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Unless you’re an expert in parliamentary procedure, the process of passing a health care bill in the Senate may seem mystifying.
What if the Senate manages to cobble together the 51 votes necessary to pass a bill? Where would it go from there?
We got answers from two experts in Senate procedure: Steven S. Smith, a political scientist at Washington University in St. Louis, and Josh Ryan, a political scientist at Utah State University.
Here’s a summary of what they told us.
To become law, any bill must be passed in exactly the same form by both chambers before it can be sent to the president. In theory, the Senate could have passed the identical bill that had already passed the House; once that happened, the measure would have been sent directly to the president for his signature. In the case of the health care bill, however, this wasn’t realistic: The Senate, where pragmatists have greater sway than in the more ideologically conservative House, wasn’t going to pass a health care overhaul bill as conservative as the one the House approved.
Instead, the Senate took its own course. After agreeing to start debate -- by a 51-50 margin, following a tie-breaking vote by Vice President Mike Pence -- the Senate took up various alternatives to the House bill. If one of these bills ends up passing the Senate, the next step would be to come up with a single piece of legislation that both chambers can pass in tandem.
Generally speaking, there are a couple of options for accomplishing this.
• The chamber that acted first (in this case, the House) could adopt the second chamber’s legislation (in this case, the bill that passed the Senate) in its entirety. Since both chambers would have passed identical legislation, this bill would be able to go to the president’s desk.
This is what the Democrats did when they originally passed the Affordable Care Act in 2010. After the Democrats lost a special election and their 60th vote in the chamber, they feared that having to pass a new bill from the conference committee would be a bridge too far.
This may not be feasible for the current health care debate given the chambers’ ideological differences, but it’s an option.
• Alternately, the House and the Senate could exchange amendments between themselves that iron out all differences between the chambers’ respective bills. If the amendments collectively made the bills identical and all were passed, then the measure would go to the president. This process is known informally as "ping-ponging."
This is done in Congress quite frequently now, but in the case of the health care debate, this option could become procedurally unwieldy.
• Lastly, and perhaps most likely, the two chambers could appoint a "conference committee" consisting of members of the House and Senate to hash out a new bill that would go to both chambers for approval.
Each chamber’s leadership decides who will populate the conference committee, although once the members are selected, the full Senate must approve the list of members. While the conference committee will include both Democrats and Republicans, in practice, only the majority party -- in this case, Republicans in both chambers -- will have a meaningful role in the health care debate. That’s because a conference committee can report out a proposal when a simple majority of the delegation of each house signs off. And that means that as long as Republicans are unified, they won’t need any Democrats to send on their work to both chambers.
Once the membership is approved, the committee gets to work. The conference can take as long as it needs to -- there are no time limits. In practice, the top party leaders -- in this case, Mitch McConnell, R-Ky, in the Senate, and Paul Ryan, R-Wis., in the House -- will be supervising, if not conducting, the key negotiations behind the scenes.
Because the conference committee has to change the bill in such a way that it can garner majority support in both chambers, they will typically receive input from both senators and House members. But conferences are free to change the bill in whatever way they see fit, and they do not have to follow any instructions or guidelines from either chamber. The conference could produce an entirely new bill and send it back to both chambers for approval. Or they could strike certain provisions until the two chambers’ measures are identical.
Once the conference has made its formal proposal and transmitted it to each chamber, the chambers cannot amend the new measure. It will typically be accepted or rejected as is, though for particularly knotty issues, the conference members could agree to leave certain matters out of the conference proposal and negotiate them separately at a later date.
If a chamber rejects the conference proposal, the conference can keep trying until something passes both chambers. This is uncommon historically, but it is permitted.
Reconciliation is a special process in the Senate for legislation that only deals with taxing and spending. For the sponsors of a bill, the attractive part of using the reconciliation process is that it cannot be filibustered, and thus requires 51 votes, rather than 60, for passage. That’s a much easier lift, and it’s what Republicans have been trying to use to pass their health care overhaul. The risk is that matters extraneous to taxing and spending can be challenged and stripped from the bill before consideration. (This is known as the Byrd rule.)
If the Senate takes up legislation from a conference committee that had been empaneled to address a reconciliation bill, the conference proposal would also be treated like a reconciliation bill, with a 51-vote threshold for passage. But it would also need to omit provisions unrelated to taxing and spending, under the Byrd rule.
U.S. Senate, "Frequently Asked Questions About Committees," accessed July 26, 2017
Email interview with Steven S. Smith, political scientist at Washington University in St. Louis, July 26, 2017
Email interview with Josh Ryan, political scientist at Utah State University, July 26, 2017