April 28, 2008
In June 2006, House and Senate Democratic leaders rolled out their "New Direction for America," a campaign platform to take back control of Congress. The "Honest Leadership and Open Government" reform plank, at Page 22, included the promise to require that "all [House-Senate] conference committee meetings be open to the public and that members of the conference committee have a public opportunity to vote on all amendments [in disagreement between the two houses]." Moreover, copies of conference reports would be posted "on the Internet 24 hours before consideration (unless waived by a supermajority vote)."
The minority Democrats' justifiable complaint was that majority Republicans often shut them out of conference committee deliberations after a single, perfunctory public meeting was held to minimally satisfy House rules (aka "the photo op"). After that meeting, all that is necessary to file a conference report is the signatures of a majority of conferees from each house. No formal meeting or votes on final approval are required; nor does the majority even need to consult the minority before finalizing an agreement.
Once they took over Congress in January 2007, House Democrats abandoned their promises of public votes in conference meetings on amendments in disagreement and of 24-hour advance Internet availability of conference reports. Nevertheless, they did adopt some palliative House rules changes on the opening day of the 110th Congress that at least appear to move conference committees in the direction of a more deliberative and participatory public process.
The new rules require: (a) that all conferees be given notice of any conference meeting for the resolution of differences between the houses "and a reasonable opportunity to attend"; (b) that all provisions in disagreement be "considered as open to discussion at any meeting"; (c) that all conferees be provided "a unitary time and place with access to at least one complete copy of the final conference agreement for the purpose of recording their approval (or not)" by affixing their signatures; and (d) that no substantive change in the agreement be made after conferees have signed it.
The Parliamentarian's footnotes to the rules for conference reports indicate that the rules are not enforceable if all points of order are waived against the reports, as is routinely done by a special rule from the Rules Committee. Nevertheless, conference committee chairmen (or vice chairmen) could still be punished by the House adopting a question of privilege resolution for willful disregard of these modest requirements. This is because a blanket waiver of the rules only protects the conference report. It is not a retroactive pardon for malfeasance in the management of the conference.
Unfortunately, these well-intentioned new rules have no relevance when the bicameral majority leadership decides to bypass going to conference altogether, and instead negotiates final agreements behind closed doors. And this is happening with increasing frequency, sometimes even over the public protests of committee chairmen who have been excluded from leadership negotiations.
To determine just how serious the practice of bypassing conferences has become, I compared action on major bills through March of the second session in both this Democratic 110th Congress and the preceding Republican-controlled 109th. (A major bill is defined here as one originally considered under a special rule in the House.)
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 eight times as many bills as the 109th Congress outside the conference process. This is done by using the "pingpong" approach of bouncing amendments between the houses until a final agreement is achieved.
Among the major bills in this Congress that have bypassed conference consideration are the energy independence bill, State Children's Health Insurance Program, Iraq-Katrina supplemental appropriations, terrorism insurance, the consolidated appropriations act and the tax rebate/stimulus legislation.
While the conference bypass approach is just as legitimate under the rules as going to conference (and sometimes advisable when there are only minor differences to iron out), the procedure is more suspect when used on major bills on which numerous substantive disagreements exist between the houses. That is when House and Senate leaders are more likely to directly intervene, rendering committee chairmen less relevant to the process.
Senate minority Republicans are not entirely blameless in this development. At times they have brought pressures to avoid conferences, under threat of filibuster, in order to better ensure the retention of provisions in which they have a vested interest. However, House and Senate Democratic leaders have been just as culpable in wanting to skip conferences to produce outcomes most beneficial to their party.
While it is too early to declare House- Senate conferences as extinct as the dodo, it is not too early to move them onto the parliamentary endangered-species list. It is one more sign of the decline of the committee system and its attributes of deliberation and expertise. It is especially troubling because the lack of conference deliberations shuts out majority and minority Members alike from having a final say on important policy decisions. Party governance must be better balanced against participatory lawmaking. Both parties need to recognize this.