So if everything goes according to plan, and the Senate approves the health care reform bill on Christmas Eve morning, what happens next?
Since both the House and Senate have passed different versions, this historic piece of legislation must be reconciled between leaders of both houses before it's ready to be presented to the president.
The Constitution, after all, requires that the House and Senate approve the same bill or joint resolution in exactly the same form before it's presented to the president for his signature.
The House version, which includes a public option and strict anti-abortion language is not included in the Senate bill; meaning, the effort to merge these two bills will involve twists and turns, peaks and valleys, and skillful parliamentary maneuvering before agreement is reached.
Historically, when both houses reach a standoff like this, the next battle involves going into a conference committee to iron out their differences with the resolution required to be approved by a majority of the Senate and House conferees.
The alternate course of action -- which Congress has apparently elected to take -- is an informal settling of differences. This will involve amendments being shuttled back and forth between each house, each chamber proposing an alternative until an agreement is reached. Settling their differences informally carries the added benefit of not having to prepare both a conference report and a joint explanatory statement once agreement has been reached.
So what happens if informal discussions shut down without an agreement being reached?
One potential consequence might be that the bill dies altogether.
Another alternative would be the creation of a conference committee, involving members from both houses, until a mutually agreed upon compromise is reached. It's up to each house to determine for itself how many members will be represented in the conference committee. The conference report requires agreement by a majority of conferees from the House and a majority of conferees by the Senate -- never both bodies combined -- which is why both houses typically appoint an odd number of members in order to avoid a tie vote.
Other alternatives include: the House may approve an entirely new version of the bill and send it to the Senate; it might agree to the Senate's amendments, which eliminates the need for a conference; or it might amend the Senate's amendments and return the bill back to the Senate.
According to Walter J. Oleszek's Congressional Procedure and the Policy Process when both houses attempt to merge bills, members often submit unnecessary amendments that are typically used as bargaining chips that are then traded away for more important provisions in the bill.
Another common tactic cited by Oleszek is for one house to intentionally leave something out of the bill that they know the other chamber wants included. During a conference, the House, for example, might agree to a Senate provision in exchange for a provision they want included.
Has a major bill passed by the House and the Senate failed to become law because both chambers failed to reconcile their difference?
Yes.
The most recent breakdown of a major piece of legislation came in 2006, during the 109th Congress, when both the House and Senate passed their own bills of Immigration Reform (H.R.4437, S.2611). Much like the Health Reform bill before us, there was a wide gulf between the two bills, with the Senate passing a bill that called for new border enforcement, including a new temporary guest workers program and a controversial provision that would allow illegal immigrants to qualify for citizenship after meeting some requirements.
The thrust of the House bill was restricted to border security; and was passed strictly along party lines; the Senate bill, on the other hand, was hailed as a bipartisan effort, which received the endorsement of President Bush and the support of the late Edward M. Kennedy, who helped write the bill, along with Arlen Specter of Pennsylvania and John McCain of Arizona.
Instead of going into conference to reconcile their differences, the House, at the urging of then Speaker of the House J. Dennis Hastert, decided to hold a series of summer hearings around the nation to gauge how public opinion was tilting on this highly contentious issue. The result was the bill became highly politicized and the rhetoric so inflamed that it never did go into a conference committee, resulting in the historic piece of legislation dying a slow death.
Compared with the failed Immigration bill of 2006, at least Congress can take comfort knowing the summer town halls meetings are well behind them.
All that's left now is for Harry Reid and Nancy Pelosi, with President Obama's guiding hand nearby, willing to throw a few bones to some stubborn members before closing the deal on the nation's first universal health care bill.