The year is winding down and for Congress that means it is time to pass the final versions of bills known as conference reports. Over the years, conference reports have been the biggest offenders in their timely availability for lawmakers and the public to read. Since 1999, nearly 80% of all conference reports were voted on in the House of Representatives without being available for at least 72 hours prior to floor consideration.

Conference reports are the product of negotiations between the House and Senate after each chamber has passed different versions of the same bill. These reports contain the various compromises made between the two chambers of Congress.

In 1970, Congress passed the Congressional Reorganization Act of 1970, which required all committee and conference reports be made available to lawmakers (note: not the public) for three days prior to consideration on the floor of either chamber. This requirement was established in both the House and Senate rules. As evidenced by the recent decline in availability, the rule is subject to be waived.

In the House the decision to waive this rule is made by the House Rules Committee. The Rules Committee has jurisdiction over nearly all legislation before it comes to the floor for consideration. Their job is to establish the rules for debate of a particular bill or conference report. This includes deciding which rules to waive for consideration.

The earliest data immediately available (via thomas.loc.gov) is from the 93rd Congress (1973-1974). This Congress rarely waived the new three day holdover rule on conference reports. Only 25% of conference reports considered in the House were available to lawmakers for fewer than 72 hours. The seventies marked a period where regular congressional order was held in higher esteem.

The 97th Congress (1981-1982) was the first Congress to send more than 50% of conference reports to the floor of the House for consideration without providing the 72 hour holdover period. In total, the three day holdover rule was waived 60% of the time. This instituted a period in Congress where fidelity to the three day holdover rule alternated between midterm election Congresses providing less availability (97th, 99th, 101st Congresses) and presidential election Congresses providing more availability (98th, 100th Congresses).

In the 102nd Congress (1991-1992) this period came to an end. Varying factors including a declining respect for congressional institutions and rules, the Gulf War and a recession led to a dramatic increase the waiving of the three day holdover rule for conference reports in the House. A full 73% of all conference reports considered in the House were not made available for at least 72 hours prior to consideration. The next Congress saw a brief respite and a return to sub-50% numbers for conference report availability. Then came the massive Republican victory in 1994.

Regular order had been in serious decline for some time in the House. By the mid-1990s, the number of days in session had collapsed from the highs of the 1970s and the majority increasingly used the rules process — including waiving the three day holdover rule — to stymie the minority’s ability to participate. The insurgent Republicans capitalized on these faults to attack the Democrats as institutionally corrupt. In 1994, the Republicans swept the Democrats out of power, but quickly walked back their agenda of restoring regular order. This soon became most evident with the three day holdover rule.

More than 60% of the time during the two Congresses (104th and 105th) when Newt Gingrich served as Speaker of the House conference reports were not made available for at least 72 hours prior to consideration. Looking at the situation today, this would be commendable. For in the 106th Congress (1999-2000) the way Congress was run changed.

In 1999, Texas Congressman Tom DeLay rose to the position of House Majority Whip in the Republican leadership. DeLay had a take-no-prisoners sense of governing and began to make the House reflect his confrontational, unapologetic style. To DeLay, legislating was a war. The less the minority Democrats knew the better. Fewer and fewer bills and conference reports would be made available for lawmakers to see prior to floor consideration.

In the 106th Congress, 75% of all conference reports were available for less than 72 hours prior to consideration. In the 107th Congress, that number went up to 78%. Then the 108th Congress shot up to 87% and the 109th Congress, the most recent Republican Congress, saw 82% of conference reports made available for less than 72 hours. These numbers are astonishing and became part of the Democratic criticism of the Republican majority.

Just like the Republicans in 1994, Democrats capitalized on a series of corruption investigations and the majority’s disrespect for institutional order and minority rights to win the 2006 midterm elections. While the Democrats did not make the situation surrounding the availability of conference any worse, as the Republicans did when they came to power, they have not made it any better. The 110th Congress (2007-2008) waived the three day holdover rule and allowed 75% of conference reports to come to floor for consideration without being available for at least 72 hours. So far, for 2009, that number stands at 80%.

As is the case throughout the history of Congress, once a process is begun by one party to consolidate power — in this case, the refusal to allow the minority to see legislation in a reasonable amount of time before consideration — the incoming party does not reject the same process. It is an unfortunate truth that makes it all the more difficult to change behavior in the future. In recent months, public pressure has come to bear on Congress to not only reverse this trend of considering bills without 72 hours for lawmakers to read both bills and conference reports, but to provide 72 hours for the public to review both bills and conference reports.