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Where have all the conference committees gone?

- December 21, 2011

Following Jordan’s excellent post, a few more thoughts about conference committees.  The House this afternoon approved a motion to go to conference with the Senate to resolve chamber differences over the payroll tax cut bills.  Although the Speaker has repeatedly referred to conference committees as “regular order,” avid Congress watchers might disagree.   Donald Wolfensberger (a former Republican staff director of the House Rules Committee) put it best a few years ago when he asked:  “Have House-Senate Conferences Gone The Way of the Dodo?” Indeed, in recent years, party leaders have increasingly favored alternative methods for reconciling bicameral differences.  More often than going to conference, Congress increasingly relies on informal negotiations between party leaders or an exchange of amendments between the two chambers (known as “ping pong”) to reach agreement.

Why are conference committees going extinct?  As is lately often the case, partisan polarization shoulders much of the blame.

First, the rise of partisanship in the Senate complicates the ability of the majority leader to get bills to conference.  Technically, sending a bill to conference and naming conferees requires three Senate motions, each of which can be filibustered.  Not surprisingly, given policy and political differences between the parties, Senate minority parties have not been shy about exploiting the rules to prevent the chamber from going to conference.

Second, polarization has often led majority parties to exclude the minority from participating in conference decision-making.  Thus, even when formal conferences have been appointed, majority parties in periods of unified party control have been able to prevent the minority from influencing conference decisions.  Not surprisingly, when minority party senators find themselves excluded from conference negotiations, they become more likely to exercise their rights to block the Senate from going to conference in the future.   In Steve Smith’s terms, this is the Senate’s parliamentary arms race on full display.

Third, in both chambers, polarization has increased the role of party leaders in negotiating legislative agreements.  As the parties have become  internally more cohesive, rank and file legislators have been more likely to accept party leaders’ central role in crafting legislating bargains on behalf of their party caucuses.   Involvement of party leaders across the full scope of party priorities has come at the expense of committee chairs and their own ability to influence the shape of major measures.  Not surprisingly, the same forces that encourage party leaders to hold the reins during the crafting of legislative priorities also encourage them to keep hold of the reins in resolving bicameral agreements.  Party leaders are better able to secure outcomes favorable for their party if they can avoid going to conference.

Finally, as Walter Oleszek from CRS has detailed meticulously here, a host of House and Senate rules affecting conference committees can offer political advantages to the minority party– advantages that they do not enjoy when disagreements are resolved by informal negotiations or through a formal game of ping pong.  For example, House rules governing motions to instruct conferees offer the minority party an opportunity to force the majority to cast politically costly votes.  In contrast, ping pong allows the majority to avoid potentially damaging votes.   More generally, rules governing conference committees guarantee a certain degree of transparency (sunshine rules requiring open meetings, layover rules for conference reports, and the like).   Transparency makes it more difficult to negotiate politically fragile agreements, giving party leaders yet another reason to avoid going to conference.

So why did the House GOP insist on a conference with the Senate– contrary to recent trends?  If the party’s key priority is securing swift agreement on a full year extension of the payroll tax cut, going to conference is a particularly inefficient way to go about it.  I suspect instead that rank and file legislators’ suspicions (let alone Eric Cantor’s) about Speaker Boehner’s conservative bona fides — not to mention their mistrust of Senate leaders McConnell and Reid– made a leader-dominated game of ping pong or more negotiations behind closed doors especially unpalatable.  And for those GOP opposed to extending the payroll tax cut altogether, insisting on “regular order” provides political cover for a potentially unpopular position.

Like the Dodo, the conference committee may indeed be going extinct.  Alice’s and the Dodo’s Caucus Race, however, is alive and well.