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.
The last installment on conference procedures discussed the formalistic way in which the committee's meetings were being run, and I said I'd get to an explanation of what the roots of some of this formalism actually were. But as is often the case, the post got complicated enough just focusing on what was happening inside the conference, so I decided to break it up and save the deeper background for today.
The way to make what sense there is to be made of this formalism and reliance on convention both in conference and for even getting to conference in the first place is to realize that it was established in an era without the modern conveniences of rapid or electronic document duplication, broadcast of the floor activities of both houses, and nearly-instantaneous communications. Imagine how a Congress without e-mail, duplication machines, C-SPAN or even telephones might have handled relations between the houses, and you'll get a pretty good picture of what eventually did become and today remains the procedure.
In those days, when one house completed consideration of a bill, it would literally send the one official copy that had been on the floor for perusal and amendment over to the other house by messenger, once all amendments adopted during debate had been incorporated into it. And they still do this. If you watch C-SPAN, you'll occasionally see an employee of the Office of the Clerk of the House or Secretary of the Senate literally walk into the other chamber, escorted by an opposite number from the second house, and formally present the message. (Here's an example.)
The second house is at that point considered as being "in possession of the papers," which is the key to determining which house is allowed to do what, and when. The papers are the bouncing ball to follow when trying to figure out what comes next. Whichever house has the papers is the one expected to take some action to advance the process, and then let the other house know what that action was, by sending them a message and returning the papers. So at this point, with the papers in hand thanks to the messenger from the first house, the second house can act on that bill, either agreeing to it (and then sending it back with a message saying they've done so), or by amending it in some way.
Once the second house figures out what it's going to do with the bill and then actually does it, it needs to send a message back to the first house about what it's done, and what (if anything) it proposes happen next. And with that message go "the papers," putting the ball back in the court of the first house. If the second house has amended the bill, it'll say so. If they want to leave it to the first house to decide if it wants a conference, they'll return the papers and just let them know they've amended the bill, leaving the decision about what to do next up to the first house. Or the second house can return the papers with a message insisting on its amendments and requesting a conference.
Whichever route they take, the possession of the papers tells you whose turn it is to act. It seems a little silly, but remember, you're following conventions adopted in a time without today's instantaneous communications. So the messages and the papers have to move to the other side before the other side can be presumed to know what's going on, and thereby be expected to take the next step. It's not enough to guess that the other guys have heard it all through the grapevine.
So when the house that's being asked to agree to a conference is back in possession of the papers, it can formally consider whether to agree to that conference. If they do, they'll say so in yet another message to the house that requested it, and send them back the papers. How else, way back in the days of pen and paper, would the other house know there was to be a conference, right?
Now on notice that there's to be a conference, the requesting house's conferees will take the papers with them to the actual meeting. And at the conclusion of the conference? The requesting house's conferees give the papers back to the house that agreed.
And that's why the house that agrees to the conference is the first to act on the conference report. Because at the conclusion of the conference, they're the ones in possession of the papers without having taken any action to advance the bill. It's their turn with the papers, and they're expected to do something next -- i.e., either adopt the conference report or exercise their right to recommit the report to the conference committee.
I didn't just tell you all this for the hell of it, though. There are sometimes serious implications to all of this, and it can make a real difference to the substantive outcome which house goes first. And when it does, it requires some advance planning to make sure things go your way -- or as near to it as you can get. I'll let CRS explain. Here's an excerpt from their report, "Resolving Legislative Differences in Congress: Conference Committees and Amendments Between the Houses" (PDF):
[S]trategic considerations also may influence how the Senate and House agree to go to conference, especially in view of the convention that the chamber which asks for the conference normally acts last on the conference report. With this in mind, proponents of the legislation may prefer one route to the other. For example, House or Senate conferees can avoid the possibility of facing a motion in one house to recommit the conference report (with or without instructions) if they have arranged for the other house to act first on the report. By the same token, if Senate opponents are expected to filibuster the conference report, proponents may prefer for the Senate to agree to a House request for a conference, so that the Senate will act first on the report. This arrangement avoids compelling Representatives to cast difficult votes for or against a conference report that may not reach a vote in the Senate. On the other hand, a bill's supporters could prefer that the House agree to the conference and then vote first on the report, with the hope that a successful House vote might improve the prospects for later success on the Senate floor.
In the case of the Wall Street reform bill, the Senate requested the conference and the House agreed. According to convention, that'll make the House first to act on the conference report. Was that a strategic consideration? Did Democratic leaders anticipate that giving the conference report the momentum of a House victory heading into Senate consideration would help reduce the possibility of a filibuster? Is there any serious threat of a motion to recommit the bill to conference? It'd all be just guessing at this point, and all the answers can still change based on the outcome of the conference, of course. But to be honest, I'm not seeing any particular advantage or angle they might have been after. I think they were just looking for the shortest path to conference, and the Senate had the ball in its hands and decided to start the process.
Whether or not they gamed out the process of initiating the move to conference, it's important to know the implications of the conventions surrounding the process. They'll definitely come in handy some day.
Other entries on this subject: