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Thursday, April 11, 2013

Amendments Between the Houses: Procedural Options and Effects

Elizabeth Rybicki
Specialist on Congress and the Legislative Process

The House and Senate must agree to the same measure with the same legislative language before a bill can be presented to the President. To resolve differences between House and Senate versions of legislation, Congress might appoint a conference committee to negotiate a compromise that is then reported to each chamber for consideration. Alternatively, Congress might use the process of amendment exchange. In this process, each chamber acts on the legislation in turn, shuttling the measure back and forth, sometimes proposing alternatives in the form of amendments, until both chambers have agreed to the same text.

The difference between a conference committee and an amendment exchange is not necessarily in the way a policy compromise is reached, but in the formal parliamentary steps taken after the principal negotiators have agreed to a compromise. After each chamber has passed its version of the legislation, or in some cases even before that stage, Senators, Representatives, and staff from the relevant committees of jurisdiction engage in policy discussions in an effort to craft compromise legislation that can pass both chambers. These informal meetings and conversations are sometimes referred to colloquially as “pre-conference,” although they need not be followed by the convening of a formal conference committee. The phrase is applied generally to final-stage efforts to prepare legislation for passage in both the House and the Senate.

The decision to use the amendment exchange route has procedural implications. Amendments between the houses are not subject to the same procedures as conference reports. For example, some of the limitations on the content of conference committee reports do not apply to amendment exchange. Furthermore, amendment exchange provides alternative opportunities to structure decisions, because the policy compromise can be voted on as separate amendments between the houses, instead of as a single legislative package. In addition, amendments between the houses are not considered under all of the same procedures as bills on initial consideration. As a result, a chamber might use this process to first consider what is effectively a new legislative proposal, or a new combination of legislative proposals, in the form of an amendment between the houses. In the Senate, House amendments are privileged, and therefore their consideration typically begins immediately after the majority leader asks the Presiding Officer to lay them before the Senate. In contrast, to begin consideration of a bill or resolution, the majority leader must either obtain unanimous consent or make a motion to proceed to the measure, which is debatable in most circumstances. Furthermore, in the House, consideration of Senate amendments is unlikely to include an opportunity for a member of the minority party to offer a motion to recommit, an opportunity that is generally assured on initial consideration of a bill or joint resolution.

In an amendment exchange, the formal actions the chambers generally take on amendments from the other chamber are (1) to concur, (2) to concur with an amendment, or (3) to disagree. There is a limit to the number of times each house can propose amendment(s) and send the measure back to the other house, but in both chambers the limitation can be waived. In the contemporary House, Senate amendments are typically disposed of through a special rule reported by the Committee on Rules, a motion to suspend the rules, or by unanimous consent. In the Senate, consideration of House amendments has the potential to become procedurally complex, particularly when the Senate must dispose of multiple House amendments. Because House amendments, unlike conference reports, are subject to amendment, the Senate majority leader might offer a motion to dispose of the House amendment and then “fill the tree” to temporarily prevent any Senator from proposing an alternative method of acting on the House amendment.

Date of Report: April 5, 2013
Number of Pages: 35
Order Number: R41003
Price: $29.95

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