorized
appropriations, or Senate appropriations amendments to bills that are not appropriation bills. Rule
XXII, clause 6, forbids House conferees from accepting a Senate revenue amendment to a House
non-revenue bill.
In the past, if conferees reached agreements that violated these restrictions, they often reported
their proposals as “amendments in technical disagreement.” They would formally report that they
could not reach agreement (a “conference report in disagreement”). They would then propose that
the House resolve the disagreement by agreeing to the Senate version as amended by a new
House amendment. Because these motions to “recede and concur with an amendment” are not
subject to the restrictions applicable to conference reports, the text of the new amendment could
embody the agreement that conferees had actually reached. This approach becomes inconvenient,
however, when the position of one house is embodied in a single second-chamber substitute for
the entire text, which has become routine even on appropriations bills.
Finally, House Rule XXII, clause 10, restricts the ability of House conferees to agree to include in
a conference report provisions that originate in Senate language and are not germane to the
measure as passed by the House. The rule subjects each provision of this kind to a separate point
of order in the House. If the Speaker sustains the point of order, however, the conference report
does not automatically become ineligible for consideration. Instead, a motion is in order to strike
the nongermane matter from the conference report. If one or more motions to strike are agreed to,
the conference report is considered as rejected. The rule then, however, permits the House
automatically to consider a motion to recede and concur with an amendment consisting of the
unrejected portion of the conference report.
For each nongermane Senate provision in a conference report, this mechanism permits the House
to choose either to accept or reject it without killing the legislation as a whole. Similar procedures
apply when Senate nongermane matter appears in an amendment reported from conference in
(real or technical) disagreement.
Richard S. Beth
Specialist on the Congress and Legislative Process, 7-8667