Health Care Rules Switch May Be a Game Changer

So here's the new plan. It's seems very convoluted -- and like something you do in the dark of night hoping nobody figures it out.

The House will say it doesn't have to vote on the Senate bill because it's already been passed by one house. They will present a little "sidecar" of a reconciliation bill, and it all goes right Obama for signature and the obvious proud statement he'll make: he's passed the most important legislation of the last three decades.

What do we get? No public option, for one thing. [More...]

Here's a bit as to how it goes down:

The tactic -- known as a "self-executing rule" or a "deem and pass" -- has been commonly used, although never to pass legislation as momentous as the $875 billion health-care bill. It is one of three options that Pelosi said she is considering for a late-week House vote, but she added that she prefers it because it would politically protect lawmakers who are reluctant to publicly support the measure.

As to the sidecar, which seems to be the reconciliation portion,

Under reconciliation rules, it is protected from filibusters and could pass the Senate with only 50 votes, but can include only provisions that would affect the budget.

McClatchy raises some constitutional issues with this kind of passage. Here's an opposition memo that at least is in plain English.

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    No accountability, Again (5.00 / 1) (#4)
    by BDB on Tue Mar 16, 2010 at 06:59:55 AM EST
    So basically everyone in the House knows that the Senate bill stinks and voting for it would put them in danger in November so to prevent voters from holding them accountable, they'll just "deem" it as having passed.  Personally, I doubt the GOP or the voters will be fooled (although since most of the provisions don't take effect for years - a sign it sucks if ever there was one - people might not care much about it in November except to the extent they're repeatedly told the Dems fixed healthcare when they clearly haven't even really tried).

    Gosh, using "rules" to prevent (5.00 / 1) (#8)
    by observed on Tue Mar 16, 2010 at 07:42:29 AM EST
    an actual vote from occurring. Where have I seen that before, on the Dem side?
    Looks like the child really is the father of the man  here.

    Where Have You Seen This Before?? (none / 0) (#47)
    by norris morris on Tue Mar 16, 2010 at 07:32:58 PM EST
    Russia, and previously the Soviets.

    Show trial voting.

    As a lifelong Democrat I'm mortified.


    I just do not believe (5.00 / 2) (#15)
    by kenosharick on Tue Mar 16, 2010 at 09:35:39 AM EST
    that the vast majority of voters care about process. Most of those upset about the Dems using tactics long employed by repubs witout a whisper of protest would never vote Democratic anyway.

    "Deem and pass" (5.00 / 1) (#16)
    by andgarden on Tue Mar 16, 2010 at 09:36:48 AM EST
    is perfectly constitutional . Each house of Congress determines its own rules.

    Terrible politics though. Why make (none / 0) (#18)
    by observed on Tue Mar 16, 2010 at 09:45:41 AM EST
    a big deal about chasing votes and then turn around to say "Oh, we don't need to vote".

    Terrible politics? Nobody gives a $h*t. (5.00 / 2) (#19)
    by andgarden on Tue Mar 16, 2010 at 09:47:19 AM EST
    Right, like no one cared if (none / 0) (#21)
    by observed on Tue Mar 16, 2010 at 09:55:33 AM EST
    Kerry voted for and against the same bill, cleverly. Nobody cared, but now the Democrats have made it an issue.

    I guarantee you nobody will remember this (none / 0) (#23)
    by andgarden on Tue Mar 16, 2010 at 10:13:21 AM EST

    I'm sure they will be reminded before (none / 0) (#26)
    by observed on Tue Mar 16, 2010 at 11:01:17 AM EST
    November. It's great fodder for campaign ads. Whether they will be effective probably depends more on whether the bill is popular.

    I maintain that it is not (none / 0) (#27)
    by andgarden on Tue Mar 16, 2010 at 11:10:36 AM EST
    Process arguments are too complicated for anyone to understand.

    You don't have to explain (none / 0) (#29)
    by itscookin on Tue Mar 16, 2010 at 11:40:30 AM EST
    the process. You just say that because the Democrats hid the votes, your congressman could evade being held accountable to you for his vote. He didn't speak out against hiding the votes so he obviously didn't want you to know how he voted. It would be the Democrat who would get all wound up in explaining that taking the votes this way is a standard procedure - not the challenger.

    Nah (none / 0) (#30)
    by andgarden on Tue Mar 16, 2010 at 11:44:16 AM EST
    You'd just say: here's what we actually passed.

    Attack ad (none / 0) (#32)
    by waldenpond on Tue Mar 16, 2010 at 12:12:53 PM EST
    What.... maybe 30 minutes to explain the evilness of reconciliation and deem and pass?  Jeez.

    heh (none / 0) (#34)
    by andgarden on Tue Mar 16, 2010 at 12:19:54 PM EST
    exactly. TV time is expensive, and when you're explaining, you're losing.

    Gee, let's just go to the (none / 0) (#22)
    by BTAL on Tue Mar 16, 2010 at 10:11:40 AM EST
    secret ballot concept for Congress.  Then they all get a pass.  Just submit the size needed for our sheep outfit with our tax returns.

    Waaah, waaah, waaah (none / 0) (#24)
    by andgarden on Tue Mar 16, 2010 at 10:13:42 AM EST
    So you are ok (none / 0) (#25)
    by BTAL on Tue Mar 16, 2010 at 10:19:31 AM EST
    with the secret ballot concept, eh?

    Reminder (none / 0) (#33)
    by waldenpond on Tue Mar 16, 2010 at 12:13:40 PM EST
    You do recall this already passed?  The House and the Senate, right?

    Show me the ONE bill (none / 0) (#35)
    by BTAL on Tue Mar 16, 2010 at 01:49:14 PM EST
    that has passed both houses.

    Show me the roll call vote record of the Senate bill in the House.


    Outraged much (5.00 / 1) (#38)
    by waldenpond on Tue Mar 16, 2010 at 02:19:31 PM EST
    I wish I could get all riled up, but it is as simple as having a vote on the reconciliation package.  There will be a vote.  You get that don't you.  There will be a vote.

    Still waiting for the bill that (none / 0) (#42)
    by BTAL on Tue Mar 16, 2010 at 06:20:15 PM EST
    was passed by both chambers in accordance with Article 1, Section 7.

    Voting on a chamber "rule" is not voting on either the Senate bill or the Reconciliation bill.

    The Dems (Pelosi etal) are soooo over reaching on this that the process will matter to the public.


    Maybe you could weigh in on this: (none / 0) (#36)
    by Anne on Tue Mar 16, 2010 at 02:05:08 PM EST
    It's a subscriber-only link, but I found this from the article at Corrente:

    Michael McConnell explains:

    Democratic congressional leaders have floated a plan to enact health-care reform by a procedure dubbed "the Slaughter solution."

    The Slaughter solution cannot be squared with Article I, Section 7 of the Constitution.

    Last Christmas Eve, the Senate approved a health-care bill by 60 votes, overcoming a Republican filibuster. This is the bill that contains the so-called Cornhusker kickback, the Louisiana purchase, taxes on high-cost health insurance plans and coverage for abortions. Virtually no one now supports that version of the bill, but Senate Democrats no longer have enough votes to pass an alternative bill under ordinary procedures.

    That is where reconciliation fits in. If the House passes the Senate bill and the president then signs it into law, reconciliation would permit Congress to pass new legislation making changes to that law. Reconciliation might not solve the abortion coverage problem or other nonbudgetary issues, but it would allow Democrats to correct most of the Senate bill's offensive features.

    The rub is that, according to the Senate parliamentarian, reconciliation is permitted only for bills that amend existing law, not for amendments to bills that have yet to be enacted.

    To become law--hence eligible for amendment via reconciliation--the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a "Bill" to "become a Law," it "shall have passed the House of Representatives and the Senate" and be "presented to the President of the United States" for signature or veto. Unless a bill actually has "passed" both Houses, it cannot be presented to the president and cannot become a law.

    To be sure, each House of Congress has power to "determine the Rules of its Proceedings." Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

    The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the "exact text" must be approved by one house; the other house must approve "precisely the same text."

    Don't have time to look into it, but you've got great legal research skills, so will be interested in your assessment...(did the flattery help?)


    Also see Jack Balkin (none / 0) (#37)
    by Anne on Tue Mar 16, 2010 at 02:12:15 PM EST

    Despite Judge McConnell's concerns, which are textually well founded, there is a way that "deem and pass" could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule. Under Article I, section 5 of the Constitution, the House can determine its own rules for passing legislation. There are plenty of precedents for passing legislation by reference through a special rule.

    I have not looked at the text of the reconciliation bill, so I don't know if the current language is sufficient to meet the test described above, but this is what would have to happen.

    The structural constitutional reason for this requirement is that members of the House must not able to avoid political accountability for passing the same bill as the Senate. The point of bicameralism and presentment is that all three actors (House, Senate and President) must agree to the legislation, warts and all, so that all three can be held politically accountable for it. They cannot point fingers at the other actors and deny responsibility for the policy choices made. The House cannot say, "oh we didn't pass X; that was the Senate's decision." If the House doesn't accept the same language as its own, even if that language is then immediately changed in an accompanying bill, there is no law.

    Speaker Pelosi is trying to give House members a way of saying they did not vote for the Senate bill, but my point is that however much she and they may be trying to do this rhetorically, she and they can't really do this politically and constitutionally. They have to take responsibility for what they are doing and the language of the bill has to say that they are taking responsibility. This is the point of Article I, section 7.

    Seems like this is a tad bigger than being able to say, "but, but...the GOP did it, too!"


    Yes (none / 0) (#40)
    by jbindc on Tue Mar 16, 2010 at 04:31:03 PM EST
    And a lot bigger than declaring that it is completely constitutional.  Seems like when you have a federal judge and esteemed law professor disagreeing, there might be the teensiest chance that a court ruling may be in order.

    And there was one, in 2005 (5.00 / 1) (#41)
    by Farmboy on Tue Mar 16, 2010 at 05:51:00 PM EST
    a federal district court ruled the process constitutional and had precedent. In 2007 a federal appellate court upheld that ruling. That's where things now stand, AFAIK.

    http://openjurist.org/486/f3d/1342/public-citizen-v-united-states-district-court-for-the-district-of -columbia


    It's Not About Parlimentary Proceedure (none / 0) (#43)
    by norris morris on Tue Mar 16, 2010 at 07:17:46 PM EST
    It's about being open with the public about what you're pushing, and pasing a bill with real votes.

    This is a stealth attempt to create a secret ballot and hoodwink the public.

    It's Obama & Co. uber alles. Alles meaning Pelosi who is protecting Obama and her House Reps who are for or agin' and she is limiting transparency by permitting a pass at open voting.  After all she wants those or agin' to get elected?  With these tactics.

    Stop talking about proceedure. No one is interested. It's the net result of political thuggery and for a bill of this magnitude deeming it is insulting and rancid.

    There will be a price to pay for this dirty dirty business.

    The convoluted proceedural rules of congress are being pressed out of the administrations desperation. Obama announced early on that he stakes his presidency on this bill. Really?

    Obama sold us out with big Pharma, with private Insurance, and with limiting women's right to choose. Obama's behavior has been evasive and he's  lied about his positions.   Actually he's struck deals to the contrary early on. This is sneaky, evil, and wrong from every point of view.

    This proceedural trickery and secret balloting is just one more low point of cowardice and  fear Obama & Co have elicited from Democrats.

    In the 60 some odd years I've voted Democratic, I am now an Independent. I am sickened by the performances of those I've voted for.


    IOKIYAR (5.00 / 1) (#20)
    by CST on Tue Mar 16, 2010 at 09:53:43 AM EST
    like so many of the house and senate rules.  No one cares until it happens with a bill they don't like.  It's not the rules that make you not like the bill.  You either like it or you don't, you want it passed or you don't.  The way it passes is kind of irrelevant.  It's only bad politics to those who don't want the bill.  To those that do, it's shrewd politics (aka - getting stuff done).

    Something tells me this was the plan (none / 0) (#1)
    by observed on Tue Mar 16, 2010 at 04:55:59 AM EST
    all along. I think there's been a dog and pony show going on since the meeting with Republicans.
    It was obvious the Senate Bill had no chance of passing the House, yet the White House has been acting very confident.
    We've all just been set up for this end run around the Constitution.

    What? (5.00 / 2) (#14)
    by waldenpond on Tue Mar 16, 2010 at 09:33:41 AM EST
    What end run around the constitution?  It's a rule.  It's been used before.

    There Are No Votes (none / 0) (#44)
    by norris morris on Tue Mar 16, 2010 at 07:23:16 PM EST
    for a real bill.

     Does anyone know what exactly is in this bill? It's absurd to vote on anything without understanding it and not having candid transparent revelations about the bills specifics.

    Debbie Stabenow is raving at the moment about passing this bill becuse' "it will bring the costs down." Period. This is an explanation?

    This is all bulls**t.


    Well.... (none / 0) (#2)
    by jarober on Tue Mar 16, 2010 at 05:10:52 AM EST
    Democrats should ask themselves how pleased they would be to see this tactic used on similarly large things they dislike - because they should expect to see it used by Republicans if they try it.

    At this rate, we may see Republicans (none / 0) (#3)
    by observed on Tue Mar 16, 2010 at 05:32:37 AM EST
    trying this tactic next year!

    Obama could still veto (none / 0) (#7)
    by republicratitarian on Tue Mar 16, 2010 at 07:40:48 AM EST
    But who could argue with them if they did. Of course, it would mean that they didn't really learn a lesson from any of this.

    you mean like Bush tax cuts? (none / 0) (#31)
    by lilburro on Tue Mar 16, 2010 at 11:45:51 AM EST
    oh yeah, those were tiny.

    Um (none / 0) (#39)
    by Socraticsilence on Tue Mar 16, 2010 at 02:51:19 PM EST
    considering they already use tactics like this I don't see why them doing it again would change things.

    Unquestionably (none / 0) (#45)
    by norris morris on Tue Mar 16, 2010 at 07:26:08 PM EST
    These proceedural tricks and tactics will be used more frequently than ever by GOP.

    But we are doing nothing good for Democrats and others by shoving this piece of unexplained tripe down everyone's throats. And with procedural witchcraft no less.

    Midterms? I predict a disaster for Dems.


    Well, they can deem this bill passed (none / 0) (#5)
    by Anne on Tue Mar 16, 2010 at 07:27:26 AM EST
    now, but they do so at their peril, and should be prepared for the voters to deem them unworthy of re-election in November.

    It's hard to put into words the utter comtempt I am feeling for these people, who continue to plumb the depths of cowardice, and dispel all doubt that they are even remotely familiar with the concept of honor, integrity and accountability.

    There was never any chance for any so-called "public option;" Obama made that clear from the get-go, when he froze out the single-payer/Medicare For All supporters, and made sure they were embargoed from all Senate hearings.  Anything that even looked vaguely like it might lead to single-payer was trashed, too; heaven forbid we might have a glimmer of, um, hope, that the insurance industry giants might be taken down a peg or two, instead of being handed billions of dollars in mandated new customers.

    Hard to express not just how sickened I am by all of this, but how fearful I am of what's next on the agenda; that it will likely be brought to us by Democrats is bad enough, but at whose hand it happens will be less important in the end than the magnitude of the consequences that follow for all of us.

    I wish I could "deem" (5.00 / 1) (#9)
    by jbindc on Tue Mar 16, 2010 at 08:02:48 AM EST
    All these people out of jobs, and out of money, so they too, understand what it is to struggle to make ends meet.

    I Deem (none / 0) (#46)
    by norris morris on Tue Mar 16, 2010 at 07:30:55 PM EST
    that Obama will be toast and take everyone down with him.

    His ego knows no bounds. The sense of entitlement, arrogance, and disconnect from the misery of those around him is obvious.

    I deem  Professor Obama a calculating cold blooded fake.


    Precedent (none / 0) (#6)
    by kidneystones on Tue Mar 16, 2010 at 07:38:53 AM EST
    What Dems will get is about five decades of 'your vote doesn't matter', not to mention vindicating every accusation hurled at this administration from the left and right.

    Were the bill worth the opprobrium it might be justified. I hold, however, to the belief that most voters are simply sick of the entire procedure.

    This procedure screams 'can't be trusted'. Does it make Dems look tough? In a sense, yes.

    Does the entire process confirm everything bad we've always believed about politicians? Also, yes.

    Kucinich claims the bill is a bail-out for the insurance industry. I expect he's unlikely to clap. Nor do I think anyone has heard the end of hcr.

    Bad move.

    WellWe (none / 0) (#10)
    by jbindc on Tue Mar 16, 2010 at 08:03:50 AM EST
    We were never going to get a public option.  Despite the rhetoric of the last nine months, you had to know that really wasn't going to happen.

    When the Republicans used this procedure, (none / 0) (#11)
    by Farmboy on Tue Mar 16, 2010 at 08:36:21 AM EST
    repeatedly from 1995 to 2008, they and the media had no problem with it. Now that Democrats are talking about employing it, well, that's something completely different.

    I don't particularly care whether (none / 0) (#12)
    by Anne on Tue Mar 16, 2010 at 08:40:48 AM EST
    either party or the media have a problem with voice-voting or "deeming" things passed to avoid going on the record; what I think and what the rest of the people think is what should matter, since, strangely enough, they are allegedly working for us - although that concept seems to have gotten lost in the shuffle - or is it the bamboozle?

    Somehow using this method (none / 0) (#13)
    by itscookin on Tue Mar 16, 2010 at 08:53:38 AM EST
    to ban smoking on airlines just doesn't seem to rise to this level.

    There is only one remote reason (none / 0) (#17)
    by BTAL on Tue Mar 16, 2010 at 09:38:44 AM EST
    Pelosi is considering this bizarre idea - the hope/chance that the Senate doesn't pass the Reconciliation bill.  Then the loss and blame falls squarely on the Senate.  Its a bit odd but when the ship is sinking its every rat for themselves.

    A Sinking Ship (none / 0) (#48)
    by norris morris on Tue Mar 16, 2010 at 07:38:22 PM EST
    On the good ship Lollipop Madame [commisar] Pelosi has construed a method whereby no one that's playing poker has to show his hand, even on a call.

    She's all in even before the hand has been dealt? Hoping everyone will fold?   Phew!


    Sunshine Week - how approprate (none / 0) (#28)
    by BTAL on Tue Mar 16, 2010 at 11:13:56 AM EST
    Guess Pelosi isn't on this WH mailing list.

    The White House released this statement from President Obama as the administration recognizes "Sunshine Week," calling attention to government transparency:

    "As Sunshine Week begins, I want to applaud everyone who has worked to increase transparency in government and recommit my administration to be the most open and transparent ever, an effort that will strengthen our democracy and ensure the public's trust in their government. We came to Washington to change the way business was done, and part of that was making ourselves accountable to the American people by opening up our government. We've put our White House visitor records on the Internet for the first time in history; opened up more government information than ever before on Data.gov, Recovery.gov and USAspending.gov; and issued an Executive Order fighting unnecessary secrecy, to name a few.

    "We are proud of these accomplishments, but our work is not done. We will continue to work toward an unmatched level of transparency, participation and accountability across the entire Administration."

    From Politico.com

    Sunshine? (none / 0) (#49)
    by norris morris on Tue Mar 16, 2010 at 07:40:12 PM EST
    This is an eclipse of politically traumatic proportions.  There's no Sun.