Hoist by their Own Petard

Jeff Davis at TNR says that the Democrats will have to skip conference because they're hamstrung by their own ethics rules.

But the changes to rule 28 make it much more difficult for Democratic leaders to add "sweeteners" to a conference report to buy votes, since 41 Senators could knock out any individual sweetener out of the conference report without defeating the entire conference report. And sweeteners don't have to be wholly new provisions, since expansions to existing provisions can be out of scope--if the House version of the bill has $50 million for a particular program and the Senate version has $100 million, if the conference report goes below 50 or above 100, the provision can be knocked out by 41 Senators.

As a result, since the rule changes took in effect, Democratic leaders have basically stopped sending large controversial bills to conference committees, preferring to ping-pong them instead to avoid problems in the Senate with the newly strengthened rule 28. Appropriations bills and the reconciliation bill are still sent to conference (those bills are subject to a variety of other 60-vote thresholds in the Senate). And bipartisan bills can be conferenced--in the 2008 session of Congress, the only two bills that made it through conference were the CPSC bill (which passed the House 424-1 and passed the Sneate 89-3) and the Higher Ed reauthorization (which passed the House 380-49 and passed the Senate 83-8). In 2009, after the Hundred Days in which Stimulus and S-CHIP were sent through conference, only appropriations bills and the bipartisan defense authorization bill(s) were sent to conference. Everything else was ping-ponged, most notably the Defense appropriations bill right before Christmas, which had been selected by the leadership to carry many other unrelated provisions and which therefore was not sent to conference committee due to rule 28 concerns.

Imagine if health care were sent to conference and in order to be assured of 218 votes in the House, the Speaker had to add some kind of buy-offs for some House people similar to what Nelson, Landrieu, etc got in the Senate. Any 41 Senators could knock any of those buy-offs out of the conference report and blow up the deal.

While strengthening rule 28 was an understandable response to some serious abuses that occurred on the Republican watch (the one "airdropped" provision Democrats cited most was the vaccine manufacturers liability regime added in the conference report of an unrelated bill by Bill Frist), the effect has been to move the House-Senate negotiating forum for every large and controversial bill from a conference committee (which has to have meetings that are open to the public) to closed-door private meetings to prepare an amendment between the Houses via ping-pong. Don't expect to see any more conference committees on controversial party-line bills. Ever.

I'm not sure I understand the difference between "sweeteners" and "serious abuses".  I doubt the voting public does, either.  I thought the popularity of this bill had probably bottomed out, but that was before Democrats decided that they hadn't made it sufficiently clear how little they cared for the opinion of their constituents, and thus needed to take the final process even deeper behind closed doors.