Will the Senate start going to conference again?

Greg: Last week, the Senate adopted reforms to simplify its agenda-setting, handling of nominations, and sending bills to conference committees. Sarah Binder reviewed these reforms here and I surveyed them on Mischief of Faction. As a follow-up, I asked Josh Ryan, who researches conference committees and bicameral bargaining, to put the conference committee reforms in context and discuss their impact.

Josh’s post follows:

Conference committees are now rarely used in Congress, but observers hope the Senate rules changes made last week to limit the filibuster will result in an increase in conferencing. Disappointingly to proponents of reform, no changes were made to the 60 vote requirement, but Senate Resolution 16 is designed to reduce the number of motions necessary to convene a conference committee, thus reducing the opportunities for minority obstruction. It seems likely however, that the effects of these changes in the current Congress will be minimal.

It is accepted wisdom that the most significant and controversial bills go to conference, an ad hoc committee created solely for the purpose of resolving legislative differences between the House and Senate on a particular bill. Conferences have long been recognized as an important part of the legislative process. The committee is an opportunity for the House and Senate to reach a compromise by splitting their differences on a bill or by moderating one chamber’s version of the legislation. Conferences also allow the bill’s most interested and knowledgeable members to hammer out the details, and because members of the conference committee are usually strong proponents of the bill, there are powerful incentives to reach a compromise. Once members of the conference agree, the revised version of the legislation is sent back to both chambers for a final vote and cannot be amended.

Counts vary, but in the 1970s, between 15% and 30% of bills were reconciled using a conference, while in the 2000s less than 10% of bills went to conference. The most notable recent example of a bill bypassing the conference process is the 2010 health care reform bill, but other significant legislation has also been resolved using the alternative to conferencing, a process known as amendment trading or “ping-ponging,” where the chambers amend and pass a bill back and forth until they agree on the same wording.

Amendment trading is seen as less deliberative than a conference—it involves all members of Congress, there are limitations on how many changes can be made to the bill (the rules allow a bill to be passed between the chambers a maximum of three times though this limitation is often waived), and the process tends to occur more quickly. Though the rates of success for amendment trading and conferencing are about the same, amendment trading produces different legislative outcomes. Because exchanging amendments resembles the normal passage process, it may involve vote-trading, the inclusion of extraneous amendments, and increased leadership influence. In contrast, conferees have wide discretion to modify the legislation free from the influence of both the leadership and other members, and because the modified legislation is subject to an all or nothing vote in both chambers, it can be passed without much of the within-chamber bargaining necessary to successfully amend the bill on the floor.

Prior to the adoption of last week’s reforms, the process for going to conference in the Senate was convoluted, to say the least. It required three separate motions: a motion to disagree with the House amendments, a motion to request a conference with the House, and a motion to appoint conferees. Not surprisingly, increased polarization gets much of the blame for the decline in conference committees. Amazingly, each of the three motions was subject to debate and a potential filibuster. Senate norms and comity previously meant these motions were pro forma, but no longer. Oleszek (2007) recounts how Republican Senators filibustered each of the three motions on a 1993 campaign finance bill and quotes then Senate Majority leader George Mitchell as saying, “In the 210 years in the history of the United States Senate, never—until last week—has there been a series of filibusters on taking a bill to conference [262].” Oleszek goes on to say, “By the early 2000s, given an environment of sharper partisan conflict, what had been precedent-shattering to Majority Leader Mitchell in 1994 became a fairly common occurrence in the Senate [262].”

As noted on this blog and in much of the political science research, a filibuster threat can be as powerful as actually carrying one out. Despite the fact that we rarely observe filibusters on the conference motions, the Senate majority is often unwilling to go through the process of attempting a conference in anticipation of a possible filibuster. The reasons why the Senate minority prefers to force the majority to use amendment trading is unclear. Amendment trading may allow the minority a greater say in the legislation, it may offer more opportunities to delay or obstruct, or it could force the majority into adopting less dramatic or comprehensive policy change. Whatever the reason, the result is the same. If the minority threatens to filibuster the conference motions, the time costs to the majority become too great and amendment trading becomes the preferred option.

The rules changes made last week combine the three conference motions into one and specifies that the cloture motion to end debate on the conference motion is itself only debatable for two hours. At that point the Senate will vote on the cloture motion, then on the conference motion (having now been combined into a single motion rather than three), effectively deciding, more or less immediately, whether or not to conference. In short, the amount of time it takes to end debate on the motion to conference will be greatly reduced, making conferencing once again a viable option for the majority.

Will this increase the number of conferences? The changes may matter when both chambers are controlled by the same party but not when they are controlled by different parties. For legislation that both the Republican-controlled House and Democratic-controlled Senate agree on, it’s unlikely Senate Republicans would prevent the bill from going to conference given that the legislation has widespread agreement among Republicans. The bill is also supported by the Senate’s Republican colleagues in the House after all. Under unified party control of the chambers however, the Senate minority has a much stronger incentive to use the threat of a filibuster to hinder legislative action. Even after Resolution 16, the motion to go to conference is still subject to debate, and it still requires 60 votes to invoke cloture, but the new rules greatly reduce the power of the minority to delay and ultimately block a conference altogether.  An increase in the number of conference committees may occur, but only during periods of unified party control of the House and Senate.

The recent changes may have been successful because in the current partisan divided, it still takes agreement from both parties to convene a conference committee. In other words, neither the majority Democrats nor the minority Republicans had much to lose. This raises the question of why the Senate even bothered to change the rules. Perhaps it’s because Senators think they have a lot to gain in the future. If their party controls both chambers in a subsequent term, it will be much easier to convene a conference committee.

References

Oleszek, Walter J. Congressional Procedures and the Policy Process. 7th Edition. Washington, D.C.: CQ Press.

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