Markup Hell

How the heck does the Senate finance committee get through 564 amendments?

Sen. Max Baucus 

As the health care reform saga drags on, many blame the Senate finance committee for the delay. It was originally supposed to have a bill back in July. (An unrealistic deadline, perhaps.) Then September became the goal. Now it could be weeks before we see a final product.

Punctuality hawks were especially discouraged when, after Chairman Max Baucus released his original bill last week, senators on the committee submitted a whopping 564 amendments. But for those getting antsy, there’s good news: They’re not actually discussing all of them.

Of the 564 amendments initially submitted, only a few dozen actually get debated in committee. The rest are hashed out behind the scenes, incorporated automatically into a modified version of the bill, rendered moot by the passage of other amendments, or are never raised in committee at all. (Watch the proceedings live here. Read Timothy Noah’s live blog here.)

After the chairman releases the initial bill, the so-called “chairman’s mark,” the senators on the committee can file as many amendments as they want. Some submit relatively few. For example, Mike Crapo, R-Idaho, filed five, all of which were co-sponsored with another senator. Jay Rockefeller, D-W.Va., meanwhile, submitted a total of 46 amendments. Many senators file amendments they know won’t get passed: Chuck Schumer, D-N.Y., filed an amendment to include a public option, even though the committee has all but ruled it out. Others use the markup process to make political statements: John Ensign, R-Nev., for example, filed one proposing to replace the word fee with the word tax everywhere in the bill. The initial amendment blast has a kitchen-sink style to it; if you want to submit an amendment calling for Vermont to secede, go for it.

Then begins the winnowing process. Every committee does it differently. This time around, Chairman Baucus incorporated a bunch of the amendments into the bill in what’s called the “modified mark,” which he released on Monday. These tend to be relatively noncontroversial tweaks. Some merely correct drafting errors, such as changing “employees” to “fulltime employees” on Page 32. Others are policy adjustments, such as lowering the maximum penalty for not buying insurance on a family above 300 percent of the poverty line to $1,900 from $3,800. The modified mark even incorporates some of the harmless political amendments, like Utah Sen. Orrin Hatch’s guarantee that health care reform would “ensure a level-playing field for fair competition.” These amendments and others throughout the process get accepted through “unanimous consent”—the chairman announces them as a batch in committee, and they pass without objection.

Next, the senators decide which amendments they want to “offer” for debate. (If a senator offers an amendment, the committee has to vote on it.) This process tends to be informal and behind-the-scenes. Many of the amendments are rendered moot by the modification process, since many of them are redundant. Others simply get dropped—their sponsor decides not to offer them. Senators know they can’t debate every last amendment—nor would they want to—so they usually pick the one or three that are most important to them. A senator could, technically, offer an infinite number of amendments and filibuster into eternity. But that never really happens. The Senate is a collegial body, and ticking off your colleagues is a good way to alienate yourself.

Debate proceeds a lot like it does on the Senate floor, with the chairman deciding who gets to speak when. In this case, Baucus separated the amendments into three categories—coverage, financing, and delivery systems—and the committee addressed them one at a time. Once everyone is done discussing an amendment, they take a vote. Amendments require a majority to pass.

Again, senators could technically talk forever, and sometimes it seems they do. But the finance committee has a special rule that allows the chairman to call for a vote if he decides that the amendment has been adequately debated. This allows the chairman to speed things along and makes 500-plus amendments slightly less daunting. (Other committees have their own special rules and customs. For example, any member of the judiciary committee can request that markup be delayed one week. Judiciary also has a rule that in order to bring a matter before the committee, you need at least one vote from the minority party.)

So how long will the markup go on? Until it’s done. There’s no public tally of how many amendments have been knocked out—X down, Y to go. Nor is there a deadline. But the senators give the impression that they plan to finish up next week. If the process is dragging and the White House is getting impatient, Baucus can always hurry things along. (He’s showing signs of wanting to: “You have one minute to finish your thought,” Baucus told Jon Kyl, R-Ariz., on Thursday.)

Plus, nobody wants to sit and debate for weeks on end. “The American people are bored,” Hatch told the Senate finance committee Thursday morning. He was purportedly talking about the people’s response to the claim that health care reform won’t cut into Medicare benefits. But he could easily have been talking about the proceedings.