Once they have a bill, Dems need to post it online for at least 72 hours for members to review before a vote.

The fact that reporters covering Congress are stating that the Majority “needs” to post the bill online for 72 hours shows how far the Read the Bill effort has gone. As this policy has become the norm it is increasingly clear how important legislative information is to both individual members of Congress and ordinary people.

Congress should still pass a rules change to require the 72 hours reading time to make the policy enforceable. Still, you’ve shown Congress that people out there want to be able to read legislation and be assured that their representatives have enough time to read and study the bills.

As far as the 72 Hour effort goes, we’re primarily interested in seeing the final version of the bill online for 72 hours before consideration. If the House allows 72 public, online hours for the bill, and then passes it, then it’s on to the Senate.

If the Senate takes up the same bill and passes it, then great — the bill has already been online for 72 hours. If, however, the Senate makes major changes to the bill the House (hypothetically) passes, then those changes should be online for 72 hours too.

For the very complex version of how this all can work, see this CRS report, or Paul’s post summarizing it.

Pelosi and Hoyer say final health reform bill will be online for 72 hours before House vote so Members and Americans can review #hcr

This is a great development and another big win for those who have called for the bill to be available to the public for 72 hours throughout this whole process. The Sunlight Foundation has called for the health care bill to be available to the public for 72 hours at each point that versions have come to the floor. In each of these instances the majority has acquiesced and posted each version, from the House bill to the Senate bill, for at least 72 hours prior to consideration. Those of you who have signed the Read the Bill petition and put the pressure on Congress to be this transparent have been vital in ensuring that we have access to this major bill before lawmakers consider, debate and vote on it.

Earlier this week, Ellen explained the importance of the 72 hour requirement:

Think of posting something on line for 3 days as a ‘safety valve’ – a final chance for citizens, media, lawmakers and lobbyists alike to look at the whole package giving everyone one last opportunity to raise questions and concerns about the bill. If readers are in an advocacy mode they have time to  mobilize others in support or opposition, and/or take action in whatever form they see fit.

There is no measure more important to debate in the open than health care, and this is a moment when we all need to be champions for public, online disclosure and engage with our government. With 72 hours, the buck can actually stop with citizens the way our Founders intended. We know that Congress do it because congressional leadership has already done so at other critical points in this debate.

Of course, we still need to make sure that this promise is kept and that won’t be done until the bill has been online for 72 hours and then brought to the floor. Let’s keep it up.

How exactly does this “ping-pong” process work? “Ping-pong,” like the game, envisions the two chambers sending amendments to the bill back and forth with multiple votes on amendments. Ultimately, the chambers will reach agreement and the bill will finally be considered passed.

Below is a quick summation of what that entails (for the full version please read this CRS Report):

1. Choose a legislative vehicle to amend. This could be the House bill or the Senate bill.
2. One chamber – let’s say the House – proposes an amendment or a series of amendments to alter the language of the bill. In the case of the health care bill it is highly likely that this amendment will come in the form of a single amendment in the form of a substitute.
3. The second chamber – the Senate in this example – is then offered three options: agree to the House amendment, agree to the House amendment with further amendment or reject (if there are multiple House amendments the Senate may agree with some and disagree with others).
4. If the Senate agrees to the House amendment to the bill then the bill is considered passed and heads to the President for his signature. If the Senate, however, decides to further amend the House amendments then they can report the bill back to the House with a Senate amendment to the House amendment to the bill. (More on rejection later.)
5. If this happens, the bill and it’s amendments can go to each chamber only once more before the process ends with either a passed, amended bill or the rejection of the process, which doesn’t necessarily mean the bill has been defeated.
6. If rejection happens anywhere along the way, it can come with a motion from the rejecting chamber to do a number of things. These could hypothetically be a motion from the Senate for the House to recede on parts of their amendment(s); a motion to form a conference committee; or a motion to begin the process again.

(There are many more possibilities that can occur along the way. Please read the aforementioned CRS report for those details.)

So… where in this lies the FINAL bill. First and foremost, we consider the first amendment to the bill to be the final version of the bill. This amendment must be made available for at least 72 hours prior to a vote. This means that if the amendment is made available on Monday both chambers could, conceivably, consider and vote in the affirmative on this amendment on Thursday. But, you say, the second considering chamber can offer their own amendment to the first amendment offered. If the amendment offered by the second considering chamber contain major changes to the legislation or the original amendment(s) in the “ping-pong” process it needs to be available for 72 hours before the second considering chamber can consider them. If the amendment offered by the second considering chamber consist solely of minor technical edits, it need not be available.

There is a little bit of Calvinball involved here, but I think that is totally reasonable considering the unpredictability of the process. All that we, the public, need to do is remain vigilant in ensuring that this complicated process remains as transparent as it can be until it reaches an endpoint.

There’s just simply no negotiating this.

When major amendments happen, those too need to be online for 72 hours.

In many ways, we as a country are in uncharted territory as we debate – or “demand” in some cases – making legislation transparent. The rules and procedures that have defined government for centuries haven’t caught up to the technology that finally allows government to actually be open and transparent (…yet).

And as that debate unfolds, we’re going to bump up against things we’ve simply never dealt with before. But in the debate of what’s the right way to bring about transparency, one thing is eminently clear – whatever you think of the bill: the public and legislators alike MUST have at least 72 hours to read the final legislation before it’s debated.

Whether you love the legislation or you hate it or anything in between, 72 hours will allow you, advocacy groups you support, and the media enough time to look at it and make your opinion known to your representatives.

There are details about how exactly this could play out once the final bill is proposed by the House of Representatives out of committee, and when that debate occurs, we’ll enter it with ways to go about ensuring public disclosure. I could launch into hypotheticals about what happens when Democrats do X or Republicans do Y, as DC insiders are prone to do, but I’ll leave that till it actually comes, and right now, focus on the most important and simple message:

The final health care legislation absolutely, inexorably MUST be placed online for 72 hours before final debate.

Ezra Klein, who has been focusing on congressional malfunctions for the past few months, points out the major shift in congressional relations and partisan behavior in recent years:

…understanding the United States Congress as an institution gripped by ideological competition is simply wrong. It’s an institution gripped by electoral competition. The political scientist Frances Lee puts this particularly clearly in her new book, “Beyond Ideology.”

“Parties,” she writes, “are institutions with members who have common political interests in winning elections and wielding power, not just coalitions of individuals with similar ideological preferences.” According to her data, senators in 2004 are 63 percent more divided along party lines than senators in 1981. It’s no coincidence that the rise in party-line voting has coincided with the ideological realignment of the parties. Now that the parties agree internally, they can focus their efforts on winning power.

The dynamic that this electorally centered process creates is one in which the minority has no incentive to help the majority pass legislation. Rather than working to include conservative ideas in the health care bill there is total opposition from the Republican side. In this era, the key for the minority party, especially one that has suffered successive losses, is to kick the majority out and regain power. It’s like a football team who throws in the towel in the middle of a losing season to acquire a high draft pick. Might as well aim to regain power in the future than play the game in the present. It worked for Republicans in 1994 and Democrats in 2006.

This new era (the past twenty-some-odd years) of Congress poses numerous problems for transparency in the legislative process. This largely stems from the fact that what has been viewed as the normal legislative process in the past no longer applies.

The majority rushes bills through Congress with little time for lawmakers or the public to review them. Omnibus bills obscure hidden provisions in the crammed, rushed appropriations process. Earmarks are used to fund the districts of endangered incumbents. Speeches on the floor and in committee hearings are akin to Javanese shadow puppetry so as to avoid the all-powerful gaffe patrol. The Rules Committee holds late night sessions – more so in the past than currently, but other problems still persist – prior to a bill’s consideration leaving little time for lawmakers to review a bill’s rule.

In many ways, there are moves to address some of these changes in legislative behavior. The passage of a rule requiring legislation be publicly available for at least 72 hours before consideration would reduce the ability of the majority to rush legislation. There have already been some reforms to the Rules Committee, while others continue this discussion. Earmarking is reduced and vastly more transparent. These are not fixes to get back to some “normal” legislative process that no longer exists, but ways to adapt to the way the legislature works in a partisan and electorally focused era.

There are countless debates circulating regarding how best to adapt to this new legislative era. Transparency advocates should be aware of the way Congress has changed and focus on adapting the transparency agenda to reflect this changing dynamic rather than seeking to return to a “normal” procedure that has long since become irrelevant.

Recently adopted and long standing House and Senate rules require conference committees to be generally open to the public. Both House and Senate rules require that all conference committee meetings be open to the public unless a majority of conferees votes in open session to close the meetings. Senate rules require all conference committee reports be publicly available for at least 48 hours prior to a final vote. Without conference, there is no mechanism to provide for openness in the final discussions regarding the health care bill.

Other conference rules provide for openness within the conference committee rather than public openness. These provisions require that conference committees not exclude conferees from decisions or refuse them the ability to see documents or participate in meetings. It will be much easier to exclude potentially difficult members (coming from both the left and right) without a formal conference.

The forgoing of formal conference isn’t entirely uncommon — and, in the end, everyone will still have to go on the record as for or against the final bill. At the same time, the process may speed up the bill’s passage while potentially limiting both the public’s and many of their elected official’s ability to consider the changes to the bill. As with every other major moment of consideration during this bill’s journey, both chambers should make the final version (conference report, amendment, substitute) available for at least 72 hours prior to consideration.

Next up is the Defense Appropriations bill. I hope they get it right.

UPDATE (12/9): A House-Senate Committee has indeed combined six of the seven remaining appropriations bills into one omnibus bill – using the Transportation appropriation (HR 3288) as the vehicle and leaving out Defense (HR 3326) – which appropriates approximately $446.8 billion for FY 2010. We just finished downloading it. It’s very big.

Making sure the bill is online for at least 72 hours before debate seems eminently reasonable for a half trillion dollar piece of legislation, and is a requirement we know Congress is completely capable of fulfilling.

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It’s looking extremely likely that Congress will take up debate of six massive appropriations (read: “spending”) bills this week by combining them into one big omnibus bill and trying to pass them all at once before December 18th.

Assuming this scenario does indeed come to pass, it’s imperative that the House and Senate allow members of Congress, the media, and the public the necessary time to understand how our money is to be spent by putting the entire omnibus bill online for at least 72 hours before it’s debated.

Omnibus appropriations bills have a notorious history of bloating at the last minute as members of Congress add in “just one more provision” of spending. Often the added provisions are more than just spending, but larger bills that Congress couldn’t move in the regular legislative process. In 2006, former senior Republican aide Don Wolfensberger described the discovery of questionable provisions of past omnibus bills in Roll Call:

Days after an omnibus bill is signed into law, enterprising reporters, wading through hundreds of pages of statutory language, begin finding hidden goodies that had not been in the bills or reported or passed by either chamber. And therein lie the black eyes, time bombs, back room deals, and sundry other embarrassments that sully the reputation of Congress and infuriate unsuspecting Members and constituents alike.

What’s worse, these massive bills also have a decades-long history of not being available for either Congress or the public to actually read before they are passed. Note the matter of hours and even minutes in one case that Congress has had to review them between 1986 and 2005.

Omnibus Appropriations Bills (FY 1987-2005)*

The six appropriation measures likely to be included in this year’s measure are Commerce-Justice-Science (HR 2847), Financial Services (HR 3170), Labor-HHS-Education (HR 3293), Military Construction-VA (HR 3082), State-Foreign Operations (HR 3081) and Transportation-HUD (HR 3288) – leaving the Defense appropriations bill (HR 3326) for a later date.

This fall, Congress has shown its ability to make major legislation available to us, the public, for at least 72 hours – and sometimes longer. Given just how much money is involved in these bills, and the history of how they’ve been passed over the last two decades, it’s especially important that we remain diligent in holding Congress accountable for making sure we know what they’re up to.

We know that Congress is capable of getting legislation online for 72 hours before debate – even on contentious issues. Let’s make sure they do it with the bills that appropriate our tax dollars.

We’re going to be watching very closely. Stay tuned.

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* Source: Congressional Research Services reports: Omnibus Appropriations Acts: Overview of Recemt Practices (RL32473) and The Congressional Appropriations Process: An Introduction (97-684 GOV).

** Page number counts from GPO. Read time before floor debate calculated by ReadtheBill.org Educational Fund using data from Thomas.

*** Senate read times are approximate because the chamber does not keep timestamps of its actions. The times listed are the maximum possible time senators could have had to read the bills.

Conference reports are the product of negotiations between the House and Senate after each chamber has passed different versions of the same bill. These reports contain the various compromises made between the two chambers of Congress.

In 1970, Congress passed the Congressional Reorganization Act of 1970, which required all committee and conference reports be made available to lawmakers (note: not the public) for three days prior to consideration on the floor of either chamber. This requirement was established in both the House and Senate rules. As evidenced by the recent decline in availability, the rule is subject to be waived.

In the House the decision to waive this rule is made by the House Rules Committee. The Rules Committee has jurisdiction over nearly all legislation before it comes to the floor for consideration. Their job is to establish the rules for debate of a particular bill or conference report. This includes deciding which rules to waive for consideration.

The earliest data immediately available (via thomas.loc.gov) is from the 93rd Congress (1973-1974). This Congress rarely waived the new three day holdover rule on conference reports. Only 25% of conference reports considered in the House were available to lawmakers for fewer than 72 hours. The seventies marked a period where regular congressional order was held in higher esteem.

The 97th Congress (1981-1982) was the first Congress to send more than 50% of conference reports to the floor of the House for consideration without providing the 72 hour holdover period. In total, the three day holdover rule was waived 60% of the time. This instituted a period in Congress where fidelity to the three day holdover rule alternated between midterm election Congresses providing less availability (97th, 99th, 101st Congresses) and presidential election Congresses providing more availability (98th, 100th Congresses).

In the 102nd Congress (1991-1992) this period came to an end. Varying factors including a declining respect for congressional institutions and rules, the Gulf War and a recession led to a dramatic increase the waiving of the three day holdover rule for conference reports in the House. A full 73% of all conference reports considered in the House were not made available for at least 72 hours prior to consideration. The next Congress saw a brief respite and a return to sub-50% numbers for conference report availability. Then came the massive Republican victory in 1994.

Regular order had been in serious decline for some time in the House. By the mid-1990s, the number of days in session had collapsed from the highs of the 1970s and the majority increasingly used the rules process — including waiving the three day holdover rule — to stymie the minority’s ability to participate. The insurgent Republicans capitalized on these faults to attack the Democrats as institutionally corrupt. In 1994, the Republicans swept the Democrats out of power, but quickly walked back their agenda of restoring regular order. This soon became most evident with the three day holdover rule.

More than 60% of the time during the two Congresses (104th and 105th) when Newt Gingrich served as Speaker of the House conference reports were not made available for at least 72 hours prior to consideration. Looking at the situation today, this would be commendable. For in the 106th Congress (1999-2000) the way Congress was run changed.

In 1999, Texas Congressman Tom DeLay rose to the position of House Majority Whip in the Republican leadership. DeLay had a take-no-prisoners sense of governing and began to make the House reflect his confrontational, unapologetic style. To DeLay, legislating was a war. The less the minority Democrats knew the better. Fewer and fewer bills and conference reports would be made available for lawmakers to see prior to floor consideration.

In the 106th Congress, 75% of all conference reports were available for less than 72 hours prior to consideration. In the 107th Congress, that number went up to 78%. Then the 108th Congress shot up to 87% and the 109th Congress, the most recent Republican Congress, saw 82% of conference reports made available for less than 72 hours. These numbers are astonishing and became part of the Democratic criticism of the Republican majority.

Just like the Republicans in 1994, Democrats capitalized on a series of corruption investigations and the majority’s disrespect for institutional order and minority rights to win the 2006 midterm elections. While the Democrats did not make the situation surrounding the availability of conference any worse, as the Republicans did when they came to power, they have not made it any better. The 110th Congress (2007-2008) waived the three day holdover rule and allowed 75% of conference reports to come to floor for consideration without being available for at least 72 hours. So far, for 2009, that number stands at 80%.

As is the case throughout the history of Congress, once a process is begun by one party to consolidate power — in this case, the refusal to allow the minority to see legislation in a reasonable amount of time before consideration — the incoming party does not reject the same process. It is an unfortunate truth that makes it all the more difficult to change behavior in the future. In recent months, public pressure has come to bear on Congress to not only reverse this trend of considering bills without 72 hours for lawmakers to read both bills and conference reports, but to provide 72 hours for the public to review both bills and conference reports.

Since the first preliminary procedural vote isn’t expected until Saturday evening, it looks likely that the Senate’s bill will see 72 hours in public, online, before its first vote.

Senators, their staff, and the public will all have a chance to digest this legislation before its formal floor consideration.

While the ReadtheBill.org effort has focused primarily on the House, the same banner was taken up in the Senate in early October, when Senators Lincoln, Bayh, Landrieu, Lieberman, McCaskill, Nelson, Pryor, and Webb wrote Majority Leader Reid, requesting 72 hours before an initial vote:

Every step of the process needs to be transparent, and information regarding the bill needs to be readily available to our constituents before the Senate starts to vote on legislation that will affect the lives of every American. The legislative text and complete budget scores from the Congressional Budget Office (C.B.O.) of the health care legislation considered on the Senate floor should be made available on a Web site the public can access for at least 72 hours prior to the first vote to proceed to the legislation.

By posting these materials online, Majority Leader Reid is strengthening and legitimizing the floor debate on the bill, and probably defending against some process criticism.  He’ll also be raising the bar, showing that public scrutiny of legislation online should be a welcome component of Congress’s work.

As I suggested after Speaker Pelosi’s commitment and delivery on their 72 hour promise, if they can do it for health care — the toughest and most contentious of contexts — they can do it for every bill.