- The Washington Times - Wednesday, June 7, 2006

Now that the House and Senate have adopted different versions of immigration legislation, textbook explanations of lawmaking suggest the bill’s fate rests in the hands of a conference committee. Congress uses these temporary bicameral panels — which some call the “Third House” of Congress — to resolve differences in competing versions of legislation.

But lawmakers often find exceptions to textbook explanations and immigration reform provides a case in point. True, most predict contentious House-Senate negotiations on the issue. But “where” and “when” are key questions. Creation of a conference committee will be more an indication that a deal is done than a forum to find one. In other words, lawmakers may not even officially create a bicameral negotiating panel until they have found a clear path toward a workable compromise — a process that may take weeks of private, informal discussions before conferees ever formally meet.

Conference committees are not mandatory. They offer one way to resolve differences between chambers, but there is no requirement that lawmakers even use this procedure. According to Walter Oleszek at the CongressionalResearch Service, only 15 to 25 percent of all laws passed by Congress ever reach the conference-committee stage. Lawmakers normally resolve differences either by one house adopting the other’s version or by “ping-ponging” measures back and forth until substantive disagreements are ironed out. Conference committees are never formed in either of those cases.

However, Mr. Oleszek also notes that most controversial bills that become law do go through the House-Senate conference process. Immigration definitely clears the divisiveness threshold. But sending a politically charged bill to a formal conference immediately and hoping differences get resolved there is not a tactic preferred by the GOP leadership.

When lawmakers do decide to form a formal conference committee, its procedures are exercised in congressional discretion with only a few set rules and precedents. The House and Senate each choose members drawn heavily from the committees that authored the legislation. In the Senate, the presiding officer appoints from a list developed by the chair and ranking member of the committee that passed the bill. In the House, the speaker appoints all conferees and sometimes draws in members of the leadership. Each house has one vote on issues under consideration in the conference; therefore there is a “House position” and a “Senate position” on any provision in disagreement. Each chamber develops positions based on a majority vote of conferees from that body.

Neither chamber is under any obligation to respond to a request for a conference. And sometimes the bulk of negotiations occur in a pre-conference informal setting. House leaders are averse to sending major legislation to a formal conference with the prospects of long, drawn-out deliberations. For one thing, after a bill goes to conference and there is no resolution in 20 calendar and 10 legislative days, any member of the House can offer non-binding motions on a daily basis, which often subjects the body to tedious, sometimes politically embarrassing votes that eat up valuable time.

Democrat obstructionism in the Senate may also stall efforts to convene a conference. Since losing the majority after the 2002 election, Democrats have made the historically routine process of going to conference (which is normally done through unanimous consent) a procedural jungle. On the immigration measure, Democrats insisted on the unusual step of a pre-agreed ratio of conferees (26 senators total — 14 Republicans and 12 Democrats) before entering into a unanimous consent agreement to finish the bill. Also, because the Senate bill contains a revenue provision, it is subject to a so-called “blue slip,” which means it could be automatically rejected by the House. (The Origination Clause of the Constitution requires all revenue measures to begin in the House. A Senate bill containing revenue provisions is sent back with a resolution printed on blue paper, hence the name.) Democrats then objected earlier this week to efforts to attach the Senate immigration bill to a House-passed revenue bill, which would have fixed the problem.

And when it comes to national issues like immigration, the White House also becomes a big investor in this legislative real estate. Thus, the real “conference committee” on immigration reform will take place informally between the White House and a handful of congressional leaders. If these lawmakers see a compromise that can garner strong support among Republicans in the House and Senate, a formal conference will be appointed.

If this path can’t be found, it’s unlikely lawmakers will ever formally set foot into a conference committee to orchestrate a compromise — in public or private.

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