SCHIP Sails Irregular Course Through Congressional Waters

If you want to explain to someone today how a bill really becomes a law, get rid of that yellowed diagram from your old civics textbook — the one with its neat little boxes joined by straight little arrows running from subcommittee, to committee, to floor, to conference committee and eventually to the president.

It's much more fun drawing your own diagram for each major bill just to appreciate all the options available in steering things through the legislative labyrinth. No more straight-arrow legislating here — just lots of zigs and zags, wriggles and squiggles.

The course taken by legislation to renew the State Children's Health Insurance Program is a good example of one possible path to lawdom or, in this case, vetodom. To say the SCHIP bill traversed an irregular route would be an understatement. It tacked so wildly through choppy waters that when it finally emerged from the fog, its hull had a completely different number (explanation to follow).

If the issue had been a straight renewal of SCHIP, it would have easily sailed to enactment. But Democratic leaders had in mind an ambitious expansion that would cover millions of additional children at billions more in cost than the Bush administration requested.

With political stakes so high, Democratic leaders used a variety of procedural devices to advance their cause. In the House, that meant denying the minority any opportunity to slow down the legislative juggernaut. In the Senate, it meant forging a compromise with enough minority Members to overcome the 60-vote threshold to get anything done (or at least to stop a threatened filibuster).

A sure sign the minority party is not being invited to play ball is the old trick of introducing a bill just before committee consideration. Even though Congress was up against a Sept. 30 renewal deadline for the program, the House bill was not introduced until July 24. The Energy and Commerce Committee proceeded to consider the bill just hours after its availability to Members.

In protesting this rush to report, ranking member Joe Barton (R-Texas) first moved to postpone consideration until Aug. 1 and, failing that, asked that the 465-page bill be read in its entirety. When the committee eventually voted to dispense with the first reading, Barton offered his own substitute and objected to dispensing with its reading. After two days of reading, Chairman John Dingell (D-Mich.) pulled the bill.

The Ways and Means Committee began its consideration on the same day as Energy and Commerce. It was not forced to read the bill, instead proceeding to reject a dozen Republican amendments before ordering the bill reported — all on party-line votes. The committee filed its report at 12:50 a.m. on Aug. 1. The Rules Committee began consideration of a special rule for the bill 10 minutes later and filed its report with the House at 3:42 a.m.

The rule was called up shortly before noon that same day. After a heated debate it was adopted along party lines, paving the way for debate on the bill by midafternoon. The measure passed early that same evening with only five Republicans and 10 Democrats breaking ranks.

The special rule reported by the Rules Committee for the bill was a masterpiece of procedural ingenuity (and parsimony). It was a closed rule (no amendments allowed even though 43 were submitted to the committee). The rule provided two hours of general debate and waived most House rules (including the three-day report availability requirement). Moreover, it self-executed the adoption of the Ways and Means Committee's substitute as further modified by 39 additional provisions (presumably recommended by the non-reporting Energy and Commerce Committee). In other words, adoption of the special rule would add all these new items to the bill in one fell swoop without need for separate debates or votes.

In the Senate, Finance Chairman Max Baucus (D-Mont.) worked with ranking member Chuck Grassley (R-Iowa) and Sen. Orrin Hatch (R-Utah) on a more modest, bipartisan expansion of SCHIP. It cleared the committee on July 19 by a 17-4 vote and was introduced and placed on the calendar July 26 without a report.

Rather than wait for receipt of the House-passed SCHIP bill, and because the Senate could not originate a revenue measure (a tobacco tax increase was included as an offset), Baucus moved that same day to attach his committee's SCHIP text as a substitute to a House-passed small-business tax relief measure (a version of which had been enacted elsewhere as part of the minimum-wage increase compromise). The Senate passed the bill Aug. 2, 68-31, after adopting half the 16 floor amendments offered.

Because Senate Republican backers did not want to risk losing the bipartisan agreement, they balked at going to conference with the House, thereby setting up a "pingpong" match of amendments between the chambers. Only two bounces were needed before the ball was on President Bush's table.

When the president's veto was sustained by the House, that chamber's Democratic leaders fashioned a new bill, ostensibly designed to meet the objections of potential GOP supporters, but without their actual involvement. Republicans protested loudly about last-minute scheduling and availability, but also about holding a vote in the absence of 10 California Members who were back in their wildfire-ravaged districts.

The bill still passed the House handily and the Senate approved it in identical form after Republicans pulled the trigger on Majority Leader Harry Reid's (D-Nev.) motion to end debate. Although Senate passage made the bill ripe for presentation to the president, Democrats belatedly reopened the matter by engaging House Republicans in real negotiations (now in limbo over the Thanksgiving recess).

Democrats are no closer today to a veto-proof majority but seem content sitting motionless atop an issue they hope to ride into the 2008 elections (while keeping SCHIP afloat on a continuing appropriations barge). For now you can end your legislative diagram with an ellipsis ...