Secret Bill-Writing On the Rise

The civics books say the House and Senate produce a final bill by sitting around a table where the public can watch them work out their differences.

It's a quaint idea, but a different modern reality has been on display this month. Democrats are refusing to open to the public the end-stage negotiations on how the government is going to change the delivery of health care.

And it's not just on the high-profile health care bill; the trend on much legislation is to shut the door and keep the minority party, cable TV and other media on the outside.

Dating back to 1789, the House and Senate have dealt with differences in bills by convening conference committees to thrash out a unified approach that the chambers can pass and send to the president. For the past two decades at least some of these bicameral, bipartisan meetings have been open to C-SPAN cameras.

But in those same two decades, leaders from both parties have held fewer and fewer conference meetings, or reduced their significance to photo ops.

In the 93rd Congress of 1973-75, Congress filed 190 conference reports, the end product of formal House-Senate negotiations. In the session of 2005-07, the last time Republicans controlled both chambers, that number had fallen to 28. Last year, the first year of the current Congressional session, there were only 11 conference reports.

Of those 11, eight were annual appropriations bills or the budget bill, measures that lend themselves to the conference committee process because House-Senate differences on spending levels can be resolved by splitting the difference.

Conferees did meet briefly last February on the $787 billion economic stimulus package, but only after the White House and Democratic leaders had reached agreement on the key issues. A few speeches were made, and the meeting was abruptly adjourned, never to be reconvened after Republicans asked when the negotiating with them might begin.

Other major bills sent to the president last year — a credit cardholder bill of rights, a women's fair pay bill, a smoking regulation bill and a war spending bill — were completed without open conference meetings.

Instead, leaders of the two chambers either worked out a deal where one chamber would accept the other's version, or took a "pingpong" approach where each chamber modifies its bill and sends it back across the Capitol for another vote until the two sides agree.

Senate Historian Donald Ritchie said the demise of the conference meeting has coincided with the rise of partisanship, and the health care bill is a perfect example; there's no motivation to convene a bipartisan conference when every minority member opposes it. Another factor is a shift in power from House and Senate committee chairmen to party leaders.

Rutgers University political scientist Ross Baker said one aspect of sunshine laws that have opened up Congress to closer scrutiny by the public and by special interests is that leaders often have to do their dealmaking in private if they want to accomplish anything.

"Anything that touches on explosive issues generally has to be decided at the leadership level and out of the public gaze," he said.

Still, shutting down House-Senate conference meetings riles those in the minority excluded from the process.

In a letter to C-SPAN Chairman Brian Lamb, House Republican leader John Boehner wrote, "Unfortunately, the president, Speaker (Nancy) Pelosi and Senate Majority Leader (Harry) Reid now intend to shut out the American people at the most critical hour by skipping a bipartisan conference committee and hammering out a final health care bill in secret."

The complaint sounded a lot like one nine years ago, when Sen. Kent Conrad, D-N.D., said Republicans "locked out the Democrats from the conference committee" meeting on the budget. "We were invited to the first meeting and told we would not be invited back, that the Republican majority was going to write this budget all on their own, which they have done. So much for bipartisanship."

Walter Oleszek, a professor at American University and senior specialist at the Congressional Research Service, wrote in a 2008 CRS report that the increased willingness of minority senators to block legislation through filibusters is another reason the Senate has avoided conferences with the House.

"Growing partisan tensions in the Senate are a major factor triggering dilatory activity that can prevent the convening of conference committees," he wrote.

Pelosi, asked about the closed-door negotiations, insisted "there has never been a more open process for any legislation," referring to the 100 hours of hearings on health reform and the hundreds of amendments from both parties that were considered.

Rather than staging conference meetings, putting bills online for 72 hours before a final vote would better ensure public access to what Congress is doing, said John Wonderlich, policy director for Sunlight Foundation, a group that promotes government transparency,

The reality is that conferences "are rarely a public window into actual negotiations." Instead, many conference committee proceedings are nothing more than hollow formalities, he said.

——

On the Net:

Congress: http://thomas.loc.gov