I wanted to take a moment to correct three falsehoods perpetuated during today’s House payroll tax debate. As you probably know, the (at times heated) debate centered on the use of conference committees to resolve bicameral disputes. I watched much of the debate and was struck by three reoccurring arguments about conference committees that I believe are patently false. The first, recited by numerous Republicans, is that conference committees are a part of the U.S. Constitution and/or a kind of Constitutional mechanism for resolving House and Senate differences. Bill Cassidy (R-LA) repeated this falsehood three times during his one minute (!) floor speech (see here at the 6:00:42 mark). This one is easy to refute; do a keyword search for “conference” in the Constitution. It doesn’t exist...anywhere. Now it is true that conference committees were used in the very first Congress and have been a crucial feature of bicameral bargaining thereafter. (fun fact: the first conference concerned a disagreement between the House and Senate over how to address the president. The House “won” and the president was stripped of a “royal” title. See this excellent 1989 book by Longley and Oleszek). Now this may sound like hair splitting, but at least three Republicans (including Speaker Boehner) indicated, quite clearly, that conference committees are proscribed by the Constitution to resolve House and Senate disputes. You would think that Republicans would be better versed on the Constitution after reading it at the start of the 112th Congress (that is unless this reading was for political rather than pedagogical purposes).
The second claim, also cited by Republicans, is that conference committees are somehow “Jeffersonian” or “democratic.” Dave Camp (R-MI) invoked this claim numerous times by my count. I see some room for interpretation on this issue, but if we consider the members who typically serve in a conference committee then conference committees are often undemocratic. Ryan Vander Wielen and Steven Smith have a 2011 paper where they show that in both the House and Senate, conference committees are biased with respect to the membership of the parent chamber. That is, they are unrepresentative. Jeffrey Lazarus and Nate Monroe reach a similar conclusion a 2007 paper. Lazarus and Monroe note that the Speaker has the power to name negotiators in addition to the jurisdictional committee members who typically serve in a conference. And when the Speaker believes that a conference of jurisdictional managers would produce an unsatisfactory outcome he or she names a slate of pro-majority conferees. As they summarize it: “the Speaker appoints other conferees in addition to those from the jurisdictional committee, thereby “packing” the delegation in favor of the majority party position” (emphasis in original).
The third falsehood, recited by some Democrats, is that today’s move to conference was somehow procedurally unusual or outside the House’s regular order. From what I witnessed on C-SPAN, the procedures followed by both sides were fairly standard. The House passed its version of the payroll tax, the Senate acted second amending the original House passed bill, and the House formally disagreed with the Senate’s version and moved to conference (after a motion to instruct conferees, which is a power exercised by the minority). The objections raised by Democrats seemed centered on the fact that the House refused to vote against the Senate bill and instead moved directly to a conference. But this is how it conference committees are often convened (see for example HR 1540 in this session, the 2012 defense authorization act). Nothing I observed was unusual in this maneuver (though clearly it's a smart political move by Republicans that frustrated Democrats).