THE TREATMENT JANUARY 5, 2010
Jeff Davis publishes and edits Transportation Weekly
Even if the Senate GOP was not being completely obstructionist on every little procedural motion, the smart money has always been on bypassing an actual conference committee and settling health care via an exchange of amendments between the Houses for another very important reason: Democratic leaders have realized that a key feature of their big 2007 ethics bill is incredibly inconvenient.
Section 511 of Public Law 110-81 (the Honest Leadership and Open Government Act of 2007) amended Senate Rule 28 (conference reports) to put in a strengthened point of order against conference reports that exceed the scope of the difference between the House and Senate bills. This was meant to make it harder to "airdrop" provisions in conference reports that were not in either the House or Senate versions of a bill and to make it harder for conferees to drop provisions that were identical in both versions of the bill.
As amended by the ethics law, Rule 28 now works similar to the "Byrd Rule" on reconciliation bills - any provisions ruled out-of-scope by the Parliamentarian are stricken from the conference report unless at least 60 Senators vote to waive the provision. So the effect of the rules change was to allow any grouping of at least 41 determined Senators to knock out provisions in a conference report that were added in conference (If the conference report drops a provision that was in both the House and Senate versions of the bill, the conference report then is deemed defeated unless 60 Senators vote to waive the rule, but that doesn't make much difference in a cloture scenario since 60 votes are required anyway.)
But the changes to rule 28 make it much more difficult for Democratic leaders to add "sweeteners" to a conference report to buy votes, since 41 Senators could knock out any individual sweetener out of the conference report without defeating the entire conference report. And sweeteners don't have to be wholly new provisions, since expansions to existing provisions can be out of scope--if the House version of the bill has $50 million for a particular program and the Senate version has $100 million, if the conference report goes below 50 or above 100, the provision can be knocked out by 41 Senators.
As a result, since the rule changes took in effect, Democratic leaders have basically stopped sending large controversial bills to conference committees, preferring to ping-pong them instead to avoid problems in the Senate with the newly strengthened rule 28. Appropriations bills and the reconciliation bill are still sent to conference (those bills are subject to a variety of other 60-vote thresholds in the Senate). And bipartisan bills can be conferenced--in the 2008 session of Congress, the only two bills that made it through conference were the CPSC bill (which passed the House 424-1 and passed the Senate 89-3) and the Higher Ed reauthorization (which passed the House 380-49 and passed the Senate 83-8). In 2009, after the Hundred Days in which Stimulus and S-CHIP were sent through conference, only appropriations bills and the bipartisan defense authorization bill(s) were sent to conference. Everything else was ping-ponged, most notably the Defense appropriations bill right before Christmas, which had been selected by the leadership to carry many other unrelated provisions and which therefore was not sent to conference committee due to rule 28 concerns.
Imagine if health care were sent to conference and in order to be assured of 218 votes in the House, the Speaker had to add some kind of buy-offs for some House people similar to what Nelson, Landrieu, etc got in the Senate. Any 41 Senators could knock any of those buy-offs out of the conference report and blow up the deal.
While strengthening rule 28 was an understandable response to some serious abuses that occurred on the Republican watch (the one "airdropped" provision Democrats cited most was the vaccine manufacturers liability regime added in the conference report of an unrelated bill by Bill Frist), the effect has been to move the House-Senate negotiating forum for every large and controversial bill from a conference committee (which has to have meetings that are open to the public) to closed-door private meetings to prepare an amendment between the Houses via ping-pong. Don't expect to see any more conference committees on controversial party-line bills. Ever.