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In June 2006, House and Senate Democratic leaders rolled out their “New Direction for America,” a campaign platform to take back control of Congress. The “Honest Leadership and Open Government” reform plank, at Page 22, included the promise to require that “all [House-Senate] conference committee meetings be open to the public and that members of the conference committee have a public opportunity to vote on all amendments [in disagreement between the two houses].” Moreover, copies of conference reports would be posted “on the Internet 24 hours before consideration (unless waived by a supermajority vote).”
The minority Democrats’ justifiable complaint was that majority Republicans often shut them out of conference committee deliberations after a single, perfunctory public meeting was held to minimally satisfy House rules (aka “the photo op”). After that meeting, all that is necessary to file a conference report is the signatures of a majority of conferees from each house. No formal meeting or votes on final approval are required; nor does the majority even need to consult the minority before finalizing an agreement.
Once they took over Congress in January 2007, House Democrats abandoned their promises of public votes in conference meetings on amendments in disagreement and of 24-hour advance Internet availability of conference reports. Nevertheless, they did adopt some palliative House rules changes on the opening day of the 110th Congress that at least appear to move conference committees in the direction of a more deliberative and participatory public process.
The new rules require: (a) that all conferees be given notice of any conference meeting for the resolution of differences between the houses “and a reasonable opportunity to attend”; (b) that all provisions in disagreement be “considered as open to discussion at any meeting”; (c) that all conferees be provided “a unitary time and place with access to at least one complete copy of the final conference agreement for the purpose of recording their approval (or not)” by affixing their signatures; and (d) that no substantive change in the agreement be made after conferees have signed it.
The Parliamentarian’s footnotes to the rules for conference reports indicate that the rules are not enforceable if all points of order are waived against the reports, as is routinely done by a special rule from the Rules Committee. Nevertheless, conference committee chairmen (or vice chairmen) could still be punished by the House adopting a question of privilege resolution for willful disregard of these modest requirements. This is because a blanket waiver of the rules only protects the conference report. It is not a retroactive pardon for malfeasance in the management of the conference.
Unfortunately, these well-intentioned new rules have no relevance when the bicameral majority leadership decides to bypass going to conference altogether, and instead negotiates final agreements behind closed doors. And this is happening with increasing frequency, sometimes even over the public protests of committee chairmen who have been excluded from leadership negotiations.