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Compromise & Conference Committees – Resolving Bicameral Legislative Differences

In order to become law, a bill must pass both chambers of Congress in technically and substantively identical form. Of course, it is not always the case that a bill “cleanly” passes both the House and Senate without amendment or differences between the two chambers. As such, the Congress must reconcile differences between their respective bills before passing the legislation to the President for signature. There are three primary ways by which the Congress achieves this – amendment exchange between the chambers, through a “Conference Committee,” or through informal negotiation.

In an “amendment exchange,” a legislative measure may be sent between the House and Senate, with each chamber amendment the amendments of the other in the hope that one will agree to the other’s proposal. Bill text may be amended between chambers in two degrees. When opportunities for amendments are exhausted, one chamber must accept the other’s position – or the legislation “dies.” Of course, the two chambers may reach agreement at any stage of the amendment exchange process if one concurs in the amendment of the other or recedes from its own amendment (particularly if that amendment is not acceptable in the other chamber).

If the House chooses to amend and pass, as amended, legislation sent from the Senate, it is sent as a “message” to the Senate. The message is privileged, with no debate on proceeding to its consideration. The legislation is then debatable, subject to cloture as it may be filibustered, and amendable – with amendments need not being germane. Generally, the “amendment tree” may be “filled” to control the scope and content of amendments. The Senate may disagree to the House amendment and either “kill” the bill or request conference; concur with the amendment and pass the legislation as amended by the house; or –if a second-degree amendment is still allowed – concur with a further amendment and send the legislation back to the House.

In the House, the Senate’s “message” is also privileged, without debate on the question of its consideration. The Senate amendment is debatable, under a one-hour rule, and amendable – with all amendments needed to be germane and debated under a five-minute rule. Customarily, the Senate message is taken up under a rule to control the proceedings, including limiting the number, scope, and content of possible amendments. Like in the Senate, the House may disagree to the Senate amendment and either “kill” the bill or request conference; concur with the amendment and pass the legislation as amended by the Senate; or – if a second-degree amendment is still allowed – concur with a further amendment and send the bill back to the Senate.

Notably, in the House, if the Senate’s amendments are non-germaine or major in scope, or fall within the jurisdiction of a House committee that had not originally considered the bill, the Speaker is often likely to refer the bill to committee for consideration. Moreover, if the Senate amendments include any authorization, appropriation, or revenue provisions that House rules require to be considered in Committee of the Whole, it is not immediately in order for the House to consider the Senate amendments. However, the House floor manager may circumvent this procedural “roadblock” by asking for unanimous consent to concur in the Senate amendments or concur in the Senate amendments with House amendments. Alternatively, the Speaker may entertain a motion to suspend the rules, or the Rules Committee may report a special rule on the bill’s consideration that makes in order a motion to concur with or without amendment.

If the chambers cannot or do not come to agreement through amendment exchange, they may request for and go to “Conference.” The “Conference Committee” is intended to enable negotiations between representatives of both chambers to find compromise on their bills’ differences. After a chamber requests or agrees to a conference, it selects Members as “conferees” to represent the body. The selection of who may participate in the conference is, understandably, strategically important. Both chambers may move to “instruct” their conferees, directing them to insist on or recede to certain positions. Instructions are not binding in either chamber. In the Senate, the “motion to instruct” is debatable and amendable; in the House, it is debated under the one-hour rule.

As Conference Committees are created to resolve differences between the chambers’ bills, conferees have no authority to change matters that are not in disagreement. Nor may they include provisions that fall outside the range of options defined in a House position at one “extreme” and a Senate position at the “other.” However, there are otherwise little-to-no rules governing procedure in the Conference Committee, in stark contrast to the various rules of procedure guiding legislative activities in the House and Senate. This enables either “formal” or “informal” practices, proceedings, and negotiations to occur in different Conference committees.

Upon conferees reaching full agreement on compromise language, a conference report is prepared which indicates how each amendment in disagreement has been resolved. The report must be signed by a majority of House and a majority of senate conferees. The report is, by rules of both chambers, required to be accompanied by a joint explanatory statement that describes the nature of disagreements addressed by conferees. The chamber that agreed to the conference normally acts first on considering the report, and the first (though not the second) chamber to consider a conference report may recommit the report to conference.

Conference reports are privileged in both chambers, unamendable, and debatable. In the House, a conference report is considered under the one-hour rule. Points of order, including against a “tainted” report in which conferees are perceived to have exceeded their authority, are permitted. However, the House can approve the conference report under suspension of the rules, which does not allow points of order on the floor; alternatively, the Rules Committee may propose that the House approve a special rule waiving any or all points of order against the report or its consideration. In the Senate, debate on conference reports may be limited by unanimous consent or cloture; waivers on points of order may be secured with a three-fifths vote threshold. If the Senate does not waive a scope point of order, errant material must be dropped, with the Senate then voting on whether to send back to the House what remains. The same applies to “Byrd Rule”-relevant provisions; if a point of order is not waived, the Senate then considers the motion of sending back to the House a proposal striking “new matter” or “new directed spending provisions.” The vote to agree to a conference report normally completes a chamber’s action on the measure.

Finally, it should be noted that differences between the chambers’ bills’ may be informally negotiated for resolution in lieu of a formal conference committee. Interested Members, their staff, or Committee staff may, as work in one or both chambers nears or reaches completion of floor action on a measure, informally compare differences between their bills and negotiate resolution to their differences. If a tentative agreement on compromise is acceptable, a conference committee is therefore unnecessary – with these compromises instead reflected and achieved through responsive amendment exchange between the chambers.

Minority Power in the House of Reps – Motions to Recommit & Suspension of the Rules

The United States’ House of Representatives is, in contrast to the Senate, a majoritarian body – one in which the “dominance of the offense” strongly rules. However, the House minority may enjoy several procedural methods to “flex” their legislative “muscle” – procedures that enable them to voice discontent over, and occasionally impact policy within, legislative measures which reach the House floor for vote. Of these, two are especially important – the procedural “Motion to Recommit,” and the “Suspension of the Rules.” This brief essay explores these two measures and their relationship with minority rights and power within the House.

In general, the “Motion to Recommit” is a procedural right of the minority which affords them one “last chance” to amend or a kill a bill which has reached the House floor. With regard to process – the motion is in order after the third reading of a piece of legislation on the House floor, prior to the House Speaker ordering a vote on the final passage of the legislation. Priority for whom may offer the motion is given to the Minority Leader, then his or her designee, then to Members from the legislation’s reporting committee in order of their committee seniority.

Members may offer two “types” of this motion – “straight,” and those which include instructions. A “straight” motion to recommit proposes to send legislation back to its Committee of jurisdiction with no requirement for further consideration by the full House. A motion “with instructions” proposes to immediately amend a bill on the floor; the bill remains on the floor, and – if the motion passes – the Committee Chair immediately reports the bill back with any amendment (or amendments) contained in the instructions of the motion. The House then votes on agreeing to this/these amendment(s), and then moves to final passage of the measure as it has been amended. Typically (though not always), if such motions have been agreed to, the amendment(s) in its instructions is/are agreed to by voice vote.

The “Motion to Recommit” is rare in the House of Representatives, and when proposed rarely passes – indicative of the body’s partisan and majoritarian nature. Nonetheless, when one does pass, it has various important effects which may benefit the minority. These include amendment to a measure, enabling minority changes to the bill’s language, or its disposure back to one or more committees (including those which were not originally of jurisdiction) – a move which may afford the minority the right to have committee consideration of a bill that wasn’t otherwise considered in the committee process. As the motion can include amendments in policy language, per its specific instructions, it affords Members to go “on record” through their vote as supporting or opposing a specific policy proposal not related to the underlying bill – thereby creating public record that allows the minority to emphasize and socialize its differences in platform and position from those of the majority. Moreover, the motion affords additional time for consideration, or may potentially “kill” the measure all together – as a committee need not report a bill after it has been recommitted.

While the “Motion to Recommit” is a defensive tactic by which the minority can impart its voice and positions, a “Suspension of the Rules” is one through which the minority can find consensus with the majority over non-controversial legislation – including that which is minority-introduced and/or sponsored – of mutual interest and agreement.

Under House Rule XXVII, on Mondays and Tuesdays of each week – and during the last six days of a session – the Speaker of the House may entertain motions to “suspend the rules” and pass legislation. Through a unanimous consent vote or by a special rule reported by the Rules Committee, legislation may be considered under suspension of the rules on other days of the week.

A suspension motion “sets aside” all procedural and other rules that would otherwise prohibit the House from considering a motion. As such, the purpose of the considering bills under a suspension of the rules is to quickly dispose of non-controversial measures which enjoy broad bipartisan support.

Several aspects of the “Suspension of the Rules” enable this expeditious consideration. Under “suspension,” there are only 40 minutes of debate on the motion to suspend and the bill (or other actions) to which it relates. When a bill is considered under suspension, no floor amendments are in order – although the Member making the suspension motion may include amendments as part of that motion. After the 40 minutes of debate has concluded, there is a single vote on suspending the rules and passing the bill – with both questions decided by that vote. A two-thirds vote of the House, a quorum being present, is required to pass a bill under suspension of the rules. There is no requirement that a bill must be reported from a committee of referral before the House can consider it under suspension – enabling legislation to circumvent the usual committee consideration process. Finally, the suspension procedure waives all points of order against a bill and against its consideration.

As noted, the “Suspension of the Rules” is a frequently-used process that allows expeditious consideration and passage of non-controversial and/or bipartisan legislation in the House. This affords the minority party the opportunity to have their introduced or sponsored bills passed – granting them legislative “victories” that they may demonstrate and message to constituents. This is especially salient for bills focused on “district” or “local” issues – such as post office naming or commemorative resolutions – which are commonly taken up under suspension. Given that the suspension of the rules waives points of order against a bill and allows for its floor consideration without the usual committee process, the opportunity for the majority party to derail or “hold” a minority-introduced bill is limited – enhancing, slightly, the power of the minority in a chamber that is otherwise starkly stacked in the majority’s favor.

The Civil Rights Act & ESSA – Procedural Stages to Passing the Bills

Two landmark pieces of legislation – the “Every Student Succeeds Act” of 2015 and the Civil Rights Act of 1964 – are demonstrative of the significant procedural processes and steps that the Congress may – or must – go through in order to usher a bill through the legislative process. This essay explores the process for both of these pieces of legislation, detailing the importance of particular procedural steps along the way of their crafting.

First, the Every Student Succeeds Act. On April 30, 2015, the Senate HELP Committee reported an original bill – S. 1177 – and on July 7, by unanimous consent, the Senate proceeded to it. The bill was crafted between Committee Chairman Alexander and Ranking Member Murray so as to pass the Republican-controlled Congress. The bill was pending for debate and amendment through mid-July, with 81 amendments considered – 73 agreed to, 7 rejected, and 1 withdrawn. On July 13, a cloture motion was filed on Sen. Alexander’s substitute amendment, 2089, and also on the underlying bill. Meanwhile, on July 15, there were unanimous consent agreements on Managers’ packages and other amendments to secure the support from various Members.

On the 16th of July, Sen. Alexander’s amendment 2089, as amended, is agreed to. Cloture on S. 1177, as amended by Alexander #2089, was also agreed to. The bill, as amended in the substitute, was passed that day.

On November 16, the House adopted H. Res. 527 – a self-executing rule to amend and pass the Senate bill, and for the House to insist on its own amendment and request a conference. This demonstrated the considerable “power” that a self-executing rule may have in consideration of the other chamber’s sent legislation. However, on November 18, Majority Leader McConnell moved that the Senate disagree to House amendment and agree to a conference. He filed cloture on that motion. Notably, by unanimous consent, the cloture vote occurred immediately and cloture was invoked. The motion as then agreed to by voice vote.

Through November, the conferees met, and on November 30 a conference report was filed. Then, through the early weeks of December, both chambers took up consideration of the report – with the House voting to pass the report on December 2, and the Senate passing the report on December 9. The next day, December 10, President Obama signed the bill into law.

The history of the Civil Rights Act of 1964 is equally interesting, with significant procedural steps demonstrated throughout the process of its drafting, negotiation, and consideration. In June 1963, the House Judiciary Chairman introduced H.R. 7152 by request of the Kennedy Administration; the Senate Majority Leader introduced a companion bill – S. 1731 – also by request. Hearings were held in the House Judiciary subcommittee through September, with the bill reported on October 1st. The Committee then held a markup on the 10th, with Rep. Moore moving to report the bill. On the 29th, his motion was defeated 19-15, opening room for Rep. Celler’s compromise legislation of revised scope to be considered. This compromise bill passed, 20-14.

However, the Rules Committee did not take action on the bill throughout November. This forced Rep. Celler to begin a discharge petition, which was signed by 178 Members, on December 9. This was a significant procedural step to move the legislation through the chamber despite opposition from leadership – the conservative Chairman Rep. Smith, who was hostile to the bill – in the Rules Committee. On January 30, 1964, after three months in the Rules Committee, the Rule – H. Res. 616 – was reported. The rule, an open rule, generated a significant amount of amendments (nearly 100 considered over 9 days of session) and resulted many days of debate. Notably, open rules were common in this era of Congress, particularly on legislation of magnitude such as the Civil Rights Act.

There were re-votes on three amendments adopted in the Committee of the Whole, and a motion to recommit – a significant “last ditch” attempt at stalling or killing the legislation – which failed by voice vote. The legislation passed the House 290-130, and was received in the Senate on February 25. Majority Leader Mansfield used Senate Rule XIV to bypass the Senate Judiciary Committee and expedite the legislation’s consideration. Significantly, while this rule often involves cooperation between Leadership and Committee Chairmen, it can also – as demonstrated here – be used to circumvent the committee process and potentially hostile committees.

On March 9, Sen. Mansfield attempted to make a motion to proceed in the Morning Hour – which would’ve amounted to it being non-debatable – but Senator Russell (D-GA) filibustered until the Morning Hour expired, enabling debate. The Motion was finally agreed to on March 26, by a vote of 67-17. Senate amendments began and ran through April, delaying further consideration of the bill. Finally, Sen. Russell agrees that voting on amendments may begin on May 6. On May 26, agreement on a bipartisan package led Sens. Mansfield and Dirksen to introduce a substitute for H.R. 7152. To end debate, leadership began with a base of 58 votes, needing 9 of 14 other possible votes. On June 8, Sen. Mansfield files for cloture – a significant moment, as it signaled that the bill would pass and because it was rare in that era that cloture was ever invoked. After cloture was filed, there was a “torrent of amendments” filed and voted on. Sen. Byrd held a 14 hour speech against the bill. Nonetheless, on June 10, cloture was achieved with a vote of 71-29. Post-cloture, 117 amendments were voted on between June 10 and 19 (as there was no post-cloture cap in 1964). Finally, on June 19, the bill passes 73-27 – with nearly a third of the year passing between the Sen. Mansfield offering the motion to proceed and final passage.

On June 22, the House received the Senate amendment to H.R. 7152 – Reps. Celler and McCulloch wanted to avoid a conference, and considered proceeding on consideration of the amendments under suspension. Instead, they filed H. Res. 789, a self-executing rule to agree to the Senate amendments. This significant procedural play would expedite and enable the consideration process of the Senate’s amendments to the bill. A June 30 hearing on H. Res. 789 occurred on June 30, with Rep. Smith losing control of the committee. That day, the Committee reported the rule 10-5. On July 2, the House adopted the rule and agreed to the Senate amendment 289-126. That day, President Johnson signed the bill into law.

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