My sources are confirming the new conventional wisdom that Speaker Pelosi and Leader Reid are working to “ping pong” the health bill rather than go to conference. I think it might be helpful to work through the mechanics of both paths.
I will describe the ping pong and conference floor procedures, then what typically happens behind the scenes. I will also provide a little analysis of the current situation. Today’s post is about explaining the process. I will follow up tomorrow with an update of my projections for health care reform.
Updates to reflect technical corrections and updated intel are in green.
Ping pong procedure
The formal term is “messages between the Houses.” This is procedurally far simpler than a conference. In practical terms for this bill, here’s what I would expect.
On December 29th, the Senate sent the bill it passed on Christmas Eve to the House. A new amendment to that bill will be negotiated by Democratic Congressional leaders, Committee Chairs, and the President’s staff. I expect Speaker Pelosi, Leader Reid, and their staffs will be the most important players in these negotiations.
The House will then try to pass a rule that brings up the Senate-passed bill, makes one amendment (the negotiated agreement) in order, and passes the bill with the new deal as an amendment. I would expect three two votes after the amendment is negotiated, and the Speaker will need to hold a majority of the House for each vote. (Technically, the House would “move to concur with the Senate bill with an amendment.”)
That bill will then be sent to the Senate. Leader Reid can, at his discretion, move to proceed to the “House message” (think of it as the House-passed bill containing only the new negotiated agreement). That House-passed bill is then debatable and amendable in the Senate. This means Leader Reid would need 60 votes to (a) block additional amendments and (b) shut off a likely Republican filibuster. I assume Leader Reid would block Republican amendments by a procedural move called filling the amendment tree, then file cloture on the House-passed bill. The Senate would take up to three at least two votes: a majority vote on the motion to proceed to the House message, a 60-vote cloture vote two days after the Senate process began, and a majority final passage vote the day after that. In addition, there will likely be points of order available against the bill (message) in the Senate. At least one of these could require 60 votes to waive.
So you have six at least five votes:
- A House floor vote on the rule.
- A House floor vote on the amendment (“the deal”).
- A House floor vote on final passage: the House “agrees with an amendment to the Senate amendment.”
- (maybe) A Senate vote on the motion to proceed to the House-passed bill (the “House message.”)
- A Senate vote on cloture (needs 60).
- A Senate vote on final passage (needs 51).
The important and hardest votes are #2 and #5.
Conference floor procedure
On Christmas Eve, the Senate passed H.R. 3590, containing the text of the Reid amendment as modified by a month of debate, as the Senate version of the bill.
Had Leader Reid tried to go to conference, he would have had to offer three motions, in sequence. They are:
- I move the Senate insist on its amendment [to the House-passed bill];
- I move the Senate request a conference with the House on the disagreeing votes of the two Houses; and
- I move that the Chair be authorized to appoint the following conferees on the part of the Senate [ list Senators ].There is then a fourth step that can be introduced by any Senator:
- The Senate can vote to instruct its conferees to do X, where X is any policy matter.
Usually, the first three motions are combined and done by unanimous consent in about eight seconds. On a highly controversial bill, a single Senator can insist that the Senate debate and vote on each motion. Since these are debatable (but not amendable), they can be filibustered. This means that Minority Leader McConnell could force Majority Leader Reid and the Senate Democrats to invoke cloture (with 60 votes) three times before getting to conference. When you include the three votes on the motions, this means up to six votes (three of which require 60) and several days of floor time.
Difficulty #1 for Leader Reid would be holding 60 votes repeatedly. It would be far easier than the Christmas Eve vote, but it’s still a political hassle for his nervous members, and it’s a procedural hassle for Leader Reid to bring his members back for these votes. That sounds absurd, but it’s a real concern for a Leader — getting the attendance when your Members have made other plans is hard.
Difficulty #2 for Leader Reid comes from the opportunity for unlimited and politically painful motions to instruct from the minority. The unlimited part means Republicans could stretch this process out forever (theoretically). The politically painful part is at least as serious Republicans could easily draft amendments designed to split Democrats and make closed-door negotiations more difficult. (e.g., How can the Senate include the House provision to raise marginal income tax rates when the Senate adopted a motion to instruct that rejected such a policy on a 75-25 vote?)
Once the motions to instruct are complete, the Senate message would then go to the House. The House would have to vote on and adopt three parallel motions. That is presumably easier in the House because they’re only majority votes. Once the House has gone to conference with the Senate, a 30-day clock begins. When that clock expire, the House minority has the ability to force a vote on a motion to instruct, causing Speaker Pelosi similar headaches to those faced by Leader Reid.
Once there is a conference agreement (more on this below), one body (probably the House?) would take up the conference report and try to pass it. Assuming the House passes it, that is then sent to the Senate. The motion to proceed to the conference report would be privileged and could not be filibustered. The text could not be amended, but it could be filibustered. So Leader Reid would need 51 votes to proceed to the bill, 60 votes to invoke cloture on it, and a majority to pass it. After that, it would go to the President for his signature.
Behind the scenes
Conference is a more formal and structured way to reach an agreement, and often has a greater chance of building support for the final passage floor votes. The structure creates legitimacy and somewhat reduces the ability of opponents to claim the final product is arbitrary. To the extent that the conferees appointed by the Leaders represent the political breadth of their caucuses and the various factions involved, it’s easier to sell the final product. For instance, if Rep. Stupak, Rep. Lowey, and Sen. Nelson were conferees, and if the three of them negotiated an abortion compromise, the Leaders might be able to more easily sell that deal to both sides of the abortion debate (within the Democratic caucus).
Most bills are done through a conference process. The Leaders typically appoint as conferees the relevant committee chairmen (and ranking minority members), other senior members of the relevant committees, and other key players whom they view as instrumental to a deal. So it’s easy to imagine Speaker Pelosi including someone like Rep. Stupak as a conferee, or Leader Reid including Senators Nelson and/or Lieberman as conferees. You bring them inside the tent and give them leverage over the writing of the conference report, buying yourself their support on the back end when that conference report comes to the House and Senate floors.
In a conference situation, much of the negotiation is done committee-to-committee. Since I assume Republicans will be entirely cut out of the closed door negotiations, in a conference I would expect Ways & Means Committee Chairman Rangel, Senate Finance Committee Chairman Baucus, and their staffs to negotiate the tax title of a conference report. The leaders and other conferees don’t have to agree to a Rangel-Baucus negotiated tax title, but there would be a strong presumption to use that negotiation as the basis for further discussion. Similarly, in a “normal” conference you would expect House Commerce Committee Chairman Waxman, House Education and Labor Committee Chairman George Miller, and Senate HELP Committee Chairman Harkin to take the lead in negotiating an agreement on the insurance “reforms.”
The Leaders (Pelosi, Boehner, Reid, and McConnell) rarely appoint themselves as conferees. When they do, they almost never make themselves the “chair” of their conferees. A conference structure naturally keeps power in the hands of the committee chairman (and ranking members, when the minority isn’t cut out). The leaders have enormous influence, but that influence is indirect. That difference can hugely affect the outcome.
Ping pong (messages between the Houses) is the opposite. Power lies entirely in the hands of the Speaker and Leader Reid, each of whom unilaterally controls the text that will be brought to the House and Senate floor. The Speaker tells the Rules Committee Chairman “I want a rule on this bill text,” and hands the Chair the text. Similarly, Leader Reid controls the Senate’s negotiations with the House.
Others, including otherwise powerful committee chairs, have no formal power in this scenario. A smart leader will of course involve them quite heavily in negotiating and drafting the leader’s amendment, but this shift in formal power greatly weakens the committee chair’s ability to force or block certain policy outcomes.
But with great power comes great responsibility. Ping pong concentrates the power in Pelosi and Reid’s hands, but it also imposes a greater burden on them to deliver the floor votes. Committee chairs (and others who might otherwise have been potential conferees) may be slightly less enthusiastic to sell the final product if they feel it’s not “theirs.” And the free-for-all nature of the closed door negotiations, and the lack of a formal conference structure, can make the leaders’ management task of the negotiation process much more difficult. Structure can make it easier for you to say no when you need to. When everything appears to be at the Leader’s or Speaker’s discretion, then squeaky wheels are rewarded. This creates an incentive for Members to squeak loudly.
All indications are that Speaker Pelosi and Leader Reid intend to ping pong the bill. Further, it appears many House Democrats (and, importantly, key House Democratic staff) are resigned that this will not be an equal strength negotiation. I do not expect the negotiations will be about finding reasonable compromises or midpoints between the House-passed and Senate-passed bills, the usual starting assumption for a conference. Instead, the Senate’s weakness and no-room margin create enormous strength for the Senate in its negotiations with the House, especially in a less structured ping pong environment.
I instead expect that the Senate bill will form the basis for negotiations. Key House Democrats, including the Committee chairs and their staffs, will try to convince Speaker Pelosi and Leader Reid to accept certain components of the House bill. But the burden of proof will be on he or she who wants to make changes to the bill we know can get 60 votes in the Senate. That’s the primary binding constraint.
There will be exceptions to this default assumption. Not every detail of the Senate bill is vote-determinative, no matter what the Senate says. Negotiators will have lots of room for flexibility on important details, especially when those details are important policy but not in the headlines every day. And when Speaker Pelosi is convinced that she must have a policy change to hold 218 House votes, she’ll probably get it.
Playing ping pong works when you have strong leaders in the House and Senate who share a common goal. Speaker Pelosi’s authority and power within the House Democratic Caucus is indisputable, and so for her this strategy makes a lot of sense. I’m less certain about whether Leader Reid would have been better off with a conference, but it appears the path has been chosen. I think a conference is generally the right and more legitimate process, especially for such a complex and important bill. Even given my opposition to the underlying policy, I think they would create a less-worse version of it were they to use a conference. But from a results-oriented standpoint, the Democratic leaders appear to have made a rational process choice, particularly given the Obama-Pelosi-Reid unity, their clear willingness to be flexible on any policy element so they can get to a signing ceremony, and the Speaker’s overwhelming dominance over her caucus.