The subject of this episode is, “What is a conference committee and why are they so rare today?”
My guest is Josh Ryan. He is an associate professor of political science at Utah State University. Josh studies Congress, the president, state legislatures and executives, as well as electoral institutions. Importantly for the purpose of this episode of Understanding Congress, Josh is the author of the book The Congressional Endgame: Interchamber Bargaining and Compromise (University of Chicago Press, 2018). This book examines conference committees and the other ways the two chambers of Congress come to an agreement—or not—on legislation.
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.
I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.
Josh, welcome to the podcast.
Josh Ryan:
Thanks so much for having me.
Kevin Kosar:
Let’s start very simply, Schoolhouse Rock! style. What is a conference committee?
Josh Ryan:
We think of Congress as one branch of government, and Congress is actually two different institutions. The House and the Senate are separated from each other. They have almost no control over what the other chamber does. They have their own legislators, obviously. They have their own procedures, their own norms, their own committees, their own ways of doing things. And when they write a bill, even if the House and the Senate generally agree on the parameters of the bill and what’s going to be in the bill, because of all these differences, they usually write two different versions of a bill. So we can think of the House as developing some version of a bill to address some policy problem. Typically the Senate takes up legislation after the House, but not always. Senators are their own people and they like to do their own thing, and they typically change the House bill in some way. So even though the House and the Senate are supposed to kind of be working together, if the bill is anything more interesting or substantive than some trivial piece of legislation, we’re going to end up with two different versions of the bill.
The Constitution requires that Congress can only send one version of the bill to the president, so the House and the Senate have to have some way of resolving their differences, of agreeing on the exact same language for a given bill. Historically, one of the main ways that they’ve come to an agreement is by using a conference committee. This is a temporary committee, so it’s different than the standing committees in Congress, like the Agriculture Committee or the Armed Services Committee, which exist and are more or less permanent. The conference committee is ad hoc. It’s created just to address the differences between the House and the Senate on a particular bill.
The House and the Senate will each designate conferees. These are individuals usually who serve on the standing committees which dealt with the bill. And those people will go to a conference where they sit down and they try to hash out the differences between the House and the Senate version. Once they’ve done that, the conference committee sends the bill back to both chambers, and both the House and the Senate then have to vote on the bill again. But importantly, they can’t make changes to the bill at that point, and the House and the Senate have the exact same version of the bill, exactly the same words, etc. At that point, if they both approve the bill, the bill goes to the president.
Kevin Kosar:
Now, if I could just ask as a brief follow-up: one of the things you note in your book is that if you look to the Constitution to see what a conference committee is, how it’s defined, and who’s to be on it, you’re not going to find it there. There’s an element whenever it comes to a conference committee of kind of an adhocracy, where they are reinventing the wheel each time they put one of these together. Is that right?
Josh Ryan:
That’s exactly right. And this is a little bit unusual. Many states use joint committees, that is, committees that are shared between the two chambers, but Congress doesn’t work that way, and it really hasn’t historically. The House and the Senate have found conference committees to be pretty effective, though. Almost all bills that end up in conference are eventually approved by the chambers and sent to the president. Something like 95 percent of bills that make it to conference end up going to the president’s desk. So despite the fact that, as you said, it’s ad hoc—every time they do it, it feels like they’re reinventing the wheel—it actually works pretty well. And I think the House and the Senate believe it to be an efficient and good way of resolving their differences.
Kevin Kosar:
Perhaps the lack of constitutional prescription detail just creates the flexibility that you really need, ultimately, to get the right people in the room together and to have the flexibility to work things out.
So, conference committee, that’s one way to deal with the issue of the House and the Senate both trying to legislate on the same subject, but ending up with two bills that are not identical. What are the other ways for the president to receive one piece of legislation rather than two pieces of paper?
Josh Ryan:
The most common alternative to conferencing, which the chambers are using more and more frequently nowadays, is what we refer to as amendment trading. Some people call it ping-ponging. You can think of the analogy of a ball bouncing back and forth across the table. The idea here is, rather than creating a committee, when they use amendment trading or ping-ponging, the House and the Senate simply amend the bill in some way and send it back to the other chamber. They amend the bill, hopefully moving it closer to the other chamber’s version. The bill gets sent back to the other chamber again. They may amend the bill, moving it again closer to the other chamber’s version. And they can do this a number of times, typically no more than three (though there are some exceptions to that). The idea is that they sequentially amend the bill to get it to a place where they can both approve it without changing it. So that’s the main alternative to conferencing.
One of the things that people forget is [that] there is an alternative to avoid this entire process, which is, simply agree to accept the other chamber’s bill without changing it. We actually see this, and I argue in my book that it’s becoming more frequent because it offers a way out. If the Senate knows it’s going to have difficulty getting to conference or getting agreement in conference or navigating the amendment trading process, they may just take the bill as is from the House. And the same is true with the House. This has happened a couple of times in the last few years, and it’s a way of short-circuiting the process. The chamber that does this may not get everything they want, but it’s probably going to be easier when they choose to do this. It’s going to be easier for them than having to negotiate the bill again after going through the difficulty of passing it the first time.
Kevin Kosar:
I’m glad you mentioned that, because recently there was an interesting example of that, where the two chambers were grappling with the debt limit and the fact that the country was about to cross it. And if I recall, the way that played out was that the Senate ultimately passed a bill, and then the House voted upon a rule. That rule had a number of provisions, one of which said that the Senate bill on raising the debt limit shall be deemed as approved. The House just basically recognized that they didn’t want to have to put their members out there voting on this, but they also didn’t want to play amendment ping-pong, apparently. That’s the way they got it done, and that’s how the bill went to Biden’s desk.
Josh Ryan:
Yeah, that’s a really good example of how this works. Usually, in this whole process, it’s the Senate that’s the problem, at least recently. The Senate has a harder time doing all of these things. The leadership doesn’t have as much control over procedures, as much control over the membership. We’ve had more narrow majorities, arguably, in the Senate than in the House. So typically, when it comes to post-passage bargaining, resolution conferencing, amendment trading, it’s the Senate that’s the fly in the ointment. Often, just as you said, the House has been put in the position of, we have to take the Senate bill or we’re not going to get anything, because it can’t go back to that chamber. We’ll never get agreement.
Kevin Kosar:
Right. And just for listeners’ purposes, why is it that the Senate tends to be the fly in the ointment?
Josh Ryan:
Well, in the Senate it’s just harder to get things done. The majority party doesn’t have the same power that they do in the House. We’re seeing a really good example of this today, which is, in the House today, even with the very narrow majority the Democrats have, they’ve mostly been able to do what they want. Not entirely, but they’ve been pretty effective. It hasn’t been a situation in which the party is constantly losing floor votes or they’re being split. The leadership in the House has a lot of tools to keep members in line. There tends to be less ideological disagreement within members in the House than there is in the Senate. In the Senate, everything’s harder. And I haven’t even mentioned the biggest difficulty the Senate has in getting things done, which is the filibuster and the necessity of invoking cloture on a lot of things. That just makes it hard to get things done in the Senate.
One of the things I could have mentioned about conferencing is [that] going to conference, setting that process up, that is a debatable motion in the Senate. That can be subject to a filibuster, which means you have to invoke cloture on that motion.
Kevin Kosar:
Yeah. One thing that really caught my eye in your book, which is quite excellent (and I encourage listeners to get a copy), is up until roughly 2013, the Senate had to engage in something like three separate steps, all of which were debatable, all of which would require getting 60 senators to say “yea,” just to do the conference process. That’s to say nothing of actually completing the process and being happy with it. But just to get there! Incredible, absolutely incredible.
Josh Ryan:
Yeah, that’s exactly right. And in fact, as you mentioned, in 2013, the Democrats, as part of their limited overhaul of the filibuster, actually collapsed those three motions into one motion with the idea that instead of having to invoke cloture three times, you could just do it once. Whether that’s actually increased the likelihood of going to conference, I’m not sure. That’s kind of an open area of research. It hasn’t been that long since this reduction in debatable motions has been in place in the Senate. But I think that’s a really interesting question that hopefully we can look into in the next couple of years and determine whether that’s helped.
Kevin Kosar:
Yeah. The question of whether you take a bunch of smaller decisions and ball them together—does that create one high-stakes decision, or does that affect people’s calculus when they’re thinking about whether they’re going to say “yea” or “nay”? That’s very interesting. I’d love to see what the research shows on that.
I want to double back to amendment ping-pong. It’s such a great image of little white balls flying between the two chambers, each with text inside of them. Who gets to play in this game? Do all members, all senators, all representatives, get to take a whack at a ping-pong ball, or does it not work like that?
Josh Ryan:
In theory, when the chambers use this ping-ponging process, we’re basically just engaged in amending the bill on the floor. So in theory, it should look like any other amending process, more or less.
One of the arguments about why this process has been used more frequently is that it empowers the leadership. It makes the leadership stronger in the House and Senate, gives them more control over the process. And I think there’s something to that. You can think about a conference committee, this committee that’s set up to resolve differences on a bill. A conference committee is made up of members, usually from the standing committees who dealt with the bill, so committees of jurisdiction on a particular bill. Leadership doesn’t have a big say in that, because you’ve just mostly got the committee chairs empowered, members of the standing committees empowered on a conference committee to rewrite the legislation in a way they see fit.
When we have amendment trading, because it’s done on the floor, basically it’s just a typical amending process in the House and the Senate. Who runs the show on the floor? Well, the party leadership and its deputies. So the idea is, the leadership has more control over the eventual outcome. They can direct members how to vote. They can direct members in terms of what the amendment should look like.
I think there’s something to that, as I said. I’m not entirely sure it’s all about the leadership, though. One thing we can think about is [that] the minority party, especially in the Senate, has been probably the cause of some of the reduction in conferencing because they’ve sought to block conference committees as a way of stalling the bill. But if you’re a member of the minority party, why block legislation that’s going to go to conference if it’s going to go to the amendment trading process, which gives the party leadership more control over it? You might end up with more partisan legislation that way.
So I’m not entirely sure the story is all about the leadership, but I think they certainly have a role to play in that amendment trading or ping-ponging process.
Kevin Kosar:
Interesting. I was curious—is there an informal version of amendment ping-pong that goes on, where instead of having the House have to get together and vote on a new version of the bill with new amendments and send it over and hope it’s okay and then have it come back, etc., they’re just getting together and perhaps putting together drafts, things that are not legislation proper, but something that can be whacked in as a substitute if they get the sense that the other chamber is kosher with that?
Josh Ryan:
I think there’s absolutely some of that going on. I think for both parties, and especially when you have unified control of the chambers—so right now you’ve got Democrats in both chambers trying to work together to resolve their differences. They don’t want to have these fights on the floor. It’s very inefficient. It takes a long time, it takes a lot of energy. They want to get the bill in a state that is as close to final as possible before they send it out in the world and take their chances with the amending process.
There is a big debate in the political science literature now more broadly about how much control the party leadership has relative to the standing committees. What we’re seeing is [that] bills are increasingly being written in the leadership’s office, not in the committee rooms. So the argument is, anything the leadership can do to exert more power over this process, exert more power over how the House and the Senate resolve their differences, is an indication of polarization and delegation by members to the party leadership.
On the other hand, even when they’re writing bills within the speaker’s office, who’s doing the actual writing? It’s probably members of the standing committee. They’re in there meeting with the speaker, certainly, but the speaker or her deputies or the Senate majority leader don’t have the knowledge or wherewithal on these specialized issues to actually write the bill themselves. They’re still leaning quite heavily on committees.
So, Kevin, getting back to your question, a lot of this is about a tradeoff between who has the power to get these bills over the finish line. Is it the leadership or is it the committees—the committee chairs and the committee members?
Kevin Kosar:
In your book, you note that one of the longstanding conversations in political science and more generally on the issue of two chambers resolving their differences is the question, who wins? The listener of this podcast might be thinking to themselves, well, if the Senate is the place that it’s really tougher to get agreement on, maybe that gives the Senate an advantage. The Senate is going to be the winner, because good luck getting up to sixty and all that sort of stuff.
You’ve crunched the numbers. You’ve done an immense amount of research on this. Who wins?
Josh Ryan:
Well, nowadays I think it probably mostly is the Senate. When I was writing the book and going through the literature and stuff, a lot of this “who wins” idea comes out of Congress in the 1960s and 1970s. At that point, there’s quite a bit of literature that actually says that the House was more constrained. It was harder to get things through the House than the Senate. The House was the more moderate one; the Democratic Party, which controlled the House in that period of time, was split between conservative Democrats and more liberal Democrats, conservative Southern Democrats. So the House was the stumbling block. Now we think of the Senate as the stumbling block, given the sixty-vote threshold and the distribution of ideology within the Senate, and how difficult it is to get anything through the Senate. The Senate tends to be more moderate than the House, that is, the average bill outcome in the Senate moves closer to the center of the policy space than in the House, because of party control.
So there’s nothing inherent, necessarily, about the Senate that makes it more difficult. It’s just the circumstances today, in which we’ve got polarized chambers, we’ve got a very moderate Senate and a relatively more ideologically extreme House. So your logic, I think, was absolutely correct. It tends to be the chamber that is more constrained. It tends to be the chamber that’s going to have a harder time. The Senate today can credibly look at the House and go, well, we’re doing what we want because if we do what you want, it’s going to lose. So you either get what we want or you get nothing. I think that’s the way it works quite a bit today, but that wasn’t always true, and it may not be true in the future either.
Kevin Kosar:
Before I get to my last question, let me just do one more follow-up on this issue of who wins. The listener might also be thinking to herself, hmm, what if one party controls one chamber and the other party controls the other chamber? Do we know anything about the likelihood of success? Does it go down? Is it less likely that a conference committee is going to be able to resolve the differences? Is it less likely even that the amendment ping-pong will be successful? What do we know about this?
Josh Ryan:
If we have a situation in which we have divided chambers, which has become increasingly common over the last couple of decades—that is, one party controls the House, different party controls the Senate—first of all, it tends to be difficult and messy. It’s very hard for Democrats and Republicans to agree nowadays, especially on the big ticket items, the ones that make the headlines. There’s actually quite a bit of agreement in Congress on things that aren’t in the New York Times every day. But on those things, it’s hard. It’s hard to agree.
So, first of all, there’s going to be fewer things they’re going to be able to come to an agreement on. That is, the quantity of lawmaking is almost certainly going to go down when we have divided chambers. You’re going to see fewer bills getting passed. The House and the Senate mostly are not going to waste their time on stuff if it’s not going to become law, except in cases where they want to make a statement. The House, especially, likes to pass bills that project something to their voters, that are symbolic in nature. But if the House and the Senate can come to at least some sort of tacit agreement on a piece of legislation, that is, if they both generally have the same idea about how they’d like to move policy, they’ll use a conference, maybe even amendment trading. They’re very likely to reach agreement. They’re very likely to resolve their differences. So actually, by the time it gets to conference, we don’t see much of an effect of divided chambers. It’s just getting to that point that becomes difficult.
But again, if you’re the House and you’re, let’s say, run by the Democratic Party and the Senate is run by the Republican Party, and you have some agreement and you both go through all these steps of passing the bill, it’s going to get to conference—nobody really wants to pull the plug at that point. Everybody has a strong incentive after doing all this work, doing all these negotiations. They have a strong incentive to get it done. So conferences are just as effective when there’s divided chambers. Assuming, again, you can even get to that point, which is the hard part.
Kevin Kosar:
Yes, I should underscore a point that you made, which is that while those who read about Congress in the newspapers and online and wherever else might think that it hardly ever gets anything done, that it is relentlessly gridlocked—that is simply not true. There are lots and lots of low-salience issues, stuff that just doesn’t get much media coverage, wherein the two chambers are moving things along. And if anybody has any doubts about that, go to Congress.gov and search the public laws that have been passed. And you will see, beyond the post-office namings and the other hortatory commemorative legislation, there’s a lot of substantive stuff that gets passed that you probably don’t even know got passed.
Alright, last question. Should we lament the fading away of the conference committee as the go-to vehicle? Should we be worried about it as a sign that something is terribly wrong in Congress?
Josh Ryan:
My opinion is, we should lament it. The fading away of the conference committee is probably not a sign that things are going great. Kevin, to underscore something you just said, which we’re in complete agreement about—I’m a little bit more positive than probably the average American is about Congress. They mostly get things done most of the time when they have to. Lawmaking is ugly. It’s difficult. People are fighting about things because people have real preferences, and those preferences are meaningful, and policy disagreements are meaningful. But Congress, by and large, is actually somewhat effective at getting some of the big stuff done that we might expect it to get done.
But there has been a decline in thinking about not just getting things done, but the process of getting legislation passed, the consideration of legislation, thinking about policy, coming together to develop compromises in a way that satisfies lots of different stakeholders. The conference committee is a really effective way to do a lot of that stuff. It gives Congress time to think about the legislation, to consider it, to change legislation in ways that is meaningful. This is why we think committees are important. They’re really good at developing expertise, processing legislation, making it efficient for the body. And the conference committee has all of those qualities. So when we get rid of it and we have to do the amending process on the floor, I think things are less deliberative. They tend to be devolved maybe a little bit more into partisanship—again, thinking about the power of the party leaders.
So I generally think conference committees are a good thing. They allow Congress to think more carefully about the bills that they’re passing. If we’re worrying about the decline of conference committees, I think that’s the component we should be worrying about: how deliberative is Congress being when they try to come up with an agreement on the floor?
Kevin Kosar:
Josh Ryan, author of the book The Congressional Endgame: Interchamber Bargaining and Compromise, and associate professor of political science at Utah State University. Thank you much for being on the podcast, and thank you for helping us understand what a conference committee is and how two chambers can get a bill to the president’s desk.
Josh Ryan:
Thanks for having me, Kevin.
Kevin Kosar:
Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Mikael Good and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you will share this podcast with others, and tell us what you think about it by posting your thoughts and questions on Twitter and tagging @AEI. We hope you have a great day.
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