After three years of avoiding conference committees to negotiate big-ticket legislation, House Democrats want to get back in the room and have started a campaign to convince their Senate counterparts to start holding the cross-Dome sessions again.
However, the Senate still faces the same procedural roadblocks to reinstating a process that has fallen by the wayside in recent years.
“I like conference committees. I hope we can do more of them, but not if it takes three weeks to get the whole thing going,” Senate Democratic Conference Vice Chairman Charles Schumer (N.Y.) said of the time-consuming procedural hoops Senate Republicans are allowed to throw up.
Despite that consternation among top Senators, one senior Democratic aide said leaders are willing to try to force more conference committees as a favor to the House, which feels the current practice of “pingponging” bills back and forth often means the House’s priorities get short shrift.
“What’s overcome the procedural concerns is a feeling between the houses that we need to regain equal footing and not jam each other with unicameral decisions,” the aide said.
Going back to conference committees would also allow Senate Majority Leader Harry Reid (D-Nev.) to make good on a promise he made the day after Democrats won back control of Congress in 2006. At the time he said, “We’re going to have something a lot of you, young journalists, have never seen. And that is open conference committee where we, the Democrats and Republicans, sit down in a room just like this around a table and you raise issues and we say whether this is a good or bad issue, and there’s a vote that takes place. That’s what we’re going to do.”
But instead of increasing the use of formal conference negotiating sessions, which declined under GOP rule, Reid and Speaker Nancy Pelosi (D-Calif.) have rarely used the process since Democrats assumed the majority.
Of the 119 bills enacted last year, only 11 conference reports passed, and all but two of those were appropriations measures, which typically enjoy more bipartisan support. Notably, the 2009 economic stimulus bill was passed using a conference committee. During the 110th Congress, there were only 17 conference reports out of 416 bills passed. Under Republican control in the 109th Congress, however, 32 conference reports were enacted out of 589 public laws.
According to a 2008 Congressional Research Service report, “Historically, Congress has sent most major bills to conference committees.” But recently, House and Senate leaders have opted to negotiate bills outside of a conference setting and then pingpong the measures between the chambers.
The House and Senate’s decision to use a budget reconciliation bill to finalize passage of their health care overhaul is just the latest example of the new and creative ways in which the Democratic majority has sidestepped conferences. Arguably, the two chambers would have tried to pingpong the bill between the two chambers anyway, but the special election of Sen. Scott Brown (R-Mass.) stripped Senate Democrats of the filibuster-proof majority they used to pass health care reform the first time around. Using reconciliation as a vehicle for the changes they otherwise would have made in conference became their only option after Brown’s win, because reconciliation bills cannot be filibustered.
Last year, most major bills — such as those to regulate tobacco, expand children’s health insurance programs, protect consumers from credit card company abuses, create the Cash for Clunkers program, and ensure equal pay — bypassed conference, and in most cases the House acceded to the Senate’s amendments and sent the bills to the president.
Senate Banking, Housing and Urban Affairs Chairman Chris Dodd (D-Conn.) said he was grateful for the House’s willingness to accept his credit card bill and the tobacco regulation measure.
“There was a deep appreciation of what we were able to get done in the Senate on that bill,” he said of the credit card measure.
But House Financial Services Chairman Barney Frank (D-Mass.) has said he is not willing to be so accommodating when it comes to the financial regulatory reform effort he and Dodd have been working on.
“I’m going to suggest something very radical — that once the Senate has passed its bill, we have a House-Senate conference,” Frank said Friday on CNBC. “We used to have those all the time. I would look forward to taking the House bill with other members of the House, Democratic and Republican, and Senators, Democratic and Republican, and sitting in a public forum the way we used to do it and go issue by issue that is different between us and have a big public debate.”
Dodd said he is open to that.
“I think it helps both institutions for people to see us try to resolve differences between two chambers,” Dodd said. But he added, “You can filibuster, you know, the appointment of conferees. Of course, we’ve been through more filibusters in a year than any decade in the 20th century combined.”
Senate Democrats have seen a record number of attempted filibusters by Republicans in recent years, and motions to appoint conferees can be filibustered as well. A determined objector could force weeks of delay on the appointment of conferees, Senators and aides pointed out.
Marty Paone, the former top Senate floor staffer for Democrats, said the breakdown over conference committees started just weeks after Democrats took control of the chamber in 2007 when Reid attempted to send a stringent new ethics bill to conference with the House. A handful of Republicans objected, and the conference began to fall out of favor, Paone said.
Besides the time it could take to appoint conferees, there are few advantages to sending bills between the two chambers. Both conference reports and pingponged bills — which arrive as amendments or “messages” from the opposite chamber — are privileged, and the motion to proceed to them cannot be filibustered. The underlying bill, however, can be blocked.
Meanwhile, House Democratic leaders have been eager to avoid the sometimes politically tricky “motions to instruct conferees” that Republicans are allowed to offer in that chamber.
Eric Ueland, former chief of staff to former Senate Majority Leader Bill Frist (R-Tenn.), said pingponging bills “doesn’t have the ability to be transparent” in the way that conference committee can be.
Ueland said the conference process “was set up to serve as its own internal check and balance between the majority and the minority and between the House and Senate. When you put that aside … you don’t have the best amount of back and forth” between the two chambers.
Ueland added that the decline in conference committees is emblematic of a larger shift in both chambers to centralize power in the leaders’ offices, instead of giving chairmen and the rank and file the ability to hammer out differences.
Senate Republicans noted Tuesday that they have not objected to every request for conference, particularly on appropriations measures. However, they say they do not feel Democrats have been including them in the process and expect conference committees would be the same as well.
“Basically, it’s we won the election, we’ll write the bill,'” Senate Republican Conference Chairman Lamar Alexander (Tenn.) said. “We’re not in the conference anyway. We’re not invited to the conference. Even if we were to permit a conference, they would have pre-conferenced the bill and Republicans would have no input, so we’re not the reason there’s no conference.”
Senate Appropriations ranking member Thad Cochran (R-Miss.) acknowledged that both parties have shut the other out of the process in recent years regardless of whether conference committees were used.
“I’m having a flashback to when [Sen.] Dick Durbin [D-Ill.] was a new member of the Appropriations Committee,” Cochran remembered of his tenure as chairman. “He complained that I would never call a meeting for a markup or a meeting of conferees to give Democrats opportunities to offer amendments. So it depends on who’s in charge what the complaint is and who’s making it. But I just am amused that the Democrats are throwing up their hands in holy horror [now].”