The new, last-ditch Republican plan to keep their health bill alive is to just to pass something, anything through the Senate — and then, they say, the real legislating will start.
Specifically, Senate Republicans want to pass a “skinny repeal bill” that leaves the vast bulk of Obamacare in place, as a way to kick-start a “conference committee” process with the House of Representatives. The two chambers would then theoretically hash out a deal.
Indeed, Republicans have been making the extremely unusual argument that it hardly even matters what’s actually in the bill the Senate passes, because the real action will be in conference.
“It is not a solution. … It is a solution to get to a place to where we can write a solution,” Sen. Lamar Alexander (R-TN) said Thursday, according to the Huffington Post’s Igor Bobic.
"I think people would look at [the Senate’s skinny bill] not necessarily on its content, but as a forcing mechanism to cause the two sides of the building to try to solve it together," Sen. Bob Corker (R-TN) said Wednesday, per Caitlin Owens of Axios.
Now, it's important to realize that a “conference committee” is a very traditional legislative process, which is rarely used these days. Considering how Congress has functioned lately, it may be more plausible that House and Senate Republican leaders and a few other members will end up cutting a deal on a final bill through a less formal, closed-door process than that they’ll actually do a true conference.
Still, the fact that it’s even being brought up is partly due to desperation, as GOP leaders try to avert the total collapse of the health care legislative process — or to at least postpone that collapse a bit longer. Republicans have failed to unite 50 senators around any one repeal proposal, so now they’re trying to convince those senators to give some conference committee a shot at doing it.
Liberals and moderates are afraid that this process will be a “Trojan horse” — that whatever deal hatched by the conference committee would be a sweeping repeal bill that look more like the House’s original plan. Then, they fear, Senate Republicans would come under immense pressure to pass it — pressure they may well cave to.
Meanwhile, some conservatives have essentially the opposite fear — that the whole promise of a conference committee is a bait-and-switch. They think the conference process will either never materialize or never succeed, and that the House will be stuck taking or leaving whatever “skinny” bill manages to squeak through the Senate without even being able to change it.
Whatever the case, a conference committee process of some sort now looks like a real possibility for the health bill’s next step, if something does pass the Senate in the coming days. So let’s run through a refresher on how, exactly, it works.
The conference committee used to be the go-to process for finalizing big new laws
The conference committee is the most prominent formal process by which the House and Senate hash out the differences between the House and Senate versions of a bill. For much of American history, it’s been where the final text of most major bills is hammered out. Think of the most famous laws passed during the 20th century, like the Social Security Act of 1935, the Civil Rights Act of 1964, Ronald Reagan’s tax reform law of 1986, and the welfare reform law of 1996. They all went through conference near the end of their respective legislative journeys.
The gist is that after the House and Senate both pass some version of a bill, each chamber will name designate some of its members to be their negotiators — the conferees. Sometimes these are members who have expertise in a particular issue area, and sometimes they’re members handpicked to do leadership’s bidding. And this is a bipartisan process — the minority party gets to appoint conferees too, in proportion to how many seats they control in each chamber.
The conferees meet in a process that looks somewhat like an ordinary congressional committee, but with fewer rules to guide its work. Then, whether by backroom dealing, horse trading, arm twisting, or simple persuasion, they have to meld the separate House-passed and Senate-passed versions of the bill into one. In doing so, “they may not change a provision on which both houses agree, nor may they add anything that is not in one version or the other,” according to the Congressional Research Service.
In the end, the bill’s final text — the “conference report” — is determined, and majorities of both House and Senate conferees are necessary to approve it. That conference report then has to be passed by both the House and Senate again for the bill to be sent to the president’s desk.
Now, the conference process certainly isn’t the only way to unify the House and Senate behind a bill. For instance, one chamber can simply choose to pass the exact same bill already passed by the other chamber. Or party leaders from both chambers can work out a deal on a bill without going through the formal conference process.
But for most of the 20th century, conference was used to finalize the vast majority of major bills that became law. Indeed, political scientists Hong Min Park, Steven Smith, and Ryan Vander Wielen reviewed the history of the process and found that by one metric, 84 percent of important legislation between 1945 and 1994 went through conference.
And yet conference committees have been used less and less frequently as Congress has become more partisan and committees have weakened
Nowadays, though, the conference process is in many ways a relic of a time when Congress was less polarized along party lines, when the Senate filibuster was used far less routinely, and when committee leaders had far more say in crafting legislation compared to party leadership.
As partisanship grew more powerful in Congress and the majority party’s leaders took a heavier hand in shaping legislation, they found that they didn’t really have much use for all the rigmarole of the conference process. “Party interests, more than committee jurisdiction or the interests of individual legislators to be involved, became the dominant concern,” Park and his colleagues write. “Avoiding conference became a central feature of majority party strategies [in the 2000s].”
When Barack Obama took office, the conference process was already on the ropes. But with Democrats in control of Congress for those first two years, several major bills, including the stimulus and the Dodd-Frank financial reform bill, did go through conference.
The Affordable Care Act, however, was a major exception. Democrats were planning to do a normal conference when they controlled 60 Senate seats. But Scott Brown’s unexpected victory in a Massachusetts special election caused them to scrap those plans, because they no longer had enough Democrats to get the conference report past a Senate filibuster.
So instead, Democrats used an odd makeshift process to hash out the chambers’ differences. First, the House approved the version of the bill the Senate had passed before Brown’s victory. Then both chambers used the special budget reconciliation process to pass a bill with other various changes, because that process could get through the Senate with a simple majority. Republicans took over the House that fall, and since then, the conference process has only been used a handful of times each year.
The conference committee is suddenly being talked about because Senate Republicans can’t agree on an actual repeal bill
After a legislative process in which they’ve so often flouted congressional norms and regular order, GOP leaders promising to resurrect the conference committee as their next step may seem a bit odd. After all, they didn’t even move the health care bill through the regular Senate committees, and congressional leaders of both parties have gone out of their way to avoid conference in recent years.
Many suspect that they’re using the term “conference committee” inexactly, as a shorthand for “House and Senate Republicans will try to cut a deal” through an informal process rather than, well, the actual conference committee process that involves jumping through various procedural hoops. Indeed, Senate Majority Whip John Cornyn (R-TX), the No. 2 in GOP leadership, raised the possibility of an “informal conference” on Wednesday.
But the real reason Washington is suddenly all abuzz with talk of a conference committee is that Senate Republicans can’t agree on anything else.
This week, Mitch McConnell’s repeal-and-replace bill fell well short of 50 votes. So did a repeal-and-delay plan favored by conservatives. So now Senate leaders are merely trying to find 50 votes for what HHS Secretary Tom Price openly calls the “lowest common denominator” solution, with the promise that the subsequent conference committee will surely craft a bill that actually works.
In many ways, this seems to be the latest round in the seemingly never-ending health care hot potato game. Senate Republicans are hoping that if they advance the process one more step, they won’t be the ones who get the most blame from President Trump and the conservative base for tanking the Obamacare repeal effort. So they’re making a pitch that senators should cast a somewhat symbolic vote to keep the effort alive a bit longer, and to pass the hot potato to the theoretical conference committee.
Still, this is not necessarily a solution for actually passing a bill. Whatever the conference committee comes up with will then have to pass both the House and Senate again — meaning it will have to meet that difficult challenge of getting the support of 50 Republican senators.
Would a conference committee be a Trojan horse or a “bait-and-switch”?
There are two major, competing theories about how things would play out for the health bill if the Senate does pass a “skinny repeal.”
1) The Trojan horse: The first theory is that the Senate’s skinny bill will be, essentially, a Trojan horse to give Republican leaders one last chance to pass a far more sweeping bill.
The thinking is that whatever process emerges, whether a conference committee or some sort of more backroom dealings between Ryan and McConnell, will be dominated by Republican leadership. And both Ryan and McConnell have already made clear they prefer a bill that contains enormous Medicaid cuts.
So it makes sense to expect that whatever emerges from this process will look a lot like the bill the House passes, or the one McConnell failed to pass. Indeed, Cornyn said Wednesday that Medicaid changes don’t need to be in the Senate’s bill because they could be added “when we conference with the House,” per the Huffington Post’s Matt Fuller.
If House and Senate leaders strike a deal, what results will become the sole Republican repeal bill, and it will be do or die. Holdout moderates will face tremendous pressure to cave or else deal their party and President Trump a humiliating defeat.
Some have compared this to the infamous conference committee process Republicans used to finalize their Medicare Part D bill back in 2003, in which a moderate bill passed by the Senate with bipartisan support was tossed aside in favor of a more partisan bill crafted by the pharmaceutical industry and preferred by GOP leaders. Those leaders then twisted enough arms in both chambers to ram the bill through.
A point in favor of this theory is that as much as Republican moderates have complained about their leaders’ bills, they’ve so far been conspicuously unwilling to stick their necks out and actually block the process.
2 ) The bait-and-switch: A competing and basically opposite theory is that the promise of a conference committee is a bait-and-switch, and that what will actually happen is that the House will be stuck choosing whether to pass whatever skinny bill happens to get through the Senate.
All year, Republicans have failed to unite 50 Republican senators around a major repeal bill. And in votes called this week, they weren’t even particularly close to pulling that off (they were five votes short for repeal and delay, and seven votes short of 50 votes for McConnell’s bill).
So, this theory goes, how would a conference committee change that? If Republican senators are unwilling to unite around a sweeping repeal bill now, why would they do so later?
But this presents another possibility — that a skinny bill that passes the Senate while being sold as a placeholder could then simply be passed by the House unchanged, and signed into law by a president who just wants to claim some sort of victory on the issue.
Indeed, in addition to musing about how a conference committee would work, Cornyn also said Wednesday that the House could simply “take up the Senate bill and pass that.”
House conservatives would surely groan about being stuck with what the Senate has offered them. And House Freedom Caucus Chair Mark Meadows (R-NC) has proclaimed that skinny repeal would be “dead on arrival” in the House.
Yet if a conference committee or leadership negotiations fail to produce a major bill that can get 50 Senate votes, they might be stuck with that or nothing.
And while it’s unclear where a conference process would lead, it’s clear enough that a Senate vote to pass a skinny bill would keep the health reform effort alive for at least a little while longer.