Red State readers are apparently over the moon at Jim DuhMint's objection to the Senate's appointment of conferees on the health insurance reform bill, in the belief that it somehow dooms the effort. In fact, it does no such thing, and DuhMint's objections do little more than waste a bit more time in an already drawn-out process.
Before we get to why this probably isn't such a big deal, it'll be instructive to talk about the process of moving to conference in general. Going to conference, of course, only happens when the House and Senate have both passed different versions of the same legislative vehicle. I say "legislative vehicle" rather than bill because the casual use of the term "bill" can create confusion. Both the House and the Senate have passed their own versions of the health insurance reform bill, for instance. The House version, though, is embodied in the legislative vehicle known as H.R 3692, whereas the Senate's version is embodied in the vehicle H.R. 3590. Both houses can therefore be said to have passed their own versions of a health insurance reform bill, but H.R. 3590 is the only legislative vehicle to have passed both houses, and is therefore the only one of the two eligible to go to conference.
It must be noted, however, that if the House and Senate actually went to conference right now on H.R. 3590, it'd technically be to settle the differences between the Senate's health insurance reform bill and the original H.R. 3590, which was, as you may recall, the "Service Members Home Ownership Tax Act of 2009," and not a health insurance bill at all. (For an explanation of why, see the explanation of how the Senate gets around the dictates of Art. I, Sec. 7 of the Constitution.)
That leads to a whole range of issues regarding what would ad wouldn't be eligible for negotiation in that conference, since technically it's only the differences between the two versions of a single vehicle that are open for discussion. But with the current versions of H.R. 3590, the entirety of the text would be in controversy. But in addition to that, there's another restriction typically imposed on a conference, which is that the settlements reached are supposed to be bound by the positions the two houses took going in. That means, for example, that if the House version of a vehicle proposed putting $1 million toward some program, and the Senate version proposed $2 million, the conference agreement (under normal circumstances) would have to come in somewhere inside of that range. Now, as with most things in Congress, there are ways around those restrictions. But like all work-arounds, they cause complications, and when you've got no margin for error (as is the case when you need 60 votes to move ahead, and find yourself with exactly 60 and no more), complications are to be avoided where possible.
That said, what could be said to be the boundaries between the Senate's version of the health insurance reform bill on the one hand, and a House bill on a completely different subject on the other? Are the differences said to be infinite, therefore leaving everything open to negotiation? Very possibly, yes. But there's another consideration. It's also normally considered out of order for items not included in either bill to be included in a conference report, which would mean that things in the House version of the health insurance reform bill (and remember, that's H.R. 3692) but not in the Senate's wouldn't at this point be eligible for inclusion in the conference agreement, meaning there'd be no opportunity to take any of the good stuff from the House bill -- even if the Senate would accept it -- and put it in the conference report.
So what to do? Well, the House can easily enough opt to take up H.R. 3590 as amended by the Senate, and further amend it by striking out the text that's in there now and substituting the text of H.R. 3692 instead. That would finally leave us with one version of a single legislative vehicle (H.R. 3590) that carried the Senate's health insurance reform langauge, and one version that carried the House's. And that would be something to go to conference on.
OK, now are you ready to get back to the topic I originally wanted to talk about? Great!
Do you remember what that was? It was Jim DuhMint's objection to an effort to appoint conferees in the Senate.
Going to conference in the Senate can be done the easy way or the hard way. They were trying to do it the easy way when DuhMint stopped them. But it's easier to understand why this way was the easy way if you first take a look at what the hard way is.
The hard way is a three-step process that begins, of course, with the passage in both houses of different versions of the same legislative vehicle. After which, the Senate must:
- Insist on its version of the bill, and thereby put itself in formal disagreement with the House;
- Request a conference with the House to settle the disagreement, and;
- Appoint conferees to meet with a House delegation to negotiate that settlement.
What makes the hard way particularly hard is that each of those steps requires a motion be made, and each motion is subject to... you guessed it: the filibuster.
The easy way to deal with this stuff, then, is by unanimous consent -- often for a single request encompassing all three propositions: insistence on the Senate position; requesting a conference, and appointing conferees. That saves time and energy, and puts the bill on the path to conference a little earlier than any of the other methods. And that's apparently what DuhMint objected to.
Now at this point, there's little reason to believe that there would be any difficulty in holding together the same 60-vote coalition for cloture on motions 1-3 that you saw come together to get cloture on passing the bill in the first place. You'd have to go through a similar exercise, of course. Meaning you'd have to file for cloture on all three motions, waiting for one full calendar day plus one hour to intercede in order for the cloture motions to ripen, then voting on the first motion, running the 30-hour post-cloture clock, then voting on motion #1, followed by a cloture vote on motion #2, another 30 hours, a vote on motion #2, a cloture vote on #3, 30 hours, and finally a vote on #3. But you'd get there eventually. DuhMint succeeds only in killing time, though on the Senate floor is always valuable.
Or, you could just... send H.R. 3590 back to the House, and let the House deal with it.
And if the House deals with it, one of three things can be expected:
- the House could opt to just accept the Senate's version of H.R. 3590, in which case it's over;
- the House could opt to amend H.R. 3590 further (including substituting the text of H.R. 3692), and make its own motion to go to conference, or;
- the House and Senate (and presumably the White House) could enter into negotiations with or without calling for a formal conference, and work out the differences without giving DuhMint a second thought.
Which one do you think most likely under the circumstances?
Sending the bill to the House at this point will almost certainly eliminate at least one future cloture vote for the Senate. If the House is the one proposing a conference, the Senate need only vote to agree to a conference and appoint conferees. Both of those motions could be filibustered, of course, but at least it's just two votes instead of three.
Now as it happens, which house first proposes to go to conference makes a difference in the dynamics of voting on the conference report, and originally I was going to leave that part of the story for another day. But thought it seems much more likely at this point that the bicameral leadership will opt for the simplest possible process, those of you who like to pass the time gaming out every possible permutation will be interested to know that the house that initially requests a conference is usually the last to vote on the conference report when it's done. The story of why is best left for another time, but here's the significance: only the first house to consider a conference report has the option to recommit the bill to conference and try to make changes. Would anyone really do that? Not really. But the option is there, and that will make people want to think, even if they're only fantasizing.
But ultimately, there's no formal requirement that the differences between the houses be settled in a conference committee. That's just one vehicle available to them, and one that comports with their preference for formal and transparent process. But there's nothing that prohibits them from meeting informally and trying to cobble together a package of amendments that they think can pass both houses, and then taking that package to the floor of the House and offering it as an amendment to H.R. 3590 as amended by the Senate. If they've calculated correctly, that package would pass the House and be sent back to the Senate, which would have an opportunity to vote on whether or not to accede to the House amendment. And if the House amendment has been pre-cleared in the informal negotiations, then Senate leaders will know that they'll have the 60 votes it would take even to overcome any threatened filibuster of the motion to take up the House amendment, which would all but seal the deal.
So, did Jim DuhMint kill the bill with his objection? No. The easy path for the Senate to actually be the one to put the bill on the road to conference is blocked, but the Senate can still opt to be the one requesting conference if it wants to, or it can leave that to the House. And even then, the House may not be interested in a formal conference. And not only that, but nothing about DuhMint's objection delays the option to begin informal negotiations by so much as a nanosecond.
Easy peasy, right?