House Conferees: Restrictions on Their Authority

House Conferees: Restrictions on Their Authority

House Conferees: Restrictions on Their
Authority
Updated February 9, 2021

Congressional Research Service
https://crsreports.congress.gov
RS20219

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Contents
Scope Requirement .......................................................................................................................... 1
Violations of Authority .................................................................................................................... 1
Appropriation Bills and Technical Disagreement ............................................................................ 2
Nongermane Senate Provisions ....................................................................................................... 2
Acknowledgments ........................................................................................................................... 4

Contacts
Author Information .......................................................................................................................... 4

Congressional Research Service

House Conferees: Restrictions on Their Authority

To resolve differences between House and Senate versions of a measure, Congress can establish a
conference committee, composed of a House and a Senate delegation (often referred to as
conferees). Its task is to propose a final version of the measure, referred to as a conference report,
for the approval of both houses. This report discusses House rules that restrict the substance of
what that chamber’s conferees may agree to include in a conference report and how those rules
are often waived in modern practice. For more information on the procedures for going to
conference, see CRS Report 98-696, Resolving Legislative Differences in Congress: Conference
Committees and Amendments Between the Houses.
Scope Requirement
A conference committee has before it both a House and a Senate version of the same measure.1 In
recent practice, these most often take the form of a House measure as passed by the House and a
substitute for the entire text agreed to by the Senate, or vice versa. Often, the substitute from the
second chamber (formally, an amendment in the nature of a substitute) reflects the text of a
companion measure agreed to by that chamber. (Other possibilities exist, but all involve an
amendment or amendments by one house to a measure agreed to by the other.)
House Rule XXII, clause 9, authorizes House conferees to negotiate only on matters in
disagreement between the houses; that is, points on which the House and Senate versions of the
measure differ. This rule permits conferees to reach an agreement that constitutes a germane
modification of the matter in disagreement. Conferees may, for example, propose a new
amendment in the nature of a substitute as an alternative to both versions committed to
conference (commonly referred to as a conference substitute). The conference proposal on each
matter in disagreement must fall within the scope of the differences between the House and
Senate versions. In general, this requirement means that conferees may not change or eliminate
text agreed to by both houses, nor may they introduce any specific additional matter not included
in either version.2 Also, they may not delete matter in such a way as to broaden the scope of the
measure beyond both proposals.
If the two versions contain different provisions on the same subject, conferees must in general
retain a provision on that subject. They may accept either the House or Senate version, or may
propose a version intermediate between the two. The conference proposal may not be stronger
than the stronger version or weaker than the weaker version. If only one house has a provision on
a subject, then the implicit position of the other house is that current law on the point should be
maintained. The conferees may include the provision, omit it, or propose a version intermediate
between it and current law.
Violations of Authority
In recent practice, conferees often include in their report provisions that either are entirely new or
otherwise violate scope requirements. A conference report containing provisions outside the scope
is subject to a point of order in the House. If the Speaker sustains the point of order, the entire
conference report is out of order and cannot be considered, because a conference report is a

1 For example, the measure in conference might be a House bill (H.R.) with a Senate amendment (representing its
alternative) to that bill, or instead a Senate bill (S.) with a House amendment (representing its alternative) to that bill.
2 Constitution, Jefferson's Manual, and Rules of the House of Representatives, One Hundred Sixteenth Congress,
H.Doc. 115-177, 115th Cong., 2nd sess., [compiled by] Thomas J. Wickham, Parliamentarian (Washington: GPO, 2019),
§1088, pp. 945-948.
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House Conferees: Restrictions on Their Authority

package agreement. It must be considered and disposed of as a unit; it may not be amended or
broken up.
In this situation, House conferees often ask the Committee on Rules to report a special rule for
considering the conference report that waives the scope point of order. Alternatively, if little
opposition is expected, the conference report may be called up on a motion to suspend the rules,
which has the effect of waiving any points of order. The House may also waive points of order
against a conference report by unanimous consent. All these procedures are also available to
remedy other violations of House conferees’ authority.
Appropriation Bills and Technical Disagreement
For appropriations bills—measures considered annually that fund the general operations of the
federal government—conferees’ authority is subject to important additional restrictions.3 Rule
XXII, clause 5, restricts the authority of House conferees to accept Senate amendments to
appropriation bills that propose to change existing permanent law (called legislative amendments)
or that propose to make unauthorized appropriations. It also prohibits conferees from accepting
Senate appropriations amendments to bills that are not appropriation bills. Clause 6 of Rule XXII
forbids House conferees from accepting a Senate revenue amendment to a House non-revenue
bill.
In current practice, the House usually considers a conference report pursuant to a special rule
reported by the Rules Committee that protects the conference report from a point of order if it
violates these restrictions. In the past, if conferees reached agreements that violated these
restrictions, they often reported their proposals as amendments in technical disagreement.4 House
conferees formally reported that they could not reach agreement (a conference report in
disagreement). During floor consideration of the conference report, the House conferee serving as
floor manager made a motion that the House recede from its disagreement to the Senate version
as amended by a new House amendment. Because these motions to recede and concur with an
amendment are not subject to the restrictions applicable to conference reports, the text of the new
amendment could embody the agreement that conferees had actually reached. This approach
becomes inconvenient, however, when the position of one house is embodied in a single second-
chamber substitute for the entire text, which has become routine even on appropriations bills.
Nongermane Senate Provisions
House Rule XXII, clause 10, restricts the ability of House conferees to agree to include in a
conference report provisions that originate in Senate language and are not germane to the measure
as passed by the House. The rule subjects each provision of this kind to a separate point of order
in the House. If the Speaker sustains the point of order, however, the conference report does not
automatically become ineligible for consideration. Instead, a motion is in order on the floor to
strike the nongermane matter from the conference report. Such a motion is debatable for up to 40
minutes with time equally divided between the member offering the motion and a member

3 For more discussion of the appropriations process, see CRS Report R42388, The Congressional Appropriations
Process: An Introduction, coordinated by James V. Saturno.
4 An amendment in technical disagreement refers to a situation where language exceeds the authority of House
conferees to negotiate, but otherwise is not subject to any substantive disagreement between House and Senate
conferees.
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House Conferees: Restrictions on Their Authority

opposed. If one or more motions to strike are agreed to, the conference report is considered as
rejected by the House. The rule then, however, provides that the House automatically proceed to
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House Conferees: Restrictions on Their Authority

consider a motion to recede and concur with an amendment that consists of the unrejected portion
of the conference report.
For each nongermane Senate provision in a conference report, this mechanism could permit the
House to choose either to accept or reject it without killing the legislation as a whole. Similar
procedures apply when Senate nongermane matter appears in an amendment reported from the
conference committee in (true or technical) disagreement.5 In practice, however, the House often
waives points of order during consideration of a conference report, effectively insulating
nongermane Senate provisions from the process described above. Points of order are routinely
waived when the House approves a special rule, from the Committee on Rules, governing the
consideration of a conference report. The House could also waive points of order by unanimous
consent or by considering the conference report under suspension of the rules.
Acknowledgments
This report was originally written by Richard S. Beth, a specialist on legislative procedure who
has since retired from CRS. The author listed is available to answer questions on the topic.

Author Information

Michael Greene

Analyst on Congress and the Legislative Process

Disclaimer
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under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
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5 As previously noted, language in technical disagreement refers to matters that are outside of the scope of House
conferees’ authority, but for which there is otherwise no substantive disagreement. In contrast, amendments in true
disagreement represent matters where House and Senate conferees could not reach a mutually acceptable resolution to
their chambers’different positions.
Congressional Research Service
RS20219 · VERSION 5 · UPDATED
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