Chapter 4
The Speaker and the Senate
Elizabeth Rybicki
Analyst in American National Government
Congressional Research Service
In 1897, a Senator described a ``very curious thing'' to his
colleagues in the Senate Chamber. It seems Speaker Thomas Brackett Reed
(R-ME; 1889-1891; 1895-1899) had spent a great deal of time in the
Senate side of the Capitol persuading (the Senator said ``coercing'')
Senators into supporting the pending tariff measure. The Senator found
it even more extraordinary that as he passed a room where
Representatives and Senators were meeting to negotiate a compromise
between the Chambers on the tariff bill, he saw ``a powerful policeman
standing guard at the door.'' When the Senator inquired as to why the
guard was there, he was told ``it was for the purposes of keeping the
presiding officer of the House from invading the secrecy and the
councils of the conference committee.'' \1\
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\1\ Congressional Record, 55th Cong., 1st sess., vol. 30, July 23, 1897,
p. 2867.
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The characteristically vigorous efforts of Speaker Reed in this
instance may indeed have been, as the Senator claimed, ``extraordinary
and unusual.'' The need to coordinate with the Senate on legislation,
however, is as established and necessary as the Office of the Speaker
itself. According to the Constitution, each House of Congress must agree
to a measure before it can be sent to the President. The two Chambers,
however, often disagree over policy proposals, and the Constitution is
silent as to how the House and Senate should reconcile differences in
pending legislation.
In no small way, the responsibility of resolving differences and
coordinating with ``the other body'' has fallen on the Speaker of the
House. Disagreements between the Chambers on most major legislation are
resolved by conference committees, ad hoc panels composed of legislators
from each Chamber that meet to negotiate a compromise acceptable to both
the House and Senate. The Speaker appoints the House conferees, or
``managers,'' and at times his careful selection of individuals has
influenced the final policy outcome. Further, a great deal of inter-
chamber coordination takes place prior to, instead of, or after the
formal creation of a conference committee. The Speaker works with Senate
leaders in order to shepherd significant measures through the entire
legislative process. In sum, the Speaker plays a major role in the two
principal devices of legislative coordination: bicameral leadership
cooperation and conference committees.
Both the relationship between the Speaker and Senate leaders and the
role of the Speaker in the appointment of managers to conference have
changed over time. Since the major reforms of the seventies, the Speaker
has had greater discretion over who he appoints to conference. For most
of congressional history, the Speaker selected a few senior members from
the standing committee with jurisdiction over the bill to negotiate with
the Senate. Late 20th-century changes in practice, including multiple
referral and the tremendous growth of conference committee delegations,
have left the Speaker with more authority over conference committee
composition. The modern Speaker chooses how many Representatives serve
as conferees, as well as what committees the conferees come from and
what matters they may consider in conference. In addition, the
transformation of the Senate from a committee-centered, seniority-driven
institution to a more open body with an equal distribution of power has
transformed the role of the Speaker in inter-chamber negotiations. A
close personal relationship with the Senate majority leader and
important committee chairmen likely solves fewer legislative logjams
than it did in the mid-20th century, and the press of business makes the
threat of a filibuster more potent. Although conflict between the
Chambers is an inherent part of the bicameral system, the Speaker today
faces a particularly significant challenge in coordinating the passage
of legislation with the Senate.
The ``Other Body''
At the end of the 19th century, the procedures of the House and Senate
began to move in divergent directions. The House, under the leadership
of Speaker Reed, developed into a majoritarian body, able to act
whenever most of the Members favored action. The Senate, meanwhile,
continued to grant great parliamentary powers to individual Senators.
The lack of Senate rules allowing a simple majority to end debate left
Senate leaders dependent on unanimous consent agreements to set the
schedule for considering and voting on measures (even after the
enactment of a rule in 1917 allowing a super-majority to close debate).
For over 100 years, the Speaker has been accustomed to setting the
legislative agenda with the backing of the majority, but the Senate
majority leader must always take into account the rights afforded to
individual Senators under the rules and precedents.
Not surprisingly, because of the differences in the decisionmaking
processes of the two Chambers, Speakers have long found working with the
Senate to be challenging. In 1890, Speaker Reed grew exasperated with
Senators, including those in his own party, who chose to deliberate and
debate, rather than quickly pass, House bills on the tariff and election
reform. He urged the Senate to change its rules, attempted to stir
public sentiment against the Senate, and threatened to keep Congress in
session until the Senate decided the fate of the bills. The Speaker's
disapproval of the Senate could not expedite the process; as one Senator
commented dryly to the press, ``Unless Mr. Reed comes over here in
person, and takes command, I do not see how we are to oblige him . . .
It would hardly be fair to him to ask him to run the Senate and the
House at the same time.'' \2\
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\2\ ``Speaker Reed Frowns,'' New York Times, Aug. 4, 1890, p. 1.
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Over 100 years later, a public campaign by another powerful Speaker
was no more successful in spurring Senate action. An electorate
reportedly fed up with politics as usual in Washington, DC, gave
Republicans control of the House and Senate in the 1994 elections. House
Republicans, led by Newt Gingrich (R-GA; 1995-1999), had campaigned on a
list of legislative proposals known as the Contract with America. As
expected, while the House voted on every Contract proposal during the
first 100 days of the 104th Congress (1995-1996), the Senate debated
only some of the proposals in the same time period.\3\ Despite his
unquestionable skills in communicating with the public, the Speaker
could not force the Senate to act. Threats or trades are unlikely to be
effective when the Senate leader has few tools at his disposal to force
action on legislation. Speaking at a joint press conference during the
consideration of the contract, Senate Majority Leader Bob Dole (R-KS)
illustrated the differences between the job of the Speaker and the job
of the majority leader. After stating that the Senate would probably not
be able to ``keep up'' with the speedy House in passing the contract
items, Dole turned the podium over to Speaker Gingrich by joking that he
needed to get back to the Senate floor for an upcoming vote ``before
anybody defects.'' \4\
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\3\ Norman Ornstein and Amy L. Schenkenberg, ``The 1995 Congress: The
First Hundred Days and Beyond,'' Political Science Quarterly, vol. 110,
no. 2, summer 1995, p. 194.
\4\ Jake Thompson, ``Dole Thrives, Despite Hype for Gingrich,'' Kansas
City Star, Jan. 7, 1995, p. A1; Transcript, ``News Conference with House
Speaker Newt Gingrich, Senate Majority Leader Bob Dole, Republican
National Committee Chairman Haley Barbour,'' Federal News Service, Jan.
6, 1995, available from LexisNexis (database online), accessed May 1,
2004.
Leadership Coordination
No Speaker can change the nature of the Senate, but many have
succeeded in working with Senate leaders to ensure that the key pieces
of their legislative agenda do not die in the other Chamber. To varying
degrees since the 19th century, Speakers have met with Senate leaders to
plan or discuss major policy proposals and strategy. Coordination
between the Chamber leaders is largely ad hoc, depending partially on
the personalities of the leaders as well as the preferences of the
majority party in each Chamber.
At the very least, the leaders coordinate dates for adjournment, since
the Constitution forbids either Chamber from adjourning for more than 3
days without the consent of the other (Article I, Section 5). They have
also met regularly at various formal party or government events and
served together on a myriad of commissions. The Speaker and the Senate
majority leader have also long met jointly with the President, although
the timing and agenda of these meetings are generally dictated by the
President.\5\
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\5\ Steven S. Smith, ``Forces of Change in Senate Party Leadership,'' in
Lawrence C. Dodd and Bruce I. Oppenheimer, eds., Congress Reconsidered,
5th ed. (Washington: CQ Press, 1993), p. 277; Walter Kravitz,
``Relations Between the Senate and the House of Representatives: The
Party Leadership,'' in Policymaking Role of Leadership in the Senate: A
Compilation of Papers Prepared for the Commission on the Operation of
the Senate (Washington: GPO, 1976), p. 128.
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The Speaker does not, however, just meet Senate leaders at formal
events or at the White House. The Chamber leaders also meet to
accomplish several legislative goals. Sometimes the leaders meet to
discuss the measures they plan to bring to the floor in the coming
weeks, but often, the leaders simply inform each other of their
Chamber's actions, without attempting to coordinate or to even consult
about their actions.\6\ Such information can prove particularly useful
at the end of a session when decisions about when, or whether, to
consider a bill can determine its fate. Any bill that has not passed
both Chambers in the same form at the end of a Congress dies. The
frequency of bicameral leadership meetings and less formal contacts
rises considerably at the end of a session.
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\6\ Barbara Sinclair, Majority Leadership in the U.S. House (Baltimore,
MD: Johns Hopkins University Press, 1983), p. 113.
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At bicameral leadership meetings, the Speaker and his lieutenants
might also discuss legislative strategy with Senate leaders. The leaders
might agree, for example, that one Chamber should act before the other
on a major piece of legislation. Passage of a bill by one Chamber might
provide the momentum or public attention necessary to carry the bill
through the other Chamber. Alternatively, the Speaker might urge the
Senate to act first because he does not want to consume the precious
time of the House to consider a measure that has little chance of
passing the Senate. The Chamber leaders might agree to assign identical
numbers (such as H.R. 1 and S. 1) to legislation to spotlight the issue
as an agenda priority.
The frequency and nature of the coordination between the Speaker and
Senate leaders apparently depends to some extent on the individuals
holding the offices. The relationship between Speaker Sam Rayburn (D-TX;
1955-1961) and Senate Majority Leader Lyndon Johnson (D-TX) in the
fifties is generally held up as the quintessential example of a close
personal bond between Chamber leaders.\7\ Rayburn had been a mentor to
Johnson when he served in the House, and they capitalized on their well-
established friendship to turn bills into law.
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\7\ Robert A. Caro, Master of the Senate (New York: Alfred A. Knopf,
2002); Ralph K. Huitt, ``Democratic Party Leadership in the Senate,''
American Political Science Review, vol. 55, no. 2, June, 1961, p. 338.
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The press could not help but compare the relationship of Rayburn's
successor, John McCormack (D-MA; 1962-1971) with Senate Majority Leader
Mike Mansfield (D-MT). One reporter described the leaders' relations in
1962 as not yet approaching ``in intimacy or effectiveness the alliance
of Rayburn and Johnson.'' \8\ After Richard M. Nixon succeeded Lyndon
Johnson as President, another journalist reported that McCormack and
Mansfield rarely coordinated with each other. At times they would
disagree with each other publicly over policy issues or even about how
to best process legislation through both Chambers. The Senate leader
told reporters in 1969 there was ``no need for more formal party
coordination between the House and Senate. Each should conduct its own
business and consult when it has problems.'' \9\
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\8\ David S. Broder, `` `The Other Body'--Not `the Upper House,' '' New
York Times, May 20, 1962, p. SM23.
\9\ Richard L. Lyons, ``Democratic Leadership Gap Widens,'' Washington
Post, May 21, 1969, p. A1.
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The nature of bicameral leadership coordination has also varied with
changes in party control of the Chambers and the White House. If the
House and Senate are controlled by opposite parties, coordination can be
even more challenging. A congressional scholar and former staff member
in the House majority leader's office reported that monthly bicameral
leadership meetings, infrequently productive under unified control,
disappeared almost entirely during the divided control of the 97th
Congress (1981-1982). The scholar quotes one participant of the
bicameral leadership meetings as saying, ``They do what they want to do
and we do what we want to do and we try to agree on an adjournment
date.'' \10\ The sentiment was echoed by a long-time Senate staffer who
claimed the Senate Republican Leader Howard Baker (R-TN) was in constant
contact not with the Democratic Speaker but with the House minority
leader. The Senate leader did not otherwise actively work with the
House. ``We did our own thing,'' the staffer said, ``whatever it was.''
\11\
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\10\ Barbara Sinclair, Majority Leadership in the U.S. House, p. 114.
\11\ ``William F. Hildenbrand, Secretary of the Senate, 1981-1985,''
(Washington: Senate Historical Office, Oral History Interviews), p. 326.
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If the House is controlled by the party in opposition to the
President, then the Speaker might seek to coordinate with the Senate in
the hopes of building a strong response to the policy platforms of the
Executive. For example, when the Democrats gained control of the House,
but not the Senate, in the 72d Congress (1931-1933), they formed a joint
policy committee. The committee was created to shape the party's
legislative program and determine how much support to give to the
program of the Republican President Hoover.\12\ Speaker John Garner (D-
TX; 1931-1933), according to one source, opposed the creation of the
committee, but the party caucus voted for its formation.\13\ Garner
appointed the House membership of the committee, convened its meetings
in his office, and together with Senate Minority Leader Joseph T.
Robinson (D-AR) acted as its spokesman.
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\12\ Richard V. Oulahan, ``Sense of Duty Prevails: Democrats Form
Senate-House Board to Deal With Hoover Program,'' New York Times, Dec.
8, 1931, p. 1.
\13\ W.H. Humbert, ``The Democratic Joint Policy Committee,'' American
Political Science Review, vol. 26, no. 3, June 1932, pp. 552-554.
Challenges of Leadership Coordination in the Post-Reform Era
The significant challenges to bicameral leadership coordination have
become even greater since the major institutional reforms of the
midseventies. Political scientists generally describe the reform era of
the 20th century as a shift from committee-dominated policymaking to a
more participatory process involving junior Members and granting new
powers to individual Members.\14\ The institutional changes made by both
Chambers in the seventies magnified the differences in House and Senate
procedures.
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\14\ Roger H. Davidson, ``The Emergence of the Postreform Congress,'' in
Roger H. Davison, ed., The Postreform Congress (New York: St. Martin's
Press, 1992); Steven S. Smith, Call to Order: Floor Politics in the
House and Senate (Washington: Brookings Institution, 1989).
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While the weakening of committee chairs in the House was accompanied
by a rise in the powers of the Speaker, no such centralization of power
occurred in the Senate. In the last 30 years, the Speaker gained the
power to refer bills to multiple committees and the Rules Committee
became an arm of party leadership. Changes to the committee assignment
process in the House also increased the power of the Speaker.\15\ The
Senate majority leader, in contrast, gained no such increased authority
over agenda-setting or debate control. Committee autonomy declined in
the Senate as well as the House, but influence in the Senate was
transferred to individual Members not to party leaders.\16\ ``In the
contemporary Congress,'' a legislative scholar noted in the late
nineties, ``the legislative process in the two chambers is more distinct
in form and in results than ever before.'' \17\ In short, rising
individualism, especially when combined with the recent rise in
partisanship, have made leading the Senate in the past 30 years
extremely challenging.\18\
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\15\ Ronald M. Peters, Jr. ``The Changing Speakership,'' Chap. 1, infra.
\16\ Barbara Sinclair, The Transformation of the U.S. Senate (Baltimore,
MD: Johns Hopkins University Press, 1989), p. 2; Christopher J. Deering
and Steven S. Smith, Committees in Congress, 3d ed. (Washington: CQ
Press, 1997), p. 183.
\17\ Barbara Sinclair, ``Party Leaders and the New Legislative
Process,'' in Lawrence C. Dodd and Bruce I. Oppenheimer, eds., Congress
Reconsidered, 6th ed. (Washington: CQ Press, 1997), p. 244.
\18\ Smith, ``Forces of Change in Senate Party Leadership,'' Congress
Reconsidered, 5th ed., p. 273.
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The Speaker and his lieutenants have attempted to meet the challenge
of an often slow-moving, if not obstructionist, Senate. According to a
long-time observer of Congress, formal contact between the Speaker and
the Senate majority leader increased in the eighties.\19\ Speaker James
Wright (D-TX; 1987-1989) and Senate Majority Leader Robert Byrd (D-WV)
reportedly took turns hosting bi-weekly breakfast meetings which later
became weekly meetings. The staffs of the Speaker and the Senate
majority leader also stay in constant contact. After his election as
party leader, current Speaker Dennis Hastert (R-IL; 1999- ) designated
a staff member to serve as his Deputy Chief of Staff for Bicameral and
Intergovernmental Affairs. In the current Congress, House and Senate
leadership aides reportedly meet every Wednesday that Congress is in
session.
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\19\ Barbara Sinclair, Legislators, Leaders, and Lawmaking (Baltimore,
MD: Johns Hopkins University Press, 1995), p. 83.
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The Speaker and other leaders in the post-reform House have become
more involved in determining the substance of legislation.\20\ The
Speaker, for example, might strive to shape legislation so it passes by
a wide enough margin to send a message to the Senate regarding its broad
support. Special meetings with Senate leaders might be called to discuss
specific pieces of legislation.
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\20\ Sinclair, ``Party Leaders and the New Legislative Process,''
Congress Reconsidered, 6th ed., p. 236.
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Furthermore, the Speaker and the Senate majority leader in recent
Congresses have been more directly involved in conference committee
negotiations. The two leaders may even meet prior to the appointment of
a conference committee to reach an agreement about the legislative
vehicle.\21\ In the midseventies, it was reported that ``as a rule''
party leaders do not ``inject themselves into conference negotiations
unless asked to do so.'' \22\ If this was a rule in an earlier era, it
is followed less often today. Although usually not named as managers,
leaders of both Chambers often meet with the committee members serving
as conferees. The Speaker and other party leaders are more likely to
become involved when conference negotiations are expected to be
difficult, or when the talks break down. The Speaker can help in behind-
the-scenes dealmaking because of his influence over other aspects of the
legislative process that sometimes become key bargaining chips in
difficult negotiations. If House and Senate conferees reach a stalemate,
they may seek assistance from their leaders, in part because party
leadership is often in a better position to judge what compromise the
Chamber as a whole might accept. The Speaker might also be called upon
to mediate policy disputes between Representatives and Senators of the
same party.\23\
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\21\ Emily Pierce, ``What's Driving: This Week's Agenda,'' Roll Call,
Sept. 2, 2003, available from LexisNexis (database online), accessed May
1, 2004.; Tim Curran, ``Leaders Consider Election Reform Strategy,''
Roll Call, March 7, 1994, available from LexisNexis (database online),
accessed May 1, 2004.
\22\ Kravitz, ``Relations Between the Senate and the House of
Representatives: The Party Leadership,'' Policymaking Role of Leadership
in the Senate: A Compilation of Papers Prepared for the Commission on
the Operation of the Senate, p. 131.
\23\ Emily Pierce, ``Tax Conference Getting Parental Supervision,'' Roll
Call, May 22, 2003, available from LexisNexis (database online),
accessed May 1, 2004.
Conference Committees
Forging relationships with Senate leaders is only one avenue of
bicameral coordination the Speaker pursues. After a major piece of
legislation passes both Chambers, the House and Senate usually resolve
their disagreements over the legislation in a conference committee.
Traditionally, the Speaker never appoints himself to a conference
committee, but this norm has not diminished his role in the crucial
final negotiations on the major pieces of legislation in a Congress. In
addition to his informal role in bicameral negotiations, the Speaker
chooses the Members who will represent the position of the House in
conference.
The selection of managers has clear implications on the content of a
conference committee report and, in fact, on the success of a conference
committee. Service on a conference committee carries with it the
potential for enormous influence in the version of the legislation that
will most likely become law. Conference committees report, at a time of
their choosing, agreements that cannot be amended. Furthermore, despite
some restrictions placed on conference committee reports by Chamber
rules and precedents, conference reports sometimes include provisions
not previously considered by either Chamber. In other words, provisions
of law are sometimes drafted within a conference committee.
The Speaker takes care in selecting Representatives to serve on
conference because their policy positions and personalities can affect
the outcome of the conference committee. Members who feel strongly that
the House version is the best policy solution will likely be less
willing to compromise with the Senate. Also, some Members are more
skilled at the arts of negotiation than others. Most of the time,
conferees come from the standing committees with jurisdiction over the
bill, and sometimes past interactions between House and Senate members
of committees can influence the bargaining sessions. Some Members have
built up trust or reputations for fairness among them. The Speaker might
take these factors into account when choosing conferees.
The Speaker has appointed House managers since the First Congress,
although this authority was not specifically codified in House rules
until 1890.\24\ Even when the House stripped the Speaker of the power to
appoint standing committees in 1911, it preserved the right of the
Speaker to appoint conferees. Rulings in the early 20th century
confirmed the authority of the Speaker to determine how many House
conferees will be sent to negotiate with the Senate conferees. In 1913,
a Representative made a motion to instruct the Speaker to appoint seven
conferees. Another Member raised a point of order against the motion,
arguing that it was entirely within the Speaker's discretion to
determine the size of the conference delegation. Speaker James ``Champ''
Clark (D-MO; 1911-1919) agreed, sustaining the point of order and
appointing three conferees.\25\ The ruling was cemented in 1932 when
Speaker John Garner (D-TX; 1931-1933), in response to a parliamentary
inquiry, replied that ``you can not direct the Speaker as to the number
or the manner in which conferees shall be appointed.'' \26\
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\24\ The 1890 rule was omitted in the following two Congresses, when
party control of the House changed, and restored in 1895. Neither the
adoption nor omission of the rule affected House practice (Asher Hinds,
Hinds Precedents of the House of Representatives, vol. IV, 4470
(Washington: GPO, 1907), pp. 896-897)
\25\ Congressional Record, 63d Cong., 1st sess., vol. 56, Dec. 20, 1913,
p. 1316. Cited in Clarence Cannon, Cannon's Precedents of the House of
Representatives, vol. VIII, 3221 (Washington: GPO, 1936), p. 716.
\26\ Congressional Record, 72d Cong., 1st sess., vol. 75, June 24, 1932,
p. 13879. Cited in Cannon, Cannon's Precedents of the House of
Representatives, vol. VIII, 3220, p. 716.
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To be sure, the rules and precedents have long granted the Speaker
wide authority in selecting members of conference committees. The
discretion exercised by the Speaker in appointing managers to
conference, however, has varied over time. Since the 1880s the Speaker
has generally appointed members from the standing committee of
jurisdiction.\27\ Conferees, again by long-standing tradition, also
represent the major partisan divisions of a Congress. The selection of
conferees is sometimes described as a consultative process between the
committee chair and ranking member, who then pass their recommendations
on to the Speaker.\28\ The Speaker need not simply follow the
recommendations of the committee leaders, although he often does.
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\27\ Elizabeth Rybicki, ``Resolving Bicameral Differences in Congress,''
Paper presented at the 2003 Annual Meeting of the American Political
Science Association, p. 19.
\28\ Lawrence D. Longley and Walter J. Oleszek, Bicameral Politics:
Conference Committees in Congress (New Haven, CT: Yale University Press,
1989), pp. 178-181; Resolving Legislative Differences in Congress:
Conference Committees and Amendments Between the Houses, by Stanley
Bach, CRS Report 98-696.
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Until the second decade of the 20th century, the Speaker generally
followed norms of conference appointment that seem to have limited his
discretion in the selection of conferees. Nearly all House conference
committee delegations were composed of three Representatives, usually
the committee chair, the ranking member, and another majority party
member of the committee of jurisdiction. Variation from the norm of
appointing three senior members of the standing committee of
jurisdiction was unusual, and in some cases controversial. Nevertheless,
at times Speakers did appoint more than three conferees, or members who
did not serve on the committee of jurisdiction, in order to create a
delegation that could better represent the policy position of the House
majority.
In 1900, for example, Speaker David Henderson (R-IA; 1899-1903) faced
a situation where members from the committee of jurisdiction appeared to
be poor representatives of the House position. The House had voted to
instruct the conferees on the naval appropriation bill not to include a
specific provision in the conference report. The Speaker, following the
norm, had appointed three members from the committee of jurisdiction to
represent the House in conference. The conferees met with the Senate
conferees, and then they presented to the House a report that included
the language they had been instructed to omit. The House conferees
claimed that the Senate conferees insisted on the provision. The House
rejected the report and asked the Senate for a further conference. The
Speaker, in what has been perceived as an instance of ``discipline by
the House of its conferees'' appointed a new delegation to represent the
House in these negotiations.\29\ None of these members served on the
committee of jurisdiction, and the Speaker's announcement of the new
conferees led to ``a buzz of surprised comment.'' \30\ The new
conferees, however, could no more convince the Senate to take the House
position on the contested provision than the original conferees, and the
House eventually yielded to the position of the Senate.
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\29\ Ada C. McCown, The Congressional Conference Committee (New York:
AMS Press, Inc., 1967), p. 153.
\30\ ``Contest of the Two Houses,'' New York Times, June 7, 1900, p. 2.
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In another example, Speaker Joseph Cannon (R-IL; 1903-1911) discarded
the generally well-followed appointment norms in the hopes of
influencing the conference committee outcome on the 1909 tariff
bill.\31\ Cannon selected nine members from the committee of
jurisdiction, but he did not follow the norm of appointing more senior
members before junior members. Cannon explained that he selected
conferees in order to assure that the House was well represented
geographically; indeed, he chose three members from the East, three from
the West, and three from the South. According to press reports at the
time, however, these appointments also happened to tilt the conference
committee in a particular policy direction. ``The fact is not
overlooked,'' the Washington Post reported, ``that by this arrangement
Speaker Cannon has been able to eliminate from consideration on the
conference committee . . . the most aggressive and persistent fighter
for the free-war-material policy.'' \32\
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\31\ DeAlva Stanwood Alexander, History and Procedure of the House of
Representatives (New York: Burt Franklin, 1916), p. 228.
\32\ ``Cannon Selects Nine,'' Washington Post, July 10, 1909, p. 4.
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While Cannon's decision to appoint nine conferees to the 1909 Tariff
Conference was met with some disapproval, critics noted that the
appointment of more than three conferees, especially on major
legislation, was not unprecedented. Indeed, starting in the 1880s the
Speaker occasionally appointed larger conference delegations to consider
the most important policy questions of the day. In 1883, Speaker J.
Warren Kiefer (R-OH; 1881-1883) appointed five managers to a conference
committee on a highly controversial tariff bill.\33\ Speaker Reed
appointed eight conferees to consider a tariff bill in 1897, and Speaker
Cannon appointed five Representatives to consider a Philippine Islands
measure in 1905.
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\33\ Congressional Record, 47th Cong., 2d sess., vol. 14, Feb. 27, 1883,
p. 3356.
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Over the course of the 20th century, the Speaker began to appoint
larger delegations to conference. By the thirties, the average size of a
House delegation had risen to five members.\34\ The Speaker continued to
appoint just three Representatives to some conference committees, but
generally the smaller delegations considered measures that were
important to fewer Members. The average size of House delegations
increased gradually throughout the forties and fifties (Figure 1). While
most contained 5 or fewer members, the delegations on the major
appropriation bills, for example, often consisted of 10 or more
representatives.
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\34\ Cannon, Cannon's Precedents of the House of Representatives, vol.
VIII, 3221, p. 716.
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Anecdotal evidence suggests that past Speakers have, at least on
occasion, taken advantage of the discretion granted to them by House
rules to appoint conference delegations to serve the policy or political
goals of their party. Such qualitative accounts cannot answer the
questions of how often and under what conditions the Speaker is likely
to diverge from committee recommendations or appointment norms, and
there is no attempt to answer those questions here.\35\ Instead, the
discussion below simply aims to demonstrate that, in the last 30 years,
institutional changes and new practices have increased the potential for
the Speaker to exercise discretion in the selection of House managers.
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\35\ Political scientists have recently attempted to assess more
precisely the influence of the Speaker in conference committee
appointments in the modern era. See, for example, Jeff Lazarus and
Nathan W. Monroe, ``The Speaker's Discretion: Conference Committee
Appointments from the 96th-104th Congress,'' Paper presented at the 2003
Annual Meeting of the Midwest Political Science Association; Jeff
Lazarus and Nathan W. Monroe, ``The Speaker's Discretion: Conference
Committee Appointments from the 97th-106th Congress,'' Paper presented
at the 2003 Annual Meeting of the American Political Science
Association; Jamie L. Carson and Ryan J. Vander Wielen, ``Legislative
Politics in a Bicameral System: Strategic Conferee Appointments in the
U.S. Congress,'' Paper presented at the 2002 Annual Meeting of the
Northeastern Political Science Association.
Figure 1.--Average Size of House and Senate Conference Delegations,
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Selected Congresses, 1855-2000.
Increased Discretion of the Speaker in the Post-Reform Era
The major committee reforms of the seventies weakened the norm of
appointing senior committee members to conference committee, and, as a
result, strengthened the Speaker's ability to shape conference committee
membership. The House modified the standing rule granting the Speaker
the authority to appoint conferees twice in that decade.\36\ In 1975,
the House amended the rule to direct the Speaker to appoint conferees
who ``generally supported the House position as determined by the
Speaker.'' \37\ In 1977, the rule was modified again, this time to
direct the Speaker to appoint Representatives who were ``the principal
proponents of the major provisions of the bill or resolution.'' \38\ The
new language, according to Majority Leader James Wright (D-TX), would
encourage the Speaker to ``consider appointing sponsors of major
successful amendments which have been adopted on the floor of the
House.'' \39\ In both instances, the aim of the reformers was to
increase the influence of rank-and-file members in the crucial
conference committee stage of the legislative process. The Speaker, as
leader of the majority party, was expected to appoint members who
represented the position of the House.
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\36\ See House Rule 1, clause 11 for the full guidelines the Speaker is
expected to follow in the selection of conferees during the 108th
Congress.
\37\ Congressional Record, 93d Cong., 1st sess., vol. 119, Oct. 8, 1974,
p. 34470.
\38\ Congressional Record, 95th Cong., 1st sess., vol. 123, Jan. 4,
1977, p. 53.
\39\ Congressional Record, 95th Cong., 1st sess., vol. 123, Jan. 4,
1977, p. 55.
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Neither of these rules changes had as significant an impact on the
role of the Speaker in conferee appointment, however, as a 1975 rule
granting the Speaker the authority to refer bills to more than one
standing committee. Multiple referral transformed the composition of
conference committees and increased the discretion of the Speaker in the
selection of conferees.\40\ When multiple committees consider a bill,
the Speaker must decide how the various committees should be represented
on the conference committee. Instead of taking the recommendations of a
single chair, the Speaker may have to work with and coordinate among
several committee chairs and their requests for representation on a
conference committee. If disputes arise among committee chairs, they
often call on party leadership to resolve the policy conflicts.
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\40\ Garry Young and Joseph Cooper, ``Multiple Referral and the
Transformation of House Decision Making,'' Congress Reconsidered, 5th
ed., p. 226; Walter J. Oleszek, ``House-Senate Relations: A Perspective
on Bicameralism,'' The Postreform Congress, p. 205.
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The new referral practices also make it more likely that the Speaker
will limit the negotiating authority of a conferee. The Speaker has the
ability to appoint what are sometimes called ``limited purpose''
conferees, or members appointed to consider only selected matters in
disagreement with the Senate. If only a portion of a measure falls under
the jurisdiction of a standing committee, for example, the Speaker may
appoint conferees from that committee only for the purposes of
considering those matters within their jurisdiction. Prior to the
seventies, the Speaker rarely appointed limited purpose conferees,
although he did so under certain circumstances. In 1950, for example,
the general appropriation bills were combined into a single omnibus
bill, and Speaker Rayburn appointed a unique set of managers
(corresponding with the Appropriations subcommittees) to negotiate over
each chapter of the omnibus bill.\41\
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\41\ Constitution, Jefferson's Manual, and Rules of the House of
Representatives, H. Doc. 107-284, 107th Cong., 2d sess. (Washington:
GPO), p. 284; Congressional Record, 81st Cong., 2d sess., vol. 96, Aug.
7, 1950, pp. 11894-11895.
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After the Speaker was given the authority to refer bills to more than
one committee, he also began to appoint limited purpose conferees more
often. From the 91st through the 94th Congress (1969-1976), the Speaker
appointed limited purpose conferees on only three bills. In contrast, in
the four Congresses (1977-1984) following the emergence of multiple
referral, the Speaker set limited authority for conferees on 61 bills,
or an average of 15 measures per Congress. At the start of the 102d
Congress (1991-1992), Speaker Thomas Foley (D-WA; 1989-1995) announced
that he intended to simplify the appointment of conferees,\42\ but the
appointment of complex conference delegations has continued to the
present day. In the 107th Congress (2001-2002), the Speaker appointed
limited purpose conferees on 10 out of the 37 measures the Chambers
agreed to send to conference.
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\42\ Congressional Record, 102d Cong., 1st sess., vol. 137, Jan. 3,
1991, p. H31.
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The option to appoint a conferee for a single purpose can be an
important tool of the Speaker. It allows the Speaker to name
Representatives with the most knowledge about portions of legislation as
negotiators, without granting them influence over the entire compromise
package. If a Member best represents the House or the party on only one
element of the legislation, the Speaker can limit his or her involvement
in conference negotiations to that element.
Since the reforms of the seventies, the norm of the small conference
delegation has disappeared, giving the Speaker more flexibility to
determine the size of the House delegation. In the last 30 years, the
Speaker has appointed more Representatives to conference committees than
he did in earlier eras (Figure 1). In the 94th Congress (1975-1976), for
example, the average size of a House delegation was 10 Members, and 98
percent of all conference committees had delegations larger than 5
Members. The size of conference committees continued to rise throughout
the eighties and nineties. To some extent, the average number of
delegates is driven upward by a few mega-conferences each Congress. In
the 100th Congress (1987-1988), for example, the Speaker appointed 155
delegates to the conference on the omnibus trade bill.\43\ Yet even
excluding the huge conferences, the average size of both House and
Senate delegations grew in the second half of the 20th century.
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\43\ Longley and Oleszek, Bicameral Politics: Conference Committees in
Congress, p. 67.
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While the historical evidence suggests that the Speaker has long taken
advantage of the power to appoint conferees, since the seventies the
Speaker has had a greater capacity to exercise discretion over the
composition of the House delegation. The Speaker's ability to use
conference assignments as a mechanism to influence conference outcomes
was rather limited, both by the size of the conference and the norm of
appointing the two party leaders from the committee. In the modern
Congress, the rules and practices leave the Speaker with more authority
over conference composition. The most recent rules change in the 103d
Congress (1993-1994) granted the Speaker the authority to add, or
remove, conferees after the initial appointment.\44\ Regardless of how
often the Speaker actually exercises this power, the rules change could
potentially increase his influence over conference committees. Conferees
are aware that the Speaker can remove them from the committee or add
enough other Members to the conference to ensure a majority will sign
the conference report.
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\44\ Congressional Record, 103d Cong., 1st sess., vol. 139, Jan. 5,
1993, p. 49.
Conclusion
Over the past century, the Speaker has helped transform policy
proposals into law by working informally with Senate leadership and by
applying his formal conference appointment powers to further the goals
of a majority of the House. The Speaker's role in bicameral coordination
in the modern era is particularly challenging. The equal distribution of
power in the Senate, one result of the seventies reforms, makes that
body difficult to lead. The Speaker must coordinate not just with Senate
party and committee leaders, but with other Senators, who, in the modern
era, are more likely to be interested in a broad array of issues and are
more likely to exercise their individual prerogatives afforded under the
rules of the Senate.
The modern Speaker also has greater responsibilities in the
appointment of House conferees. The advent of multiple referral and
other rules changes have left the Speaker with the ability to determine
not just who will serve as conferees, but how many will serve, what
committees they will represent, and what portions of the legislation
they will consider. The most recent rules change also allows the Speaker
to add or remove conferees from the committee during the negotiations.
The changes in rules and practices that occurred three decades ago
continue to shape the role of the Speaker in bicameral relations. It
remains to be seen whether the duties of the Speaker in the two
principal devices of bicameral coordination, leadership cooperation and
conference committees, will continue to grow. It seems likely that the
Speaker's role in bicameral relations will vary, as it has in the past,
with changes in the membership and institutions of Congress.