How a Bill Really Becomes A Law

Perhaps as a subtle way to explain being hoodwinked by House Ways and Means Committee chairman Bill Thomas last week, Robert Pear and a colleague turn in this superb account of how conference committees work these days.

This is one of the best how-a-bill-really-becomes-a-law articles I've read, and anyone who teaches congressional politics or the standard law school class on legislation should put it in their readings, because this is what's not in the book. Pear and Carl Hulse are covering the House-Senate conferences to resolve the differences in the Medicare prescription drug bill and the energy bill, respectively. They report that

Republican leaders increasingly use such conference committees to shape legislation to their taste, removing some provisions passed by the full House and the Senate while adding a few of their own.
Seventeen lawmakers — nine from the Senate, eight from the House — have been appointed to the committee trying to reconcile Medicare bills passed by the two chambers. But only 12 do any work. Most of the Democrats, including Tom Daschle of South Dakota, the Senate minority leader, have been excluded.
Even fewer people are directly involved in writing a final version of the energy bill, which gained new importance after the August blackout. Although the formal conference committee numbers 58, most of the emerging bill was written by Senator Pete V. Domenici of New Mexico and Representative Billy Tauzin of Louisiana, both Republicans.

Conference committees are one of the most obscure aspects of Congress, and as the article notes, have "almost no rules." They can be the roughest, craziest form of open democracy, or they can be tightly controlled, two-men-in-a-room operations. Nor are there any longer parameters on what they can produce. In theory, conference committees are not supposed to change language that's identical between House and Senate bills; in practice, they do it quite often. (This is particularly useful when legislators want to be recorded as voting for a popular amendment, but know that it will be removed in conference.) They also are not supposed to add material that passed neither House, but that happens as well. The article notes that the Senate leadership pulled out and passed a Democratic energy bill just to give Domenici a vehicle to go to conference, with no intention of fighting for its provisions. And whatever a conference committee comes back with, legislators have no choice but an up or down vote. The Senate can filibuster it, which requires 40 rock-solid votes, the House can vote by majority to return it to conference to try again. But, to take the energy bill example, at no time will there be a chance for any senator not named Domenici to offer a revision and have it voted on. "'I will rewrite this bill,' Mr. Domenici said gleefully at the time," according to the article.

The only fault with the article is that, typically for the Times, it's a little too quick with the moral equivalence:

When Democrats ran Congress, they convened tightly controlled conference committees as well. But the current Republican majority has made no secret of preferring to write legislation in conference and to send it back to each chamber for an up-or-down vote, without the prospect of amendments.

That's really not true. Conference committees in the Democratic era were often wide-open affairs. When I worked on Capitol Hill, I was loosely involved in the conference on the crime bill in 1993, because I had helped get an amendment passed that added a lot of money for after-school programs. I remember night after night in a packed House committee room, full of staffers like me who actually had no business being there (my boss wasn't on the Judiciary Committee, much less the conference committee). That's not a good way to write legislation either, and the final result was a debacle, one of the few bills in history that the House actually voted to recommit to conference. But even the Republicans of the past didn't use conference committtees this way. The conference on the welfare refom bill in 1996 had several meetings with all the members involved, and several meetings of all the staffers involved. We didn't all have influence, of course: If I offered a suggestion in the staff meetings, the response would be, "Would your boss vote for the bill if we made that change?" And, of course, the answer was no -- he objected to the core of the bill and wasn't likely to vote for it. That's not unreasonable; it's perfectly normal political negotiation.

But that's the key difference between that era and now. Back then, it seemed the Republicans wanted to get every vote possible. If Senator Bradley could have been persuaded to vote for the bill through some changes that wouldn't have lost other votes, they probably would have done it. Not today. Today the goal seems to be to produce legislation that can just barely pass, with a vote or two to spare. The account of the conference on the 2003 tax bill is a good example -- as soon as Majority Leader Bill Frist could report to the two men in a room that he had 50 votes, they instantly brought the bill to the floor and pushed it through. The current Republican leadership seems to take pride in these narrow escapes, because it means they've had to compromise as little as humanly possible. That's the radical break from the past, both Democratic and Republican, that the article doesn't quite recognize.

There's a lot more to say about this Medicare bill in the next week or two. It's a big deal.

Mark Schmitt

10/27/2003

How a Bill Really Becomes A Law

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