Whither the Conference Committee?
Professors Hong Min Park, Steven S. Smith and Ryan J. Vander Wielen recently presented a monograph, “The Changing Politics of Conciliation: How Institutional Reforms and Partisanship Have Killed the Conference Committee,” detailing the “near evaporation” of conference committees in House-Senate conciliation processes. Given the constitutional necessity of conciliation and its significant impact on policy outcomes, this paper is crucial to understanding recent congressional dysfunction.
The Constitution’s Bicameralism and Presentment Clauses require both houses of Congress to pass identical versions of legislative bills. The Constitution is silent, however, about how Congress is to go about reconciling differences that exist when the chambers pass different versions of a bill. This process, known as conciliation, can be accomplished several ways. For example, one chamber can simply approve a bill that was initially passed by the other chamber, or the chambers can continue to exchange amendments back and forth until both finally pass an identical bill (a process known as “ping-ponging”).
But traditionally—at least for more complex pieces of legislation where the potential differences between the chamber versions of a bill are numerous—Congress has used conference committees made up of delegates from each chamber to hammer out any differences. A conference report is then agreed upon and returned to the chambers to be passed on a simple up-or-down vote. This longstanding conference process, as the monograph’s authors lay out in detail, is now broken. Fewer and fewer conference committees are convened to resolve differences between the houses of Congress, and the authors set out to study why this decline has occurred, as well as its ramifications for future policymaking.
Essentially, the monograph has four components:
- A description of conciliation when conference committees predominated, prior to the 1970s;
- The waves of change since the 1970s that caused the decline in conference committees;
- Current methods of inter-chamber conciliation;
- The effects these changes have had on policy outcomes.
The traditional use of conference committees pre-1970
The practice of using conference committees traces its roots to English parliamentary practice as early as the 14th century. The use of conference committees hopped the Atlantic and found a home in numerous colonial legislatures and our country’s first congress. The practice continued well into the mid-20th century when the conciliation process was still dominated by conference committees.
As has recently been shown by Professors Jeffrey A. Jenkins and Charles Stewart III, this time period featured a decentralized system of independent and influential committees managing Congress. Conciliation was conducted by House and Senate delegations and controlled by relevant committee chairmen (chosen by seniority), who produced a “conference report” for full chamber votes, with little party influence. Starting in the 1970s, however, this state of affairs began to fall apart.
The decline of conference committees: two waves of institutional change
Changes in conciliation since the 1970s occurred amidst rapidly increasing polarization, which led to greater differences in potential policy outcomes and more intense party competition. This, in turn, rendered congressional control increasingly uncertain. As a result, party leaders became more attuned to—and involved in—the process by which legislative differences between chambers would be resolved. A series of changes that sought to de-emphasize and reduce the power of congressional committees had the effect of reducing the role of conference committees.
As the authors note, the conciliation process was fundamentally altered by two waves of institutional change. The first, initiated by Democrats in the 1970s, came about as a result of the effort to “bring committees and conferences in line with the preferences of most majority party Democrats by expanding conference delegations.” Specifically, because of longstanding seniority rules, conservative Southern Democrats at the time disproportionately dominated committee chairmanships, allowing them to water down or stymie the civil rights agenda of the more activist wing of the Democratic Party. Seeking to reduce this power, the Democrat-controlled legislature at the time passed a series of measures that eliminated the seniority monopoly on chairmanships, asserted greater party control over committees and conferences, and gave rank-and-file members increased oversight over conference committee reports.
The second wave, “initiated by House Republicans after the 1994 elections, was about partisan efficiency and control.” This wave centralized power in party leadership rather than committees, cut member and committee staff (while increasing leadership staff), and increased the Senate majority leader’s power over the amendment process. Among other effects, these changes increased party leadership’s influence and control over the conciliation and conference process since conferees were increasingly expected to “toe the party line”. This more rigidly hierarchal structure eventually decreased the use of conference committees altogether in favor of other methods of conciliation.
Current preferred methods of conciliation
The result of the aforementioned institutional changes in committee power had direct ramifications for the conciliation process. Rather than delegating conciliation to conference committees, which risks surrendering party objectives, party leadership has wrested control over the conciliation process from conference committees. Instead of conference committees, party leadership often chooses to engage in high-level, closed-door negotiations to resolve in inter-chamber differences. This ad hoc, secretive process has only gained in popularity in recent years.
Because of their obvious partisan implications, fiscal issues were the first to be consumed by party leadership, but in more recent times party leadership takes the lead in conciliations involving even supposedly nonpartisan issues like defense authorization and farm bills. As the authors point out, the apotheosis of this trend away from conference committees to more ad hoc methods for resolving differences between House and Senate versions of bills was seen in the initial passage of the Affordable Care Act. In order to both avoid a Republican filibuster and to reconcile the differences between the House and Senate versions of the bill, Democratic leadership used a series of complex legislative maneuvers to gain passage.
Perhaps unsurprisingly, the move toward greater party control of conciliation has been bipartisan: “[B]y the time the Republicans had assumed majorities in both chambers following the 2014 elections, the parties had taken over post-passage action from committees on most major legislation,” according to the authors.
How changes in conciliation have affected policy outcomes
These changes to conciliation procedure have affected policy outcomes in numerous, important ways. First, because conference committees have at least some minority input, they typically result in outcomes that are closer to the median congressman than the more overtly partisan outcomes of leadership negotiation. Thus, the move toward leadership-dominated conciliation has in turn led to more sharply partisan legislation.
Second, these changes shifted “primary responsibility [for conciliation] from legislators with policy expertise to legislators with political expertise,” which can work to reduce general policy expertise among members of Congress. By and large, party leadership is predominately focused on electoral outcomes rather than on the minutiae of particular policy issues. This can eventually create perverse incentives for rank-and-file legislators, as over time “the focus on party-based policy making and a lack of reliance on committees to write legislation may reduce the incentive for legislators to develop genuine policy expertise.”
Finally, these trends have implications for legislative transparency, as well. In contrast to the traditional conference committee process—which was public and included joint explanatory statements detailing the key results of the conference negotiations—party leadership now mostly relies on ad hoc closed-door bargaining sessions to reconcile differences in legislation. This reduces transparency and provides the public with less insight and guidance regarding agreed-upon compromises.
In their extensive monograph, professors Park, Smith, and Vander Wielen provide important context and history concerning the evolution (and decline) of conference committees. Their analysis is a welcome addition in the effort to understand current congressional dysfunction and its potential impact on policymaking.