How the Senate can finesse the Constitution to pass health care reform.

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Oct. 6 2009 7:35 PM

The Invasion of the Bill Snatchers

The Senate has a quirky legislative procedure for handling health care reform.

Senate Majority Leader Sen. Harry Reid. Click image to expand.
Senate Majority Leader Harry Reid

The health care reform legislation moving through Congress goes by several names, such as Obamacare and socialized medicine. Soon it is likely to get another: We can call it the AIG bill. This isn't a euphemism; it's the shorthand used in the Senate for the actual bill that will contain the health care legislation Washington has been working on all summer.

John Dickerson John Dickerson

John Dickerson is Slate's chief political correspondent and author of On Her Trail. Read his series on the presidency and on risk.

The AIG bill was not intended to be a health care bill when it came into this world in March. When the House passed it as H.R. 1586, it was meant to regulate the compensation of the executives of firms, like AIG, that received TARP funds. Now, though, Senate Majority Leader Harry Reid may scoop out its insides and insert the health care bill.

Just in time for Halloween.

This isn't quite body-snatching—or, rather, bill-snatching. Creating a "shell bill," as it's called, is a legislative gimmick used by both parties that allows the Senate to work around the language of the Constitution (somewhat like a reverse merger in business).

Article I, Section 7, of the Constitution, also known as the origination clause, reads in part: "All bills for raising revenue shall originate in the House of Representatives." So if the Senate wants to go first, it has to find a bill that has already passed in the House and make that the vehicle for the new legislation. What usually happens is that a senator offers an amendment that is actually a whole new bill to an existing bill that the House has already approved.

The Senate is proceeding in this case because the House isn't yet ready with its health care legislation. That's partially because the House has three bills that have to be melded into one, and it takes time to make such a turducken. House leaders have also been consciously moving no faster than their Senate colleagues because they don't want to pay a penalty for going first. House leaders don't want Democrats to have to make difficult votes on controversial legislation and then get abandoned by the Senate if it never takes up a bill.

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House Democrats remember when, in the early months of the Clinton administration, they reluctantly backed a proposed tax on each unit of energy consumed—the so-called BTU tax. The Senate ignored it. Republicans seized on the tax, clubbing their Democratic opponents with it as they took control of the House the following year. In the health care debate, House Democrats worry, among other things, that the Senate may not support the surcharge on wealthy Americans that the House version uses to raise revenue.

Are Democratic Senate leaders up to something sneaky by using a shell bill? The Framers might think so. The origination clause was created in the careful arrangements made to preserve and enforce the separation of powers. Members at the Constitutional Convention also wanted the power to tax in the hands of those members of the legislature who had to answer directly to the people. (Direct popular election of senators did not come until 1913.)

The House can protect its prerogatives by "blue slipping" measures the leadership does not approve of. (It's called "blue slipping" because the resolution returning the offending bill to the Senate is printed on blue paper. And, we like to think, because their Senate colleagues become sad when this is done to them.) "I do not deny their [the Senate's] right to send back a bill of a thousand pages as an amendment to our two lines," said Rep. James A. Garfield after the House had tabled a Senate bill in 1872. "But I do insist that their thousand pages must be on the subject matter of our bill."

More recently, in 2006, then-Ways and Means Chairman Bill Thomas threatened to blue-slip an immigration bill that originated in the Senate. In response, his Republican colleague in the Senate, Majority Leader Bill Frist, scraped out a bill on the Alternative Minimum Tax that had originated in the House and made it the immigration bill. In the last session, the TARP legislation was passed as a shell bill (it started out as the mental health parity bill), as was the Housing and Economic Recovery Act, which had once been a green-jobs bill.

The definition of what constitutes a "revenue bill" is still up for grabs, since the founders left the definition so vague. Over time, the courts and House custom have determined the Senate can perform this switcheroo as long as the Senate does not initiate bills whose primary purpose is raising funds for the general operation of the federal government. The House, often finding the parliamentary procedure in its interest, has objected only a little more than once a year over the last 20 years. Both Republicans and Democrats have used the trick while in the majority. Even in this season of hair-trigger umbrage, Republican Senate leadership aides aren't very worked up that Democrats are going to invoke this standard procedure.

You can, however, make the case that the dual-track approach is a part of the general hurry-up strategy that is a blow to transparency and thorough consideration. Administration and Democratic leaders have always believed that any delay in the process gives critics more time to gather strength. If the Senate were not allowed to begin debate until it received the House bill, that would extend the process a few weeks.

Some conservatives worry the shell bill might turn into a shell game. Because the shell bill started in the House, it is possible House Democratic leaders could vote on it directly after the Senate is done with its work. That would really speed up the process. There would be no House amendments, no debate about those amendments, and no conference process to reconcile House and Senate versions of the health care legislation.

When House Majority Leader Steny Hoyer was asked whether he might take this expedited approach, he ducked, refusing to rule it out, which undoubtedly made many Republicans nervous. But leadership aides in both chambers say this scenario is far-fetched. It would require House Democrats to shelve all of their ideas about health care and remove themselves from the process, which isn't going to happen. That's probably good—because then health care reform would win a name unmentionable in polite company.

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