Senate Conferees: Their Selection and Authority

Senate Conferees: Their Selection and Authority

Order Code 98-380 GOV
Updated March 31, 2003
CRS Report for Congress
Received through the CRS Web
Senate Conferees: Their Selection and
Authority
Elizabeth Rybicki and Stanley Bach
Government and Finance Division
Conference committees usually prepare the final versions of the most important bills
that Congress approves. Who the conferees are and what decisions they can make,
therefore, can have an important effect on the outcome of the legislative process. This
report describes the selection and authority of Senate conferees. For more information
on legislative process, see [http://www.crs.gov/products/guides/guidehome.shtml ].
Selection of Senate Conferees. The Senate takes three steps whenever it wants
to go to conference with the House. First, the Senate either insists on its own position or
disagrees to the House’s position on the bill in question. Second, the Senate either
requests a conference with the House or agrees to such a request that the House already
has made. And third, the Senate decides how it will select its conferees.
Most often, the Senate takes all three steps at once, by unanimous consent, and,
immediately thereafter, the presiding officer names the Senate conferees. However, any
Senator can insist that each step be taken separately. In that case, the Senate can take each
step by agreeing to a debatable motion, if unanimous consent cannot be obtained.
In practice, the Senate almost always agrees by unanimous consent that the presiding
officer be authorized to appoint the Senate’s conferees. If the Senate chose not to give
this authority to the presiding officer, the Senate could elect its conferees instead. Senate
Rule XXIV provides for the election of the members and chairs of standing committees,
and states further that all other committees shall be appointed in the same way, unless the
Senate decides otherwise. It has been many years since the Senate actually elected
conferees, and it is precisely because such a process could become so complicated and
time-consuming that the Senate regularly delegates this authority to its presiding officer.
Although the Senate authorizes the presiding officer to name conferees, the presiding
officer actually exercises no discretion. Instead, he or she presents to the Senate a list
that usually has been prepared by the chairman and ranking minority member of the
standing committee with jurisdiction over the bill. Usually also, the Senate conferees are
drawn exclusively from the membership of that committee. The committee chairman, in
consultation with the ranking member, normally decides on the number of Senators from
each party who will serve on the conference committee. The chairman selects the
majority party conferees, and the ranking minority member selects a proportional number
of conferees from among his or her committee colleagues. Seniority on the committee
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is an important but not necessarily controlling factor in the selection of committee
members to serve on the conference.
In some cases, the party leaders also become involved in the selection of conferees.
For example, when two or more committees considered the same bill and will be
represented on the conference committee, the party leaders may participate in deciding
how many members from each committee will be appointed as conferees. Also in such
cases, Senators may be appointed as conferees for limited purposes. In the case of a
budget reconciliation bill, for example, members of the Budget Committee may be
appointed as conferees for the entire bill while members of other Senate committees are
appointed as conferees only to consider provisions of the bill that are within their
respective jurisdictions.
Authority of Senate Conferees. The rules of the House and Senate impose
much the same restrictions on the kinds of decisions that their conferees may reach.
However, the Senate’s precedents give its conferees considerably more discretion than
their House counterparts.
Senate conferees are to limit themselves to the matters that are in disagreement with
the House, and they are to resolve each such matter within the scope of the differences
between the House and Senate positions. Paragraph 2 of Rule XXVIII states in part that
the Senate’s conferees “shall not insert in their report matter not committed to them by
either House, nor shall they strike from the bill matter agreed to by both Houses.” When
the conferees are considering a bill from one house that the other house has passed with
a single amendment in the nature of a substitute, the conferees write their own version of
the bill in conference. However, Rule XXVIII also states that this conference version may
not include “matter not committed to them,” but that it may include “matter which is a
germane modification of subjects in disagreement.”
In practice today, these restrictions often are difficult to enforce on the Senate floor.
The Senate’s published precedents indicate that Senate conferees can agree in conference
to any legislative language so long as it is not “entirely irrelevant” to the matters
submitted to them.
Senate conferees must bear in mind that there are significant restrictions on the
agreements that House conferees can accept without violating their authority. However,
the House can choose not to enforce these restrictions as they apply to a particular
conference report. Before the House begins floor consideration of that report, the House
Rules Committee can report, and the House can adopt, a resolution waiving all points of
order against the conference report and against its consideration.
For additional information on the authority and selection of Senate conferees, see
Senate Rule XXVIII and Riddick’s Senate Procedure, pp. 449-493.1
1 This report was written by Stanley Bach, a former Senior Specialist in the Legislative Process.
The other author updated the report and can answer any questions concerning its contents.