How Our Laws Are Made
XV. Final Action on Amended Bill
On their return to the House, the official papers relating to the amended measure are placed on the Speaker’s table to await House action on the Senate amendments. Although rarely exercised, the Speaker has the authority to refer Senate amendments to the appropriate committee or committees with or without time limits on their consideration. If the amendments are of a minor or noncontroversial nature, any Member, usually the chairman of a committee that reported the bill, may, at the direction of the committee, ask unanimous consent to take the bill with the amendments from the Speaker’s table and agree to the Senate amendments. At this point, the Clerk reads the title of the bill and the Senate amendments. If there is no objection, the amendments are then declared to be agreed to, and the bill is ready to be enrolled for presentation to the President. If unanimous consent is not obtainable, the few bills that do not require consideration in the Committee of the Whole are privileged and may be called up from the Speaker’s table by motion for immediate consideration of the amendments. A simple majority is necessary to carry the motion and thereby complete floor action on the measure. A Senate amendment to a House bill is subject to a point of order that it must first be considered in the Committee of the Whole, if, originating in the House, it would be subject to that point of order. Most Senate amendments require consideration in the Committee of the Whole and this procedure by privileged motion is seldom utilized.
REQUEST FOR A CONFERENCE
The mere fact that each House may have separately passed its own bill on a subject is not sufficient to make either bill eligible for conference. One House must first take the additional step of amending and then passing the bill of the other House to form the basis for a conference. A Member, usually the chairman of the committee of jurisdiction, may request unanimous consent to take the House bill with the Senate amendments from the Speaker’s table, disagree to the amendments and request or agree to a conference with the Senate to resolve the disagreeing votes of the two Houses. In the case of a Senate bill with House amendments, the House may insist on the House amendments and request a conference. For a discussion of bills originating in the Senate, see Part XVI. If there is objection, the Speaker may recognize a Member for a motion, if offered by the direction of the primary committee and of all reporting committees that had initial referral of the bill, to: (1) disagree to the Senate amendments and ask for or agree to a conference; or (2) insist on the House amendments to a Senate bill and request or agree to a conference. This may also be accomplished by a motion to suspend the rules with a two-thirds vote or by a rule from the Committee on Rules. If there is no objection to the request, or if the motion is carried, a motion to instruct the managers of the conference would be in order. This initial motion to instruct is the prerogative of the minority party. The instructions to conferees usually urge the managers to accept or reject a particular Senate or House provision or to take a more generally described political position to the extent possible within the scope of the conference. However, such instructions may not contain argument and are not binding on House or Senate conferees. After the motion to instruct is disposed of, the Speaker then appoints the managers, informally known as conferees, on the part of the House and a message is sent to the Senate advising it of the House action. A majority of the Members appointed to be conferees must have been supporters of the House position, as determined by the Speaker. The Speaker must appoint Members primarily responsible for the legislation and must include, to the fullest extent feasible, the principal proponents of the major provisions of the bill as it passed the House. The Speaker may appoint conferees from more than one committee and may specify the portions of the House and Senate versions to which they are assigned. The number is fixed by the Speaker and majority party representation generally reflects the ratio for the full House committee, but may be greater on important bills. The Speaker also has the authority to name substitute conferees on specific provisions and add or remove conferees after the original appointment.
If the Senate agrees to the request for a conference, a similar committee is appointed by the Presiding Officer of the Senate. Both political parties may be represented on the Senate conference committee. The Senate and House committees need not be the same size but each House has one vote in conference as determined by a majority within each set or subset of conferees.
The request for a conference may only be made by the body in possession of the official papers. Occasionally, the Senate, anticipating that the House will not concur in its amendments, votes to insist on its amendments and requests a conference on passage of the bill prior to returning the bill to the House. This practice serves to expedite the matter because time may be saved by the designation of the Senate conferees before returning the bill to the House. The body asking for the conference normally acts last on the report to be submitted by the conferees and a motion to recommit the conference report is not available to the body that acts last.
AUTHORITY OF CONFEREES
Although the managers on the part of each House meet together as one committee they are in effect two separate committees, each of which votes separately and acts by a majority vote. For this reason, variances in the number of managers from each House are largely immaterial.
The House conferees are strictly limited in their consideration to matters in disagreement between the two Houses. Consequently, they may not strike or amend any portion of the bill that was not amended by the other House. Furthermore, they may not insert new matter that is not germane to or that is beyond the scope of the differences between the two Houses. Where the Senate amendment revises a figure or an amount contained in the bill, the conferees are limited to the difference between the two numbers and may neither increase the greater nor decrease the smaller figure. Neither House may alone, by instructions, empower its managers to make a change in the text to which both Houses have agreed.
When a disagreement to an amendment in the nature of a substitute is committed to a conference committee, managers on the part of the House may propose a substitute that is a germane modification of the matter in disagreement, but the introduction of any language in that substitute presenting specific additional matter not committed to the conference committee by either House is not in order. Moreover, their report may not include matter not committed to the conference committee by either House. The report may not include a modification of any specific matter committed to the conference committee by either or both Houses if that modification is beyond the scope of that specific matter as committed to the conference committee.
The managers on the part of the House are under specific guidelines when in conference on general appropriation bills. An amendment by the Senate to a general appropriation bill which would be in violation of the rules of the House, if such amendment had originated in the House, including an amendment changing existing law, providing appropriations not authorized by law, or providing reappropriations of unexpended balances, or an amendment by the Senate providing for an appropriation on a bill other than a general appropriation bill, may not be agreed to by the managers on the part of the House. However, the House may grant specific authority to agree to such an amendment by a separate vote on a motion to instruct on each specific amendment.
MEETINGS AND ACTION OF CONFEREES
The rules of the House require that one conference meeting be open to the public, unless the House, in open session, authorizes the managers to close the meeting. When the report of the conference committee is read in the House, a point of order may be made that the conferees failed to comply with the House rule requiring an open conference meeting. If the point of order is sustained, the conference report is considered rejected by the House and a new conference is deemed to have been requested.
The rules of the House provide that, in conducting conferences with the Senate, the managers on the part of the House should endeavor to ensure that meetings for the resolution of differences between the two Houses occur only under circumstances in which every manager on the part of the House has notice of the meeting and a reasonable opportunity to attend, that all provisions on which the two Houses disagree are considered as open to discussion at any meeting of a conference committee, and that papers reflecting a conference agreement are held inviolate to change without renewal of the opportunity of all managers on the part of the House to reconsider their decisions to sign or not to sign the agreement. The rules of the House also require that managers on the part of the House be provided a unitary time and place at which to sign or not sign the conference report and joint explanatory statement, and that they have access to at least one complete copy of the final conference agreement for the purpose of recording or not recording their approval of the agreement.
There are generally three forms of recommendations available to the conferees when reporting back to their bodies:
(1) That one House recede from all (or certain of) its amendments.
(2) That one House recede from its disagreement to all (or certain of) the other House’s amendments and agree thereto.
(3) That one House recede from its disagreement to all (or certain of) the other House’s amendments and agree thereto with amendments.
In most instances, the result of the conference is a compromise growing out of the third type of recommendation available to the conferees because one House has originally substituted its own bill to be considered as a single amendment. The complete report may be composed of any one or more of these recommendations with respect to the various amendments where there are numbered amendments. In earlier practice, on general appropriation bills with numbered Senate amendments, because of the special rules preventing House conferees from agreeing to Senate amendments changing existing law or appropriations not authorized by law, the conferees often found themselves, under the rules or in fact, unable to reach an agreement with respect to one or more amendments and reported back a statement of their inability to agree on those particular amendments. These amendments were acted upon separately. This partial disagreement is not practicable where, as in current practice, the Senate strikes out all after the enacting clause and substitutes its own bill that must be considered as a single amendment.
If they are unable to reach any agreement whatsoever, the conferees report that fact to their respective bodies and the amendments may be disposed of by motion. New conferees may be appointed in either or both Houses. In addition, the Houses may provide a new nonbinding instruction to the conferees as to the position they are to take.
After House conferees on any bill or resolution in conference between the two bodies have been appointed for 20 calendar days and 10 legislative days and have failed to make a report, a motion to instruct the House conferees, or discharge them and appoint new conferees, is privileged. The motion can be made only after the Member announces his intention to offer the motion and only at a time designated by the Speaker in the legislative schedule of the following day. Like the initial motion to instruct, the 20-day motion may not contain argument and must remain within the scope of conference. In addition, during the last six days of a session, it is a privileged motion to move to discharge, appoint, or instruct House conferees after House conferees have been appointed 36 hours without having made a report.
When the conferees, by majority vote of each group, have reached complete agreement or find that they are able to agree with respect to some but not all separately numbered amendments, they make their recommendations in a report made in duplicate that must be signed by a majority of the conferees appointed by each body on each provision to which they are appointed. The minority of the managers have no authority to file a statement of minority views in connection with the conference report. The report is required to be printed in both Houses and must be accompanied by an explanatory statement prepared jointly by the conferees on the part of the House and the conferees on the part of the Senate. The statement must be sufficiently detailed and explicit to inform Congress of the effects of the report on the matters committed to conference.
In the Senate, the presentation of a conference report always is in order except when the Journal is being read, a point of order or motion to adjourn is pending, or while the Senate is voting or ascertaining the presence of a quorum. When the report is received, the question of proceeding to the consideration of the report, if raised, is immediately voted on without debate. The report is not subject to amendment in either body and must be accepted or rejected as an entirety. If the time for debate on the adoption of the report is limited, the time allotted must be equally divided between the majority and minority party. The Senate, acting first, prior to voting on agreeing to the report may by majority vote order it recommitted to the conferees. When the Senate agrees to the report, its managers are thereby discharged and it then delivers the original papers to the House with a message advising that body of its action.
A report that contains any recommendations which extend beyond the scope of differences between the two Houses is subject to a point of order in its entirety unless that point of order is waived in the House by unanimous consent, adoption of a rule reported from the Committee on Rules, or the suspension of the rules by a two-thirds vote. In the Senate, a report exceeding the scope of conference is likewise subject to a point of order.
It is not in order in the House to consider a conference report that differs in any way (other than clerical) from the text agreed to by the conferees, as recorded by their placement of their signatures (or not) on the sheets prepared to accompany the conference report and joint explanatory statement. Furthermore, as described earlier, it is not in order to consider a conference report unless the joint explanatory statement includes a list of congressional earmarks, limited tax benefits and limited tariff benefits in the conference report and joint explanatory statement, or a statement that the measure contains none of these items.
The presentation of a conference report in the House is in order at any time, except during a reading of the Journal or the conduct of a record vote, a vote by division, or a quorum call. The report is considered in the House and may not be sent to the Committee of the Whole on the suggestion that it contains matters ordinarily requiring consideration in that Committee. The report may not be received by the House if the required joint statement does not accompany it.
However, it is not in order to consider either: (1) a conference report; or (2) a motion to dispose of a Senate amendment reported in disagreement by a conference committee, until the third calendar day (excluding Saturdays, Sundays, and legal holidays unless the House is in session on those days) after the report and accompanying statement have been filed in the House and made available to the Members in the Congressional Record. However, these provisions do not apply during the last six days of the session. It is also not in order to consider a conference report or a motion to dispose of a Senate amendment reported in disagreement unless copies of the report and accompanying statement, together with the text of the amendment, have been available to Members for at least two hours before their consideration. By contrast, it is always in order to call up for consideration a report from the Committee on Rules on the same day reported that proposes only to waive the availability requirements for a conference report or a Senate amendment reported in disagreement. The time allotted for debate on a conference report or motion is one hour, equally divided between the majority party and the minority party. However, if the majority and minority floor managers both support the conference report or motion, one-third of the debate time must be allotted to a Member who is opposed, if claimed. If the House does not agree to a conference report that the Senate has already agreed to, the report may not be recommitted to conference. In that situation, the Senate conferees are discharged when the Senate agrees to the report. The House may then request a new conference with the Senate and conferees must be reappointed.
If a conference report is called up in the House containing matter which would be in violation of the rules of the House with respect to germaneness if the matter had been offered as an amendment in the House, and which is contained either: (1) in the Senate bill or Senate amendment to the House measure and accepted by the House conferees or agreed to by the conference committee with modification; or (2) in a substitute amendment agreed to by the conference committee, a point of order may be made at the beginning of consideration that non-germane matter is contained in the report. The point of order may be waived by a special rule. If the point of order is sustained, a motion to reject the non-germane matter identified by the point of order is privileged. The motion is debatable for 40 minutes, half of the time in favor of, and half in opposition to, the motion. Notwithstanding the final disposition of a point of order made with respect to the report, or of a motion to reject non-germane matter, further points of order may be made with respect to the report, and further motions may be made to reject other non-germane matter in the conference report not covered by any previous point of order which has been sustained. If a motion to reject has been adopted, after final disposition of all points of order and motions to reject, the conference report is considered rejected and the question then pending before the House is whether: (1) to recede and concur with an amendment that consists of that portion of the conference report not rejected; or (2) to insist on the House amendment. If all motions to reject are defeated and the House thereby decides to permit the inclusion of the non-germane Senate matter in the conference report, then, after the allocation of time for debate on the conference report, it is in order to move the previous question on the adoption of the conference report.
Similar procedures are available in the House when the Senate proposes an amendment to a measure that would be in violation of the rule against non-germane amendments, and thereafter it is (1) reported in disagreement by a committee of conference or (2) before the House and the stage of disagreement is reached.
The numbered amendments of the Senate reported in disagreement may be voted on separately and may be adopted by a majority vote after the adoption of the conference report itself as though no conference had been had with respect to those amendments. The Senate may recede from all amendments, or from certain of its amendments, insisting on the others with or without a request for a further conference with respect to them. If the House does not accept the amendments insisted on by the Senate, the entire conference process may begin again with respect to them. One House may also further amend an amendment of the other House until the third degree of amendment within that House is reached.
CUSTODY OF PAPERS
The custody of the official papers is important in conference procedure because either body may act on a conference report only when in possession of the papers. Traditionally, the papers are transmitted to the body agreeing to the conference and from that body to the managers of the House that asked for the conference. The latter in turn carry the papers with them to the conference and at its conclusion turn them over to the managers of the House that agreed to the conference. The managers of the House that agreed to the conference deliver them to their own House, which acts first on the report, and then delivers the papers to the other House for final action on the report. However, if the managers on the part of the House agreeing to the conference surrender the papers to the House asking for the conference, the report may be acted on first by the House asking for the conference.
At the conclusion of the conference, each group of conferees retains one copy of the report that has been made in duplicate and signed by a majority of the managers of each body. The House copy is signed first by the House managers and the Senate copy is signed first by its managers.
A bill cannot become law until it has been approved in identical form by both Houses of Congress. When the bill has finally been approved by both Houses, all the original papers are transmitted to the Enrolling Clerk of the body in which the bill originated.