Health Care Financing Reform: (99) No Conference Committee to Resolve Differences Between House and Senate Bills

     The differences between the House and Senate health care reform legislation will be reconciled not by a conference committee, but rather informally by the leadership of the House and Senate, in consultation with the White House and with Senators and Representatives whose votes are necessary for passage of the measure.

     In the past few postings I have described some of the critical differences between the House and Senate bills, regarding the employer mandate, the extent of coverage and amount of subsidies, and the public options in each bill.  In addition, of course, there is also the subject of funding for abortions, with the difference between the Nelson amendment and the Stupak amendment.  But Congress will not be convening a conference committee to resolve these differences.  Is that appropriate?

     In its report of November 26, 2008, entitled "Resolving Legislative Differences in Congress: Conference Committees and Amendments Between the Houses," the Congressional Research Service describes three ways for the House and Senate to prepare a bill for presentation to the President.  Each House of Congress may enact identical legislation; different versions of bills may be sent to a conference committee which may prepare a single, unified bill; or differences between bills may be resolved through the amendment process.  The CRS report states:

The Constitution requires that the House and Senate approve the same bill or joint resolution in precisely the same form before it is presented to the President for his approval or veto. To this end, both houses must pass the same measure and then attempt to reach agreement about its provisions. The House and Senate may be able to reach agreement by an exchange of amendments between the houses. …  Alternatively, the House and Senate can disagree to each other's positions on a bill and then agree to create a conference committee to propose a package settlement of all their disagreements. 

     In the case of the competing health care reform bills passed by the House and Senate, Congressional leaders have chosen to proceed by the amendment process rather than convene a formal conference committee.  That will give members of Congress two more bites at the apple - they will try to influence the substance of the amendments that are created in the informal bargaining among President Obama, Speaker Pelosi, and Majority Leader Reid, and they may offer an "amendment to the amendment" once the unified bill is presented to the House and Senate.  The CRS report states:

Each house has one opportunity to amend the amendments from the other house, so there can be Senate amendments to House amendments to Senate amendments to a House bill. 

     The CRS dryly observes:

the procedures associated with the exchange of amendments can become complicated.

     No doubt the Democratic leaders will attempt to forge a compromise that will attract 218 votes in the House and 60 votes in the Senate without the necessity for additional amendments to either bill. 

     David Waldman at Congress Matters has posted a very informative essay explaining why the amendment process is a more attractive alternative than submitting the bill to a conference committee.  A principal reason is that Senator Jim DeMint (R-SC) blocked the use of a conference committee by objecting to unanimous consent and forcing three more votes on the matter – each of which might have been the object of a filibuster.  Rather than struggle with the necessity of keeping the Senate in session for another week and holding three more cloture votes to close off debate on the creation of a conference committee, the Democratic leadership decided to proceed informally by means of the amendment process.  Waldman offers this summary of what the leadership plans to do:

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.

      We shall see.

Visit Professor Huhn's website on health care financing reform for links to information about proposed legislation, studies and reports, public agencies, and private organizations concerned with this issue.

Tagged as: amendments, conference committee, congressional research service, health care financing reform, health care reform, health insurance reform