Instructing Senate Conferees
Instructing Senate Conferees
Updated November 13, 2020
Congressional Research Service
https://crsreports.congress.gov
RS20209
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Contents
Motion to Instruct Conferees ........................................................................................................... 1
Restrictions on and Types of Instructions ........................................................................................ 2
Examples of Recent Motions to Instruct ......................................................................................... 3
Subsequent Instructions ................................................................................................................... 4
Acknowledgements ......................................................................................................................... 5
Contacts
Author Information .......................................................................................................................... 5
Congressional Research Service
Instructing Senate Conferees
he Senate and House can create a conference committee to propose the final version of a
bill that the two houses have passed in different forms. Sometimes, the Senate votes to
T instruct its conferees on the nature of the agreement they should reach. These instructions
are not binding, and they cannot ask conferees to reach an agreement that goes beyond their
authority.
The Senate may sometimes find it useful to have on record a formal expression of its expectations
for conferees. Instructions may afford conferees an indication of what kind of provisions the
Senate is likely to accept, especially when Senate floor amendments add provisions that conferees
may not favor. It is also possible that Senate conferees might use instructions as grounds for
maintaining their position in conference; they might even seek instructions for this purpose.
Finally, debate on a motion to instruct conferees may afford an opportunity to draw attention to a
particular policy question.
For more discussion on the procedures to go to conference, see CRS Report 98-696, Resolving
Legislative Differences in Congress: Conference Committees and Amendments Between the
Houses.
Motion to Instruct Conferees
A motion to instruct conferees can only be made after the Senate has agreed to go to conference
on a measure, but before conferees have been appointed. To go to conference, the Senate must
complete three parliamentary actions: (1) disagree with the House version (or insist on its own),
(2) request or agree to a conference, and (3) authorize the Presiding Officer to appoint Senate
conferees. In recent practice, this is usually accomplished through a compound motion containing
all three steps, pursuant to Rule XXVIII, clause 2.1 Once the Presiding Officer appoints conferees
it is no longer in order to make a motion to instruct conferees.2
Senators can make motions to instruct conferees by seeking recognition on the floor. Timing the
offering of such a motion, however, could be difficult. As previously discussed, the motion to
instruct would only be in order after a compound motion to go to conference was agreed to but
before the Presiding Officer named conferees. Instead, Senators will usually work with their party
leadership to propound a unanimous consent agreement that will allow for their consideration.
Such agreements will include language that provides individual Senators with the opportunity to
make motions to instruct conferees, often setting time limits for debate and restricting
amendments to the motion from being offered. See, for example, the following unanimous
consent agreement to go to conference on an appropriations bill during the 115th Congress (2017-
2018):
1 Such a motion is only in order when a message from the House is laid before the Senate, meaning that the House must
first either amend a Senate bill (or a Senate amendment to a House bill) or disagree with a Senate amendment. A
compound motion made under Rule XXVIII is not divisible—meaning a Senator cannot demand separate votes on the
three components of the motion—and is also subject to an expedited cloture process. More discussion of the Rule
XXVIII compound motion to go to conference can be found in CRS Report R42996, Changes to Senate Procedures at
the Start of the 113th Congress Affecting the Operation of Cloture (S.Res. 15 and S.Res. 16), by Elizabeth Rybicki.
Prior to the change in the 113th Congress, the Senate took all three steps, outlined above, by unanimous consent if a
measure was sent to conference.
2 Although uncommon, the compound motion to go to conference can contain language directly appointing named
conferees. See Congressional Record, daily edition, vol. 163, (October 17, 2017), p. S6424, for such an example. In
that instance, conferees were appointed when the compound motion was agreed to and it was no longer in order to
make a motion to instruct conferees.
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Instructing Senate Conferees
...at 12 noon on Wednesday, July 11, the Senate proceed to legislative session and the Chair
lay before the Senate the message to accompany H.R. 5895; further, that the majority leader
or his designee be recognized to make a compound motion to go to conference and that the
Senate immediately vote on the motion; further, that if the motion is agreed to, Senators
CASSIDY and CORKER each be recognized to offer a motion to instruct conferees; that
the Senate vote on the motions in the order listed with no further action on the compound
motion; that there be 2 minutes of debate between each vote, equally divided in the usual
form; and that following disposition of the Corker motion and the appointment of
conferees, the Senate resume executive session.3
In this case, the unanimous consent agreement provides that if the motion to go to conference is
agreed to, then the named Senators are recognized to make motions to instruct conferees.
Furthermore, the agreement provides that each motion is subject to two minutes of debate,
equally divided between proponents and opponents, followed by a vote on the motion itself.
Following disposition of the motions to instruct, the agreement directs that conferees be
appointed.
Reaching unanimous consent to consider motions to instruct conferees is done with the implicit
understanding that consideration would otherwise potentially require three-fifths of the Senate to
end debate on the question by invoking cloture. In other words, motions to go to conference or to
instruct conferees are debatable and potentially subject to a filibuster. To restrict debate and
proceed to a vote on the underlying motion, cloture must be invoked (requiring 60 votes,
assuming only one vacancy in the Senate).4 As is often the case in the Senate, the requirement for
three-fifths support leads to negotiations between the majority and minority leadership, and these
negotiations can concern motions to instruct. A coalition of three-fifths of the Senate could
prevent any motions to instruct conferees by invoking cloture on a compound motion that
includes language directly appointing conferees. In general, however, negotiations usually occur
between party and committee leadership to structure the terms of a unanimous consent agreement
that provides for a limited number of motions to instruct when Senators have expressed an
interest in offering them.
Absent potential restrictions that might be included in a unanimous consent agreement, a motion
to instruct is amendable and also subject to division. An amendment to a motion to instruct could
offer further or different instructions. If a motion to instruct contains more than one separable
proposition, such as instructions on different subjects, a Senator could demand that the motion be
divided for voting. There is also no limit under Senate Rules on the number of motions to instruct
that can be offered. The motion may also be laid on the table.
Restrictions on and Types of Instructions
Inasmuch as conference committees are negotiating forums, the two chambers impose few
general rules governing their work or restricting the content of the agreements they can reach.
Instead, the Senate and House leave it largely to conferees themselves to decide how they can
conduct negotiations most productively. Although practice nevertheless permits the Senate to
instruct its conferees, all such instructions are limited in the following two ways:
3 Congressional Record, daily edition, vol. 164, (July 10, 2018), p. S4880.
4 For more discussion of the cloture process, see CRS Report 98-425, Invoking Cloture in the Senate, by Christopher
M. Davis.
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Instructing Senate Conferees
1. Instructions to conferees are never binding. A point of order may never be
sustained against a conference report because it is not consistent with instructions
that the Senate gave its conferees; and
2. It is not in order to instruct Senate conferees to reach some agreement that is not
within their authority as conferees.5
In particular, rules of each chamber (in the Senate, Rule XXVIII, paragraphs 3 and 4) require
conferees to restrict their agreements to the scope of the differences between the Senate and
House positions. In recent practice, however, provisions may satisfy this requirement so long as
they are reasonably related to the matters in disagreement.6
A motion to instruct may, for example, instruct Senate conferees to insist on, or to recede from, a
certain Senate position in conference; to accept, or not to accept, a certain House position; or to
negotiate a compromise position with the House that satisfies specified conditions.7 Given that
instructions to conferees are not binding, motions to instruct may be stated in broad advisory
language rather than as specific legislative text.
Examples of Recent Motions to Instruct
The form and content of motions to instruct offered in recent practice have varied. For example,
motions to instruct can be relatively short, directing conferees to advocate for a specific position
adopted by the Senate, as follows:
The Senator…moves that the managers on the part of the Senate at the conference on the
disagreeing votes of the two Houses on the House amendment to the resolution be
instructed to insist that the final conference report include the provision in the concurrent
resolution as agreed to by the Senate that provides for the establishment of a deficit-neutral
reserve fund related to strengthening the United States Postal Service by establishing a
moratorium to protect mail processing plants, reinstating overnight delivery standards,
protecting rural service, allowing the Postal Service to innovate and adapt to compete in a
digital age, or improving the financial condition of the Postal Service.8
Alternatively, a motion to instruct can be composed of multiple propositions. The following
example was offered to the FY2017 National Defense Authorization Act and includes four
clauses with advisory language based on statements made by officials in the executive branch:
The Senator…moves that the managers on the part of the Senate at the conference on the
disagreeing votes of the two Houses on S. 2943 (the National Defense Authorization Act
for Fiscal Year 2017) be instructed to insist that the final conference report include
authorization for the following commitments recently made by the President and Secretary
of Defense: S.Con.Res. 11
5 Floyd M. Riddick and Alan S. Frumin, Riddick's Senate Procedure: Precedents and Practices, 101st Cong., 2nd sess.,
S.Doc. 101-28 (Washington: GPO, 1992), pp. 479-482.
6 For more discussion on this scope requirement, see CRS Report RS22733, Senate Rules Restricting the Content of
Conference Reports, by Elizabeth Rybicki.
7 Recent examples of motions to instruct can be found at Congressional Record, daily edition, vol. 165 (September 25,
2019) p. S5681. In that case, the motions to instruct were offered as resolutions after conferees had been appointed,
pursuant to the terms of a unanimous consent agreement. See Congressional Record, daily edition, vol. 165 (September
18, 2019) p. S5569, for the text of the unanimous consent agreement.
8 Congressional Record, daily edition, vol. 161 (April 15, 2015) p. S2202.
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Instructing Senate Conferees
Maintaining a force of approximately 8,400 soldiers, sailors, airmen and Marines
within Afghanistan into 2017 as announced by President Obama on July 6th to continue to
train and advise Afghan forces and to conduct counterterrorism operations;
The President’s budget request for the European Reassurance Initiative to establish
increased rotational presence in Europe, provide ample United States Armed Forces end
strength and combat capability to meet all regional contingency plans, increase operational
responsiveness of the North Atlantic Treaty Organization, and to fulfill President Obama’s
commitment to move forward with “the most significant reinforcement of collective
defense anytime during the Cold War”';
Sufficient naval, air, ground and amphibious force structure and weapons systems to
fulfil the commitment made by Secretary of Defense Ashton Carter at the Shangri-La
Dialogue that within the Asia-Pacific theater “the United States will remain the most
powerful military and main underwriter of security in the region for decades to come”;
Sufficient levels of military forces, munitions, logistics support, intelligence,
surveillance, and reconnaissance assets, and other enabling support, and the deployment of
sufficient operational capabilities to meet President Obama’s commitment to go after ISIL
aggressively until it’s removed from Syria and Iraq and finally destroyed.9
As a final example, the following motion to instruct includes instructions to reject certain
language and insist on other provisions:
The Senator…moves that the managers on the part of the Senate at the conference on the
disagreeing votes of the two Houses on the Senate amendment to the bill H.R. 2577 be
instructed to reject proposals that would rescind existing Ebola emergency funds provided
by the Consolidated and Further Continuing Appropriations Act, 2015 (P.L. 113-235), and
designated by Congress as an emergency requirement pursuant to section 251(b)(2)(A) of
the Balanced Budget and Emergency Deficit Control Act of 1985, as such funds support
Ebola preparedness and response efforts which are critical to preventing, detecting, and
responding to potential future Ebola outbreaks, and to insist that the final conference report
include $510,000,000 to reimburse Ebola accounts, as provided for in the Consolidated and
Further Continuing Appropriations Act, 2015 (P.L. 113-235) and designated by Congress
as an emergency requirement pursuant to section 251(b)(2)(A) of the Balanced Budget and
Emergency Deficit Control Act of 1985, for obligations incurred for Zika virus response,
as such emergency Ebola funds support critical initiatives to prevent Ebola outbreaks, such
as country operations and public health infrastructure in Liberia, Sierra Leone, and Guinea,
public health research on infection control, including detection of person to person
transmission of Ebola, and advanced research and development of new Ebola vaccines and
therapeutics.10
Subsequent Instructions
Once a measure is in conference, the Senate may no longer instruct its conferees by motion
(except by unanimous consent). However, subsequent instructions to conferees could be made
through the adoption of a simple resolution or a “sense of the Senate” amendment to other
legislation. These options are uncommon, however, and would be subject to the same rules of
consideration for all amendments and resolutions.
No motion to instruct conferees is in order after conferees have filed their report or while the
Senate is considering it. However, when the Senate is the first chamber to consider a conference
9 Congressional Record, daily edition, vol. 162 (July 14, 2016) p. S5112.
10 Congressional Record, daily edition, vol. 162 (June 8, 2016) p. S3633.
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report, a motion to recommit with instructions (to the conferees) is in order. This motion is
debatable, and the instructions are amendable, but the motion may be laid on the table.
The Senate also may defeat a conference report and then agree to motions for a second
conference. When motions for a second conference are adopted, a motion to instruct conferees at
the new conference is in order until the new conferees are named, in the same way as initially.
Acknowledgements
This product was originally authored by legislative specialist Richard S. Beth, who has since
retired from CRS. The listed author is available to answer questions on this topic.
Author Information
Michael Greene
Analyst on Congress and the Legislative Process
Disclaimer
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RS20209 · VERSION 6 · UPDATED
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