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The Senate May Not Care What The House Put In The Social Safety Net Bill Passed Today

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Many reporters and observers talk up a particular version of what will happen procedurally now that the House passed its social safety net bill. For purposes of argument, we all assume the Senate passes some very different version (practically revised from scratch to suit Joe Manchin’s and Kyrsten Sinema’s views). Reporters and observers generally familiar with Congressional procedure, but not into the nuances, say that the House and Senate bills would go to conference. 

That is, a delegation from House committees on the bill’s subjects would meet with a similar Senate delegation. These delegations make up a “conference committee.” They negotiate and compromise the differences. The compromise bill then goes back to the House and the Senate for ultimate passage, after which President Biden signs.   

But quite often, in circumstances like the present, the procedure goes very differently. There is no conference. The House has a gun to its head and passes the Senate version, without any negotiation and compromise. What was in the version the House passed today, although a remarkable achievement, does not feed into any conferencing. The Senate just passes its version and hits the House with it, saying, “House!  We do not care what you did. Only our Senate bill counts. Take or leave it!”

Before I look at some specifics, please let me explain. I spent 15 years in the Senate and House counsel’s offices, rising to General Counsel of the House. Drawing on that, I published a treatise (Congressional Practice and Procedure (1989) and a recent book (The Polarized Congress: The Post-Traditional Procedure of Its Current Struggles (2016).

In the 2016 book, there is a section entitled “The House Passing the Senate’s Bill Verbatim.” It addresses what may well happen to the social safety net bill. “Sometimes the House takes an extreme step to forego conferences in order to avoid Senate minority obstruction . . . . [T]he House must swallow the Senate bill verbatim, allowing it to pass and go to the President in the exact form in which the Senate passed it, without a syllable of House adjustment.”

To must a name and a face on this, to pass the Senate, a social safety net bill needs the votes of Manchin and Sinema. They can say, when they are done revising the Senate bill entirely to suit themselves, “We’ll vote for this now, this time, but we do not want to see it come back from a conference with the House or from the House floor. If it comes back, we won’t vote for it again. If the House Democrats cannot pass our Senate version, that is their problem, not ours.”

Putting aside recent examples, the ultimate example of this is the landmark Civil Rights Act of 1964. The House passed it in a stronger version. It faced the most exceptionally powerful filibuster of all time from the Senate’s senior and very strong conservative Southern Democrats. Only the legislative master, President Lyndon Johnson, using all his skill and strength, with overwhelming national support, could get it through the Senate. It did not then go to conference with the House version of the bill. If it had come back from the House or a conference, and sought Senate passage a second time, the bill would have died an agonizing death on the Senate floor. So, the House swallowed the Senate version verbatim and sent it on to Johnson’s signature.

An example might help. The House passed its bill today with a big prize for well-off city and suburban homeowners in “blue states” (meaning states with high “state and local taxes” (SALTs). The bill generously increased the federal tax deduction for those “SALTs.” Presumably that kept some House Democrats on board who had otherwise threatened not to vote for the bill.

Suppose Sinema strongly opposes a generous SALT deduction. She thinks it is just a giveaway to wealthy suburbanites who should just pay. In light of her strong opposition. there is no SALT generosity in the Senate bill. And, Sinema says, “I will not vote for any conference version or House version.”  House Democrats will engage in an enormous effort to see whether they can pass the Senate bill. Just like with the Civil Rights Act of 1964.

The moral of the story is not to minimize House passage. House passage was an amazing achievement. House Democrats had to bring all their resources – political and moral – to the effort. They had to create solutions – national and local – to do it. And there is no way the bill would pass the Senate, in whatever form, without first the House passing it. So, we look with awe at the House’s achievement. But, from here on, the power is in the hands of the Senate.