Savoring the Conference Process

Needless to say, the legislative process can be a complex sight to behold. The ongoing ruckus over Congress' handling of the Obama health care package provides the perfect context for a discussion of my favorite part of the legislative process – the maze known as conference. By definition, conference happens after the two chambers in a bicameral legislature each pass a bill that is in conflict with the other and the differing bills must be reconciled before joint passage of a "conference" report. Put another way, conference is where the tastiest sausage is made.

Here is how it works. One chamber requests a conference or agrees to the other chamber's request for a conference. Conferees are appointed and the other house is informed of the action by a "message" -- a formal communication between the chambers. After the second chamber agrees to go to conference, it appoints conferees and likewise sends a message back. Either chamber may appoint any number of conferees. No matter the number, the conferees must act as one.

Next come the dicing and slicing of deliberations, with review by the conferees of the differences between the respective bills. The scope of the "matters" in conference is the crux of the matter (pun intended). Germaneness becomes a key question. Conferees are supposed to attend to only the matters in the legislation that are in disagreement. Conferees are not supposed to insert new matters or drop matters in agreement. A parliamentary point of order may lie against the conference report if conferees overstep their authority by going too far beyond reconciling the differences. In the real world sausage making process, however, conferees have some latitude towards the end that the entire controversy may be successfully resolved to the satisfaction of both chambers.

Conferees confronted with an amendment (or a series of amendments) are under more procedural constraints than conferees handling a bill passed by the other chamber via a committee substitute. If the differences are in the form of conflicting amendments (rather than conflicting committee substitutes), the conferees may recommend that (i) one chamber recede from all or some of its amendments, (ii) the other chamber recede from its disagreement to all or some of the amendments and agree; or, (iii)  the conference committee report a failure to agree either in all or in part.

In the end, if the conferees reach an agreement on the disputed subject, the conference committee reports to each house and the two houses vote on the text of the recommended agreement. If either house rejects the conference committee's recommendation, new members to the conference committee may be appointed to try again, otherwise, the bill is dead. Long live the conference process. 

Back to Basics: The Legislative Product

A bill must have a title, an enacting clause, and a body of provisions to be enacted. To draft bills, drafters rely on drafting manuals.

A state legislature's drafting manual can take the form of a bound handbook, a loose leaf notebook, or a CD-Rom. Some drafting manuals are even available on line. Some are enacted as resolutions. Some are internal staff documents. Law Writer edits one drafting manual and collects others.

No matter the form, a legislative drafting manual is generally much more than a checklist on how to write a bill. The drafting manual serves as a detailed guide to the correct form for bills and resolutions. The manual provides information on style and gives "voice" to the laws of a particular jurisdiction. Though legislative drafting manuals are not generally concerned with the particular substance of bills, manuals usually provide information about constitutional issues and limitations. Confidentiality requirements are often discussed as well.

First published in 1955, the Bill Drafting Manual for the Kentucky General Assembly is one of my favorites. Section 101 (Introduction) of the 1996 Edition says: ". . . The quality of the legislative product depends not only upon the substance of laws, but upon their form and style. Inaccurate or careless drafting may produce bad laws, or even invalidate a measure entirely. It is essential to legislators, administrators, courts, and the public that bills and resolutions be written in a clear, correct, and unambiguous style."

Legislative Documents & Their Functions:

Bill: The exclusive means by which a legislature enacts, amend, or repeals a statute.

Resolution: The document used to address internal legislative matters. A resolution that must be passed by both chambers is a joint or concurrent resolution. A resolution that need be passed by only one chamber is a simple resolution.

Floor amendment: An amendment to a bill or resolution offered by a legislator during floor debate.

Committee substitute: A committee substitute for a bill or resolution is a "draft de novo" adopted by a committee for consideration by the chamber in place of the original bill or resolution.

Conference committee report: The conference committee is appointed when the chambers do not agree and matters in disagreement must be settled. A conference committee report is a complete draft of a bill that usually represents a compromise. (If the originating house agrees with changes to a bill made by the other chamber, there is no need for a conference report.)