Deem and Pass: Just Another Rule in the Game
It appears that the House will vote on healthcare this Sunday now that the report from the Congressional Budget Office (CBO) has come back showing significant savings in the House reconciliation bill. But somehow according to mainstream media there is not going to be a vote: A Washington Post headline states, “House may try to pass Senate Health-Care Bill Without Voting on It;” a headline from The Hill states, “Democrats Move Closer to Passing the Senate Health Bill Without Vote on Text,” and of course, Fox News anchor MacCallum, manages to report in the same breadth that that “there won’t be a vote on the floor” and that somehow House members won’t be “held accountable, necessarily for that vote on the floor” (Heck to make it even more confusing…just before that incoherent sentence she reported on how Ohio Congressman Dennis Kucinich was changing his no vote to yes).
So which is it media? Do you even know what you are talking about? As a political science major I actually love stories on process so I don’t mind you focusing on the how instead of the substantive what of the bill but do you think you might actually try to get it right?
For those of you not following the coverage of the processs, let me try to lay it out for you.
Please bear with me as we start by reviewing some basic School House Rocks civics i.e. a bill becomes a law after both houses of Congress pass the same bill and present it to the President whereupon the President signs the bill. Here is where it gets a bit tricky, in this instance both the House and the Senate have already passed two separate healthcare bills. Normally when this happens the two bills are merged in a conference committee thus creating a new bill that both houses must vote on again. But because the Republican opposition to the Senate healthcare bill is so strong (I’ll leave it to others to debate whether they actually have a substantive issue with every part of the bill or whether they are merely opposing it out of a political need to make this Obama’s “Waterloo”) and because the Senate Democrats no longer have the 60 votes necessary for a cloture vote that would end a Republican filibuster a new merged bill would probably not be able to pass the Senate. This cloture vote is needed to cut off debate and allow for a simple majority “up or down vote on the floor.”
While the filibuster is not itself in the Constitution, and the rules for voting on cloture have changed in recent decades (it used to take 67 votes and now takes 60), and filibustering senators once had to go all Mr. Smith Goes to Washington i.e. they actually had to talk non-stop while holding up all other legislation (nowadays the bill simply gets put aside at the threat of a filibuster thus allowing the Senate to continue with other legislation—sorta takes the grandness of being willing to filibuster away, eh?) it is a standard and oft used parliamentary procedure that exists largely due to Senate rules.
Still with me? (I know my wife’s eyes would be glazing over right about now just like they did over dinner last night).
What this essentially means is that a bill that comes out of conference committee is unlikely to pass the Senate because the Republicans will filibuster (after all the Republicans have filibustered legislation to provide low-income energy assistance, efforts to strengthen the Consumer Product Safety Commission to ensure our children are not exposed to unsafe toys, and efforts to ensure that women are guaranteed equal pay for equal work so don’t think they will suddenly admit defeat when it comes to healthcare). This means the House Democrats have to pass the Senate bill if they want to pass healthcare.
Simple enough but here is the rub—the Senate bill sucks in comparison to the House bill. It saves less money, has political giveaways, such as, the “Cornhusker Kickback” that many House Democrats find unacceptable, and it lacks the coverage desired by House progressives. So what is the House to do?
The solution is for the House to pass a bill amending the Senate bill i.e. taking out all the crap they don’t like and increasing savings that will further reduce the deficit (see CBO report). This new House bill can be passed in the Senate via a budgetary vote called reconciliation since it deals largely with budgetary issues. Senate rules (originating from the same source as the filibuster cloture rules) lets the Senate pass reconciliation bills with a simple majority vote up or down vote. Some critics say this is too important a bill to pass in this manner but historically speaking most improvements and changes to healthcare have been brought about using reconciliation e.g. S-CHIP (States Children Health Insurance Program), COBRA (Consolidated Omnibus Budget Reconciliation Act – notice how the word reconciliation is actually in the name of the act), not to mention various expansions of Medicare and Medicaid. In other words, using reconciliation to adjust or amend the budgetary aspects of health legislation is consistent with Senate behaviors whether controlled by Republicans (S-CHIP) or Democrats (COBRA).
Okay here comes the trickiest part, the part that the aforementioned headlines and newscasts are referring to, the as the use of “deem and pass.” This is a self-executing rule that will allow the House to pass the Senate bill and the reconciliation bill in a single vote. The House will vote on adopting the rule with the standard yea or nay votes. The rule must make it clear that a yes vote on the rule means that passing the House reconciliation bill means the House will also be passing the Senate bill in its current state. Once this is done, the Senate will pass the House reconciliation bill (remember they only need 51 votes to pass the reconciliation bill. The Senate bill and the reconciliation bill are then both presented to the President whereupon he will sign the Senate bill and then he will sign the reconciliation bill amending the Senate bill per the desires of the House and viola we have healthcare reform.
Now obviously Republicans and opponents of healthcare are trying their best to claim that this is unconstitutional but it is a battle I think they will fail to win.
For example, one argument is that the since passing the reconciliation bill amends the Senate bill at once then the Senate bill no longer has the same text that was voted on by the Senate i.e. it is a new bill requiring a new vote. But the truth is, as I stated above, that the Senate still has to pass the reconciliation bill. Until that happens the Senate bill is still not amended so no new bill was created. At no point does the House amend or otherwise alter the text of H.R. 3590 as amended by the Senate. The requirements of the Constitution are satisfied because the Senate bill is only amended after the President signs the reconciliation bill which will be signed after the Senate bill.
Constitutional Attorney Mark Levin’s argument, which has traversed the conservative blogosphere , is that, “They’re going to present a rule issued by [Rep. Louise Slaughter's] committee, with her as chairman, that says that the House already adopted the Senate bill, when we know it didn’t? ”
His argument would be a good one if he wasn’t dead wrong. The rule will not say that the House already adopted the Senate bill. It will say that the House, by adoption of the rule, agrees that it will manifest its assent to the Senate bill with its vote on reconciliation bill.
Conservative law scholar Michael McConnell wrote in the Wall Street Journal, “These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 ‘the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.’ These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.”
Here’s the thing— his objection is meaningless because the yeas and nays of each member’s vote on the rule will be recorded as will each member’s vote on the reconciliation bill. It will be pretty clear from reading the text of the rule what they are voting on so there will be more than sufficient public record for interested parties to delve into. Anyone interested enough in politics and/or healthcare reform will not find it difficult to understand that the House members are indeed voting for the Senate bill and to claim otherwise would be a lie but they are also voting to fix it in the same breadth. So if anyone wants to run against them shouting that they voted for the Cornhusker Kickback that person could do so and they would be telling the truth— although not all of it. If the Democrat who made that vote can’t explain to the voters how he or she voted for it and fixed it at the same time than they might deserve to lose.
Seriously, with how frequently politicians vote for or against things and then change their vote at a later point anyone who can’t explain what they did and deserves to lose. Sometimes the initial vote was in committee; sometimes the bill had changed substantially due to amendments, etc. For example, “Sen. Scott Brown (R-Mass.) voted against the bill after voting for cloture to allow the legislation to move forward a day earlier. Brown supported the procedural vote Tuesday, saying he “wanted the process to move forward” despite his opposition to it. So in a move made famous by Senator John Kerry, Brown “voted for it before he voted against it.” I am not bashing Brown for this. I think it is perfectly reasonable to change your committee vote when a bill hits the floor but then I also think people have the political sophistication to understand that nuance if it explained properly. I think the same could be said for “deem and pass” if the press took the time to explain it.
Now historically speaking, deem and pass has been around since 1933.
According to The Hill, a memo generated by Vince Morris, spokesman for Rule Committee Chairman Louise Slaughter (D-N.Y.) stated, “Given the recent attention to Rules Committee process, I wanted to ensure that everyone covering the healthcare legislation has some additional background on Rules Committee precedent and procedure, specifically as it pertains to special rules providing for the adoption of a measure. For starters, despite what the minority may claim, the precedent for adopting a resolution and at the same time concurring in a Senate amendment to a bill was set back in 1933.”
“In addition, the adoption of rules that are self executing is even more common and is typically used when the House votes to increase the debt limit. This model was used most recently in February, and in fact self-executing rules have been used over the years far more often by Republicans than by Democrats.”
For example, before losing power to the Democrats in 2006, Republicans used the self-executing rule more than 35 times. Yet, they way they are behaving this week you’d think the Democrats just made this rule up.
The two best recent examples from the Slaughter memo of how this procedure has been used for major legislation are:
In 1996, H. Res. 391 (a rule for the “Senior Citizens’ Right to Work Act”), included a provision to consider the conference report to accompany S. 4 (the “Line Item Veto Act”) as adopted upon receiving a message informing it that the Senate has adopted the conference report. (104th Congress)
In 1993, H. Res. 71 (a rule for H.R. 1, “The Family Medical Leave Act”), considered the Senate amendment to H.R. 1 adopted upon adoption of the rule. (103rd Congress)
The Slaughter memo is supported by a recent article on Time.com which showed how Republicans set new records for use of self-executing rules after they took power in 1995. In fact the Republicans used the “mother of all self-executing rules” when the Rules Committee “hit the trifecta with not one, not two, but three self-executing provisions in the same special rule. The first trigger was a double whammy: “In lieu of the amendments recommended by the Committees on the Judiciary, Rules, and Government Reform now printed in the bill, the amendment in the nature of a substitute consisting of the text of the Rules Committee Print dated April 21, 2006, modified by the amendment printed in part A of the report of the Committee on Rules accompanying this resolution, shall be considered as adopted in the House and the Committee of the Whole.”
Based on this cursory review it seems deeming has been used literally hundreds of times. So there is likely nothing illegal or un-Constitutional about it.
But for those of you who want further proof read over 486 F3d 1342 Public Citizen v. United States District Court for the District of Columbia. In this case the use of a self-executing rule was upheld by the courts: The only “evidence upon which a court may act when the issue is made as to whether a bill … asserted to have become a law, was or was not passed by Congress” is an enrolled act attested to by declaration of “the two houses, through their presiding officers.” Id. at 670, 672, 12 S.Ct. 495. An enrolled bill, “thus attested,” “is conclusive evidence that it was passed by Congress.” Id. at 672-73, 12 S.Ct. 495.
Why would a court rule in favor of self-executing rules?
Well for one, the Constitution states that Congress gets to make its own rules and it is unlikely that the courts want to enter into the realm of second-guessing Congress on its own internal operations. This would throw the entire legislature into upheaval because every major bill gets a special rule or resolution from the Rules Committee before it can put to a vote on the floor. These rules entail the allowed time spent debating on the floor, how many amendments will be allowed, whether the amendments have to be germane to the bill, etc. It is under this purview that self-executing rules function. Once the House passes the rule, then they pass the underlying legislation i.e. “deem and pass.” This clearly falls in line with contemporary uses. Moreover if deem and pass were to be found unconstitutional it would undo decade’s worth of legislation that was previously passed using the rule.
Heck, Congress has passed bills without votes using what is known as unanimous consent. After Hurricane Katrina an appropriations bill was passed not only with the Senate not voting yea or nay but with the Senate not even being in session. Granted it was an indisputable emergency but my point is still clear that the rules of parliamentary procedures allow more leeway than the press seems able to accurately report.
Despite all of this, according to the Christian Science Monitor, GOP leader John Boehner of Ohio announced that Republicans want to “vote on a resolution requiring an up-or-down vote on the Senate healthcare bill.” Which may seem a bit disingenuous considering Senate Republican used a different parliamentary rule i.e. the filibuster to prevent an up or down vote on the Senate bill thus causing deem and pass to be used in the first place. It seems a bit hypocritical to me to decry the use of the deem and pass rule when it is the use of the 60 vote cloture rule that necessitates the use of deem and pass.
Especially when one takes into account the fact that House Republican Eric Cantor recently admitted deem and pass is legitimate. He stated, “The rules of the House allow for this type of deeming provision, it’s called a self-executing provision which means that once the bill, the rule for the next bill passes, the Senate bill is automatically is deemed as having passed.” What else could he say without being a hypocrite or outright lying? Particularly when conservative scholar Norman Ornstein from the American Enterprise Institute points out that deem and pass was “defended by House Republicans in court (and upheld)” when “ Rules Committee Chairman David Dreier used it for a $40 billion deficit reduction package so that his fellow GOPers could avoid an embarrassing vote on immigration.”
Just when it seemed bad enough that Republicans can’t count on their own to maintain their hypocritical opposition to deem and pass, Fox News Hill reporter Carl Cameron actually “refuted the right wing, including FNC’s own Glenn Beck’s attack, on the so called Slaughter Solution as an unprecedented move to pass healthcare reform. Cameron said, “Deeming has been used literally for centuries, and it is legislative language that says look we are going to consider this already done.”
In closing I will leave you with this video of House Representative Jim McDermott who manages to lay into the opposition in a manner that brings a smile to my face
For more information on the healthcare bill check out: