Former Dem lawmaker: Senate usurping House on health bill; Pelosi faces revolt

There has always been a certain amount of tension between the House and Senate, even with both bodies controlled by the same party. However, we have entered into new territory during the past year, and the next 12 months will be fascinating to watch.

It has not been unusual in recent years for far-reaching legislation to originate in the House, only to have it walked back to the center by the Senate, with compromises then made in conference. This has been true under both Democratic and Republican control.

What is different about this session of Congress is the suggestion that the Senate is so tied in knots that the House will simply have to accept without change whatever can win 60 votes in the Senate.

That would be a remarkable abdication of power by the House and is not likely to occur with any regularity in 2010. After all, the Founding Fathers did create two chambers with virtually equal powers (except for confirming nominations and ratifying treaties). They did not create a unicameral legislative branch.

This movement toward government by the Senate started almost unnoticed earlier this fall when the House accepted without change a package from the Senate that extended unemployment benefits, extended the homebuyer tax credit and expanded the net operating loss carry-back tax provision for business from two years to five years. The measure did not go to a conference committee because time was running out to extend the unemployment benefits.

As Senate deliberations over healthcare dragged on, there has been suggestion in some quarters that the House would have to accept without change whatever the Senate produced because of the difficulty Senate Majority Leader Harry ReidHarry Mason ReidFive takeaways from testy Heller-Rosen debate in Nevada Major overhauls needed to ensure a violent revolution remains fictional Senate heads home to campaign after deal on Trump nominees MORE (D-Nev.) had in putting an acceptable package together. The same argument might later be made about climate change legislation and financial regulatory reform.

In the law, this is called a “heckler’s veto,” which means that the protester standing on the sidelines screaming in protest about someone else exercising his free speech rights by symbolic speech (such as wearing an armband) gets to dictate the extent to which free speech is possible for the other person.

It is impossible to imagine that the House led by a strong Speaker like Nancy Pelosi (D-Calif.) would ever agree to such an arrangement. Any healthcare package approved by the Senate will have to go to a House-Senate conference committee even if the changes made in conference aren’t sweeping. The same will be true about any Senate-passed climate change and financial regulatory reform legislation.

Members of the House did not come to Washington simply to bring home appropriations pork for their districts and to take an occasional foreign trip. There is more to congressional life than that.

No one is suggesting that congressional consensus will be easy on any of the hot-button issues next year.  However, Speaker Pelosi would face an absolute revolt in her own caucus if a weakened Senate Democratic Caucus got to be the sole author of major legislation in the next year. And she might wind up leading the revolt herself.

President Obama is going to have to figure out how a bicameral legislature works. If he doesn’t and lets a divided Senate Democratic Caucus become the lowest common denominator and dictate the shape of his legislative agenda, he faces the prospect of a very difficult year.

Frost, who served as a Democratic member of Congress from 1979-2004, is a partner in the law firm of Polsinelli, Shughart.