Disclosure: I'm advising Open Left in a paid capacity on procedure with regard to the Wall Street reform bill, and thought readers at Daily Kos and Congress Matters would be interested in the information as well.
In the previous installment in this series, I talked a little bit about the formality of the process by which the houses (particularly the Senate, which has its own peculiar hurdles) agree to meet in conference on a bill. The point of that discussion was to demonstrate how the Senate's troubles with filibusters create difficulty in navigating the sometimes plodding and formalistic process of getting to conference.
Today, I'll talk a little more about where this formalistic process comes from and how to follow it, plus throw in a note at the end about why it matters, just so you don't feel like you've completely wasted your time.
In the case of the Wall Street reform bill, H.R. 4173, we've got a bill originally passed in the House, which text the Senate replaced by substituting the text of its own bill, S. 3217. The Senate (after amending S. 3217 during its own deliberations), simply struck out all the contents of H.R. 4173 and substituted the text of S. 3217 as it stood after being amended on the Senate floor, and then immediately insisted on its amendment and requested a conference. The House agreed to the conference, and now here we are watching it. The proceedings we're seeing can seem a little stilted and formalistic themselves, with the House making "offers" to the Senate about changes, the Senate conferees voting among themselves on whether or not to agree to those offers, make counteroffers, etc.
Why are they doing things this way? What are the rules about how conferences work once they're started?
Well, the rules are... there are no rules. Or not many, anyway. From the CRS report,"Resolving Legislative Differences in Congress: Conference Committees and Amendments Between the Houses" (PDF):
Rules of procedure guide and restrain the legislative activities of both the House and Senate. So it is striking that there are almost no rules governing procedure in conference. The members of each conference committee can select their own chairman. They can also decide for themselves whether they wish to adopt any formal rules governing such matters as debate, quorums, proxy voting, or amendments, but usually they do not. The only rules imposed by the two houses governing conference committee meetings concern approval of the conference report and the openness of meetings to all conferees and to the public.
A majority of the House managers and a majority of the Senate managers must approve and sign the conference report. Decisions are never made by a vote among all the conferees combined. All votes take place within the House delegation and within the Senate delegation. This is why there is no requirement or necessity for the two houses to appoint the same number of conferees; five Senate conferees, for example, enjoy the same formal collective power in conference as 25 House conferees.
[...]
Few other rules govern conference proceedings nor do conference committees often vote to establish their own rules. Instead, they generally manage without them. This absence of rules reflects the basic nature of the conference committee as a negotiating forum in which the negotiators should be free to decide for themselves how to proceed most effectively.
In some cases, conferences are rather formal. One delegation puts a proposal on the table; the other delegation considers it and responds with a counter proposal. In other cases, conferences resemble free-form discussions in which the issues and the matters in disagreement are discussed without any apparent agenda or direction until the outlines of a compromise begin to emerge.
So far, we've seen the Wall Street reform conference follow the more formal model. Why? Well, it could that be the complexity and far-ranging nature of the material under discussion requires some formal framework in order to keep things sane. It also lends itself to better and more coherent scheduling, which is a benefit both because certain members of the conference committee are appointed for the narrow purpose of consideration of portions of the bill under the jurisdiction of their particular standing committee or subcommittee, and because members are working under the assumption that they'll have a final product ready for the President's signature before July 4th. And finally, there's the matter of their being on TV. You don't really want a televised conference on an important issue to look like a free-for-all gab-fest. To the extent that even ironclad rules can help avoid that, anyway. After all, these are Members of Congress we're talking about.
So in case you were wondering, no, not all conferences work exactly the way you've been seeing it with this one.
What about the practice of using the Senate version of the bill as the basis for discussions, with the House making offers on how to amend that text? Well, I've found no written work explanations directly on point, but my assumption is that the Senate text is the working document because that's the one that was sent to the House along with the Senate's request for a conference, and that's the document concerning which the House agreed to that conference. And the Senate, being in possession of that document (I'll explain how and why, and what implications that has in the next installment), is in the position of soliciting House offers regarding how it ought to be amended to as to reach agreement.
This all seems exceedingly formalistic, but once we get through the explanation of how this system arose, I'm hopeful it'll make more sense to you. It's very linear and sensible, at one level, even if a little anachronistic in today's environment of instantaneous communications.
At any rate, for anyone hoping to learn how to influence the outcome of a conference, it's clearly important to know the mechanics of how the proposals for settling differences get made, so that you know where the pressure points are, and whom to contact about what if you've got something you'd like to make happen.
You'll no doubt see, though, from the schedule and procedure they've adopted that insofar as they favor any kind of outside influence at all, they tend to favor that of the professional and institutional lobbying community far more than that of grassroots, citizen advocates. That's not likely to change any time soon, nor is it a purposeful or malicious decision. Members are just adopting procedures that mirror the way their formal business is conducted in other, similar settings. The only way to begin to level the playing field, then, is to learn about those procedures and contemplate how we might leverage a role for ourselves in them.
Other entries on this subject: