In normal times, when Congress passes legislation, the two chambers are required to approve identical versions of a bill before it can go to the president's desk. It's one of the fundamental rules underpinning our bicameral legislative structure, where House and Senate are equal in importance and the consent of both is required to make law.
This isn't to suggest the process is clean and neat. This isn't Schoolhouse Rock. There are all sorts of political calculations that go into the legislative process and shape the outcome of lawmaking.
Sometimes, when the two chambers can't agree, a bill goes into a conference committee to iron out the differences and settle on a version both chambers can pass. Because, again, both chambers must agree on a bill's language before it gets to the president.
In normal times, when the Senate announces "we are going to pass this bill," and the House responds by saying "we would also like to pass that bill, exactly as it is," all the lawmakers who voted "aye" on that bill should be happy about the outcome.
These, of course, are not normal times.
And so we were treated to the spectacle of Senate Republican leaders Thursday asking a bizarre favor of their House GOP counterparts: an explicit promise NOT to pass the health care bill slated for a final vote in the Senate sometime in the next two days.
Here's how Burgess Everett, one of Politico's congressional reporters, put it on Twitter:
At GOP lunch, convo focused on whether they can be assured House won't pass skinny, will conference. Senate doesn't want it to become law.
— Burgess Everett (@burgessev) July 27, 2017
Later in the day, Sen. Ron Johnson would specifically ask for "the assurance that whatever we pass tonight will go to conference." In other words, promise that the bill poised for passage on Thursday night will be rejected by the House.
GOP Sen. Ron Johnson: The skinny bill "doesn't even come close to honoring our promise of repealing Obamacare" https://t.co/l2zkICQm90
— CNN (@CNN) July 27, 2017
How did we end up here? After attempts on Tuesday and Wednesday to pass vastly different versions of the Better Care Reconcilliation Act failed, it appears Senate Republican leaders want to go to a conference committee to settle on a final version of the health care bill. To get there, the Senate is prepared to vote on a so-called "skinny repeal" bill Thursday night or Friday.
The bill would repeal some of the Affordable Care Act's taxes and would dump the individual mandate and employer mandate that, respectively, require all Americans to carry health insurance and require all business with more than 50 employees to offer employer-based plans. The bill would maintain several other aspects of Obamacare, including the expansion of Medicaid eligibility. (At least, that's what is widely assumed will be included in the bill, though the actual text of the bill won't be clarified until after a long series of Senate floor votes on Thursday evening.)
It doesn't really satisfy anyone but has a chance of passing merely because senators know it would be worse to pass nothing, and because the reconciliation process being used to by-pass the Senate's 60-vote threshold has a time limit attached to it.
In other words, the Senate wants to pass a bill to avoid the embarrassment of not passing a bill. But under no circumstances does the Senate want that bill to become law.
There are four possible outcomes here.
- The Senate could fail to pass the bill, at which point health care reform is dead, for now.
- The Senate could pass the "skinny repeal" bill and the House could pass the same language, sending it to Trump (This is what the Senate leaders are apparently trying to prevent).
- The Senate could pass the "skinny repeal" bill, followed by the House rejecting it. A conference committee develops a new bill, but one or both chambers fail to pass the conference report, at which point health care reform is dead (for now).
- The Senate could pass the "skinny repeal" bill, followed by the House rejecting it. A conference committee develops a new bill, both chambers pass that new version and it goes to Trump. This is what Senate Republican leaders are trying to steer towards.
Even as a libertarian who usually takes comfort in disagreements between the chambers of Congress—usually nothing good comes of agreement—I have mixed feelings about all this. There's not a terrific limited government, free market solution in play, but the "skinny repeal" bill might not turn out to be a terrible compromise, even though it leaves in place the budget-busting Medicaid expansion and some of Obamacare's regulations. It's not great, but it's not awful either. Maybe the Senate will pass it and the House will pull a fast one, pass it too, and call it a day.
But if the Senate leaders get their way and pass this bill, the House rejects it, and something else gets hammered out in a conference committee, there's a chance it will be a better product (and a chance it gets worse).
The House Freedom Caucus, the closest thing Congress has to a libertarian voting bloc, will have an outsized influence on what the conference committee crafts. That's why liberal groups like the Center on Budget and Policy Priorities are warning that the "skinny repeal" bill is a Trojan horse that will be turned into a more robust repeal bill by the potential future conference committee.
Political considerations aside, the way this bill is being passed should concern everyone. Individual senators can bemoan the erosion of political norms and loss of "normal order"—as John McCain did on Tuesday, just as the Senate was about to tip over the edge into the health care abyss—but by passing a major piece of legislation in such haphazard and unconventional manner, they are contributing to that very problem.