House speaker John Boehner continues to insist that he won’t allow a vote on an immigration-reform bill that doesn’t have the support of a majority of the House GOP caucus. He recently extended that pledge to include any bill that might result from a conference committee — an official, bicameral negotiation that typically occurs when each chamber has passed legislation on the same issue. But opponents of the Senate-passed Gang of Eight bill are still skeptical. “We aren’t concerned about what passes the House, the concern is what passes out of conference,” a conservative GOP aide tells National Review Online. “Once you to go to conference, you lose control of the situation.”
There’s worry among conservatives outside the Capitol, too: Jenny Beth Martin, co-founder of Tea Party Patriots, says she thinks that “if the House passes anything and it goes to conference, it will come out of conference, and it will be the Senate bill.”
Many feel those concerns are justified, although Boehner’s promise to follow the Hastert rule with any conference bill will help, and he would almost certainly be putting his speakership at risk by breaking his word.
But the speaker told members Wednesday that House Republicans would be “in a much weaker position” if they fail to act on immigration reform; so it would appear that conference remains a possibility. Representative Mario Diaz-Balart (R., Fla.), a leading member of the House working group on immigration, told the Huffington Post: “I think we’re going to get to conference.” Republican supporters of comprehensive immigration reform are said to be privately lobbying leadership in favor of going to conference.
In fact, a conference committee is one of the many elements of byzantine congressional procedure that lawmakers will have to navigate before an immigration package can proceed to President Obama’s desk. Here are nine issues to be mindful of as the House moves forward on its own reform package and, potentially, proceeds to conference:
Senate majority leader Harry Reid has yet to send the Gang of Eight bill to the House for consideration, meaning House members actually may not have the chance to vote on it even if they were inclined to do so. If the Senate bill did come to the House floor, it would almost certainly encounter a “blue-slip” challenge. House Ways and Means Committee chairman Dave Camp (R., Mich.), among others, has suggested that because the Senate bill raises revenue, it is unconstitutional for it to originate in the Senate, and it cannot be taken up by the House. Republicans could dispense with the Senate bill on these grounds by passing what is known as a “blue-slip resolution.”
If the Senate bill ever made it to the House, and in the unlikely event that it did not encounter a blue-slip challenge (leadership could opt against it), House minority leader Nancy Pelosi could file what is known as a “discharge petition” to force a vote on the bill. She would need to collect 218 signatures, meaning that 17 Republicans would have to agree, and would have to wait until 30 legislative days after the bill was introduced to file. Once the petition is successfully filed, the majority leader must schedule a vote on the floor.
Getting to conference
It’s relatively easy to do — assuming the House passes its own immigration reform package. Either chamber could initiate a conference by taking up the other side’s bill, agreeing to dismiss it, and requesting a conference. It is typically a multi-step process to start a conference, but the House could accomplish much of it simply by passing a rule by majority vote — meaning the rule could pass with mostly Democratic support (it would need a handful of Republicans to sign on). There is no limit to the number of conferees House and Senate leaders could appoint, although the majority parties would have greater representation. In the Senate, the appointment of conferees can be subject to multiple filibusters, but that is unlikely to be a factor on the immigration bill, given that the Gang of Eight’s bill passed with 68 votes.
Nervous House Republicans may demand a pre-conference agreement that would establish the parameters of a final compromise. Such agreements are relatively common, but are also non-binding. The appointed conferees could simply ignore the pre-conference instruction, but could certainly face political consequences for doing so.
In order to streamline the path to conference, rather than passing one bill, the House could pass a rule before it votes on any piece of immigration-reform legislation stipulating that every bill that gets majority support (218 votes) will be merged together at the end of the process and reconfigured as a new piece of legislation, which would then become the official House position on immigration. That bill could then be sent to conference with the Gang of Eight bill, if House leaders allow it.
There are basically only two rules governing how a conference committee must operate: 1) There must be at least one meeting that is open to the public, and 2) A majority of conferees from each chamber must support the final conference report for it to be voted out and proceed to a vote in both House and Senate. As a result, a conference is likely to favor supporters of comprehensive immigration reform. Republican conferees would likely be somewhat divided, while the Democrats would be almost certain to vote anything out of conference. Should that happen, neither side would be compelled to vote on the conference report. Boehner could simply ignore it, although the political optics of doing so would be problematic (Ideally, Boehner would be able to kill the bill in conference by instructing a united body of Republican conferees to oppose the conference report.). But once it is taken up in each chamber, it is considered a privileged motion, and cannot be amended. The vote to end debate in the Senate can be filibustered, but that is unlikely to happen, given the margin by which the Gang of Eight bill passed.
Congressional rules dictate that any final conference report must be available for at least three legislative days before it can be voted on, unless Congress is in the final six days of a session. If the immigration debate drags on into December, as is likely, the three-day rule could potentially be waived and members forced to vote on a conference report that no one has read (no doubt prompting further comparisons to the circumstances surrounding the passage of Obamacare). Because the conference committee is only obligated to have one public meeting, the majority of the negotiations are likely to take place behind closed doors, and most Republicans would not be thrilled about having to vote on something they haven’t had a chance to read.
Even if the House declines to go to conference with the Senate, there would be nothing preventing the Gang of Eight from reaching out informally to their counterparts in the House to negotiate a compromise bill. Harry Reid could then attach the proposal as an amendment or substitute to an unrelated bill, pass it, and send it to the House, where Boehner would have to decide whether or not to vote on it. To avoid a potential blue-slip challenge, Reid could attach the new bill as an amendment to legislation that raises revenue and has already passed the House.
If a conference committee runs longer than ten legislative days, or 20 calendar days, House rules allow any lawmaker to force at least one vote per day on motions to instruct the conference. In almost every case, such motions would have no practical effect, since they are non-binding. But since a member could file a petition to discharge the conferees and end the conference, Democrats could potentially force a (meaningless) vote on the Gang of Eight bill simply to place Republicans in a difficult political position. That is one reason why many are so wary of going to conference in the first place.
— Andrew Stiles is a political reporter for National Review Online.