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May 16, 2008

Many laws wouldn’t be on the books in Michigan without shouting matches, all-night negotiations, a few laughs, good beer and a $100 feast from Taco Bell.

It’s a far cry from the quaint “Schoolhouse Rock” jingle (“I’m just a bill/ Yes, I’m only a bill/ And I’m sitting here on Capitol Hill … It’s a long, long wait/ While I’m sitting in committee/ But I know I’ll be a law someday …”). With its catchy tune and endearing ’70s animation, there’s probably no better way to explain the legislative process to a kindergartner.

But if you want to witness how the sausage really gets made in Lansing, try being a fly on the wall in a conference committee. But bring the espresso. These sessions can stretch for hours, even days.

“It started at 3 p.m. and by 2 a.m. I was thinking, ‘Oh, my God, I’ll do anything to let this end,’” says former Sen. John Kelly (D-Grosse Pointe Woods), reflecting on his first conference committee in the 1970s. “I thought this was a 9 to 5 job…(Former House Speaker Bill Ryan) said we had to work out the details — ‘There is no tomorrow; there’s just now.’ And I thought, ‘this is extortion; this is blackmail.’”

Now Kelly calls conference committees a “lost art” in the era of term limits and skimpy institutional knowledge. “I saw the complexity of the process. This is where you get closure,” he says. “You didn’t see that with the budget process last year.”

More on that in a moment.

Grinding the sausage
So how does a conference committee work?

After a bill twists its way through both the House and Senate, it usually doesn’t look like it did originally, thanks to amendments and substitutes both in committee and on the floor. Often times, the final House and Senate versions barely resemble one another, especially when controversial issues come before a divided legislature.

Such was the case with the Blue Cross Blue Shield of Michigan reforms that shot through the Democratic-led House in November 2007 and passed the GOP-controlled Senate this month. With gaping differences in policies for those who buy their own insurance, the two versions must be reconciled.

That’s where a conference committee can come in. In fact, it’s statutorily required for budget bills. For other legislation, conference committees are optional, and the process is encoded in the governing joint rules of the legislature. But at the end of the day, the language in both chambers’ bills needs to be identical before the governor can sign it into law.

If the legislature goes the conference committee route, the speaker of the House appoints three conferees (two from the majority party and one from the minority) and the Senate majority leader does the same. Conferees are only supposed to iron out differences in the bills, but Dykema attorney and constitutional expert Richard McLellan points out legislators today often use the “gimmick” of not including certain elements in either version and coming up with a new draft bill in committee. While it’s not a constitutional issue, it does deviate from the joint rules, McLellan notes.

The conferees (or Con Threes) sign the report, which can’t be altered when it goes before both houses. If it passes, the legislation hits the governor’s desk. If not, the Con Threes are in big trouble with their caucuses for approving something a majority couldn’t swallow. The most important qualities for a conferee, Kelly says, are “being in tune with what the people want and being capable of listening.”

“It’s a crucial step in a well-run process,” McLellan says. “You don’t have to use it. Bills can just go back and forth — it’s not a requirement. But it’s a very useful tool.”

Taxing time
Sometimes the best-laid plans go awry. And when you have diametrically opposed plans with a heap of political maneuvering thrown in, you’re virtually guaranteed chaos.

That was, of course, the scenario in September 2007 as Lansing scrambled to balance a budget bleeding $1.8 billion. Everyone saw how well that went when the government shut down for about five hours starting at midnight October 1.

The key to the deal was corralling enough lawmakers to raise the income tax from 3.9 to 4.35 percent. Though officials knew a tax hike was coming since the spring, there were competing proposals to debate and political points to score. Democrats argued the social safety net would be decimated without more revenue, while Republicans loudly insisted a tax increase would bludgeon the already economically wounded state.

With the deadline bearing down, House Speaker Andy Dillon (D-Redford Township) on September 24 named his conferees: Rep. Steve Tobocman (D-Detroit), Rep. Andy Meisner (D-Ferndale) and Rep. Chris Ward (R-Brighton), one of the few Republicans willing to push the green button for a tax increase. Two days later, Senate Majority Leader Mike Bishop (R-Rochester) tapped Sens. Tom George (R-Kalamazoo), Ron Jelinek (R-Three Rivers) and Mike Prusi (D-Ishpeming).

But this was no ordinary time and no ordinary conference committee. During the final weekend, legislators napped in their offices or cars, with most forgoing hotel rooms to stay close to the action. Deals were being made at all levels, often unbeknownst to the Con Threes. “There were so many moving pieces,” George recalls. Ward is blunter, calling the process “harebrained.”

“There were so many huge issues up in the air at the same time,” says Ward, who ended up losing his post as minority floor leader over the income tax vote. “There were private meetings and I was out of the loop.”

The conferees didn’t sit down and hash it out, as they did in years past, but they did flyspeck the deal afterward. In the end, it was Gov. Jennifer Granholm, Bishop and Dillon who formed the determining triumvirate, although others not formally involved in the process got into the act. Sen. Wayne Kuipers (R-Holland), for instance, ended up bartering with Democrats about personal injury claim reforms that would revisit the Kreiner decision.

How the legislature finally struck a compromise on the income tax rate and a new services tax that was soon repealed, is still fiercely debated. Many Democrats, as well as Ward, claim Dillon tried to avoid the service tax at the 11th hour, but Bishop blocked it because he didn’t have the votes in his caucus to go to 4.6 or 4.7 percent on the income tax instead. Bishop denies that, placing blame for the despised service tax squarely on the speaker’s head.

Republicans won a couple of reforms, such as a competitive bid process for teacher health insurance and incentives for healthy behaviors for Medicaid recipients, a passion for George, an anesthesiologist.

George sees a silver lining to the messy process that dragged on for 10 months. “It had the effect of educating the public on the issue. It made people aware of the shortfall. They knew why we had to (raise taxes).”

But for Kelly and other conference committee veterans of deals past, it was excruciating to watch. “You have to muster up the courage to do the right thing. You can shut the government down, but it goes to the institution’s credibility,” he sighs. “People think you’re a bunch of idiots.”

Good old days
Back in 1994, hard-shelled tacos and burritos helped open up Michigan to charter schools.

It was Kelly’s last year in the Senate and he had already brought the seething education unions into the fold. He worked hand in glove with then-Senate Majority Leader Dick Posthumus (R-Alto), who eventually took his name off one of the bills so Kelly would garner credit.

At 1:30 a.m., then-Gov. John Engler barreled into conference committee negotiations, announcing he was starving and wanted to stop. Kelly handed a page $100 and told him to hit a nearby Taco Bell. When he returned, the senator had suddenly taken up the mantra of his mentor, Bill Ryan, and declared, “Here's sustenance. We can work all night.”

By 4 a.m., they had a deal.

Kelly’s longtime compatriot from across the aisle, former U.S. Rep. Joe Schwarz (R-Battle Creek), fondly remembers his conference committee dance year after year on the budget. As the Appropriations Higher Education Subcommittee chair, he’d sit down with his counterpart in the House, the late Rep. Morris Hood Jr. (D-Detroit).

Both chairs were firmly committed to higher ed funding. Hood was Wayne State University’s protector, a role Schwarz filled for his alma mater, the University of Michigan. Appropriations Chair Dominic Jacobetti (D-Negaunee), the House’s longest-serving member who died in office in 1994, would bustle in to make sure Northern Michigan University got its due.

“That was just the way it was done,” Schwarz recalls. “It was great fun.”

Legislators expected fireworks from the two stubborn chairs, but Schwarz says he and Hood “got along like long-lost friends.” Good libations were a prerequisite to any negotiation.

“He was the only person I knew who would be waving his index finger at me telling me exactly what I got wrong, while he reached into the refrigerator to hand me a beer,” Schwarz chuckles.

Different strokes
Some major legislation, especially in recent years, hasn’t gone the way of conference committee. When the legislature dumped the service tax in late 2007 in favor of a Michigan Business Tax surcharge, leaders did so without the aid of Con Threes. Right now, the complex and controversial Blues bills aren’t slated for conference.

Dillon favors the work group approach, bringing in members from both parties and houses, as well as interest groups, to make their cases. Dillon calls it a very open process in which everyone’s voice can be heard, pointing to recent energy reform bills that passed the House in April. He’s never served on a conference committee and isn’t opposed to them, but says he prefers the conference technique only when it comes
down to philosophical differences.

“When you can't change hearts and minds, then send it to conference committee,” Dillon says.

Another factor, of course, is that the conference report can’t be amended on the floor — it’s an up or down vote. So leadership has to cede some control. Dillon said he was gun shy about naming conferees in October 2007 to ditch the service tax in favor of a Michigan Business Tax surcharge.

“I didn’t want us to be to be in a situation with another midnight solution,” he says. Ironically, that’s exactly what happened on December 1.

Of course, the most significant policy change in the last generation — Proposal A, which overhauled the property tax system and K–12 funding formula — also bypassed the conference committee process. But in that case, the dozens of lawmakers who huddled with members of Engler’s administration in the Elijah Myers room near the Senate chamber on December 23, 1993, had already learned the art of the deal from their previous conference committee experience. Key players included the governor, Posthumus, Kelly, Schwarz, former Senate Majority Leader Dan DeGrow (R-Port Huron) former Sen.-now-Lt. Gov. John Cherry (D-Clio) and former Sen. Virgil Smith Jr. (D-Detroit).

“Everybody, everybody, everybody had an opinion,” says Schwarz. “The legislation was written by about 50 people. There were so many things to consider.”

It was 30 hours of intense negotiation, lagging into the night and Christmas Eve morning. The chambers finally voted on the legislation in time for lawmakers to get home for their holiday dinner, to which Cherry chortled, “Amen to that!”

Kelly calls it “being in the eye of the storm,” but says that’s what policymaking is about. “Sometimes it means sitting down on Christmas Eve when I should have been with my kids,” he says. “You’ve got to make some sacrifices; you’ve got to grow up.”

McLellan said it was a “very unique situation. You had very smart people who understood the process deeply.”

So, could the current legislature pass something on par with Proposal A, conference committee or no? McLellan doesn’t miss a beat. “No one in the present system understands the process,” he declares. “You could never get such complex legislation passed today.”

For the old masters in Lansing before term limits, conference committees didn’t represent unyielding procedure or fusty tradition. The conference was a symbol of the push-and-pull of the legislative process, a place where bipartisanship flourished and lifelong friendships were born.

They came up with imperfect masterpieces like Proposal A, which needs to be restored and touched up today. Crafting legislation never looks like a pristine Botticelli painting; it’s more like an abstract Jackson Pollock canvas slapped with competing ideas and passions. But in recent years, there has been some scribbling not worthy of posting on the family fridge.

“There was camaraderie with the old legislature,” sums up a wistful Schwarz. “We socialized together; we had great respect for one another. And when we had to be partisan, we were partisan. But we knew when that was no longer appropriate — when the cause was the state of Michigan and its welfare.”

Susan J. Demas is a 2006 Knight Foundation Fellow in nonprofits journalism and a political analyst for Michigan Information & Research Service.

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