Compound Conference Motion Limits Senators' Influence

The Senate just voted on a compound motion to go to conference on the Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act (the so-called minibus appropriations bill; HR 5895). The legislation cleared the House on June 8. The Senate passed it on June 28. Differences between the two versions must now be reconciled in a joint House-Senate conference before being signed into law by the president.

Prior to 2013, the Standing Rules required the Senate to agree to three debatable motions to go to conference: 

1.     Motion disagreeing with House amendment and insisting on the Senate’s amendment; 

2.     Motion to request a conference to resolve differences between the two versions; 

3.     Motion to appoint conferees. 

Because each of these motions were debatable, a Senate minority could effectively filibuster them. The extra time needed to end debate on each motion via the cloture process meant that in practice the Senate went to conference by unanimous consent instead. 

Using unanimous consent to go to conference instead of doing so by strictly enforcing the Senate’s rules meant that any member could effectively block a conference committee if he or she objected to the consent request. The reliance on unanimous consent gave senators leverage to force the majority to negotiate with them on specific provisions in (or related to) the underlying legislation. For example, members could threaten to object to going to conference if the conferees did not provide assurances than an amendment adopted by the Senate would not be stripped out behind closed doors or that conferees would not “air drop” unrelated provisions into the conference report that were not originally included in the House-passed or Senate-passed versions of the bill.

On January 25, 2013, the Senate adopted a rules change (S. Res. 16) that effectively eliminated this leverage. As amended, Rule XXVIII now stipulates that the three separate motions previously required to go to conference are collapsed into one non-divisible motion. Cloture on this new compound motion ripens after up to two hours of debate, equally divided. No post-cloture debate is in order once cloture is invoked; the Senate proceeds immediately to a vote on adoption of the compound motion.

The reduction in a senator's leverage can be illustrated by comparing the prior practice with that by which it was replaced. Under prior practice, it could take over five days to go to conference over the objections of a single senator. Under the rule as amended, it takes two hours to go to conference over the objection a single senator. While 60 votes are still effectively required to go to conference under the new rule (i.e. to invoke cloture), it is unrealistic to expect 60 members not to support going to conference after 60 members voted to end debate and pass the underlying legislation in the first place.

These changes are part of a broader trend in the Senate to reduce the ability of its members to single-handedly influence policy outcomes.