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.
We know what a conference is. We know what it's supposed to do. We know how the conferees count their votes.
But what are they allowed to vote on?
Let's turn again to the CRS report, "Conference Committee Deliberations"
Authority of Conferees
House Rule XXII and Senate Rules XXVIII and XLIV, as well as the respective precedents of each chamber, outline the authority and limitations of the conferees from each house. Few formal rules guide the bargaining process, and they only may be invoked through points of order when the conference report (the compromise accord) is submitted to the House and Senate for consideration. Conferees are not to reconsider provisions agreed to by both houses. They are to meet at least once in open session unless specific steps are taken to close sessions for reasons such as national security. (Needless to say, much conference bargaining occurs in secret as various conferees discuss in private how to iron out differences.) Conferees, too, are not to include new matter in their report. In brief, they are not to exceed the scope of differences committed to them by either chamber. "Scope" is a technical term that can be illustrated generally as follows:
Provision of 1st Chamber | Provision of 2nd Chamber | Contents Permitted in Conference Report |
Nothing | Nothing | Nothing |
A | A | A |
A | B | A or B or In Between |
A | Nothing | A or Current Law or In Between |
The point to remember is that these few rules can be waived or not be invoked in either chamber. As one former Senate leader said: "Conferences are marvelous. They're mystical. They're alchemy. It's absolutely dazzling what you can do." Stated another way, if conferees have the votes, they have large discretionary authority in making bicameral adjustments.
The chart helps, but as the CRS report (and my own previous writing on the subject) point out, these are just the guidelines for the way things are supposed to go. The rules against including material outside of what's supposed to be the scope of the conference are not self-enforcing. Nothing automatically stops a conference report that breaks the rules from coming to the floor, being voted on, passing Congress, and becoming incorporated into law. Someone has to affirmatively assert that a rule has allegedly been broken (and seek a ruling on that allegation from the presiding officer), and even if they do, both houses provide some mechanism for waiving those rules.
The House does so relatively easily. As you know, most bills come to the floor under conditions for consideration that are set by the adoption of a rule from the Rules Committee. These rules are individually tailored to the consideration of one particular bill (or in this case, conference report). If the Rules Committee can get a majority of the House to vote for and thereby adopt a rule saying everyone must debate the conference report while standing on their heads and wearing gorilla costumes, then you'd better go get yourself a gorilla costume if you plan to speak. Much more common than gorilla costume mandates, though, are provisions waiving most or all applicable points of order against consideration of the conference report. Bottom line: a simple majority in the House can simply opt to waive points of order alleging that a conference report has broken some rules, including those that define the scope of the conference. Not to belabor the example, but this means that even if both versions of the bill were silent on the subject, but the conferees nonetheless insert provisions for tax breaks for gorilla costume manufacturers, a rule protecting the conference report from points of order would leave the House powerless to take it out.
The Senate has higher hurdles. Because it does not adopt individually tailored rules governing debate of bills or conference reports (though Senators may fix terms for debate by unanimous consent), if a point of order is sustained against a provision of a conference report for exceeding the scope of the conference (or indeed any other infraction), a 3/5 vote -- that's the infamous 60-vote threshold in a full Senate -- can waive the point of order and allow the provision through.
Rules are only rules to the extent that people choose to obey them, I guess. But while it used to be the case that the collegiality of the Senate more frequently allowed for provisions that broke traditional conference rules to slip through, the partisan divides these days make it considerably less likely. While that old school collegiality was sometimes derided (and doubtless sometimes rightly so) as a form of sly corruption, since it usually involved logrolling and mutual back-scratching, today's hyper-partisanship frequently rules out that kind of deal-making, and Republicans are much more concerned with denying a "win" than in cutting deals. I guess in that sense, hyper-partisanship has a kind of dark clarifying power, if it's even possible to clarify something darkly. Hopefully you see what I mean there, though. That is, partisanship often prevents greasing the rails for the kind of mutual deal-making that frequently led to what those not in on the deals called "pork-barrel spending" or other similar kinds of targeted exercises of power. But then again, those deals were also what used to be called (by those who were in on the deals) "getting things done."
At any rate, that ability to foster deal-making quickly, quietly, mostly out of sight, and sometimes only barely connected to any formal and regularly-enforced rules is what used to make conferences powerful enough to be referred to as marvelous, mystical alchemy.
You can see why conferences ordinarily have lobbyists licking their chops, and grassroots activists tearing out their hair. We'll see how this one goes!
Other entries on this subject: