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 previous posts, I've made brief mention of how today's repeated Republican abuse of the filibuster has made conferencing -- once the most efficient method of settling differences between the houses -- so inconvenient and difficult to get to that it's actually become something of a rarity to see it happen.
What exactly do I mean? I'm going to lean on CRS again to set things up, this time on their report titled, "Conference Committee and Related Procedures: an Introduction":
Before a conference committee is created to resolve disagreements between the two houses, the House and Senate each must state its disagreement over a bill, either by disagreeing to the amendments of the “other body” or by insisting on its own amendments. So long as one house concurs in the amendments of the other with amendments, there is no formal disagreement. But at any point during an exchange of amendments between the House and Senate, either house can propose that they can go to conference instead.
That's step one: clarifying whether or not there's a disagreement between the Houses. Simple enough to do in the House. But in the Senate, you know how things can get. Someone moves that the Senate disagree to the House bill (or amendments), and somebody else says they'll filibuster and prevent closing debate on whether or not to declare a disagreement. Sounds dumb, but unless there's a formal declaration by the Senate that there's a disagreement, you can't have a conference. Because you can't conference where there's no disagreement. But if one or more Senators wishes to pretend they have reason to insist that "debate" continue over whether or not there's disagreement, you'll need a cloture vote -- and the agreement of 60 Senators -- to move the process along.
Recalling exactly what that means, you'll need to file a cloture motion (along with a petition signed by 16 Senators, which is never a problem), but then wait for a full calendar day to pass after the day on which you file the motion. Then, after one hour of session has elapsed on the second calendar day following the filing, your cloture motion is "ripe" for consideration. But remember, even if you trounce the opposition, all cloture gets you is the right to end debate... following another 30 hours of it! So now you've spent about a day and a half to get to your cloture vote, won the vote, but may have to sit by for another 30 hours before you ever get to actually vote on whether or not there's a disagreement with the House!
But hold on, you're not done yet! Because now that you've spent three days or so getting to the vote on disagreement (and remember, the Senate is very often in session only 3-4 days a week), it's time for the next step: deciding what to do about the disagreement. Again, this sounds dumb, because there's really only one thing to do about it once you've opted not to simply amend the bill and send it back, and that's have a conference. But the Congress is very exacting in its procedures, and just as you can't contemplate a conference unless there's an official disagreement, you can't just tell a bunch of Senators to go have a conference. You need to send them on their way as official agents or managers (as conferees are sometimes called) of the Senate's position. (Same goes for the House, of course, but there's no filibuster there, so this is much easier to do.)
So at this point, the Senate needs to actually declare its intentions with regard to rectifying the formal disagreement. It needs to request a conference or agree to such a request if one was made by the House. And guess what? Yes, that can be filibustered too. Add another three days. And that leaves you where, exactly? With a formal disagreement and an announced intention to convene a conference.
But who'll be sent on behalf of the Senate? Guess what? Another motion and another vote! With another possibility for filibuster. Three more days, even if you're winning your votes 100-0. With the Senate holding session just 3-4 days a week, depending on the circumstances, it can take nearly three weeks just to get to the point where the Senate is ready to actually start talking to the House about how to settle their differences.
I think you can see how the filibuster and cloture rules can all too easily be exploited to make using the once far more efficient conference procedure a tremendous pain in the ass, instead. And once you're clear on that, it's pretty obvious how it came to be that conferences ended up the rare exception rather than the norm.
So that's where we stand with this procedure in the current atmosphere of hyper-partisanship. How did the Wall Street reform bill happen to squeak by and make it to conference? Well for one thing, widely varying approaches to the subject matter between the two houses made addressing the differences particularly difficult to do via the ping-ponging process. But probably more important than that was the current climate surrounding issues of Wall Street and high finance. There just weren't a whole lot of Republican Senators feeling up to the challenge of being the guy who stood in the way of letting Congress negotiate a Wall Street reform bill. There may have been partisan points to be won in being seen doing anything you could to obstruct the progress of the health insurance reform legislation, but the conditions on Wall Street reform just aren't the same.
Now, when things aren't this bad, going to conference in the Senate can be a breeze. If you can get unanimous consent to all the motions, you can basically just consolidate them all into one unanimous consent request and be done with it all in 30 seconds. Just not today. Not so long as the filibuster remains a tool that can be so easily abused. Which brings us to another disclosure...
Disclosure: I'm also doing paid work as a Fellow for ProgressiveCongress.org in addressing the necessity of filibuster reform in the Senate. The Fellowship is being supported in part by CREDO Action and Blue America. You can help support this work by signing CREDO Action's petition and/or donating at Blue America's ActBlue page.
Two disclosure statements in a single post ought to be quite enough for anyone, so I'll close it out here. But I wanted to illustrate for you one of the under-reported and infrequently recognized places where the filibuster can have an enormous impact on how the Congress does its business. When a determined minority sets its mind to viewing the delay and/or derailing of any and all legislation as a political victory, even relatively simple legislation becomes bogged down in procedure, which the same minority then ridicules as inefficiency. The filibuster costs us much more and creates many more traps for watering down what legislation actually does move than we sometimes realize.
Other entries on this subject:
- What's up with conference committees?
- Wall Street reform conference kicks off today
- More fun things to know about conference: the "unit rule"
- Yet more fun things to know about conferences: scope of authority
- Inside the conference: why the formality?
- The mechanics of conference: possession of the papers
- Issues in conference: PAYGO