I'm getting a lot of email questions about the particulars of the process for the health insurance reform legislation, especially on the Senate side, from this point forward.

What happens after the Finance Committee finishes its bill? What if they can't report one out because dissenters deadlock the committee? (About which, see this previous piece.) What's up with the 60 votes thing? How many times might we have to produce 60 votes?
What about the conference report? Can that be filibustered? Etc., etc.

Well, I've already taken a stab or two at what happens if the Finance Committee deadlocks, but I do consider that a long shot. I think the leadership will be able to convince dissenting Finance Dems to get out of the way and try their hand at amending the bill later in the process -- though I also think that means trying to amend it on the floor, and probably under adverse conditions that will make it virtually impossible to do, even with majority support.

So in the much more likely event that the Senate Finance Committee reports out a bill without a public option included, what happens next depends on the decision about whether or not to utilize the reconciliation process. And there are a lot of moving parts that go into making that decision that we'll have to discuss separately.

Before we begin, a reminder that reconciliation in this context does not refer to the conference process sometimes said to "reconcile" the differences between the House and Senate versions of a bill, nor to the process of "merging" the HELP and Finance Committee bills. It's a specific budgetary process with its own set of rules governing floor procedure. That's not always clear to everyone, and it causes a lot of confusion.

The most frequently mentioned advantage of reconciliation is that debate on it is time limited by statute, which means it can't be filibustered in the traditional sense. (Actually, most mentions of it skip right over the reason why it can't be filibustered -- the time limit -- and even over the filibuster part, and just goes straight to the "it can be passed with 51 votes" argument.) Among the greatest disadvantages, though, is that the rules on what qualifies as a reconciliation bill and what material can be in it are very restrictive, and can end up causing a lot of complications, including disqualifying large and important parts of any bill.

If the decision is made to use the reconciliation process, the HELP and Finance bills will be sent to the Budget Committee. (And remember, that's Kent Conrad's (D-ND) committee.) But under that process, the Budget Committee is responsible only for packaging the two measures up into one and sending it to the floor. They are prohibited from making substantive changes to the bill at that stage. So what they'd send to the floor is literally just a bundling of the HELP committee's bill and the Finance Committee's bill, presumably meaning it would contain all the internal inconsistencies between the two that might exist.

Here it should also be noted that I have been unable to determine clearly whether or not the HELP bill, as it now stands, would even qualify for inclusion in a reconciliation bill. I am not certain whether it complies with the reconciliation instructions contained in the budget resolution which kicked this process off back in April. Those instructions were to "report changes in laws within its jurisdiction to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014." If the current HELP bill doesn't comply, but the decision is made to go with reconciliation, HELP could have to scramble to cobble together a modified bill that meets those instructions. The resulting bill may or may not retain the substance of the HELP bill as we now know it, though committee members and staff are probably working behind the scenes right now on, and probably have been for some time, in hammering out agreements about what substantive parts of the current HELP bill should survive to represent the committee's work in any future merging process, whether under reconciliation or not.

If they proceed under regular order (normal procedures), the job of deciding what the bill that goes to the floor will look like technically falls to the Majority Leader, because he controls the floor schedule, and thus the decisions about which bills will be debated when. But in reality, the decision will be made in close consultation with the leadership of the committees of jurisdiction (Finance and HELP, and likely Budget too, since Conrad also sits on Finance) and the White House, since this is still considered their initiative. It won't just be Harry Reid, and Reid may not even be the chief voice in the decision making process. He's responsible to his internal Senate constituency for the result. He'll want something that can get 60 votes, causes the least amount of intra-caucus strife, and does the most good politically and substantively.

Because revenue bills (not spending bills) must originate in the House (Art. I, Sec. 7), it's likely that whatever product emerges, whether from reconciliation or regular order, will end up being substituted for the contents of a bill the House has already passed and sent to the Senate. If the House has already passed their health insurance reform bill, the Senate will just take that up, strike out everything in it, and substitute its own measure in there. If the Senate acts first, they'll just take some random House bill and use that.

The Senate won't have a formal debate on the ground rules for consideration of the bill the way the House will. They work their deals out privately and off the floor, if a deal can be reached at all. Anything they work out will then be memorialized in an unanimous consent request made and agreed to on the floor. That's where they'll make any agreements regarding what amendments might be offered, whether they'll permit "painless filibusters" that require certain amendments (or all amendments, possibly) to garner 60 votes in order to succeed, etc. It's highly likely that this would be the point at which public option opponents would use procedure to write out the possibility of passing any amendments that would put it back into the bill. Republicans might be tempted to forgo the opportunity to try to block the bill from coming to the floor at all, in exchange for an agreement that would virtually assure them that there'd be no public option in it, at least at this stage.

If there's no unanimous consent agreement reached to bring the bill to the floor, Democrats have the option of trying to bring it up by a majority vote on a "motion to proceed to consideration" (or "motion to proceed" for short). That's just what it sounds like: a motion that the Senate begin consideration of some bill or resolution. But like just about anything else in the Senate, that motion is debatable, which means it's subject to a filibuster. You can, and these days often do, find yourself having to file for cloture on a motion to proceed. If that's the case, you'll have to make the motion, file for cloture, vote on cloture, and if you win, you then have to vote on the motion. Just winning cloture doesn't do it by itself. Assuming you pass the motion (which would need just a majority), you get to move on to actually considering the bill itself. And if it required cloture just to get to a vote on whether or not to vote on starting debate, you can bet the bill itself will require a cloture motion, too. Which would be (at least) a third vote before you even get to a vote on final passage. Just two of those votes would require 60, though -- the cloture motions. The motion to proceed and the vote on final passage would only require a majority.

It's also important to note that you may have to file for cloture several times, during different stages of a bill's consideration. You can ask for cloture on consideration of particular amendments. You can ask for cloture on consideration of particular titles or sections of the bill (which would have the effect of closing off any more amendments to that title or section). Or you can ask for cloture on the entire bill, which would bring all debate (including the proposal of any more amendments of any kind) to a close if it succeeds.

I've been asked a few times whether it's true that cloture would actually require three separate votes. I think that idea might be coming from the anticipated necessity for a cloture vote on a motion to proceed, then on the bill itself, and then again on the conference report, which I'll get to in a minute.

Once passed by both the House and the Senate, the bill would go to conference, where just about anything can happen to it. Technically, there are rules about what can happen, but they're frequently ignored, and if both houses vote to adopt a conference report that doesn't comply with the rules, oh well. Too bad. It's passed anyway. Which means, for instance, that even though it's normally against the rules for things that didn't show up in either version of the bill to be inserted into the conference report, that sometimes does happen. Likewise, something that's in both versions can come out, if that's what they decide to do, and can get together the votes to make it work.

The conference report then goes back to both houses for passage, as the agreed-upon compromise that if passed, fulfills the Congress' obligations in passing the exact same bill in both the House and the Senate. In the Senate, the conference report on a bill other than a reconciliation bill (or budget resolution) is subject to a filibuster, though the motion to proceed to its consideration is not, since conference reports are privileged. (Which means that could be a third cloture vote -- the most likely explanation for the idea that cloture involves three votes.)

Finally, at that point, you'd need a majority vote for the Senate to adopt the conference report. Once both houses do that, it's done and on the way to the president.