Republicans and some Democrats are grumbling over the decision by Democratic leadership to skip a formal conference committee in their efforts to pass health care reform -- but the so-called "ping pong strategy" has been used many times in the past by members of both parties.
In a statement on the legislative maneuver, Michael Steel, spokesman for House Minority Leader John Boehner (R-Ohio), accused Democrats of "shutting out the American people" and breaking "one of President Obama's signature campaign promises."
On the surface, there is a certain validity to these points. Obama, during the 2008 campaign, promised to bring C-SPAN cameras into the room during negotiations over legislation. Now, however, there are no formal negotiations and certainly no C-SPAN cameras.
But the criticism ignores recent history -- both Democrats and Republicans have sidestepped the formal conference committee process on many previous pieces of legislation and rarely did such a maneuver engender howls of protest.
In the 111th Congress alone, the following bills were negotiated via ping-pong (in which the chambers send variations of legislation back and forth until the differences are hammered out), according to a Democratic Hill source:
* H.R. 1256, Family Smoking Prevention and Tobacco Control Act - signed into law on June 22, 2009
* S. 896, Helping Families Save Their Homes Act - signed into law on May 20, 2009
* H.R. 627, Credit Card Accountability, Responsibility, and Disclosure Act - signed into law on May 22, 2009
* S. 454, Weapon Systems Acquisition Reform Act - signed into law on May 22, 2009
* H.R. 1016, Veterans Health Care Budget Reform and Transparency Act - signed into law on October 22, 2009
In the 110th Congress, meanwhile, Democratic leadership subjected multiple pieces of legislation to a frantic, year-end ping-pong negotiation in an effort to pass bills before the Christmas break. The various pieces of legislation touched on several major and contentious issues, including taxes, Iraq war funds, intelligence surveillance and energy legislation.
In January 2008, the two chambers continued to use the ping-pong strategy, this time to accommodate Sen. Tom Coburn's (R-Okl.) concerns with a small business bill.
Indeed, the procedural maneuver became so prevalent under Democratic leadership that Don Wolfensberger, Director of the Congress Project at the Woodrow Wilson Center penned a screed lamenting the development.
Of major bills approved by the House and Senate that required some action to resolve differences between the two versions, 11 out of 19 (58 percent) were settled by conferences in the current Congress compared with 18 out of 19 (95 percent) in the previous Congress.
Put another way, the current 110th Congress has been negotiating eight times as many bills as the 109th Congress outside the conference process. This is done by using the "pingpong" approach of bouncing amendments between the houses until a final agreement is achieved.
Among the major bills in this Congress that have bypassed conference consideration are the energy independence bill, State Children's Health Insurance Program, Iraq-Katrina supplemental appropriations, terrorism insurance, the consolidated appropriations act and the tax rebate/stimulus legislation.
While the conference bypass approach is just as legitimate under the rules as going to conference (and sometimes advisable when there are only minor differences to iron out), the procedure is more suspect when used on major bills on which numerous substantive disagreements exist between the houses. That is when House and Senate leaders are more likely to directly intervene, rendering committee chairmen less relevant to the process.
While use of the ping-pong strategy, as Wolfensberger noted, rose steadily under Democratic leadership, it wasn't entirely shunned by Republicans. The same Democratic source on the Hill points to the following pieces of legislation that -- for one reason or another -- were finalized using the ping-pong strategy during Republican-controlled Congresses.
H.R. 5005, Homeland Security Act (creating Department of Homeland Security) - signed into law on November 25, 2002.
The House passed its version of the bill on July 26, 2002, by a vote of 295 to 132. The Senate took up the bill in September, but was deadlocked on issues such as employee rights at the department, so the bill was taken off the floor.
Then, after the November election, when Republicans regained control of the Senate, as the CQ Almanac points out, "[President] Bush directed Republican leaders to reconcile the House and Senate bills."
The House and Senate Republican leaders then worked feverishly, with no conference committee, to reconcile the two bills. A bill reflecting a reconciliation of the House and Senate bills was then developed and agreed to by the House and Senate Republican leadership.
H.R. 1298, United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act - signed into law on May 27, 2003
H.R. 6111, Tax Extenders Act- signed into law on December 20, 2006
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