Would the House adopt the Senate’s health bill?

One way that the Democratic Party can prevent a loss of the Massachusetts Senate seat from stopping their healthcare program from becoming law, without either reopening negotiations (e.g. trying to get one of the Maine Republicans to vote with them) or using hardball tactics (e.g. finding a procedure to pass the bill without needing 60 votes), is for the House simply to adopt the Senate bill. Then it would not require another vote in the Senate.

Would the House do that?

15 thoughts on “Would the House adopt the Senate’s health bill?

  1. That is likely correct, but might the calculus change quite a bit if it looks like something worse still (from the standpoint of House members who do not like the current Senate bill) is the best the Senate will pass? (Or a Senate veto of the whole thing.)

  2. I see two problems with this approach.

    The first is that the Constitution states that revenue bills must originate in the House. My understanding is that the reconciliation process gets around that, with a little winking and nudging, by having the bill agreed on conference committee submitted to the House, and voted on as a “new” bill by both the House and Senate.

    If this is correct, the House could not simply pass the Senate bill. Or the House could pass the Senate bill, but then it would have to pass the Senate again. You might find Senators switching their votes on the bill if this was actually the final version that would be sent to the White House.

    The second problem is that progressive congressmen, if there are any, would find much to object to in the Senate bill and might object.

  3. It amazes me that it has been so difficult to get a national health scheme in the US. We have had Medicare (formerly known as Medibank) in Australia for 36 years, and no party would dare remove it! Parties of the right here, in Europe and in the UK support national health schemes. What is it about the US that makes the opposition so strong?

    The health plan being considered at the moment falls far short of being a national health scheme. It seems to subsidise poorer Americans to choose their own private scheme. Ironically, this was the plan the DLP senators put up in Australia in 1973 as an alternative to the government’s Medibank. I supported the DLP plan at the time because it seemed to let people make their own decisions. I realise now that Medibank was a much more efficient idea because of economies of scale. However, I have to smile when I see Barack Obama being called a socialist for supporting an idea from the DLP. (The DLP was a moderate left of centre party, but very anti-communist and thus regarded by many as right wing. No one regarded it or its health scheme as socialist.)

  4. At one point in the early 1960s, the “far right” DLP and the Communist Party were the only political parties calling for repeal of the White Australia Policy! (The Liberals, and especially Labor, only came on board after 1966 when Harold Holt replaced Menzies and Gough Whitlam replaced Arthur Calwell).

    Another irony is that Queensland before 1983 (when the Hawke Govt resurrected and strengthened Medibank as Medicare) was the only State with free hospitals – funded by lotteries, I believe, and originated by the radical Labor Ryan/ Theodore govts in the 1920s-30s. Premier Bjelke-Petersen, easily Australia’s most right-wing head of govt since WW2, ran advertisements (publicly-funded, of course) attacking PM Hawke for attacking Qld’s free hospitals system!

  5. Ed, I am no specialist on constitutional law, but the bill did in fact originate in the House, which passed its version first. I can’t see how, if it took it up again, and then agreed to a series of amendments that made it identical to what had subsequently passed in the Senate, it could not then be sent on to the president.

    Maybe I am missing something–wouldn’t be the first time.

    The far bigger obstacles are political. Not only would the more “progressive” members object to many provisions in the Senate bill (though they were not likely to move things much closer to their preferences in any case), but the more conservative Democrats probably would not agree to the abortion provisions in the Senate bill (which are less restrictive/more liberal than what passed the House).

    Still, if they saw the Senate bill as the only bill they could get, how many would say it was better than nothing? I have no idea.

  6. Better than nothing is the tactic that transformed the situation from massively popular president with large majorities in both houses in both houses to today’s dismal landscape. It is more useful to stick to principle and be occasionally ready to walk away and say we lost this bill because ‘centrist’ senators lost their nerve, the insurance industry bought too many senators or whatever.

  7. I’ll check the links, but I’m pretty sure the procedure is supposed to be something like this:

    1. House passes bill.

    2. House bill gets sent to the Senate, with amendments.

    3. Senate puts in more amendments, passes bill.

    4. The Conference Committee comes up with a compromise bill.

    5. House passes the compromise bill.

    6. Senate passes the compromise bill.

    The key seems to be that the Conference Committee bill is technically a new bill, and the two earlier bills just for practice in a way. The actual bill that matters as far as the constitutional process is concerned is the Conference Committee bill, which passes without amendments first the House then the Senate.

    The political problem is that the Senate passed a bill, but there are no votes in the Senate for the conference committee bill.

    If the House treats the Senate Bill as a heavily amendmended version of its own bill, it still is passing a brand new bill and that would still have to be sent to the Senate for consideration. If the House treats the Senate bill as a bill that has passed the Senate first, so it doesn’t need to be sent there after the House passes it, that is unconstitutional if the bill deals with revenue.

    The point is that the same bill has to pass the House first, then the Senate. You can’t get cute and disrupt the sequence by having the two houses produce sort of similar bills. And the Senate can pass without amendments a bill sent to it from the House, and then send it to the President, but there is no way for the House to do the same with a bill sent to it from the Senate, unless the bill does not tough appropriations or revenue.

  8. Ed, the short circuit is that the House takes up the bill passed by the Senate and then simply passes it without amendment. There does not have to be a conference committee (or anything else) if there is no difference between the Senate text and the House text. Fortunately it appears the House will not accept the Senate version which is an unusually bad exercise in public policy that exemplifies the problems with the Senate process.

  9. Afterthought, I’m not at all clear why you contend that a bill must originate in the House in your last paragraph. In any case all the House needs to do in that situation is to concur to all the amendments made by the Senate.

  10. I went to the US Constitution online, and looked again at Article I, Section 7, which lays out the legislative process:

    “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

    The rest of the section states the ways in which a Bill which passes the House and Senate become law depending on what action the President takes. But I’ll admit that the section is ambiguous on what qualifies as a Revenue bill, and what happens if the Senate amends such a bill out of all recognition.

    There is a note on the site (
    http://www.usconstitution.net/constfaq_a7.html#Q125), which I’ll quote in full, though it doesn’t get into the amending question:

    “In my opinion, the Constitution is unambiguous on the point: “All bills for raising Revenue shall originate in the House of Representatives” (Article 1 Section 7). Thus, I’ve listed the House’s “original jurisdiction” over revenue bills (laws that affect taxes) as a check. The House, however, views this clause a little differently, taking it to mean not only taxation bills but also spending bills.

    “The plain language of the clause would seem to contradict the House’s opinion, but the House relies on historical precedent and contemporaneous writings to support its position. In Federalist 66, for example, Alexander Hamilton writes, “The exclusive privilege of originating money bills will belong to the House of Representatives.” This phrase could easily be construed to include taxing and spending. The Supreme Court has ruled, however, that the Senate can initiate bills that create revenue, if the revenue is incidental and not directly a tax. Most recently, in US v Munoz-Flores (495 US 385 [1990]), the Court said, “Because the bill at issue here was not one for raising revenue, it could not have been passed in violation of the Origination Clause.” The case cites Twin City v Nebeker (176 US 196 [1897]), where the court said that “revenue bills are those that levy taxes, in the strict sense of the word.”

    “However, the House, it is explained, will return a spending bill originated in the Senate with a note reminding the Senate of the House’s prerogative on these matters. The color of the paper allows this to be called “blue-slipping.” Because the House sees this as a matter of some pride, the Senate is almost guaranteed not to have concurrence on any spending bill which originates in the Senate. This has created a de facto standard, despite my own contention (and that of the Senate) that it is not supported by the Constitution.”

    Presumably a Revenue bill could originate in the Senate if the House didn’t blue-slip it, the courts won’t interfere.

    It is worth comparing this text with that of the Parliament Act of 1911, which as later amended sets out the legislative process for the UK:

    http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=1069329

    This is much clearer and could be used as a model to handle Senate obstructionism.

  11. Ed,

    As Alan says, the Senate can amend a House revenue bill, and the House can accept the amendments without the need for further Senate input. Conference committee is optional.

    In this case, in fact, the Senate used a completely unrelated House bill, stripped the original content, and wrote its health care bill on top of it. This was enough to satisfy the House-first requirement. See here: http://tinyurl.com/yzr63of (Ezra Klein)

    Health care reform (Senate version) is only one House vote away from happening, at anytime between last Christmas and January 3, 2011. But instead of extracting, in return for passage, a promise of an additional amending bill (under budget reconciliation rules) which could include five years of things like limited Medicare buy-in, additional Medicaid expansion, or an increase of subsidies in the ramp-up phase, the House democrats seem intent on having a panicky freak-out.

    Off topic on this blog, but I would disagree with Alan. It is far from perfect, but the much maligned Senate bill puts US health care into a somewhat rational framework for the first time, saves money, does a lot of good for a lot of people, and its flaws could be fixed as they would appear. There is no realistic alternative to it. Obama and Pelosi had better do some whipping if they want to be less doomed.

  12. I have to agree with Espen about the value of the Senate bill, even though I agree with Alan #7 on the bigger picture.

    I think both bills (House and Senate) exhibit much of what is wrong with then US policy-making process. While I am very unhappy with the Senate bill’s provision for state-based rather than national regulation and for special compensation for Nebraska–classic Senate particularism–I do not see the House bill as so clearly superior that it would be better to accept defeat than accept the Senate bill. Besides, in some areas, the Senate bill is actually better (less restrictive abortion-related provisions, e.g.).

    And it is worth emphasizing what both Alan and Espen have already said: there has never been a constitutional requirement for inter-cameral conference committees, and the provision for “origination” of “money” bills in the House has always been interpreted quite broadly.

  13. MSS says, “…the provision for “origination” of “money” bills in the House has always been interpreted quite broadly.”

    Should the U.S Constitution be amended to prohibit the initiation of money bills in the senate and as well to prohibiting the amending of any money bills in the Senate as well?

    This would be a good reform as it would mean less pork barrel spending as the People’s House would have more control and oversight over the power of the purse.

    What I am suggesting is similar to the Australian Senate practice.

    Although this is amendment is unlikely to be proposal through Congress, but the other method in Article V that has never been done before. The Senate would never want to restrict it amending power in regard to money bills. It would be hard for small states to accept and ratify such an amendment as they benefit from it.

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