How do conference committees fit into Speaker Ryan’s plan to open up the House?

Editor’s Note: With Paul Ryan’s rise to become Speaker of the House, he faces a set of immediate challenges that will help determine his legacy. In this series, Molly Reynolds will profile some of the major issues and legislation Speaker Ryan will be forced to address. The previous post addressed his new changes to the Steering Committee, and this post will focus on changes to the conference committees. She will also assess both his performance on those matters and the consequences of the choices both he and the House of Representatives make.

Congress may still be mired in a fight over a year-end spending deal, but since returning from the Thanksgiving recess, it has sent two major legislative achievements to President Obama for his signature: a five-year highway bill and legislation replacing the No Child Left Behind Act. While both measures are significant for their substantive policy consequences, they are also notable for how they made it across the finish line. In both cases, the House and Senate convened “conference committees,” or temporary panels tasked with working out the differences between the versions of a bill passed by the two chambers. The use of conference committees as a tool for resolving House-Senate differences has steadily declined since the 1970s, and Speaker of the House Paul Ryan (R-WI) touted the highway and education conferences as examples of his commitment to “return to regular order.” (A third measure, dealing with customs enforcement, also went through the conference process and is scheduled for final consideration in the coming days.)

How do conference committees fit into Ryan’s overall pledge to open up deliberation in the House? First, under the House’s Rule XXII, conference committee deliberations are technically open to the public, though members of both parties have criticized their opponents for violating this rule and meeting in secret. Second, the conference committee must produce not only a final, compromise piece of legislation, but also a “joint explanatory statement” that describes how each disagreement between the chambers was resolved. Third, the House is supposed to wait three days before taking up a conference report in order to give members time to review it (though this requirement, too, can be waived).

Ryan has also promised that “committees should retake the lead in drafting all major legislation,” and relying more on conference committees could further this goal. The Speaker is responsible for selecting the House’s representatives to the conference committee, and rules direct him to name legislators “who are primarily responsible for the legislation.” Usually, this selection rule results in conference committees with strong representation from the standing committee(s) responsible for the underlying legislation, but as research from Jeffrey Lazarus and Nathan Monroe finds, the Speaker often supplements the standing-committee-based membership with key partisan allies when he suspects they will be needed to protect the majority party’s interests. More broadly, House conference delegations tend to be biased in favor of the chamber’s majority party, and conference committees occur more frequently under unified government, when the two chambers have a greater incentive to cooperate on agreements that are subsequently protected from additional amendments. While the conference process creates important opportunities for open and careful deliberation, it is by no means immune from the partisan dynamics that affect the rest of Congress’s deliberations.

Given this context, how should we evaluate the use of the conference process on the education and highway measures? In these cases, Speaker Ryan and proponents of regular order were helped in several key ways. First of all, generally, the Senate is the obstacle to going to conference, rather than the House. Invoking cloture on the motion to go to conference in the Senate requires sixty votes, so when the Senate minority party believes they are unlikely to have meaningful input in the conference negotiations, or simply opposes what they expect to be final deal, they have an incentive to stop the process before it begins. In the case of both the highway and education bills, however, opposition did not come only from Democrats. On the education measure, first passed in July, 17 senators voted no: 3 Democrats and 14 Republicans. Overall opposition to the initial version of the highway bill, meanwhile, was greater (34 senators voted against it), but was roughly evenly split between the two parties (19 Democrats and 15 Republicans). Without the threat of a unified minority opposing the motions, the path to going to conference, then, was comparatively smooth on both bills. In the House, meanwhile, one of the Speaker’s incentives to avoid the conference process is the threat that the minority party will offer repeated motions to instruct conferees. While conferees aren’t required to follow any instructions the chamber approves, the mere act of offering them both consumes time on the House floor and can force the majority party to cast controversial votes. If the Speaker is sufficiently concerned about this possibility, he may choose to avoid going to conference in favor a different method of resolving differences.

Given the profile and complexity of both the education and highway bills, House Democrats could have almost certainly found some material for potentially embarrassing motions to instruct. Thanks to a feature of the rules on motions to instruct, however, Ryan had little reason to worry. The minority does not gain the ability to offer repeated motions to instruct, until the conference committee has worked for 45 calendar (and 25 legislative) days without an agreement. On the highway bill, House Republicans benefitted from the specter of expiring short-term patches that kept negotiators moving; in the end, only 25 days elapsed before a final agreement was filed. On the education bill, forestalling obstructive motions to instruct required more strategy. Both chambers passed their initial versions of the measure over the summer, but a formal conference committee was not initiated until staff had laid much of the groundwork for a compromise. As a result, just 13 days passed between the conference’s convening and the filing of its report. In both cases, then, House Republicans expected to be able to prevent the minority from forcing politically contentious votes, eliminating one incentive to avoid the conference process.

As Speaker Ryan begins to plot his agenda for 2016, he will need to make a range of choices about how to address the promises he’s made about changing the way the House does business. Using more conference committees may present fewer structural obstacles than other proposals (such as opening the amendment process), but requires a commitment to large-scale legislative effort for which Congress has had little appetite in recent years. Reauthorizing education programs has been on Congress’s agenda since 2007, and it took six short-term measures between July 2014 and December 2015 to keep highway programs running while a new authorization measure was pending. When Congress relies on repeated, short-term reauthorizations to keep programs running, or simply leaves them unauthorized, there is simply little legislative material on which to convene a conference. Even if Congress is able to tackle one or major bills in 2016, other dynamics may make going to conference a less attractive choice in those particular legislative circumstances. Keeping it up with conferences requires not just follow-through on promises, but hard, legislative work.