Where Have All the Conference Committees Gone?

The House this afternoon approved a motion to go to conference with the
Senate to resolve chamber differences over the payroll tax cut bills. 
Although the Speaker has repeatedly referred to conference committees as
“regular order,” avid Congress watchers might disagree.   Donald
Wolfensberger (a former Republican staff director of the House Rules
Committee) put it best a few years ago when he asked:  “Have House-Senate Conferences Gone The Way of the Dodo?”
Indeed, in recent years, party leaders have increasingly favored
alternative methods for reconciling bicameral differences.  More often
than going to conference, Congress increasingly relies on informal
negotiations between party leaders or an exchange of amendments between
the two chambers (known as “ping pong”) to reach agreement.

Why are conference committees going extinct?  As is lately often the case, partisan polarization shoulders much of the blame.

First, the rise of partisanship in the Senate complicates the
ability of the majority leader to get bills to conference.  Technically,
sending a bill to conference and naming conferees requires three Senate
motions, each of which can be filibustered.  Not surprisingly, given
policy and political differences between the parties, Senate minority
parties have not been shy about exploiting the rules to prevent the
chamber from going to conference.

Second, polarization has often led majority parties to exclude the
minority from participating in conference decision-making.  Thus, even
when formal conferences have been appointed, majority parties in periods
of unified party control have been able to prevent the minority from
influencing conference decisions.  Not surprisingly, when minority party
senators find themselves excluded from conference negotiations, they
become more likely to exercise their rights to block the Senate from
going to conference in the future.   In Steve Smith’s terms, this is the Senate’s parliamentary arms race on full display.

Third, in both chambers, polarization has increased the role of
party leaders in negotiating legislative agreements.  As the parties
have become  internally more cohesive, rank and file legislators have
been more likely to accept party leaders’ central role in crafting
legislating bargains on behalf of their party caucuses.   Involvement of
party leaders across the full scope of party priorities has come at the
expense of committee chairs and their own ability to influence the
shape of major measures.  Not surprisingly, the same forces that
encourage party leaders to hold the reins during the crafting of
legislative priorities also encourage them to keep hold of the reins in
resolving bicameral agreements.  Party leaders are better able to secure
outcomes favorable for their party if they can avoid going to
conference.

Finally, as Walter Oleszek from CRS has detailed meticulously here,
a host of House and Senate rules affecting conference committees can
offer political advantages to the minority party—advantages that they do
not enjoy when disagreements are resolved by informal negotiations or
through a formal game of ping pong.  For example, House rules governing
motions to instruct conferees offer the minority party an opportunity to
force the majority to cast politically costly votes.  In contrast, ping
pong allows the majority to avoid potentially damaging votes.   More
generally, rules governing conference committees guarantee a certain
degree of transparency (sunshine rules requiring open meetings, layover
rules for conference reports, and the like).   Transparency makes it
more difficult to negotiate politically fragile agreements, giving party
leaders yet another reason to avoid going to conference.

So why did the House GOP insist on a
conference with the Senate—contrary to recent trends?  If the party’s
key priority is securing swift agreement on a full year extension of the
payroll tax cut, going to conference is a particularly inefficient way
to go about it.  I suspect instead that rank and file legislators’
suspicions (let alone Eric Cantor’s) about Speaker Boehner’s
conservative bona fides—not to mention their mistrust of Senate
leaders McConnell and Reid—made a leader-dominated game of ping pong or
more negotiations behind closed doors especially unpalatable.  And for
those GOP opposed to extending the payroll tax
cut altogether, insisting on “regular order” provides political cover
for a potentially unpopular position.