Disclosure: I'm advising Open Left in a paid capacity on procedure with regard to the Wall Street reform bill, and thought readers at Daily Kos and Congress Matters would be interested in the information as well.
With conference now underway on the Wall Street reform bill, questions loom among the netroots activists following the progress of the legislation. Questions like, for instance, "What's a conference?" And that's a good place to start.
It wasn't always such a good question to start with, though. It used to be kind of a dumb question, because conferences were -- as the preferred method for settling differences between the houses on bills they'd both passed -- so commonplace that only someone who'd never observed the legislative process at all would ever ask it. But these days, conferences are increasingly rare, owing largely to the fact that the procedural motions necessary to establish a conference (and there are three of them: disagreeing to the House bill or amendments; requesting or agreeing to a conference, and; appointing conferees) are each subject to the filibuster. Though it used to be routine practice for the Senate to agree to these motions quickly and often unanimously, partisan divisions (and the Republican policy of slowing down everything they can, in an effort to deny as many successes to Democrats as possible) now make it easier and more manageable to simply bounce amendments back and forth between the houses ("ping pong") and see what sticks.
So, what's a conference? Just what it sounds like. It's an ad hoc committee made up of members of the House and the Senate, appointed to work out the differences between two competing versions of the same bill. They're tasked with producing a conference report (and a "joint explanatory statement," which is also what it sounds like) that contains compromise deals on all disagreements that both houses can pass.
But many of you are already familiar with that, and your interest is, "Is there any way activists can still influence the outcome of the bill?" And the answer to that, as I always say in these matters, is yes and no. Yes, the conference is a critical stage of the legislative process during which enormous changes are still possible. But it's also got to be said that no, grassroots activism is not typically very successful when it comes to influencing conference.
First, a little bit about the first answer (though I suspect you're more interested in the second). What authority do conferees have to change the substance of a bill? It depends on what the differences in the two versions are. If both houses have adopted identical language on some certain provision, then technically that's supposed to be off limits. Since there's no disagreement on that provision, it's not even submitted for the consideration of the conferees, since their job is to resolve differences. And where there are differences and they're very clear (as with amounts of money appropriated for certain projects or functions), conferees are supposed to settle only on a number that's within the range contemplated by the two houses. That is, if the House appropriates $10 million for widgets and the Senate, $20 million, then the conferees are supposed to settle on a number from $10-20 million. Either more or less would "exceed the scope" of the conferees' authority, and subject the conference report to a point of order when it was considered back on the House and/or Senate floors. (But those points of order are not self-enforcing. Someone has to bring them up, and if they don't, well, then everybody looks the other way. Alternatively, points of order may also be waived in the House by rule adopted for governing the debate of the report, and in the Senate by a 3/5 vote.)
But where the differences between the two versions of the bill are not quantitative, or where one bill is silent about something the other bill touches on, things get cloudy. And as transparency buffs (generally speaking), you all know what happens when things get cloudy on Capitol Hill. Anything can happen.
So if anything can happen, why would I say that grassroots activists haven't traditionally been able to influence the outcome of a conference very much? Because conferences are fast-moving, generally obscure, and deal with the real nitty-gritty of legislative language. These are, if you think about it, three things that grassroots organizing has a pretty serious problem dealing with. Conversely, they're conditions in which highly-paid, highly-specialized lobbyists can thrive. Grassroots organizing is slow and depends on building a wave of public consciousness, whereas lobbyists are paid to act quickly and carry the authority to do so on behalf of clients without any of the cumbersome consensus-building that underlies grassroots work. Organizing the public around eye-glazing details in the fine print of legislation? Forget about it! But for lobbyists, it's their bread and butter. The reason they get the big bucks from industry is because the Captains of Industry are willing to pay someone else to have that headache for them.
And remember, TV camera or no TV camera, true dealmaking transparency in a conference or any similar situation is a practical impossibility.
So what, if anything, can netroots activists do to give themselves a chance at influencing a conference outcome?
- Be prepared well in advance of conference. Know what you want, what your bottom line is, and what you're willing to give up to get it. Conference is a dealmaking exercise. It's entire purpose is compromise. Members of Congress, in fact, often anticipate conference wheeling and dealing, and sometimes toss provisions into a bill that they intend to use as bargaining chips later on. You never know for sure when an ally who fights to include your favorite position in a bill is really going to go to the mat for it, or is preparing to trade it in conference for something else.
- As always, stay in contact with your representatives. If they're on the conference committee (which is usually only the case for the chairs and other top-ranking members of the committees of jurisdiction on the bill), great. If not, urge your reps to work to see your preferred changes made by leaning on conferees. Members can make their wishes known through personal contacts, through letters to the conferees signed by like-minded colleagues, or even motions to instruct conferees offered on the floor -- though none of these (including a floor motion) are actually binding, so there's no way to nail things down with certainty.
- Stay aware, and stay vocal. The biggest influence a disparate and generalized group (like netroots activists) can have in the conference environment, short of somehow hiring a lobbyist, is to let Members of Congress see a sustained interest in and understanding of the conference process. When you contact them, demonstrate an awareness of the process by making your asks as specific as possible -- i.e., "please support the inclusion of the Johnsonheimer amendment in the conference report on H.R. 123," as opposed to "vote to protect the environment." That's always good advice, of course, but it's particularly important to be as detailed as possible (and to know what's possible and what's not in the first place) at the conference stage because the whole point of conference is to iron out the details in the finest of the fine print of the bill. Members who aren't involved in the conference are usually on the outside because they don't have an in-depth, personal knowledge of the details of the bill, and they'll be considerably more comfortable making inquiries about it among their colleagues on the inside if they're armed with material that makes it look like they know what they're talking about, and which can elicit specific answers from Members on the inside, rather than a generalized response.
Those are just a couple of general suggestions to start with. I'll be thinking more about it in the coming days, and hopefully you will, too. As some specifics about issues in conference begin to emerge, we'll have more opportunity to deal with them in more concrete terms. But remember, by the time those issues emerge far enough so that those of us on the outside become aware of them, are able to digest them, and suggest a course of action, an army of lobbyists will already have done the same. And in a setting like conference, which can be over in a matter of days (as this one on Wall Street reform is expected to be), that can mean we're working at a distinct disadvantage.
That's the hand we're dealt. But maybe part of our general thinking on this can be about whether and how we might change that.