Over the last several months, Congressional Republicans have largely reneged on their promise to use regular order to repeal and replace the Affordable Care Act (ACA). While the House held markups without hearings, the Senate proceeded to consider (and reject) the House-passed bill without ANY hearings or markups. Struggling to get his caucus to agree on a final bill, Senator McConnell may opt instead on to pass the bare minimum his caucus can stomach—a “skinny repeal”—and hope to hammer out a compromise with the House in what is called a conference committee. This document explains what going to conference is all about.
What is a Conference Committee?
The Constitution requires that both the House and Senate agree to identical legislative text before it is sent to the president for a signature. That means whenever the Senate and the House pass two versions of a bill, like on ACA repeal, whatever differences exist between the two pieces of legislation must be resolved and then passed by both chambers before it can go to the president for signature.
Therefore, a conference committee is a bicameral (House and Senate) committee temporarily established to reconcile differences between two versions of a bill. During this process, Republican and Democratic members of the House and Senate (appointed by the majority leadership of both chambers), participate in a temporary committee to work through differences and then send a final product back to each chamber. Once a conference report comes back to the House and Senate for approval, it cannot be amended. It is an “up or down” vote in each chamber.
Conference vs. Standing Committee Procedure Hearings
The process for standing committees is different than the process for conference committees. Standing committees hold public hearings to receive testimony from experts and other affected parties to figure out how best to craft a policy, while conference committees move directly into working out differences between the House and Senate-passed versions of the legislation after appointing members of the conference committees (called conferees).
Standing committees will hold markups, a process in which permanent committee members make changes to a proposed bill. During this process (and floor consideration if permitted), the committee still determines the scope of the legislation. But conference committees are composed of people temporarily appointed to resolve differences between two pieces of legislation within an existing scope of policies. While conference committee meetings are supposed to be open, the committee can vote to hold meetings behind closed doors—something Republicans are used to these days.
Committee Jurisdiction and Conferees
When a bill is introduced in either chamber of Congress (House or Senate), it is referred to different committees depending on what the bill proposes to do. These are called committees of jurisdiction. Conferees are generally members of the committee(s) of jurisdiction for the bill under consideration. But conference committees also include members of leadership for both chambers as a means of advancing the political and policy priorities of each. (Note: Even though the conference committee includes minority party members, they can effectively be excluded from the meetings, and their votes are not needed to adopt the conference report.)
This is something we’ve touched on a bit but is important to understanding the scope of a conference committee’s work. The rules state that the conference committee is permitted to establish a compromise and modify language within “the limits of the disagreement.” That means if there is no mention of a policy in either bill, inclusion of such language would not be permissible under the rules of the conference committee since differences cannot exist between something that did not exist originally. What matters is what is considered a germane modification to a policy in question in the differences between the bills.
Points of Order
A member of either chamber who believes a rule has been violated may raise a point of order. This can include an objection to the inclusion of a policy in the conference report that is not germane. Conferees generally avoid including language that would be subject to a point of order, but that is not always the case.
What About Reconciliation?
Reconciliation rules are important here too. If a provision in the conference report is in violation of the Byrd rule, then a point of order can be raised against the conference report. This provides limitations for conferees in terms of what can ultimately be included in the final agreement.