Whither the Role of Conference Committees: An Analysis

Congressional research reportAug 12, 2008

Ask Donna

What actually matters in this document.

Text

ȱȱȱȱȱǱȱ

ȱ¢ȱ

ȱ ǯȱ£ȱ

ȱȱȱȱȱ ȱ

ȱŗŘǰȱŘŖŖŞȱ

ȱȱȱ

ŝȬśŝŖŖȱ

ǯǯȱ

řŚŜŗŗȱ

ȱȱȱ

Prepared for Members and Committees of Congress

ȱȱȱȱȱǱȱȱ¢ȱ

¢ȱ

Conference committees have long been known as the “third house of Congress.” They are often

the principal forum for resolving bicameral differences on major measures when the House and

Senate pass dissimilar versions of the same bills. Current developments suggest, however, that the

“third house” characterization might require modification. It is not that conference committees

are unimportant, it is that another method for adjusting and reconciling bicameral differences on

significant legislation has taken on greater prominence in the contemporary Congress. This

method is the exchange of amendments between the houses—the so-called “ping pong” method.

If the conference committee is being somewhat eclipsed by the ping pong procedure as a way to

achieve bicameral reconciliation on consequential measures, that would represent an important

institutional development. This apparent development requires attention and analysis.

Accordingly, this report’s purposes are fundamentally twofold: to examine the reasons for the

heightened salience of the ping pong approach and to consider several implications that seem to

flow from using this procedure rather than convening conferences to resolve inter-chamber

disagreements on major legislation.

To fulfill these two purposes, the report will examine six issues. First, it will provide an overview

of the methods Congress employs to achieve bicameral agreement on legislation. Second, it will

briefly discuss how each chamber gets to conference, underscoring how the convening of

conferences in the Senate can be effectively blocked, even if a majority of Senators would agree

to send the measure to conference. Third, it will examine several factors that have apparently

contributed to the more conspicuous use of the ping pong method on significant measures.

Fourth, procedures are usually not isolated actions; they are employed in a policy, political, and

legislative context. Hence, the report will use three case examples to illustrate in a concrete

setting the factors that might trigger use of ping ponging over the convening of conference

committees. Fifth, the report will discuss several reasons for, and implications of, ping ponging

amendments back-and-forth between the chambers instead of forming conference committees to

achieve bicameral agreement on legislation. Lastly, summary observations will be presented,

including why the exchange of amendment pattern has seemingly evolved to become a more

important feature of bicameral lawmaking activity.

This report will be updated if circumstances warrant such action.

ȱȱȱ

ȱȱȱȱȱǱȱȱ¢ȱ

Introduction ..................................................................................................................................... 1

Achieving “Bicameral Ignition” on Legislation.............................................................................. 3

Ping Ponging in the Spotlight ................................................................................................... 5

Getting to Conference: House and Senate Procedure...................................................................... 6

House ........................................................................................................................................ 6

Senate ........................................................................................................................................ 7

The Senate’s Difficulty in Convening Conferences ........................................................................ 8

Senators and Extended Debate.................................................................................................. 8

Polarization ............................................................................................................................. 10

Exclusion of Minority Conferees From Bicameral Negotiations............................................ 12

Three Case Examples .................................................................................................................... 14

Energy Independence and Security Act (H.R. 6) .................................................................... 14

Ethics and Lobbying Reform (S. 1) ........................................................................................ 18

Reauthorization of SCHIP (H.R. 976)..................................................................................... 20

Bypassing the Conference Stage: Reasons and Implications ........................................................ 23

Further Enhancement of the Role of Party Leaders ................................................................ 24

Limits on the Role of Committees and Their Leaders ............................................................ 24

Marginal Role of the Minority Party....................................................................................... 25

Constraints on the Deliberative Process.................................................................................. 26

Avoidance of Political/Procedural Concerns........................................................................... 27

House ................................................................................................................................ 27

Senate................................................................................................................................ 28

Lack of Transparency.............................................................................................................. 29

Concluding Observations .............................................................................................................. 31

Table 1. Methods of Bicameral Resolution on Public Laws, 1992-2007 ........................................ 4

Author Contact Information .......................................................................................................... 34

ȱȱȱ

ȱȱȱȱȱǱȱȱ¢ȱ

Conference committees have long been known as “the third house of Congress.” In a bicameral

legislature like the U.S. Congress, they are usually the principal forum for reconciling major bills

passed in dissimilar form by the two houses. These bicameral units often write the final version of

major measures that both chambers will vote upon. As one Senator said, conferences are “where

the final touches are put on legislation which constitutes the laws of the country.”1 A House

member stated, “Let’s face it, the conference committee is where it all happens.”2 Or as a

congressional scholar put it, in “the legislative process, all roads lead to the conference

committee.”3

Current developments suggest, however, that the “third house” characterization might require

modification. It is not that conference committees are unimportant, it is that another method for

adjusting and reconciling bicameral differences on significant legislation has taken on greater

prominence in the contemporary Congress. This method is the exchange of amendments—or

“messages”4—between the houses, the so-called “ping pong” procedure. Some lawmakers even

state that conferences are becoming a thing of the past. A member of the Senate noted,

“Processing bills by exchanging messages [amendments] with the House is becoming the norm

rather than the exception. Formal conferences are becoming rare.”5

If the conference committee is being somewhat eclipsed by the ping pong procedure as an

important way to achieve bicameral reconciliation on consequential legislation, that would

represent an important institutional change. This apparent development merits some attention and

analysis. Accordingly, this report’s purposes are fundamentally twofold: to examine the reasons

for the heightened salience of the ping pong approach and to consider several reasons for and the

implications that seem to flow from using this procedure rather than convening conferences to

resolve inter-chamber disagreements on major legislation.

To fulfill these two purposes, the report is organized into six sections as follows. First, it will

provide an overview of the methods Congress employs to achieve inter-chamber agreement on

Congressional Record, vol. 146, October 13, 2000, p. S10520.

Janet Hook, “In Conference: New Hurdles, Hard Bargaining,” Congressional Quarterly Weekly Report, September 6,

1986, p. 2082.

John Manley, The Politics of Finance: The House Committee on Ways and Means (Boston, Little, Brown, 1970), p.

239.

According to Senate precedents addressing messages from the House: “If the messages involve Senate-passed bills

with House amendments or House-passed bills with Senate amendments, or Senate amendments with House

amendments thereto, they are held at the Desk [in the chamber] until a request from the floor is made to dispose of

them. Generally, when a request is made from the floor to lay such messages before the Senate, the Senate will concur

in the House amendments, or concur in the House amendments with amendments, or send such bills which have passed

both Houses with amendments to conference.” Regarding measures passed by both houses, Senate precedents also

state: “Messages from the House of Representatives on measures which have already passed the Senate and the House

of Representatives with amendments, when received in the Senate, are held at the desk for further disposition.

Generally, such proposals, which have privileged status to be laid before the Senate [meaning a motion to call them up

is not subject to a filibuster], are either sent to conference, or a motion is made to concur in the House amendments

thereto.” See Floyd M. Riddick and Alan S. Frumin, Senate Procedure: Precedents and Practices (Washington., DC:

GPO, 1992), p. 1515. For pertinent House precedents regarding amendments between the houses, see Wm. Holmes

Brown and Charles W. Johnson, House Practice: A Guide to the Rules, Precedents, and Procedures of the House

(Washington, DC: GPO, 2003).

Congressional Record, vol. 154, April 24, 2008, p. S3387.

ȱȱȱ

ŗȱ

ȱȱȱȱȱǱȱȱ¢ȱ

legislation, including ping pong’s place in the bicameral resolution process. Second, it will briefly

discuss how each chamber gets to conference, underscoring how the convening of conference

committees in the Senate can be effectively blocked, even if a majority of Senators would agree

to send the measure to conference. Third, it will examine why there seems to be more reliance in

recent years on the ping pong method in reconciling bicameral differences on significant

legislation than on the conference committee route.

Important to underscore at the outset is that informal negotiations among key bicameral actors

suffuse the lawmaking process. Unsurprisingly, confidential bargaining to achieve mutually

acceptable agreements is part and parcel of both the conference committee and the amendment

exchange procedure. Key bicameral actors typically craft policy compromises in closed session

and then use the amendment exchange method to win House-Senate agreement on them.6 On

Capitol Hill, private negotiating sessions and discussions among House and Senate members are a

day-to-day occurrence; these confidential meetings influence lawmaking from the introduction of

a bill to bicameral reconciliation.

Procedures usually are not isolated actions; they are employed in a policy, political, and

legislative context. Hence, the fourth section of the report provides an overview of three case

examples to illustrate in a concrete setting the factors that may trigger use of ping ponging over

the convening of conference committees. The three measures are the Energy Independence and

Security Act (H.R. 6); the Honest Leadership and Open Government Act (S. 1); and the

reauthorization of the State Children’s Health Insurance Program (or SCHIP, H.R. 976). A brief

summary of the key elements associated with ping ponging each bill will conclude the discussion.

These three bills were selected because they were the only ones in 2007 where the Senate

majority leader employed a strategic maneuver called “filling the amendment tree” during the

bicameral resolution stage.7 This procedural device is a way for the majority leader to protect an

informally negotiated bicameral compromise from amendment.

To be sure, there are other significant measures where ping ponging without any tree-filling has

occurred in the Senate. The tree-filling maneuver may not have been necessary or appropriate

because, for example, the bicameral compromise enjoyed broad bipartisan support; tree-filling

might create more legislative problems than it could solve, such as arousing the ire of lawmakers

who wanted to offer amendments of their own; or deadline pressures prompted agreement to the

bicameral accord. Still, tree-filling can sometimes be a useful procedure in facilitating passage of

priority legislation, which is why these measures were chosen for examination.

Fifth, the report will discuss several reasons for, and implications of, ping ponging amendments

back-and-forth between the chambers instead of forming conference committees to achieve

bicameral agreement on legislation. Lastly, summary observations will be presented, including

Bicameral participants might also convene a perfunctory conference committee to ratify decisions made during closed

bargaining sessions.

An amendment “tree” is a chart or diagram that, among other things, shows the number and types of amendments that

may be pending to a measure or matter before any amendment is voted upon. There are a maximum number of

amendments permitted by a particular chart or diagram (i.e., the tree), and once that number is reached, the tree is

“filled.” After that, no further amendments are in order until one of the so-called “limbs” (or amendments) on the tree is

disposed of. The Senate majority leader is able to fill the tree rather easily, because he is granted preferential

recognition by the Senate’s presiding officer. The result: the majority leader is recognized by the presiding officer to

propose amendments back-to-back until a tree is filled. Worth a brief mention is that the 110th Senate has reportedly

witnessed more tree-filling than in any other recent Congress. See Congressional Record, vol. 154, May 6, 2008, pp. S

3754-S3757.

ȱȱȱ

Řȱ

ȱȱȱȱȱǱȱȱ¢ȱ

why the exchange of amendment pattern has seemingly evolved to become a more important

feature of bicameral lawmaking activity.

ȱȃȱ Ȅȱȱȱ

Under the Constitution, before measures can be sent to the White House for presidential

consideration, they must pass the House and Senate with exactly the same bill number and

legislative text. The issue, then, is how to unite what the Constitution divides when one chamber

agrees to a measure at variance with a comparable bill adopted by the other house? Although the

Constitution is silent on the matter, Congress has devised three basic methods or procedures to

achieve “bicameral ignition.”

First, one house enacts unchanged the other’s bill. Most measures (anywhere from 63 to around

85 percent in a biennial Congress) are enacted into law when one chamber adopts verbatim the

legislation received from the other body. One chamber’s deference to the other house’s bill has

various explanations, ranging from the lack of controversy to political necessity because time is

running out in a legislative session. The hike over time in the percentage of measures “rubber

stamped” into enactment (see Table 1) probably reflects a number of factors (setting aside their

noncontroversial character), such as Members’ electoral imperative—the urge felt by many to

claim credit for passing constituency-focused legislation—and the artful drafting of legislation to

assure that it has broad bipartisan and bicameral appeal. To be sure, House and Senate members

and their staff aides often consult informally prior to a bill’s introduction in either chamber to

facilitate its approval by the second-acting house without amendment.

The other two methods specifically deal with reconciling bicameral differences when the two

chambers pass different versions of the same bill. The House and Senate can message—or “ping

pong”—amendments back-and-forth between them until substantive disagreements on a measure

are worked out. With the ping pong—or exchange of amendments—approach, one chamber may

adopt the other house’s amendments or further modify the other’s amendments until both finally

agree to identical language for all the provisions of the legislation.8 As a legislative scholar

explained:

When the House or Senate passes a measure, it is sent to the other chamber for further

consideration. If the second chamber passes the measure with one or more amendments, it is

then sent back to the originating chamber. In modern practice, the second chamber typically

substitutes its version of a measure as a single amendment to the measure as passed by the

first chamber. The first chamber then may accept the amendment or propose its own further

amendment. In this way, the measure may be messaged back and forth between the House

and Senate in the hope that both houses will eventually agree to the same version of a

measure.9

The ping pong method of bicameral reconciliation is “frequently used in the closing days of a

Congress to save time,” wrote a congressional journalist. “Bills may be sent back and forth on an

hourly basis until there is a meeting of the minds, or one side backs down, or the two chambers

There is a technical limit to the number of times measures can be shuffled between the chambers. The third-degree

amendment prohibition—amendments to amendments to amendments are not in order—applies to amendments

between the House and Senate. This parliamentary principle can be set aside if either chamber wants to do so.

CRS Report 98-812, Amendments Between the Houses, by (name redacted).

ȱȱȱ

řȱ

ȱȱȱȱȱǱȱȱ¢ȱ

give up in failure.”10 A week before Christmas 2007, for example, the House and Senate agreed to

enact the Consolidated Appropriations Act for Fiscal Year 2008 (H.R. 2764). With Congress

unable to enact 11 of 12 appropriations bills by the start of the new fiscal year (October 1,

2007)—largely because of sharp conflicts over spending priorities between congressional

Democrats and President Bush, as well as with congressional Republicans—the two chambers

opted to use the ping pong route. Given clashes between Democrats and Republicans and

lawmakers anxious to depart for the holiday season, political and temporal considerations were

among the factors that prompted use of the amendment exchange method as the preferred way to

reconcile inter-chamber differences on H.R. 2764.

Roughly 11% to 24% of public laws enacted during recent biennial Congresses took the ping

pong, or “amendments between the houses,” route. The 12% figure for the 2005-2007 period, as

indicated by Table 1, represents a 50% decline from the 103rd Congress (1993-1995). However,

the numerical dropoff does not reflect the higher policy significance of the legislation subject to

the ping pong method in recent years compared with earlier Congresses.

Table 1. Methods of Bicameral Resolution on Public Laws, 1992-2007

Congress

Public

Laws

Simple adoption by one

chamber of the version sent to

it by the other

Amendments

between the houses

Conferencea

103rd (1993-1994)

465

291 (63%)

112 (24%)

62 (13%)

104th (1995-1996)

333

234 (70%)

55 (17%)

44 (13%)

105th (1997-1998)

394

278 (71%)

77 (20%)

39 (10%)

106th (1999-2000)

580

436 (75%)

106 (18%)

38 (7%)

107th (2001-2002)

377

289 (77%)

55 (15%)

33 (9%)

108th (2003-2004)

498

406 (82%)

57 (11%)

35 (7%)

109th (2005-2006)

482

396 (82%)

60 (12%)

26 (5%)

110th, 1st (2007)

180

153 (85%)

21 (12%)

6 (3%)

Data compiled by CRS analysts from the House Final Calendars. Data from the first session of the 110th

Congress are from the Legislative Information System (LIS).

a. If both chambers appointed conferees, the measure was included in the count of conference committee,

even if some differences were resolved through amendment exchange.

Sources:

Bicameral ignition may also occur when the House and Senate agree to establish a conference

committee. Each chamber selects a number of conferees from the relevant committees of

jurisdiction to reconcile the items in bicameral disagreement. Only a relatively small number of

public laws passed by a Congress (anywhere from around 5% to 13%, as revealed in Table 1)

reach the conference stage, but these are often the most complex, controversial, and

consequential. On some occasions a combination of the two approaches—ping pong and a

conference committee, or vice versa—will be employed to reconcile matters in bicameral

disagreement.11 For example, the chambers may start out using the ping pong procedure but then

convene a conference committee to reconcile outstanding disagreements.

Richard Cohen, National Journal, July 28, 2001, p. 2396.

Until the mid-1990s, conferences on appropriations bills virtually always reported a number of discrete amendments

(continued...)

ȱȱȱ

Śȱ

ȱȱȱȱȱǱȱȱ¢ȱ

It is quite common for House and Senate committee and party leaders, along with relevant staff,

to conduct private, pre-conference negotiations prior to the formal convening of a conference.

These might be characterized as “virtual” conferences. For example, meeting behind closed

doors, “Senate and House leaders are taking the unusual step of negotiating a final bill to address

the nation’s housing crisis even before the Senate adopts its own version, trying to short-circuit a

legislative process that might otherwise drag well into the summer.”12 In these cases, sometimes

the creation of a conference committee “will be more an indication that a deal is done than a

forum to find one.”13

Private negotiating sessions also occur regularly, as noted earlier, with the exchange of

amendment procedure. For example, confidential negotiations occurred when the House passed a

genetic nondiscrimination measure (H.R. 493) on April 25, 2007, which the Senate considered the

following year (April 24). The Senate replaced the language in H.R. 493 with a complete

substitute and returned the bill, as amended, to the House, where it was cleared on May 1 for

presidential consideration. The point is that the Senate’s complete substitute was the result of

informal bicameral negotiations. As the ranking Senator on the relevant committee of jurisdiction

stated a few days before the House approved the substitute: “It has even been preconferenced

with the House side. So we are pretty sure that once it finishes here it will go right over to the

House and the House will take care of it too.... We let them into the process early so that

everybody would know what was happening.”14

ȱȱȱȱȱ

Recently, legislative analysts and others have noted an increase in the use of the exchange of

amendment procedure for bicameral reconciliation. Difficulties in creating conference

committees for several major bills elevated the ping pong procedure to greater prominence in

resolving inter-chamber differences on legislation. As former Senate Parliamentarian Robert

Dove stated, “There’s no question that amendments between the houses has been used more

[today] than it has in the past, but that’s because Senators blocking [legislation] from going to

(...continued)

in disagreement. By long-standing practice, the House initiates appropriations bills, and the Senate would then adopt a

series of amendments to the House-passed measure. Appropriations conferences would report a partial conference

report to their respective chambers, which would be agreed to. Then each chamber would consider the amendments still

in disagreement, which reflected either true (a policy clash) or technical (a rule violation, for example) differences.

Thus, appropriations conferences often observed a two-step process: the House would first agree to a partial conference

report and then address the amendments in disagreement; both matters would then be sent to the Senate, which would

first adopt the partial conference report and then consider the amendments in disagreement forwarded to it by the

House. This practice stopped after Republicans captured control of Congress in November 1994. No longer does the

Senate adopt discrete amendments to House-passed appropriations bills. Instead, the Senate Appropriations Committee

follows the practice of other standing committees by striking the entire text of the House-passed bill and replacing it

with a complete substitute (the Senate’s version of the money bill). One reason for the change was to expedite

congressional action on appropriations measures. Another explanation for the change was the increasing willingness of

the House Rules Committee to issue special rules granting a blanket waiver of points of order against conference

reports. As a result, considering Senate amendments in disagreement outside the formal conference report because they

violated various procedural rules was no longer necessary. For additional relevant material, see CRS Report 98-813,

Amendments in Disagreement, by (name redacted).

Jeffrey H. Birnbaum, “Lawmakers Seek Shortcut In Negotiating House Bill,” The Washington Post, June 7, 2008, p.

D1.

Gary Andres, “A Deal or No Deal,” The Washington Times, June 8, 2006, p. A19.

Congressional Record, vol. 154, April 23, 2008, p. S3300.

ȱȱȱ

śȱ

ȱȱȱȱȱǱȱȱ¢ȱ

conference has happened more often.”15 A congressional scholar and former House staff director

calculated the extent to which major bills were resolved by establishing conference committees or

using the ping pong approach during equivalent periods of the GOP-controlled 109th Congress

(2005-2007) and the Democratically controlled 110th Congress (2007-2009). His study

determined:

Of major bills approved by the House and Senate that required some action to resolve

differences between the two versions, 11 out of 19 (58 percent) were settled by conferences

in the current Congress compared with 18 out of 19 (95 percent) in the previous Congress.

Put another way, the current 110th Congress has been negotiating eight times as many bills as

the 109th Congress outside the conference process. This is done by using the “pingpong”

approach of bouncing amendments between the houses until a final agreement is achieved.16

In short, the current reality is that major bills often cannot reach the conference stage, leaving

informal negotiations and “amendments between the houses” as the alternative methods for

resolving bicameral differences on major legislation.

ȱȱǱȱ ȱȱȱȱ

Briefly, the two most-used methods for getting to conference are unanimous consent, with House

Rule XXII available if an objection is made, and special rules from the Rules Committee.

A routine request is for a lawmaker to ask and receive unanimous consent to go to conference on

a measure. “Mr. Speaker, I ask unanimous consent to take from the Speaker’s table the bill H.R.

1234 with the Senate amendments thereto, disagree to the amendments of the Senate, and ask for

a conference with the Senate.”17 (Members request unanimous consent because Senate

amendments at this stage of the proceedings are not “privileged”—meaning they cannot be called

up “at practically any time for immediate consideration when no other business is pending.”)18 If

a lawmaker objects, the Member who requested unanimous consent could then invoke clause 1 of

House Rule XXII. This rule permits legislation to reach conference by majority vote of the House

if a member of the committee(s) of original jurisdiction, typically the chair, is authorized by his or

Emily Pierce and Jennifer Yachnin, “Tactical Skirmishes Intensified in 110th Congress,” Roll Call, January 22, 2008,

p. B-16.

Don Wolfensberger, “Have House-Senate Conferences Gone The Way of the Dodo?” Roll Call, April 28, 2008, p. 8.

Typically, a House bill with Senate amendments is held at the Speaker’s “desk.” Since Senate amendments at this

stage are not “privileged”—meaning they have no right-of-way to the floor—some other way is required to dispose of

them if a lawmaker objects to a unanimous consent request to take them up. For a detailed study of resolving bicameral

differences, see CRS Report 98-696, Resolving Legislative Differences in Congress: Conference Committees and

Amendments Between the Houses, by (name redacted).

John V. Sullivan, How Our Laws Are Made (Washington, DC: GPO, 2007), p. 25. Precedents state that “motions in

the House to dispose of the [Senate] amendment are not privileged and require unanimous consent or a special rule

from the Committee on Rules, the only exception being a motion to ask or agree to a conference under rule XXII clause

1.” See Wm. Holmes Brown and Charles W. Johnson, House Practice: A Guide to the Rules, Precedents, and

Procedures of the House (Washington, DC: GPO, 2003), p. 841.

ȱȱȱ

Ŝȱ

ȱȱȱȱȱǱȱȱ¢ȱ

her panel to offer the following motion:19 “Mr. Speaker, by direction of the Committee on ____, I

move to take from the Speaker’s table the bill H.R. 1234, with a Senate amendment thereto,

disagree to the Senate amendment, and ask for [or agree to] a conference with the Senate.”

Second, the Rules Committee can report a special rule sending a measure to conference. This

procedural resolution requires a majority vote of the House for adoption. The special rule would

contain language such as: “That upon the adoption of this resolution it shall be in order to take

from the Speaker’s table the bill (H.R. 1234), with the Senate amendment thereto, disagree to the

Senate amendment and ask for a conference with the Senate.” Special rules are privileged,

debated under the hour rule, and cannot be amended unless the “previous question”—a motion

that, if agreed to, ends debate and requires a vote on the pending matter (the special rule)—is

rejected. Rarely is the previous question motion defeated by vote of the House members.

Simply put, the House is an institution whose formal rules and precedents emphasize “majority

rule.” Requests to go to conference are difficult to reject, because they are typically framed as

“party-line” votes by majority party leaders. Seldom, for example, are special rules or Rule XXII

motions turned down by the House.

An infrequently used procedure to get to conference is suspension of the rules, a motion that

requires a two-thirds vote for approval. A Member will say, “Mr. Speaker, I move to suspend the

rules and take from the Speaker’s table the bill H.R. 1234 with the Senate amendments thereto,

disagree to the amendments of the Senate, and ask for a conference with the Senate.” The

supermajority vote limits use of the suspension procedure as a method for getting to conference.

Unlike the “majority rule” principle of the House, the Senate is a “minority rule” institution. Its

rules and precedents grant large parliamentary prerogatives to each senator, such as the right of

extended debate. As one senator exclaimed: “The only thing [that] it’s easy to do in the Senate is

slow things down. The Senate is 100 human brake pads.”20 Slowing the Senate down can occur

even if a Senator merely threatens to filibuster a measure or matter. In today’s Senate, there is

often neither the time nor the votes to terminate dilatory debate, or a filibuster; so a talkathon

threat is sometimes enough to prevent action on legislation. A three-fifths vote of the entire

membership (if no vacancies, 60 of 100 senators), as prescribed in Senate Rule XXII, is required

to end a filibuster. If the Senate is narrowly divided and ideologically polarized, it is often

impossible to attract the 60 votes.

To convene a conference, it is generally the case that the majority leader or the majority floor

manager will ask and receive unanimous consent when he/she makes this request: “Mr. President,

I ask unanimous consent that the Senate insist on its amendments [or disagree to the House

amendments to the Senate bill], request a conference with the House on the disagreeing votes

thereon, and that the Chair be authorized to appoint conferees.” Notice that there are three

More specifically, House Rule XXII, clause 1 states: “A motion to disagree to Senate amendments to a House

proposition and to request or agree to a conference with the Senate, or a motion to insist on House amendments to a

Senate proposition and to request or agree to a conference with the Senate, shall be privileged in the discretion of the

Speaker if offered by direction of the primary committee and of all reporting committees that had initial referral of the

proposition.”

Associated Press, “Democrats to Forgo Control in Brief Edge,” The Washington Times, November 29, 2000, p. A4.

ȱȱȱ

ŝȱ

ȱȱȱȱȱǱȱȱ¢ȱ

distinguishable parts to this request: insist (or disagree), request, and authorize the appointment of

conferees. If a lawmaker objects to the unanimous consent request, then the majority leader or

floor manager would have to move each step separately, and each motion is subject to extended

debate.

As former Senate Parliamentarian Dove noted: “The three steps are usually bundled into a

unanimous consent agreement and done within seconds. But if some senators do not want a

conference to occur and if they are determined, they can force three separate cloture votes to

close debate and that takes time. It basically stops the whole process of going to conference.”21

And if cloture (closure of debate) as outlined in Rule XXII were invoked on each part, Senators

keen on preventing a conference still could offer innumerable motions to instruct conferees (who

are yet to be officially named by the Senate)—and each instruction motion is subject to a

filibuster.22

ȱȂȱ¢ȱȱȱȱ

A number of commonly occurring factors explains why the Senate sometimes experiences delay

or difficulty in getting to conference. For example, Senate (and House) leaders—who want or

expect to go to conference—may delay the appointment of conferees, because there is a dispute

over conferee selection: the number to be chosen and the party ratio. At issue in these cases might

be concern over the representation of diverse views in conference. Limiting the size of the

conference delegation could block certain lawmakers from serving on the conference committee.

Conversely, increasing the number of conferees could ensure that certain Members would serve

on the conference committee. Party leaders, too, may want to conduct informal pre-conference

negotiations with the White House (or House) before the Senate officially names conferees.

Delay in forming a conference may be a tactic to pressure the other body to concede on certain

policies in bicameral disagreement. Or delay might be a form of “hostage politics:” the naming of

conferees on a certain bill will not occur until the other body appoints conferees on a different

measure in bicameral dispute.

Three other overlapping reasons, however, largely account for the contemporary Senate’s

difficulty in convening conferences. Each merits additional discussion. They are the Senate’s

tradition of extended debate (the filibuster); the polarization that characterizes the modern Senate;

and the exclusion of minority party conferees from participating in the bicameral bargaining

process.

ȱȱ¡ȱȱ

The reality or threat of extended debate has long been part of the Senate. So why has it now come

into relatively recent prominence as a blocking tactic with respect to the convening of

conferences—thus focusing more emphasis on the ping pong method? Part of the answer is the

rise of the “individualist” Senate. Congressional scholars state that Senators today take for

“granted that they—and their colleagues—[will] regularly exploit the powers the Senate rules

Carl Hulse and Robert Pear, “Feeling Left Out on Major Bills, Democrats Turn to Stalling Others,” New York Times,

May 3, 2004, p. A8.

For more information, see CRS Report RS20454, Going to Conference in the Senate, by (name redacted).

ȱȱȱ

Şȱ

ȱȱȱȱȱǱȱȱ¢ȱ

[give] them. [They are] increasingly outward directed, focusing on their links with interest

groups, policy communities, and the media more than on their ties to one another.”23 Internal

incentives to employ extended debate sparingly have given way to other incentives (requests by

outside groups to engage in dilatory actions on certain measures, for example) that encourage

lawmakers to push their own agendas even if the Senate’s lawmaking activities might grind to a

halt. Another part (discussed below) deals with the polarization—intense partisan and policy

conflict—that characterizes Senate deliberations involving each party’s priority issues.

Filibustering the Senate’s three-part request to go to conference with the House is of recent

vintage. The first major instance of this delaying action, so far as is known, occurred during the

closing days of the 103rd Congress (1993-1995). It happened on a campaign finance reform

proposal. With Congress slated to adjourn by October 7, 1994, critics of a campaign reform plan

launched their precedent-establishing filibuster the week of September 19. The opponents

objected to the routine motion to convene a conference on the campaign reform bill (S. 3) and the

House amendments thereto. As a Senate proponent of S. 3 stated:

We attempted to move to conference just prior to the August [1994] recess, but that request

was objected to by one of our colleagues. Under the rules of the Senate, the motion to

disagree with the amendments of the House to a Senate bill, as well as a request for a

conference and the appointment of conferees, are debatable motions. We have been unable to

obtain unanimous consent on this issue.... 24

On September 22, the Senate voted 96 to 2 vote to invoke cloture on the motion to disagree to the

House amendments to S. 3. In a strategic move, campaign reform opponents opted to vote for

cloture to “run out the clock.” Under Rule XXII, if cloture is invoked, 30 more hours of debate

are permitted, a parliamentary right which is usually exercised infrequently. In this case, however,

opponents of S. 3 “used every minute, talking straight through the night and through most of

Sept. 23 before the Senate voted 93-0 to disagree with the House.”25 Seven days later the Senate

failed (52 to 46) to invoke cloture on the motion to request a conference and the bill died. The

Senate’s majority leader (Democrat George Mitchell of Maine) declared: “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.”26

Barbara Sinclair, “The New World of U.S. Senators,” in Lawrence C. Dodd and Bruce I. Oppenheimer, eds.,

Congress Reconsidered, 8th ed. (Washington, DC: CQ Press, 2005), p. 2.

Congressional Record, vol. 140, September 21, 1994, p. 25031.

Beth Donovan, “Republicans Plan Filibusters, Imperiling Senate Schedule,” Congressional Quarterly Weekly Report,

September 24, 1994, p. 2655.

Ceci Connolly, “Legislation Goes Overboard as Legislators Eye Exits,” Congressional Quarterly Weekly Report,

October 1, 1994, p. 2755. There were several earlier instances of somewhat comparable delays in getting to conference.

For example, on September 15, 1992, the majority leader lamented that the Senate had to invoke cloture in order to

proceed to conference with the House on the Neighborhood Schools Improvement Act (S. 2). Cloture was successfully

invoked (85 to 6) on the motion to disagree to the House amendments to S. 2. “It is extraordinary that the Senate should

be required to go through this procedure,” exclaimed the majority leader, “and then even more extraordinary that not a

single word has been stated publicly as to why the Senate is being required to go through this procedure” on a bill that

passed the Senate by a 92 to 6 vote. See Congressional Record, vol. 138, September 15, 1992, p. S13442. On July 20,

1993, the majority leader asked unanimous consent that the Senate agree to the three-part motion to go to conference

with the House on the Hatch Act Reform Amendments (H.R. 20). A senator objected to that request. In response, the

majority leader stated: “Sixty-eight Senators voted to pass [H.R. 20], and now what is as routine a request as there can

be in the Senate, simply to name Senators to meet with House colleagues to work on a conference on the bill, we have a

filibuster, or threat of a filibuster, that prevents us from taking action unless we now drop everything else, file a

nemotion to end the filibuster and spend a few more days on a bill which we have already debated and discussed at

(continued...)

ȱȱȱ

şȱ

ȱȱȱȱȱǱȱȱ¢ȱ

£ȱ

Growing partisan tensions in the Senate are a major factor triggering dilatory activity that can

prevent the convening of conference committees.27 In addition, the Senate is filled with

lawmakers willing to exploit the chamber’s procedural rules to accomplish their objectives.

Mitchell’s service as majority leader (1989 to 1995) occurred during a time when the Senate—

long known for comity among its members and the willingness of senators to compromise and

resolve policy differences—was becoming a more polarized and partisan institution. Various

long- and short-term developments produced this result; they have been analyzed and discussed

in numerous sources, but several merit mention.28

Heightened partisan feelings between Democrats and Republicans are due in large measure to a

significant demographic development. A national resorting of the two parties’ constituency bases

has produced large policy differences between them. For instance, the South was once a

Democratic bastion. Today, it is largely a Republican stronghold as conservative Democrats

became conservative Republicans.29 The outcome, as journalist David S. Broder wrote, is two

Senate parties “more cohesive internally and further apart from each other philosophically.”30 Or

as a GOP senator put it: “Today, most Democrats are far left; most Republicans are to the right;

and there are very few in between.”31 Little surprise, therefore, that we see a large number of

party-line votes (a majority of one party facing off against a majority of the other party) and an

increase in party cohesion on those votes. “Both Republicans and Democrats are standing with

(...continued)

length and just voted for by an overwhelming margin.” See Congressional Record, vol. 139, July 20, 1993, p. S8955.

On the California Desert Protection Act (S. 21), a senator “slowed the usually pro forma step of sending the bill to

conference.” On September 22, 1994, the Senate voted 73 to 20 to invoke cloture on the motion to disagree to the

House amendments to S. 21. Subsequently, on October 4, 1994, the majority leader reached an agreement with

opponents of the bill to send the measure to conference. He asked and received unanimous consent “that the Senate

request a conference with the House on the disagreeing votes of the two Houses, and that the Chair be authorized to

appoint conferees.” See Congressional Record, vol. 140, September 22, 1004, p. 25454 and October 4, 1994, p. 27482.

One notion of “partisan” involves the electoral competitiveness and intensity of views between the two parties that

sometimes inhibits their ability to work together effectively to resolve major issues. As a result, in the contemporary

Congress, there is a tendency for “civility to lose out to conflict, compromise to deadlock, deliberation to sound bites,

and legislative product to campaign issues.” See David Brady and Morris Fiorina, “Congress in the Era of the

Permanent Campaign,” in Norman J. Ornstein and Thomas E. Mann, eds., The Permanent Campaign and Its Future

(Washington, D.C.: American Enterprise Institute and The Brookings Institution, 2000), p. 156.

See, for example, Ronald Brownstein, The Second Civil War: How Extreme Partisanship Has Paralyzed Washington

and Polarized America (New York: The Penguin Press, 2007); Jon Bond and Richard Fleisher, eds., Polarized Politics:

Congress and the President in a Partisan Era (Washington, DC: CQ Press, 2000); and Barbara Sinclair, “The New

World of U.S. Senators,” in Lawrence C. Dodd and Bruce I. Oppenheimer, eds., Congress Reconsidered, 8th ed.

(Washington, DC: CQ Press, 2005), pp. 1-22.

There are various explanations to account for the rise of the two-party South. Some emphasize the role of the civil

rights movement in promoting the registration of black voters, which encouraged conservatives to leave the Democratic

party and become Republicans. Others point to migration of prosperous retirees, many of them Republican, from

northern states to the South. See Nelson W. Polsby, How Congress Evolves: Social Bases of Institutional Change (New

York: Oxford University Press, 2004), pp. 80-108. Further, there are traditional and historical southern cultural

characteristics that might have facilitated the region’s drift toward the Republican party, such as its large number of

white evangelicals, lack of strong unions, and deep-seated support of the military.

David S. Broder, “Don’t Bet on Bipartisan Niceties,” The Washington Post, January 1, 2002, p. A19.

Kathy Kiely and Wendy Koch, “Committee Shaped by Party Ties,” USA Today, October 5, 1998, p. 2A.

ȱȱȱ

ŗŖȱ

ȱȱȱȱȱǱȱȱ¢ȱ

their own party against the other on about 90 percent of the [contested] votes, a level of lockstep

uniformity unimaginable only a generation or two ago.”32

Among other factors contributing to sharper partisanship in the Senate are the following:

•

a 24/7 news cycle that focuses on party conflict and scandal;

•

interest groups aligned with each party that expect lawmakers to toe-the-line on

their preferred issues or face electoral recriminations;

•

lawmakers’ constant need to raise campaign funds from many of these same

party-aligned groups that often closely monitor the votes of lawmakers;

•

the influx of former House members into the Senate, many of whom bring a

more confrontational governing style to the chamber;

•

the reality of top party leaders being targeted by opposition Senators for electoral

defeat;

•

the use of ethics as a partisan weapon; and

•

today’s often negative “take-no-prisoners” senatorial elections.

These many elements combine to make management of today’s Senate difficult, especially on

controversial issues and when the partisan divide is narrow. “There [is] nothing here [the majority

party] can do without some degree of cooperation from a very robust 49-vote minority,” remarked

a Senate minority leader.33 Or as a former Senate majority leader stated:

I think the toughest job in the whole city [is] being the majority leader in the Senate, and not

just because I had it but because I got to see what it was all about. The President has the

whole administration, the Speaker has the Rules Committee, but the leaders of the Senate, on

both sides of the aisle, they lead because of who they are and the power of persuasion they

have and the respect for the position they hold. Nothing in the Constitution gives them

special powers.34

Cooperation across party lines, in brief, is sometimes hard to come by for two basic reasons: the

arsenal of parliamentary tools that any senator can employ to frustrate policymaking and a Senate

which is increasingly partisan and whose members employ public relations (or “message”)

strategies—the war of words—to advance party-preferred objectives. The tone of partisan warfare

that often surrounds debate on many important issues makes it difficult for either side to achieve

compromises that can pass the Senate. Partisan polarization in the Senate, wrote a congressional

scholar, “has made constructing the necessary deals considerably tougher; the two parties’ notions

of what constitutes good public policy have little overlap.”35

Brownstein, The Second Civil War, p. 14.

Carl Hulse, “Senate G.O.P. Leader Adapts to an Unexpected Role,” New York Times, November 30, 2006, p. A20.

Congressional Record, vol. 153, December 18, 2007, p. S15817.

Barbara Sinclair, Party Wars: Polarization and the Politics of National Policy Making (Norman, OK: University of

Oklahoma Press, 2006), p. 227.

ȱȱȱ

ŗŗȱ

ȱȱȱȱȱǱȱȱ¢ȱ

¡ȱȱ¢ȱȱȱȱȱ

A specific catalyst made Senate formation of conference committees during the early 2000s

highly problematic: the exclusion of minority party members from conference committee

participation. As a Senate committee chair told a group of his chamber’s minority party conferees,

“We don’t expect you to sign [the conference report], so we don’t expect you to be needed” in the

bargaining sessions.36 Four other examples underscore the exclusionary point.

•

In 2000, a minority party senator lamented: “I have been appointed to conference

committees in the Senate in name only, where my name will be read by the

[presiding officer] and only the conference of Republicans goes off and meets,

adopts a conference report, signs it, and sends it back to the floor without even

inviting me to attend a session.”37

•

A year later another Senator stated: “After much talk of bipartisanship, the other

side locked out the Democrats from the conference committee....We were invited

to the first meeting and told we would not be invited back, that the Republican

majority was going to write the budget all on their own, which they have done.”38

•

In 2003, a minority party senator said: “Once this [class action] bill leaves the

Senate floor, Democrats have no bargaining power. We’re not invited to any

conferences.”39

•

Two years later, another minority party lawmaker declaimed: “On issue after

issue, we have had conferences where the minority was excluded so that the

majority could ram through unpopular provisions as part of an un-amendable

conference report.”40

Members of the House minority have also been excluded from participating in conference

negotiations. In one case, the ranking member of the Committee on Ways and Means, along with

several party colleagues, crashed a conference meeting held in the chairman’s Capitol hideaway.

Only majority party members were present except for two minority party senators sympathetic to

the majority’s policy goals.41 Another ranking House minority committee member exclaimed that

conferences “are simply conferences between a few well-connected people on the majority side

of the aisle, with no real consultation with the minority.”42

The House minority, unlike its counterpart in the Senate, has no effective way to block the

formation of conference committees given the “majority rule” bias of its procedures. To be sure,

the House minority can express its anger or frustration at being excluded from conference

negotiations through various dilatory actions, such as forcing votes on repetitious motions to

adjourn the House, or, as House Rule XXII, clause 7 states, offering numerous motions to instruct

Daniel J. Parks, “Bush Starts to Deal on Budget, Only Hardening Resolve of Some,” CQ Weekly, April 28, 2001, p.

904.

Congressional Record, vol. 146, May 16, 2000, p. S3991.

Congressional Record, vol. 147, May 4, 2001, p. S4377.

Mark Wegner and April Fulton, “Crashing the Party,” National Journal, November 8, 2003, p. 3421.

Congressional Record, vol. 151, July 25, 2005, p. S8832.

Kate Schuler, “Democrats Crash Conference Meeting,” CQ Weekly, November 1, 2003, p. 2703.

Congressional Record, vol. 149, November 5, 2003, p. H10395.

ȱȱȱ

ŗŘȱ

ȱȱȱȱȱǱȱȱ¢ȱ

conferees “after a conference committee has been appointed for 20 calendar days or 10 legislative

days.”

Senators, as noted earlier, have formidable parliamentary means to protest their exclusion from

conference negotiations. “We don’t think a conference can truly be a conference if only one party

is represented,” stated a Senate minority leader. He added that until minority conferees are

assured of being present at all conference meetings, “we are unable to provide consent to go to

conference.”43 Decisions to prevent the convening of conference committees by the minority

leader were made on a case-by-case basis.

In lieu of convening a conference committee, the minority leader recommended that the Senate

follow two other approaches to reach bicameral agreement on legislation. First, persuade the

other chamber to pass Senate bills without making changes to them. Second, conduct preconference bargaining sessions with the other chamber and then either “confirm our agreements

in a formal conference once the negotiations have been completed”44 or approve them using the

ping pong approach.

In sum, the convening of conference committees by unanimous consent is no longer the routine

matter it once was. “Historically in the Senate,” remarked a senator, “when we passed a bill, we

automatically went to conference. That has changed.” Now, advocates of getting to conference

have to secure unanimous consent, “or we do not get to conference.”45 That was also the case

before—obtaining unanimous consent—but winning approval of those requests today is often

much harder to attain.

If the regular order is going to conference on major legislation, with majority and minority

conferees as full participants, that pattern has generally not been the case in recent Congresses.

Instead, there has been a noticeable shift away from convening formal conferences—largely

because of disagreements in the Senate—toward House-Senate majority leadership-dominated

“informal conferences.” Once this House-Senate group settles their differences through informal

negotiations, the ping pong approach has been employed to win bicameral approval of the

leaders’ work product. As a congressional correspondent wrote:

Once the penultimate stage in the life of any bill as a forum for House and Senate members to

work out their differences, the conference committee has fallen on hard times, shoved aside in the

last five years by partisanship and legislative expediency.

The preferred alternative revolves around informal meetings mainly among senior

Democratic [or Republican] lawmakers, who gather to cut a final deal and then bat the

finished product back and forth between the House and Senate until it is approved.46

A look at why the back-and-forth process was utilized on three measures may provide a better

understanding of ping pong’s role in the contemporary bicameral lawmaking process.

Congressional Record, vol. 150, February, 2004, p. S550. Upset at the exclusionary practice, a minority party

Senator noted that if the majority party’s conferees ignored the minority’s viewpoints, floor consideration of the

conference report could trigger the “procedural nuclear weapon”—the filibuster. See “GOP Leaders Take a Short

Time-Out in Final Push on Omnibus Energy Bill,” CQ Today, October 2, 2003, p. 5.

Congressional Record, vol. 150, February 4, 2004, p. S551.

Hulse and Pear, “Feeling Left Out on Major Bills, Democrats Turn to Stalling Others,” p. A18.

Carl Hulse, “In Conference: Process Undone By Partisanship,” New York Times, September 26, 2007, p. A1.

ȱȱȱ

ŗřȱ

ȱȱȱȱȱǱȱȱ¢ȱ

ȱȱ¡ȱ

¢ȱ ȱȱ¢ȱȱǻ ǯǯȱŜǼȱ

On December 17, 2007, President Bush signed H.R. 6 into law (P.L. 110-140). However, the bill’s

path to enactment was filled with twists and turns and procedural obstacles that made agreement

difficult among the House, Senate, and Executive. The House moved first to enact H.R. 6 on

January 18, 2007, because the bill limited tax subsidies for oil and gas companies. (The

Constitution requires the House to initiate revenue measures.) The legislation also encouraged the

development of alternative energy sources, such as solar or windmill.

There is another reason for the rather rapid House action: H.R. 6 was part of Speaker Nancy

Pelosi’s “first 100 legislative hours” agenda, which Democrats campaigned on in the November

2006 elections. H.R. 6 was referred to four committees but none of them formally considered the

legislation by holding hearings, markups, and issuing committee reports. The measure was

brought up in the House on January 18, 2007, under a closed rule; it was agreed to by a 264 to

163 vote.

H.R. 6 was then sent to the Senate where it was placed on the legislative calendar rather than

being referred because of its tax provisions to the Finance Committee. Senate Democrats planned

“to assemble their own energy package” with the Energy and Natural Resources Committee,

along with other panels, contributing to this endeavor.47 In fact, the majority leader assembled a

bipartisan energy package from the recommendations put forward by the Energy, Environment,

and Commerce Committees and offered it as a complete substitute—the functional equivalent of

a separate policy proposal—for H.R. 6. As the majority leader noted, the bill we begin debate on

today (June 11) is “a substitute to H.R. 6.”48

On June 21, after procedural delays and intense lobbying by various stakeholders (automobile

companies, environmental groups, and so on), the Senate by a 65 to 27 vote passed a

comprehensive energy measure as an amendment (the aforementioned leadership substitute) to

H.R. 6. A noteworthy Senate provision was an increase—from 25 to 35 miles per gallon by

2020—in the corporate average fuel economy (CAFÉ) standards for cars and light trucks.

However, the Senate rejected raising taxes on oil and gas. H.R. 6, as amended, was returned to the

House.

On August 4, the House passed its version of comprehensive energy legislation (H.R. 3221).

Unlike H.R. 6, which repealed about $14 billion in tax breaks for the oil and gas industry, H.R.

3221 addressed a wide range of energy issues: global warming, renewable energy, innovative

energy technologies, and much more. It was the product of nearly a dozen committees. Like most

major bills, H.R. 3221 was considered under a special rule from the Rules Committee, which

made in order back-to-back consideration of two measures. The House first considered and

agreed to the comprehensive energy bill (H.R. 3221). Then the House debated and passed a

separate bill (H.R. 2776) that raised taxes on oil and gas with the revenue going to pay for the

energy programs identified in H.R. 3221. Finally, as the special rule directed, the text of H.R.

Jeff Tollefson, “House Passes Bill to Cut Oil Subsidies,” CQ Weekly, January 22, 2007, p. 253.

Congressional Record, vol. 153, June 11, 2007, p. S7418.

ȱȱȱ

ŗŚȱ

ȱȱȱȱȱǱȱȱ¢ȱ

2776 as passed by the House was added “as new matter at the end of H.R. 3221.”49 The entire

energy package (H.R. 3221) was sent to the Senate on September 4 and placed on the legislative

calendar. Cloture was twice required—once on the motion to proceed and once on the bill itself.

To date, it has not passed the Senate.

Instead, senior committee and leadership staff aides from the two chambers began informal

discussions in the Fall about how to reconcile their differences on the various energy provisions

contained in the House-passed version of H.R. 6; the Senate leader’s substitute for H.R. 6; and

H.R. 3221.50 Arguably complicating the discussions was a procedural issue. What bill were the

two sides conferring on: H.R. 6 or H.R. 3221? The usual practice in going to conference is for

each chamber to pass different versions of a measure but with the same bill number. A majority

leadership spokesperson noted, however, that participants can “work around” those procedural

concerns, and they did.51 Informal staff negotiations continued, but relatively little progress was

made in settling differences and in “producing one bill that has a chance of passing both

chambers.”52

As a party, Senate Republicans were divided on whether there would be a formal or informal

energy conference. On one side were minority members who wanted to convene a formal

conference and even wrote to the majority leader “criticizing the informal talks and asking for a

conference.”53 On the other side were minority members who had placed “holds” on going to

conference, in part because they objected to House action repealing tax breaks for the oil and gas

industry.54 They also objected to the majority leader’s unanimous consent request to go to

conference.55 The minority leader favored going to conference but recognized that the chances

were “pretty slim.”56 The majority leader underscored that the House and Senate would move

forward on the energy legislation “one way or the other” and “regardless of whether there is a

conference.”57

In the end, unable to convene a conference committee, the bicameral majority leadership

bypassed it. The Speaker consulted extensively with the relevant House and Senate committee

chairs, as well as the majority party caucus, to forge common ground on H.R. 6, as amended by

the Senate. The “dealmaking pattern,” according to one account, involved “Senate committee

chairmen working with their House counterparts while talking to the Speaker.”58 Hard bargaining

Ibid., August 4, 2007, p. H9715.

Coral Davenport, “Procedural Difficulties Deal a Setback to Energy Legislation, Talks Continue,” CQ Today,

September 21, 2007, p. 10.

Darren Goode, “Reid Wants To Proceed To Conference By End Of The Week,” National Journal’s

CongressDailyAM, October 3, 2007, p. 9.

Coral Davenport, “Getting to Conference Seems to Be Energy Legislation’s Biggest Hurdle,” CQ Today, October 24,

2007, p. 19.

Ibid.

A hold, a Senator explained, is “a notice by a Senator to his or her party leader of an intention to object to bringing a

bill or nomination to the floor for consideration.” Congressional Record, vol. 148, April 17, 2002, p. S2850. See CRS

Report RL34255, Senate Policy on “Holds”: Action in the 110th Congress, coordinated by (name redacted).

Congressional Record, vol. 153, October 19, 2007, pp. S13146-S13147.

Darren Goode, “Dems Moving Forward on Tax Provisions,” National Journal’s Congress DailyAM, October l2,

2007, p. 14.

Ibid.

Alan K. Ota, “Senate Chairmen Play Larger Role With Pelosi,” CQ Today, December 4, 2007, p. 1. The Senate

majority leader relied on his committee chairs to discuss compromises with the Speaker. “I really believe in the

(continued...)

ȱȱȱ

ŗśȱ

ȱȱȱȱȱǱȱȱ¢ȱ

continued for weeks and when Congress reconvened following its traditional Thanksgiving

recess, it was anticipated that key negotiators from each chamber would reach a bicameral accord

by early December. And this turned out to be the case, in part because of the favorable external

context—high gasoline prices with a barrel of oil nearing $100, as well as heightened national

and world concern about global warming. These outside circumstances encouraged lawmakers to

back the informally crafted bicameral compromise despite complaints from both sides of the

aisle.

On December 6, the House took up and concurred in the leadership-designed House amendment

to the Senate amendment to H.R. 6. The House amendment—hammered out in private

negotiations by the House and Senate majority leadership—contained provisions in the originally

passed H.R. 6, the Senate leadership’s substitute, and H.R. 3221. Further, the House majority

leadership ensured that the House amendment would be considered under a restricted procedure.

The amendment was taken up under the terms of a special rule (H.Res. 846): one hour of debate,

no amendments, no motion to recommit, and a vote on final passage. The House voted 235 to 181

to adopt the revamped H.R. 6, which now included two controversial provisions known to be

opposed by various senators (the repeal of oil and gas tax breaks and a requirement that utilities

produce 15 percent of their electricity from alternative sources by 2020). The legislation was

transmitted to the Senate. Meanwhile, President Bush was threatening to veto the energy bill, in

large measure because of those two provisions.

The next day, December 7, the Senate began debate on the motion to concur in the House

amendment—the bicameral accord negotiated without a conference—to the Senate amendment to

H.R. 6. As soon as the majority leader called up the bicameral accord, he immediately filed

cloture on the motion to concur. Subsequently, the Senate tried unsuccessfully (53 to 42) to

invoke cloture on the motion to concur.59 The cloture motion failed to attract the required 60 votes

(three-fifths of the Senate membership) largely because of senatorial opposition to the elimination

of tax incentives for the oil and gas industry and the renewable electricity provision. As the

minority leader stated, “the bill we are voting on today is a massive tax hike and a utility rate

increase for consumers across the Southeast.”60 Still, senators from both parties continued to

negotiate so that an energy package might clear their chamber.

On December 12, the majority leader tried another approach to win Senate passage of an energy

package. He “filled the tree” on the motion to concur to the House amendment with a revamped

Senate energy package. He also filed cloture on the motion to concur to the revised Senate

amendment. To mobilize the required 60 votes to invoke cloture, the Senate amendment was

carefully crafted to garner sufficient support. For example, the renewable electricity mandate was

dropped and energy taxes were modified; both changes were made with an eye toward wooing

wavering senators.61 “Both sides were using whatever inducements they could to get us to vote”

(...continued)

committee process,” he said. “That’s why I have empowered committee chairs to do their committee work.” Ibid., p.

28.

Congressional Record, vol. 153, December 7, 2007, p. S15009.

Ibid., p. S15007.

Congressional Record, vol. 153, December 13, 2007, pp. S15388-S15389.

ȱȱȱ

ŗŜȱ

ȱȱȱȱȱǱȱȱ¢ȱ

their way, said a senator.62 The next day the Senate failed to invoke cloture (59 to 40) to end

debate on the majority leader’s revamped energy package.

Later that same day, the majority leader received unanimous consent to withdraw his pending

motion to concur and to offer a motion to concur in the House’s amendment with another revised

Senate energy amendment. It basically contained the energy provisions negotiated originally by

the key bicameral leaders, minus the controversial tax and electricity provisions. The Senate then

agreed to H.R. 6, as amended, by an 86 to 8 vote.63

On December 18, the House adopted a special rule that authorized the majority leader (or his

designee) to offer a motion that the House concur in the Senate amendment.64 The chair of the

Energy and Commerce Committee made that motion to concur on behalf of the majority leader,

which the House agreed to by a vote of 314 to 100.65 With passage of H.R. 6, as amended, by

both chambers, the measure was cleared for presidential consideration. The next day, December

19, 2007, H.R. 6, as amended, was signed into law (P.L. 110-140).

A summary of the ping ponging of the energy bill sets out in bold relief the operation of the

exchange of amendment procedure.

•

H.R. 6. This bill reduced tax subsidies for oil and gas and redirected those

revenue savings to the production of alternative fuels. It was passed by the House

and sent to the Senate.

•

S. Amendment to H.R. 6. The Senate replaced the text of H.R. 6 with a

complete substitute that represented its approach to comprehensive energy

reform. A key feature of the Senate plan was higher fuel standards for cars and

light trucks. However, the Senate rejected tax increases on oil and gas

production. The Senate returned H.R. 6, as amended, to the House.

•

H.R. 3221. The House adopted a separate bill, which was its comprehensive

approach to energy. The measure was sent to the Senate, but it was not acted

upon because of senatorial opposition to various provisions, such as the repeal of

tax provisions supported by the oil and gas industry.

•

H. Amendment to S. Amendment to H.R. 6. Unable to convene a conference,

informal negotiations between key House and Senate party and committee

leaders produced an alternative to the Senate’s energy plan (the aforementioned

complete substitute). The House passed this amendment, but it contained

controversial provisions that aroused senatorial opposition, such as the repeal of

tax subsidies for oil and gas producers.

•

S. Amendment to H. Amendment to S. Amendment to H.R. 6. Unable to

overcome resistance by senators opposed to ending tax subsidies for the oil and

gas industry and other controversial provisions contained in the House

Richard Rubin and Kathleen Hunter, “Burning for Victory, Democrats Come Up Short,” CQ Today, December 14,

2007, p. 1.

Congressional Record, vol. 153, December 13, 2007, p. S15432.

Congressional Record, vol. 153, December 18, 2007, pp. H16651-H16658. The special rule (H.Res. 877) provided

for House consideration of the Senate amendment to the House amendment to the Senate amendment to H.R. 6.

Ibid., pp. H16738, H16752.

ȱȱȱ

ŗŝȱ

ȱȱȱȱȱǱȱȱ¢ȱ

amendment, the Senate deleted those provisions and passed another version of

energy legislation as a Senate amendment to the House amendment. H.R. 6, as

further amended by the Senate, was returned to the House.

•

Enactment Into Law. The House adopted the Senate amendment without

change, clearing the amended version of H.R. 6 for presidential consideration.

The measure was signed into law by the chief executive.

To sum up, the principal factors that precipitated use of the ping pong approach were large

concerns among certain Senators about raising taxes on the oil and gas industry and requiring

utility companies to use alternative energy sources to produce electricity. These lawmakers

exercised their parliamentary prerogatives to block the convening of a conference committee on

H.R. 6. As a result, House and Senate party leaders decided to use the amendment exchange

procedure with the Speaker taking a lead role in negotiating the final compromise with

appropriate House and Senate committee leaders. Further, with the first session nearing an end,

and with the American public dismayed about the high price of gasoline at the pump, both parties

acted to pass the energy bill.

ȱȱ¢ȱȱǻǯȱŗǼȱ

The 110th Congress enacted a major ethics and lobbying reform measure (S. 1), which was signed

into law (P.L. 110-81). The legislation was titled the Honest Leadership and Open Government

Act. The Senate passed its version of S. 1 on January 18, 2007, by a 96 to 2 vote. Six days later S.

1 was received in the House and held at the desk. The House enacted a companion honest

leadership bill (H.R. 2316) on May 24, 2007, by a 396 to 22 vote. That same day the House also

agreed to the Lobbying Transparency Act (H.R. 2317). Subsequent to House passage of the

legislation, a spokesperson for the Senate majority leader stated that the leader “intends to move

as quickly as possible to not only appoint conferees, but to get the final bill done as well.”66 On

June 28, the majority leader failed to receive unanimous consent so the Senate might convene a

conference with the House. The Senate’s minority leader also backed the convening of a

conference committee on S. 1.67

A number of Senators, however, opposed the appointment of conferees. They were fearful that an

earmark transparency provision adopted as part of S. 1, and which was agreed to by a 98 to 0

vote, would either be weakened in conference or not included at all in the conference report.

These senators wanted a guarantee from the majority leader that the Senate’s earmark language

would not be changed by the conference committee. That guarantee was not forthcoming from

the majority leader. It would “not say much about my leadership if we negotiated [earmark

reform] out here on the floor of the Senate as to what was going to be in the conference

committee. That is what the conferees are all about,” said the majority leader.68

Mark Wegner and Christian Bourge, “Senate Dems Preparing For Conference On Lobbying Bill,” National

Journal’s CongressDailyPM, June 1, 2007, p. 8.

Mark Wegner, “McConnell: Still Time To Pass Lobby Bill Before Recess,” National Journal’s CongressDailyPM,

July 20, 2007, p. 1. In remarks to reporters, the minority leader stated that it was important to pass S. 1 before the

August recess even without a formal conference committee. “Either way, I think we ought to wrap the bill up. I’d rather

have the Republicans at the table than not. But I do think it’s time to act.” See Kenneth Doyle, “McConnell OKs Plan

to Pass Lobby Bill Without Convening Conference Committee,” Daily Report for Executives, July 23, 2007, p. A-1.

Congressional Record, vol. 153, June 28, 2007, pp. S8667-S8668. See Martin Kady, “Senate Republicans Block

Conference on Lobbying Overhaul Legislation,” CQ Today, June 27, 2007, p. 3.

ȱȱȱ

ŗŞȱ

ȱȱȱȱȱǱȱȱ¢ȱ

The sponsor of the earmark reform provision also proposed that the Senate simply adopt the

earmark changes as part of the Senate’s rules. “Why can’t we just accept that part here and go to

conference with all of these other provisions in which you know our Members are interested?” He

even asked the unanimous consent of the Senate to adopt two resolutions to accomplish that goal,

but a senator objected to his request.69 The majority leader, who opposed the idea, gave no public

reason so far as is known as to why he did not favor adopting the senator’s earmark reforms as

part of the internal rules of the Senate.70 However, other Senators indicated why the earmark

reforms were not adopted as part of chamber rules. Changes were required, said a lawmaker, to

“make the language workable.”71

In the end, the Speaker and Senate majority leader decided to bypass the conference stage and

negotiate informally with key lawmakers to produce a bicameral compromise that both chambers

might pass by the August 2007 recess. They achieved their goal. Intensive private negotiations led

to a rewrite of ethics and lobbying reform. When the Democratic leaders unveiled their ethics and

lobbying package on July 30, it received generally positive responses from outside groups as well

as many rank-and-file lawmakers in both chambers. The next day, and as a sign of wide support

among House members for the leadership’s package, the House amendment to S. 1 was taken up

under a procedure (suspension of the rules) requiring a two-thirds vote for passage, permitting no

amendments from the floor, and allowing for only 40 minutes of debate. Further, motions to

recommit are not permitted when the House suspends its rules to pass legislation. The House

overwhelmingly (411 to 8) agreed to the House amendment to S. 1.

S. 1, as amended by the House, was returned to the Senate for its review of the compromise

package. Critics of the leadership’s negotiated compromise strongly objected to the revised ethics

and lobbying measure, especially because they believed it weakened the earmark changes which

the Senate had adopted unanimously on January 18, 2007. Senate opponents of the leadershipcrafted agreement recognized they confronted an uphill battle—eventually unsuccessful—to

block or change the House amendment. Several procedural and political factors account for this

result.

First, when the majority leader asked the presiding officer to lay S. 1 with the House amendment

before the Senate, he immediately filed a cloture motion to close debate on the House

amendment. Further, he then “filled the amendment tree” on the motion to concur in the House

amendment to S. 1. His action prevented opponents of the package from attempting to alter the

House amendment to their liking before the Senate voted on whether to agree to the cloture

motion. Adoption of cloture would cut off the possibility of lengthy debate (i.e., a filibuster) on

the motion to concur.

Ibid., p. S8668.

It was reported that Senate “aides and lawmakers for weeks have speculated that [the majority leader] either hopes to

change [the earmark provisions contained in S. 1] during conference or to use them as a bargaining chip with Senate

negotiators during the talks.” John Stanton and Susan Davis, “Ethics Bill Will Return to Floor,” Roll Call, July 19,

2007, p. 30. Worth noting is that the majority leader did reportedly offer to put the author of the earmark reform

provision on the conference committee. That offer was reportedly rejected. “The majority leader is trying to be clever,”

said the earmark sponsor. “Everybody knows Democrats are going to control the conference, 4 to 3, and they will vote

4 to 3 to kill earmark reform. Being on the conference committee won’t do a thing to protect earmark reform.” Chris

Strohm and Ben Schneider, “New Roadblocks Delay Conferences,” National Journal’s CongressDailyAM, July 17,

2007, pp. 1, 14.

Congressional Record, vol. 153, August 2, 2007, p. S10714.

ȱȱȱ

ŗşȱ

ȱȱȱȱȱǱȱȱ¢ȱ

Worth noting is that most measures or matters typically require 60 votes (or three-fifths of the

total membership) to invoke cloture. In this case, a two-thirds vote was required to close debate

because Senate Rule XXII (cloture) stipulates that on a measure or motion to amend Senate rules,

an “affirmative vote [to invoke cloture] shall be two-thirds of the Senators present and voting.”

Plainly, S. 1, as amended by the House, contained changes to Senate rules, such as new

requirements regarding the transparency of earmarks. In the end, the Senate invoked cloture on

the majority leader’s motion to concur in the House amendment by an 80 to 17 vote.72

Second, the minority party was divided on the ethics and lobbying package. Many supported its

passage, including the minority leader, despite misgivings about some of the provisions. As one

minority senator was reported to say, it would be “hard to vote against a lot of good things [in the

ethics and lobbying package] because there are some bad things there. We vote on imperfect

legislation every day.”73

Third, the political circumstances made it difficult for many lawmakers to vote against an ethics

and lobbying reform package, especially with the August work period looming and the potential

for constituents asking Members how they voted on what seemed like a “good government”

initiative. (Recall that the “culture of corruption” was a theme used during the November 2006

elections.) In the judgment of one Senate minority staff aide, “There have been [corruption]

investigations and questions involving some members, and the natural instinct is to do

something—or anything, even if anything is bad—simply to look productive.” He further opined:

“We’re looking at the path of least resistance versus good legislation, and typically in these

situations, the former rather than the latter wins out.”74

To conclude, both parties recognized that public dismay with the Congress over lobbying

scandals, combined with the promises made by House and Senate majority party leaders to enact

ethics and lobbying reforms, prompted enactment of S. 1. The inability to create a conference

committee can be largely attributed to a relatively small number of Senators who were concerned

that the earmark reforms they successfully championed would be dropped or diluted by the

conferees. Thus, the exchange of amendment procedure was employed with each chamber’s party

leader in charge of the informal negotiating process. Most party members in each chamber

supported the final compromise, and S. 1 (the bill number symbolized its priority status) passed

with large majorities in each house.

£ȱȱ

ȱǻ ǯǯȱşŝŜǼȱ

The State Children’s Health Insurance Program (SCHIP) was created more than a decade ago as

part of the Balanced Budget Act of 1997 (P.L. 105-33). SCHIP provides “federal matching funds

to states and territories to provide health insurance to certain low-income children”75 whose

Congressional Record, vol. 153, August 2, 2007, p. S10716. On this particular vote, only 66 votes were required to

invoke cloture—assuming every senator votes—because a senator was ill and unable to participate in Senate

proceedings.

Tory Newmyer, “Senate Moves on Ethics Bill,” Roll Call, August 2, 2007, p. 24.

Chris Frates and Josephine Hearn, “[A Senator] Pledges Ethics Fight,” Politico, August 1, 2007, p. 12. Because the

congressional Democratic leadership was worried that President Bush might “pocket veto” S. 1 during Congress’s

August recess, they delayed sending the legislation to the White House until Congress returned and had an opportunity

to override any veto by a two-thirds vote of each chamber. See John Stanton, “Leaders Holding Ethics Bill,” Roll Call,

August 13, 2007, p. 3.

CRS Report RL30473, State Children’s Health Insurance Program (SCHIP): A Brief Overview, by (name redacted),

(continued...)

ȱȱȱ

ŘŖȱ

ȱȱȱȱȱǱȱȱ¢ȱ

families are not poor enough to qualify for Medicaid. In 2007, both the House and Senate took

steps to reauthorize and expand the program.

The House agreed to its version of the reauthorization bill (H.R. 3162) on August 1, by a vote of

225 to 204.76 The closeness of the vote underscores the concern that many lawmakers had with

the legislation.77 Called CHAMP (Children’s Health and Medicare Protection Act), the House bill

expanded coverage by adding 5 million uninsured children to the 6 million children currently

covered by the program; increasing spending for SCHIP by an estimated $50 billion over five

years; and making various changes to Medicare, such as reducing seniors’ co-payments for

preventive care. To offset the spending increases, the legislation proposed cutting a program in

which private insurers provide benefits to the elderly (Medicare Advantage) and hiking by 45

cents the cigarette tax per pack. The legislation was forwarded to the Senate, but that chamber

took no action on the bill.

On the day before the House passed CHAMP, July 31, the Senate began consideration of its

approach to reauthorizing SCHIP. The Senate used a House-passed bill (H.R. 976)—The Small

Business Tax Relief Act—as the vehicle for reauthorizing SCHIP. Why? Because the SCHIP bill

reported by the Senate Finance Committee contained tax provisions, and the Constitution, as

noted earlier, requires revenue-raising measures to be initiated by the House. Thus, when H.R.

976 was taken up, the Finance chair offered a complete substitute. The substitute replaced all the

text in H.R. 976 with the measure (S. 1893) reported by the Finance Committee.

The Senate’s version of the SCHIP reauthorization was narrower than the House’s. For example,

the Senate proposed a $35 billion expansion compared with the House’s nearly $50 billion

addition to SCHIP, and the Senate’s substitute did not include changes to Medicare, as did the

House’s bill. On August 2, the Senate passed its version of SCHIP by a 68 to 31 vote, setting the

stage for the convening of a conference committee.78 Meanwhile, President Bush said he opposed

both chambers’ bills and would not sign either into law.79 He advocated a $5 billion expansion of

SCHIP.

When lawmakers returned to Capitol Hill following the August recess, a top priority was to

reconcile bicameral differences on SCHIP. (The program was set to expire at the end of

September.) On September 4, the Senate majority leader asked unanimous consent to appoint

conferees on the SCHIP bill (H.R. 976), but his request was objected to by the minority leader

who said the request was “a little premature.”80 It was reported that minority party members

“want assurances ahead of a conference that the final bill will closely resemble the Senate-passed

(...continued)

(name redacted), and (name redacted).

Congressional Record, vol. 153, August 1, 2007, pp. H9502-H9503.

As a lawmaker stated: “This nearly 500-page bill is being rammed through the House with the Rules Committee

meeting at 1 a.m. this morning and with no Members even allowed to propose fixes or alternatives because we are told

it is absolutely imperative that Congress act to provide government-run health care coverage to more Americans.” See

Congressional Record, vol. 153, August 1, 2007, p. H9293. Another Member exclaimed that H.R. 3162 is really about

“cutting Medicare. They are doing it under the guise of covering children.” Ibid., p. H9297.

Congressional Record, vol. 153, August 2, 2007, p. S10761.

Alex Wayne, “Tough Negotiations Ahead on Children’s Health Care Expansion, Medicare,” CQ Today, August 3,

2007, p. 5.

Congressional Record, vol. 153, September 4, 2007, p. S11002.

ȱȱȱ

Řŗȱ

ȱȱȱȱȱǱȱȱ¢ȱ

legislation in scope and spending rather than the more ambitious and expensive House bill.”81

Such assurances were not provided by the bicameral majority leadership.

Accordingly, top majority party and committee leaders of each house met informally to determine

a course of action given the impasse in the Senate. In the end, unable to convene a conference

committee, negotiations among House and Senate majority leaders and key GOP Senators

produced a compromise that largely resembled the Senate-passed measure. House Democratic

leaders realized that their expansive SCHIP bill could not pass the Senate, so they crafted a

compromise (a House amendment to the Senate amendment to H.R. 976) that might pass that

chamber. Senior House committee leaders were upset with the compromise, because they

reportedly believed their side conceded too much to Senate negotiators. At the same time, they

pointed to the political necessity of passing the SCHIP reauthorization. “[W]e have no choice but

to send something to the president’s desk or be accused of not doing something on children’s

health insurance” remarked a House committee chair.82

On September 25, the House agreed to the negotiated compromise—technically the House

amendment to the Senate amendment—by a 265 to 159 vote, short of the two-thirds required to

override the president’s expected veto. The next day the Senate majority leader called up the

message from the House with respect to H.R. 976.83 Immediately, the majority leader filed cloture

on the motion to concur with the House amendment. He then “filled the tree” on the motion to

concur to prevent opponents from offering amendments to the leader’s motion that could

undermine or delay passage of the SCHIP reauthorization before the September 30 expiration

deadline.84 On September 27, the Senate voted (69 to 30) to invoke cloture; it then passed the

motion to concur to the House’s amendment by a 67 to 29 vote, clearing the measure for

presidential consideration.85

As promised, President Bush vetoed the SCHIP reauthorization on October 3, in large measure

because it was too costly: he wanted to spend $5 billion more on the program, not Congress’s $35

billion.86 The House, acting first, failed on October 18 to override the president’s veto, but

lawmakers in both chambers continued their efforts to expand the children’s health insurance

program.87

Alex Wayne, “Children’s Health Bill Dealt a Setback as Sept. 30 Deadline Looms,” CQ Today, September 5, 2007,

p. 12.

Alex Wayne, “Congress Expected to Vote Next Week on SCHIP Bill Close to Senate Version,” CQ Today,

September 19, 2007, p. 6.

The message from the House stated: “Resolved, That the House agree to the amendments of the Senate to the bill

(H.R. 976) ‘an Act to amend the Internal Revenue Code of 1968 to provide tax relief for small businesses, and for other

purposes,’ with amendments.” Congressional Record, vol. 153, September 25, 2007, p. S12122.

Congressional Record, vol. 153, September 26, 2007, pp. S12122-S12123.

Congressional Record, vol. 153, September 27, 2007, pp. S12206-S12207, S12255.

Sheryl Gay Stolberg and Carl Hulse, “Bush Vetoes Health Bill Privately, Without Fanfare,” New York Times,

October 4, 2007, p. A17.

Congress sent another SCHIP reauthorization bill (H.R. 3963) to the White House, which the president also vetoed.

See CRS Report RS22746, SCHIP: Differences Between H.R. 3963 and H.R. 976, by (name redacted) et al.

Four continuing resolutions provided funding for SCHIP through December 31, 2007, with the Medicare, Medicaid,

and SCHIP Extension Act (P.L. 110-173, enacted December 29, 2007) providing funds through March 31, 2009. See

CRS Report RL30473, State Children’s Health Insurance Program (SCHIP): A Brief Overview, by (name redacted),

(name redacted), and (name redacted). Also see Alex Wayne, “After Medicare Vote, SCHIP Gets Another

Look,” CQ Today, July 11, 2008, p. 1.

ȱȱȱ

ŘŘȱ

ȱȱȱȱȱǱȱȱ¢ȱ

In summary, consideration of SCHIP aroused strong views in the two parties and the two

chambers. The measure passed the House in a close vote. It easily was agreed to in the Senate, in

part because the final version of the legislation was narrower and less costly than the House’s

original bill. A number of Senators blocked the appointment of conferees, because they wanted

commitments that any compromise that emerged from conference would comport with their

views. Unable to create a conference committee, majority party leaders turned to the ping pong

method, which included informal negotiations among a limited number of House and Senate

majority party lawmakers along with a few minority party Senators. Their privately negotiated

compromise—a House amendment to the Senate amendment to H.R. 976—was subsequently

agreed to by both chambers, but President Bush vetoed the SCHIP reauthorization.

¢ȱȱȱǱȱȱȱ

The recent tendency to bypass the conference stage underscores that House-Senate

interrelationships change and adapt to the broader legislative-political environment of which they

are a part. Compared with the 1950s or 1960s, today’s Congress is more open, partisan,

workload-packed, and deadline-driven; there are many more interest groups that influence and

monitor legislative proceedings; and individual lawmakers are not reluctant to utilize

parliamentary tools to advance their objectives. Because these developments have sometimes

made the convening of conference committees problematic, the exchange of amendment

procedure—and the concomitant informal negotiations that accompany it—has become a more

efficient method for resolving bicameral differences on major legislation.

Several of the reasons for the heightened importance of the ping pong approach, and the

implications that flow from its use on major legislation, seem directly or indirectly related to at

least six factors (setting aside the earlier discussion about the relative ease of blocking the

appointment of conferees in the Senate). The six are (1) a further enhancement of the role of party

leaders; (2) limits on the role of committees and their leaders; (3) a marginal role of the minority

party; (4) constraints on the deliberative process; (5) the avoidance of procedural/political issues;

and (6) the lack of transparency.

Whether these factors are causes or effects of ping ponging, or both, merits brief mention.

Because cause and effect are hard to disentangle, it is probably safe to say that the six factors

reflect both ingredients to one degree or another. For example, the apparent increase in reliance

on ping ponging might be viewed as either a cause or effect of enhanced party leadership

influence. A cause because party leaders today play a larger role throughout all lawmaking stages,

including bicameral negotiations. The preference of party leaders, in short, might be to utilize

amendment exchange rather than conference committees so as to better ensure the achievement of

party-preferred goals. An effect because difficulties in creating conference committees have

provided central party leaders with more opportunities to step in and assume wider responsibility

for reconciling bicameral differences on major legislation through the ping pong (and informal

negotiating) method. Perhaps more useful than making judgments about cause and effect is to

consider whether difficulties in forming conference committees helped to encourage these six

developments.

ȱȱȱ

Řřȱ

ȱȱȱȱȱǱȱȱ¢ȱ

ȱȱȱȱȱȱ¢ȱȱ

By any reasonable test, the four Capitol Hill party organizations play active roles in the

lawmaking process. Their organizational elements (party caucuses or committees, for example)

are active, party leaders are increasingly prominent, and party voting is at comparatively high

levels. Given sharp conflicts between the two parties on key policy issues and narrow margins of

party control, rank-and-file lawmakers generally recognize the need for strong leadership for their

substantive and political agenda to succeed. The partisan polarization in Congress contributes to

strengthened party leadership, especially in the House. Nevertheless, “majority party senators

expect their leader to exploit majority status for partisan advantage.”88

If conference committees cannot be convened because of dilatory practices—or if time

constraints prevent their use—the principal negotiators on major legislation are often House and

Senate majority leaders, along with a limited number of other key lawmakers. On SCHIP, for

example, House majority leaders indicated that if the Senate was unable to convene a conference

because of blocking actions by various senators, they would meet informally with their Senate

leadership counterparts to negotiate a compromise. As one account noted, the top House and

Senate majority leaders “met for nearly two hours” working “to reach a final agreement on

compromise [SCHIP] legislation.”89

Regardless of the reasons that prevent the convening of conference committees, the exchange of

amendments procedure highlights the powerful negotiating role of central party leaders. They are

strategically positioned to fashion major bicameral leadership compromises, perhaps with little

input from rank-and-file members, the committee(s) of original jurisdiction, or the minority party.

In short, the ping pong approach on major legislation is illustrative of the centralization of party

control that characterizes the contemporary House and, to a lesser extent, the Senate. In the

Senate, majority party leaders recognize that the ping pong method avoids a potential series of

probably impossible-to-break filibusters associated with the appointment of conferees.

ȱȱȱȱȱȱȱȱȱ

The drift toward centralized party authority has tightened leadership influence over committees

and their chairs. Six-year term limits for House committee and subcommittee chairs,90 as well as

comparable six-year term limits for Senate Republicans, restrict the ability of committee chairs to

accrue independent authority, as occurred during earlier decades when pundits sometimes referred

to the leaders of committees as the “dukes” or “barons” of Capitol Hill. Use of the ping pong

procedure on the majority party’s priorities can mean that committee leaders and members

Sinclair, Party Wars, p. 192.

Steve Teske, “House, Senate Lawmakers Continue Work On SCHIP Compromise Reauthorization Bill,” Daily

Report for Executives, September 19, 2007, p. A-45.

It is worth noting that Democratic Caucus Rules do not require term limits for House chairs. For example, it was

reported recently that a majority party lawmaker pointed out that when the “issue of term limits has come up in the

Democratic Caucus, it has been overwhelmingly defeated.” He suggested that the House rule imposing term limits on

chairs would be changed “when Democrats re-do their rules package next year.” See Mike Soraghan, “Spotlight Back

On Pelosi,” The Hill, June 10, 2008, p. 11. Rule 14 of House Republican Conference rules for the 110th Congress

states: “No individual shall serve more than three consecutive terms as Chairman or Ranking Member of a standing,

select, joint, or ad hoc Committee or Subcommittee beginning with the 104th Congress.”

ȱȱȱ

ŘŚȱ

ȱȱȱȱȱǱȱȱ¢ȱ

exercise generally minimal influence over the compromises reached by each chamber’s top party

leaders.

The aforementioned energy bill (H.R. 6) is an example of committee members with expertise on

the issue criticizing the process by which the measure was jointly assembled by each chamber’s

majority leaders. Press reports indicated, for example, that as “many as 40 Democrats were

reported to have signed a letter of complaint [to party leaders]” expressing their dismay at the

secret development of the energy compromise.91 As a committee chair stated:

H.R. 6is not the product of a formal conference, but rather the result of amendments being

passed between the House and Senate as a means of resolving the differences between their

respective bills. I have noted in the past, and will continue to note, that I find this manner of

legislating to be unsatisfactory and unwise. Given the difficulty experienced by the Senate in

going to conference on this bill this year, however, this process is the best that we can hope

for under the circumstances .... One of the reasons this [ping pong] process is inferior to that

of a formal conference is the lack of a conference report and, thus, the lack of a written

legislative history detailing why certain policies were adopted and others excluded.92

In sum, unless committee leaders and members are invited to participate in the closed bicameral

negotiations, they may have little or no say on the contents of the final leadership-produced

compromise. “If we don’t go to conference, there’s no need for us to legislate on anything really,”

exclaimed a House chair, underscoring how the ping pong approach has shifted power from

House and Senate committees to House and Senate party leaders.

ȱȱȱȱ¢ȱ¢ȱ

Just as there have been cases of minority party exclusion from conference committees, as

mentioned earlier, the same holds true in the case of the amendment exchange method. Minority

party members have been excluded from these bicameral negotiating sessions, unless their input

is sought by the leaders in charge of the back-and-forth amendment procedure. Moreover, such

participation is more likely to involve minority Senators than minority House members. The

contributions of minority party Senators might be important in devising a product that can attract

not only a majority but also the supermajority vote often required to enact legislation in that

chamber. For example, on the SCHIP legislation, two minority Senators “took part in the health

talks but no [minority] House members did.”93

The benefits of an inter-chamber bargaining process where all sides participate was underscored

by a spokesperson for a House minority leader. Both parties’ views are considered, the process is

likely to be perceived as fair because it comports with the regular order, and a stronger and more

credible bicameral product is likely to be the outcome. As the spokesperson explained:

John J. Fialka and David Rogers, “House Passes Vast Energy Bill; Senate Overhaul Seen,” Wall Street Journal,

December 7, 2007, p. A10.

Congressional Record, vol. 153, December 28, 2008, p. E2665.

Carl Hulse, “In Conference: l Process Undone By Partisanshiip,” New York Times, September 26, 2007, p. A23.

ȱȱȱ

Řśȱ

ȱȱȱȱȱǱȱȱ¢ȱ

The conference process serves to allow Members to buy into a final bill. Sometimes there are

tweaks and changes that have to be made, but it allows buy-in. Absent that kind of process,

you’re really getting a majority-driven bill without bipartisan support.94

Majority party lawmakers might reply that they understand the principle of minority rights, but

contend that the other side often prefers obstructionism to cooperation so as to prevent the

majority party from accomplishing its agenda. As a result, minority lawmakers may be excluded

from participating in the processes for bicameral reconciliation. Ironically, because the Senate

sometimes blocks the convening of conference committees, this may mean that Senators who

normally would be chosen as conferees are likely to be excluded from the ping pong negotiations.

ȱȱȱȱȱ

What constitutes good public policy is often unclear but it is more likely to be achieved through a

deliberative, or reasoned, process where all major issues and views are debated and discussed. A

conference process that involves lawmakers with specialized expertise from both parties and both

chambers arguably provides for a wider range of interests and preferences to be considered and

debated. The amendments (the bicameral compromises) that are ping ponged between the houses

are usually crafted in private by a relatively small number of Members, largely from the majority

party. To be sure, once these privately negotiated House amendments or Senate amendments to

legislation are taken up in each chamber, there is generally time for lawmakers to debate and

amend the bicameral accords.95 The deliberative process, however, could be constrained in the

House by special rules from the Rules Committee or in the Senate by tree-filling: offering all the

amendatory motions that can be pending at one time.

The two chambers and the two parties have their differences, but a rigorous and vigorous

exchange of views in a conference setting might better—compared with the exchange of

amendments method—expose weaknesses in the legislation, promote thorough analysis, generate

bipartisan support, or encourage consideration of new ideas and perspectives. In the judgment of

a senior House minority member, bypassing the conference stage increases the likelihood that you

“get legislation that is not well thought out because it hasn’t been tugged and hauled [by] all

sides.”96 Needless to say, conference committees are not always models of inclusiveness and the

wide-ranging examination of alternatives.97

Emily Pierce and Jennifer Yachnin, “Tactical Skirmishes Intensified in 110th Congress,” Roll Call, January 22, 2008,

p. B-16. On a different but related matter that aroused the concern of minority lawmakers because they were not part of

crafting a bill brought to the House floor, the ranking panel member stated: “When we were not a part of the process,

when we don’t have any input into the policy, there is over a 95 to 100 percent [chance that] we are going to be ‘noes’

regardless of the substance of the bill.” Congressional Record, vol. 154, June 24, 2008, p. H5905.

A recent example of extensive debate associated with the amendment exchange procedure is the Foreclosure

Prevention Act (H.R. 3221). The Senate, for example, engaged in considerable debating and amending of the motion to

concur in the amendments of the House to the amendments of the Senate to the foreclosure bill. As the Senate minority

leader stated: “We are going to have an opportunity ... to legislate like the Senate has long been accustomed to

legislating. We are actually going to offer amendments. They are going to be related to the bill, and we are going to get

started.” Congressional Record, vol. 154, June 18, 2008, p. S5741. See Emily Pierce, “Senate Turns to Legislating on

Housing Bill,” The Hill, June 23, 2008, p. 18.

Carl Hulse, “In Conference: Process Undone By Partisanship,” New York Times, September 26, 2007, p. A23.

See, for example, Stephen D. Van Beek, Post-Passage Politics: Bicameral Resolution in Congress (Pittsburgh:

University of Pittsburgh Press, 1995) and Lawrence D. Longley and (name redacted), Bicameral Politics: Conference

Committees in Congress (New Haven, Conn.: Yale University Press, 1989).

ȱȱȱ

ŘŜȱ

ȱȱȱȱȱǱȱȱ¢ȱ

ȱȱȦȱȱ

Sharp partisanship, particularly since the mid-1990s, has been resurgent on Capitol Hill for

reasons highlighted in the previous discussion on polarization. Close elections, narrow margins of

control in each chamber, and significant policy differences are among the factors that influence

the political/procedural actions of House and Senate members and party leaders. House and

Senate majority leaders, as a result, have an incentive to counter minority party actions aimed at

forcing vulnerable majority party lawmakers to cast tough votes that might cause them electoral

difficulties in the next election. The next two parts of this section highlight several formal House

and Senate procedural rules governing conference committees that majority party leaders might

want to avoid or circumvent because of political concerns.

After the House has agreed to go to conference but before the conferees are officially named by

the Speaker, the chamber may adoption a motion to instruct their conferees (for example, to

uphold the House’s position on a certain policy issue). A member of the minority party is granted

priority to offer this motion and only one can be made at this stage. Instructions are nonbinding

on the soon-to-be named conferees, but they do serve various purposes. One of these is political.

Instruction motions can be framed to force votes on “hot button” issues that could cause electoral

problems for majority party members who hold closely contested seats. Furthermore, if a

conference cannot reach agreement within 20 calendar days and ten legislative days, then an

unlimited number of motions to instruct are in order. Minority party members can offer repetitive

motions to instruct so as to compel votes on their election-year and political priorities. (Party

leaders sometimes avoid this issue by delaying the appointment of conferees until the preconference negotiations are near completion.)

The House might also take steps to recommit the conference report with instructions if the other

body has not discharged its conferees by acting first and favorably on the conference report. A

minority party Member is given priority by the Speaker to offer the motion to recommit the

conference report with instructions, which might be drafted to require a vote on a single isolated

issue that might cause political “heartburn” for the majority party. There are no motions to

instruct with the ping pong method.

The ping pong method also disallows use of the motion to recommit with respect to House or

Senate amendments to legislation. During the initial consideration of bills or joint resolutions, the

minority leader, or his designee, is guaranteed the right to offer a motion to recommit by House

Rule XIII, clause 6. The minority party’s right to offer the recommital motion does not apply

under Rule XIII “to a Senate bill or resolution for which the text of a House-passed measure has

been substituted.” It further does not apply to amendments between the houses, such as a House

amendment to a Senate amendment as was the case mentioned earlier with respect to H.R. 6 (the

energy bill.)

Motions to recommit measures during their initial floor consideration are of two types: simple

(return a bill or joint resolution to committee) or with instructions (the minority party’s policy

alternative which the full House votes upon.) Recent Congresses have witnessed use of the

motion to recommit with instructions to compel vulnerable majority party members to vote on

minority-crafted alternatives that, if adopted, might undermine the core intent of the legislation

and/or provoke political problems back home for majority party lawmakers. In the 110th

Congress, for example, since “switching to the minority, Republicans have launched a

ȱȱȱ

Řŝȱ

ȱȱȱȱȱǱȱȱ¢ȱ

coordinated effort to use recommital motions to force Democrats to cast uncomfortable votes or

make unwelcome changes to bills.”98 The “House amendments to Senate-passed bills” approach

avoids potential procedural maneuvers associated with artfully worded recommittal motions and

attendant political headaches for the majority leadership.

Another House rule that applies to conference reports but not to the exchange of amendment

procedure involves earmarks. Earmarks, in brief, are provisions often included in appropriations

bills or their accompanying committee reports that set aside specific funds for projects or

programs in Members’ districts. They are also included in other types of measures. Earmarks

have been a source of controversy in recent years because of their increase in both number and

cost, not to mention scandals associated with their use.

Under House rules, conference reports are not to be considered unless they and their

accompanying joint explanatory statements include a list of congressional earmarks and their

sponsors. This House rule (Rule XXI, clause 9) does not apply to amendments between the

houses. Lamented one House member, the “point of order that I would have liked to have raised

against the provisions that may include earmarks [do not] lie against the bill because it is not a

conference report, because it’s a House amendment to a Senate amendment.”99

The threat of a filibuster potentially influences nearly everything that the Senate does, including

amendments between the chambers. These amendments are also subject to filibusters and

nonrelevant amendments, unless cloture is invoked or limits are placed on both the debate and

amendment process by unanimous consent agreements. However, if the political circumstances

are right and the House and Senate majority leadership is involved and committed, as in the case

of energy, ethics and lobbying, and SCHIP, then the odds favor action rather than inaction with

the ping pong method. There are, it seems, fewer procedural obstacles to overcome with the

exchange of amendment procedure compared to convening conference committees. As a Senate

parliamentary expert pointed out, “Notwithstanding these potential difficulties [filibusters and an

uncontrolled amendment process], the use of amendments between the houses can ... be highly

efficient” in achieving bicameral compromises.100

New rules affecting conference reports—but not the exchange of amendment procedure—were

adopted by the 110th Senate.101 One of the changes provided for enhanced enforcement of an

existing Senate rule (Rule XXVIII), prohibiting the “airdropping” of items into conference

reports. “Air drops” are measures or matters inserted into conference reports without first being

enacted by the House or Senate. These are considered violations of “scope,” a parliamentary

principle which also applies to the House.

Kathleen Hunter, GOP Continues to Vex Democrats on Procedure,” CQ Today, November 7, 2007, p. 30. Under

House Rule XIII, clause 6(c), the Rules Committee is not to report a special rule “that would prevent the motion to

recommit a bill or joint resolution from being made,” including one offered by the minority leader or his designee.

However, the Rules Committee may report “special rules precluding a motion to recommit at subsequent stages; that is,

during consideration of amendments between the Houses.” See Wm. Holmes Brown and Charles W. Johnson, House

Practice: A Guide to the Rules, Precedents, and Procedures of the House (Washington, GPO, 2003), p. 813.

Congressional Record, vol. 153, December 6, 2007, p. H14257.

100

Martin B. Gold, Senate Procedure and Practice (New York: Rowman & Littlefield Publishers, Inc., 2004), p. 121.

101

CRS Report RS22733, Senate Rules Changes in the 110th Congress Affecting Restrictions on the Content of

Conference Reports, by (name redacted).

ȱȱȱ

ŘŞȱ

ȱȱȱȱȱǱȱȱ¢ȱ

In brief, scope means that conferees are to consider only the matters in disagreement between the

chambers, they are not to include new matter, nor are they to delete matter agreed to by both

chambers. Under the previous Rule XXVIII, a scope point of order upheld by the presiding

officer would effectively kill the conference report. Under the revised Senate rule, if a point of

order is sustained against airdropped items, that does result in rejection of the conference report,

but the offending material is deleted and the remaining matter can be returned to the House for its

consideration using the exchange of amendment procedure.

For example, when a Rule XXVIII point of order was raised against a conference report for first

time under the new procedure, it was sustained by the presiding officer. He then stated: “Under

the rule, the Senate now considers the question of whether the Senate should recede from its

amendment to the House bill and concur with a further amendment [the conference report minus

the offending material].”102 The Senate agreed to the motion put by the presiding officer.

The Senate also created a brand new rule (Rule XLIV). A key feature of this rule is the public

disclosure of earmarks. Before a conference report can be considered, sponsors of earmarks must

be identified through lists, charts, or other means and made publicly available on a congressional

website for at least 48 hours. The majority leader or appropriate committee chair must certify (in

a statement on the Senate floor, for example) that these requirements have been met before it is in

order to vote on a conference report.

Rule XLIV also permits a Senator to “raise a point of order against one or more provisions of a

conference report if they constitute new directed spending provisions” which are “targeted to a

specific State, locality, or Congressional district, other than through a statutory or administrative

formula-driven or competitive award process.”103 Worth noting is that paragraph 8 of Rule XLIV

applies to discretionary and mandatory spending and not to authorizations of appropriations. The

point of discussing these two rule changes—the revisions to Rule XXVIII and the new Rule

XLIV—is to underscore that amendments between the houses are not subject to their formal

procedures and requirements.104

ȱȱ¢ȱ

Private negotiations among a limited number of participants is a fundamental characteristic of

bicameral negotiations on major bills. As for the amendment exchange method, transparency and

open deliberations are minimized if combined with a special rule limiting amendments in the

House and tree-filling in the Senate, which closes off amendment opportunities for Members.

Unlike the joint explanatory statement accompanying a conference report, there is no required

public “paper trail”or written record of the decisions made during the informally negotiated

102

Congressional Record, vol. 153, November 7, 2007, p. S14043. There was an unsuccessful attempt to waive the

ruling of the presiding officer by the required 60 votes of the Senate.

103

Senate Rule XLIV provides a detailed definition of what constitutes a “congressionally directed spending item.” It

also establishes a procedure for waiving any or all points of order raised against a conference report under this Senate

rule.

104

For further information on the House and Senate’s earmark reforms, see CRS Report RL34462, House and Senate

Procedural Rules Concerning Earmark Disclosure, by (name redacted); CRS Report RS22733,Senate Rules Changes in

the 110th Congress Affecting Restrictions on the Content of Conference Reports, by (name redacted); CRS Report

RS22867, Earmark Disclosure Rules in the Senate: Member and Committee Requirements, by Megan Suzanne Lynch;

and CRS Report RS22866, Earmark Disclosure Rules in the House: Member and Committee Requirements, by Megan

Suzanne Lynch.

ȱȱȱ

Řşȱ

ȱȱȱȱȱǱȱȱ¢ȱ

amendment exchange procedure, except for whatever material is spread on the record during

House and Senate floor debate. There are also no layover requirements for the exchange of

amendment procedure, but there are for conference reports. Layover rules give Members an

opportunity to read about the decisions made in a conference committee prior to floor action.

Layover rules, however, may be waived by special rules from the House Rules Committee and

the need for cloture provides Senators with the opportunity to read the amendments associated

with the ping pong method. Still, the conference route seems to provide the potential for more

openness and transparency compared to the ping pong method. Three reasons buttress this

assessment.

First, conference committees produce two formal products that are publicly available: the

conference report (the legal language) and the joint explanatory statement (an explanation of the

conference report). Under House rules (Rule XIII, clause 7), the “joint explanatory statement

shall be sufficiently detailed and explicit to inform the House [and Senate] of the effects of the

report on the matters committed to conference.” Conference reports and joint explanatory

statements are printed in the Congressional Record. Joint explanatory statements are not required

by the exchange of amendments procedure. (However, there are examples of ping ponged

measures where something akin to a joint explanatory statement is printed in the Congressional

Record, as in the case of S. 1, the Honest Leadership and Open Government Act).105

Second, House and Senate rules stipulate that meetings of conference committees shall be open to

the public; these rules also identify the procedures for closing the public sessions. To emphasize

their commitment to open conferences, the majority leaders of each chamber pledged that

conferences in the 110th Congress would be open to public observation.106 In Section 515 of the

Honest Leadership and Open Government Act (P.L. 110-81), the Senate agreed to the following

protocol: “conference committees should hold regular, formal meetings of all conferees that are

open to the public.” If there is a presumption of openness for conference committees, there is

nothing comparable for the private negotiating sessions associated with the ping pong method.

Third, transparency of conference proceedings can sometimes be an important strategic

component of the lawmaking process. Televising conferences over C-SPAN (the Cable Satellite

Public Affairs Network), which has occurred several times in recent years, could be part of the

strategy for influencing conference decisionmaking by generating public opinion for or against

particular issues.

In at least one instance, according to the House chair of a conference committee, the entire

proceedings were open to public view. As the chair stated, this was the first tax conference in his

memory that was held “entirely with the public permitted complete access, televised over the

internal television [network] for the entire time of the conference. There were no separate

conference meetings. All of the conference meetings were public.”107 The chair of the Senate

conferees agreed with this assessment. On tax conferences, he said, nearly “all of the toughest

decisions come down to private negotiations between the two chairmen.... In this conference,

however, all discussions were aired publicly.”108 The rationale for complete openness was to blunt

105

Congressional Record, vol. 153, August 2, 2007, pp. S10708-S10714.

See Lynn Sweet, “New Congress, New Rules,” The Hill, December 7, 2006, p. 27 and Erin Billings and Emily

Pierce, “Reid Prepares for Senate Changeover,” Roll Call, November 9, 2006, on-line edition.

107

Congressional Record, vol. 150, October 7, 2004, p. H8656.

108

Congressional Record, vol. 150, October 9, 2004, p. S10929.

106

ȱȱȱ

řŖȱ

ȱȱȱȱȱǱȱȱ¢ȱ

any allegations from opponents that untoward deals were being made in secret. There have been

no instances of television coverage of the private negotiations associated with the ping pong

method.

ȱȱ

Although Table 1 does not reflect a numerical increase in the ping pong method, its recent use on

major bills is something that does seem significant. Volleying amendments between the houses on

consequential legislation is outside what might be considered the “regular order”—the creation of

a conference committee, the usual venue for reconciling bicameral differences on major

measures. As a result, there are at least five issues associated with ping ponging that merit

discussion.

First, the more prominent role of ping ponging may reflect the gradual institutionalization of a

leadership-influenced bicameral bargaining process that has been evolving for several years.

Bicameral bargaining is not a static process; it has undergone many changes over the years. The

“old” conference style, where a limited number of conferees from a single committee in each

chamber haggle over inter-chamber differences, no longer suffices as the prime method for

reaching bicameral compromises. Today, party leaders exercise large influence in achieving and

coordinating inter-chamber agreement on major bills, often resorting to the ping pong method for

this purpose. The bicameral role of party leaders results from various developments, such as the

need to mobilize support for party-preferred policies from a diverse array of engaged actors

(interest groups, executive officials, nonconferee lawmakers, bloggers, and so on.)

Second, there is arguably little significant difference between convening “virtual” conferences,

where bicameral compromises are worked out in private among key lawmakers, and employing

the amendment exchange method where inter-chamber accords are also hammered out in closed

meetings by a select number of House and Senate leaders. There are differences, however. The

threat or reality of a filibuster in today’s Senate appears so severe that it has produced a changed

bicameral dynamic for reconciling House-Senate differences on legislation. Further, there are

numerous House and Senate rules and practices triggered by the conference method that can be

avoided by the ping pong approach. These include such things as potential controversies

involving conferee selection, the instruction of conferees, or scope violations.

Third, the bargaining dynamic associated with ping ponging may have its roots in Senate

developments that have occurred over several decades. The thrust of these changes has led to a

more individualistic and partisan Senate where lawmakers’ individual or partisan preferences

sometimes take precedence over institutional requirements. Congressional scholars have

examined how the Senate has changed over several decades, and these changes influence today’s

conferee appointment process. A capsule summary might include the following developments.

During the 1970s, there was an increase in the number of filibusters and other delaying tactics as

the chamber witnessed a heightened sense of influence on the part of each Senator. Many

Senators, regardless of party, were more willing to employ their formidable parliamentary

prerogatives to advance individual goals even if that meant blocking the Senate’s business or

foiling the agenda-setting authority of the majority leader. Professor Richard F. Fenno, Jr., a noted

legislative scholar, studied how the 1950s Senate evolved from a “communitarian” institution,

where Members were expected to use filibusters sparingly and only for high-stakes national

issues, to today’s “individualistic” Senate. He found that with “more openness, more media

ȱȱȱ

řŗȱ

ȱȱȱȱȱǱȱȱ¢ȱ

visibility, more candidate-centered elections,” more interest groups, more political obligations,

and more staff, Members became independent entrepreneurs unwilling to submerge their personal

and political objectives “to the norms of any collectivity.”109

By the late 1980s and 1990s, the Senate seemed to become increasingly contentious, “with

polarization along partisan and ideological lines that largely coincide.”110 This pattern continued

into the 2000s. Given any lawmaker’s ability to stall legislative action, and a narrowly divided

chamber’s oft-inability to invoke cloture, it became much more difficult for the Senate to convene

conference committees. As a result, majority party leaders in both houses turned to amendment

exchanges and informal negotiations to iron out bicameral differences. This negotiating pattern

has persisted in recent years regardless of which party has been in charge of the Congress.

Fourth, bypassing the conference stage is not without its own complications. A brief summary of

a 2008 housing measure (H.R. 3221) will help make the point. Remember that the

aforementioned H.R. 3221 started out as an energy bill with many of its provisions folded into

H.R. 6 (the energy case example) during the exchange of amendments between the chambers. The

bill remained in the Senate, however, and became the vehicle to carry a major housing initiative.

The Senate devised a package of housing proposals that contained energy tax incentives and, as

mentioned before, the Constitution requires the House to originate tax measures. So the Senate

deleted the legislative text contained in H.R. 3221 and replaced it with housing and energyrelevant proposals. The legislation passed the Senate on April 10, 2008, as a Senate amendment to

H.R. 3221. The amended bill was returned to the House, including with a new title (the

“Foreclosure Prevention Act”).111

On May 7, 2008, the House Rules Committee reported a procedural resolution (H.Res. 1175) that

made it in order for the House to take up H.R. 3221, with the Senate amendments thereto. Worth

underscoring are two points: first, Senate amendments to House-passed measures lack privilege—

an automatic right to the floor—and require a special rule for this purpose; second, the House can

respond to Senate amendments in any way that it wants. In this case, the special rule permitted

the Financial Services chair to make a motion to concur in the Senate amendments with three

House amendments. All three were adopted by the House, along with an amended title.112 H.R.

3221 became the “American Housing Rescue and Foreclosure Prevention Act,” and was volleyed

back to the Senate (the three House amendments to the Senate amendments to H.R. 3221).

Things quickly became procedurally complicated in the Senate, leading to complex parliamentary

maneuvers. There were three motions for cloture; an unsuccessful motion to refer the House

amendments to the Banking Committee; tree-filling by the majority leader; controversy over

whether an amendment involving energy tax incentives was germane to the housing bill; multiple

amendments offered to the House amendments; and other procedural twists and turns. In brief,

consideration of House amendments in the Senate provides numerous opportunities for delay and

produces complications that are procedurally and politically complex.

109

Richard F. Fenno, Jr., “The Senate Through the Looking Glass: The Debate over Television,” Legislative Studies

Quarterly, August 1989, p. 316.

110

Barbara Sinclair, Party Wars, p. xvi.

111

Congressional Record, vol. 154, April 10, 2008, p. S2844.

112

Congressional Record, vol. 154, May 7, 2008, p. H3134 and May 8, pp. H3219-H3282.

ȱȱȱ

řŘȱ

ȱȱȱȱȱǱȱȱ¢ȱ

The Senate finally cleared all the procedural hurdles, and the housing bill, as amended—renamed

the “Housing and Economic Recovery Act”—was returned to the other body for its consideration

of the Senate amendments to the House amendments to the Senate amendments to H.R. 3221.

House negotiators returned to the drawing board to develop a housing package (another House

amendment(s)—technically a third-degree amendment violation113) that the Senate could accept

and thus end the back-and-forth volley of proposals. To be sure, the respective House and Senate

chairs were in regular communication, working together to develop a housing package (the new

House amendment) that could pass the Senate.114 In the end, the House on July 23 agreed to the

inter-chamber negotiated compromise, which included provisions addressing housing

foreclosures and credit markets, by a 272 to 152 vote. Three days later, after the filing of cloture

and tree-filling by the Senate majority leader, the chamber voted 72 to 13 to concur in the

amendment of the House.115 On July 30, the legislation was signed into law (P.L. 110-289) by the

President.

Lastly, the history of Congress is the history of change. Lawmaking processes adapt in big and

little ways to new pressures, actors, and events. Yet one constant is that both chambers must pass

a measure in absolutely identical fashion before it can be sent to the White House for presidential

consideration. Recall that Table 1 provides data on the methods used to secure bicameral

concurrence on legislation. What the table cannot reveal is that many respected individuals

believe that a once little-discussed method—the exchange of amendments between the houses—

recently has taken on larger importance in reconciling House-Senate differences on major

legislation. Whether this development is an anomaly, unique to recent Congresses, or reflects the

wave of the future is not clear. Prediction is very hard, Yogi Berra is reputed to have said,

especially about the future. One thing does seem certain, however. If there are continuing issues

in convening conference committees, or circumstances warrant their calculated circumvention,

institutional leaders seem certain to employ the ping pong method or devise other ways to resolve

bicameral differences on legislation.

113

Both chambers prohibit amendments in the third degree, meaning an amendment to an amendment to an

amendment. The third-degree prohibition applies to amendments between the houses. “In short, after each chamber has

passed the same bill for the first time (for example, the House passes a House bill and the Senate passes the House bill

with Senate amendments), each chamber may have one opportunity to amend the amendments of the other chamber.”

See Senate Committee on Rules and Administration, Congressional Handbook (Washington, DC: GPO, 1994), p. III30.

114

Another financial crisis hit the housing market upon H.R. 3221’s return to the House. Two large governmentsponsored mortgage enterprises called Fannie Mae and Freddie Mac encountered serious problems involving the lack

of capital to cover their outstanding obligations. As a result, there was thought of folding a Treasury Department

funding initiative to aid the two mortgage institutions into the housing bill, a “one vote, one package” strategy. See

David Rogers, “Frank Plans Quick Passage of Treasury Bill,” Politico, July 15, 2008, p. 21. In the end, this is what

occurred. See Benton Ives, “Mortgage Relief on the Horizon,” CQ Weekly, July 28, 2008, pp. 2056-2058; Lori

Montgomery and Paul Kane, “Housing Bill Won’t ‘Perform Miracles’,” The Washington Post, July 27, 2008, p. A1;

and “Bush Signs Housing Assistance, Oversight Legislation Without Fanfare,” Daily Report for Executives, July 31,

2008, p. A-2.

115

Congressional Record, vol. 154, July 26, 2008, p. S7506. Technically, the Senate agreed to the motion to concur in

the amendment of the House to the Senate amendment to the House amendments to the Senate amendment to H.R.

3221.

ȱȱȱ

řřȱ

ȱȱȱȱȱǱȱȱ¢ȱ

ȱȱ ȱ

(name redacted)

Senior Specialist in American National Government

[redacted]@crs.loc.gov, 7-....

ȱȱȱ

řŚȱ

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.