Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
So now we have a whole new example of the two parties exchanging scripts, this time on the "deem and pass" procedure. Republicans are suddenly up in arms at the thought of using the self-executing deem and pass rule to pass legislation, calling it unconstitutional and horribly unjust. Never mind that in 2005-2006, the last year the Republicans controlled Congress, they used that same procedure 35 times in that year alone.
And never mind that all their talk about demanding an up or down vote on the bill itself conflicts with the fact that if they would allow an up or down vote in the Senate, the House wouldn't even need to be considering using this procedure in the first place. It's precisely because they can't get an up or down vote in the Senate at this point that they're having to pass the Senate version of the bill in the House.
But the Republicans aren't the only ones doing it, of course. The Democrats have complained in the past about Republicans using that same procedure and criticized them for it. Here's Steny Hoyer in 2003:
When the Republican leadership reported a self-executing rule providing for the adoption of the $82 billion plan over 10 years and an almost trillion-dollar plan over 20 years, accelerating the increased child tax credit for low-income people families, we didn't even get an opportunity to vote on the bill itself except by reference in a self-executing rule. What kind of lack of confidence does that display? What kind of process in pursuit of effectiveness does that mean that we are adopting? What kind of demeaning of democracy is the objective of efficiency resulting in?
Yes, it's "demeaning of democracy" to do it - until we have to, of course.
Norman Ornstein points out that the Republicans actually went to court to defend the use of deem and pass -- and won:
Any veteran observer of Congress is used to the rampant hypocrisy over the use of parliamentary procedures that shifts totally from one side to the other as a majority moves to minority status, and vice versa. But I can't recall a level of feigned indignation nearly as great as what we are seeing now from congressional Republicans and their acolytes at the Wall Street Journal, and on blogs, talk radio, and cable news. It reached a ridiculous level of misinformation and disinformation over the use of reconciliation, and now threatens to top that level over the projected use of a self-executing rule by House Speaker Nancy Pelosi. In the last Congress that Republicans controlled, from 2005 to 2006, Rules Committee Chairman David Dreier used the self-executing rule more than 35 times, and was no stranger to the concept of "deem and pass." That strategy, then decried by the House Democrats who are now using it, and now being called unconstitutional by WSJ editorialists, was defended by House Republicans in court (and upheld). Dreier used it for a $40 billion deficit reduction package so that his fellow GOPers could avoid an embarrassing vote on immigration. I don't like self-executing rules by either party--I prefer the "regular order"--so I am not going to say this is a great idea by the Democrats. But even so--is there no shame anymore?
No, there is no shame anymore. Both parties will use whatever argument they think is necessary to defend their objectives at any given time, even if it contradicts what they said before. And their followers will howl in outrage when the other party displays such hypocrisy and excuse away the same behavior in their own party. Welcome to sports fan politics.
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The court case wasn't about deem and pass per se. A clerk made an error. The Senate version had a 13 month period for a Medicare program. When sent to the House, there was a different time period, about 36 months. The Republicans decided to simply send the Senate version to the President, without having a vote to change the House version. The suit claimed that since there were different versions, it wasn't properly passed. The Democrats lost.
Posted by: DaleP | March 18, 2010 12:45 PM
Ed,
I will grant you that both parties are equally hypocritical and corrupt when, with Republican majorities, the Democrats bull the same bullshit the Republicans are doing now. Until then, while they are both hypocritical, it's like comparing a shoplifter to a rapist.
Posted by: dogmeatib | March 18, 2010 12:55 PM
I think this appeal strikes home, given the subjective nature of response to different bills. Deem and pass something small? Ok, sounds about right. Deem and pass something as large as healthcare reform, given all the other cloudiness around the bill, buying votes, an obstensibly reactionary negative vote by the people of MA, etc? Sounds like a cheat.
It's like comparing pardoning a shoplifter to pardoning a rapist, to come up with my own completely novel, original, unscripted analogy.
Posted by: Buffoon | March 18, 2010 1:35 PM
I think it's a little different though. The Democrats complained and took the matter to court. The Republicans won the court battle, which settled the question, so future majorities should be allowed to use it.
I think all of this process focus is just BS anyways. No one who supports or rejects a specific bill never changes their mind based on the procedure used. I don't even know why they bother complaining about it.
Posted by: penn | March 18, 2010 2:10 PM
Reconcilation...deem and pass...I don't remember any of this stuff from Schoolhouse Rock.
Posted by: Mandrake | March 18, 2010 2:22 PM
Last night on Hannity's show, Sarah Palin was wailing about what she claimed was the unconstitutional nature of "deem & pass."
Bless her heart. Is there any subject about which our Sarah is not completely ignorant?
Posted by: CHV | March 18, 2010 2:43 PM
But totally fucking with the constitutional rules does matter. If we keep treating the Constitution as no more than an annoyance to be brushed away, we'll end up with no Constitution at all.
Deem and Pass has not been ruled constitutional by the Supreme Court, so far as I know. And one of those "Wall Street Journal editorialists," was former federal judge Michael McConnel, who's well-respected and is the director of Stanford's Constitutional Law Center, and he believes it's unconstitutional, as do I. The wild Alaskan dingbat may be right for once, even if she's right for the wrong reasons.
The Republicans are indeed being outrageously hypocritical--as always--on this, but by bringing it into the public eye they may be doing us a service, if we decide to get serious and stop turning a blind eye to process as long as we get the result we want.
Posted by: James Hanley | March 18, 2010 3:54 PM
penn @ 4:
I care much more about the procedure than the results. Whatever my personal feelings on a given subject, I wouldn't object to obeying any bill passed under any set of procedures that I considered fair (although said procedures are, most definitely, related to neither the procedures that exist now nor any procedures specified or implied by the Constitution).
Posted by: Miko | March 18, 2010 4:22 PM
The Fox News Bret Baier (sp?) interview of President Obama was fascinating to watch on many levels. One aspect was that they and their fans* are all about process and don't seem at all interested in the actual elements of the bill and its ramifications. I found that they've gullibly fell for a red herring (I don't think Baier is smart enough to con anyone).
In fact Mr. Baier was visibly stressed that the President thought it more important to focus on the merits of the package rather than whether the House votes separately on the Senate Bill or in conjunction with the President's amendments to the Senate Bill. I do believe the president adequately answered the question and was schooling Baier to some degree that he needed to step-up his game. Regardless of the constitutionality of the process the House, Senate, and President will be either voting-up or down on the legislation that's passed. Nothing that gets into law will not be voted on by any of these three entities which to me makes the constitutionality question interesting but not nearly as important as the quality of the reform and whether it passes or fails.
If Fox was truly a legit news organization with a conservative-bias, Mr. Baier would have been drilling the President on more critical issues than the House process, i.e., challenge the president on the merits of the bill. For example, one item I don't think has gotten nearly enough attention that all the political officials with direct involvement in this process should be able to sell us on is the affordability of insurance premiums for those who don't currently have or want insurance who will be mandated to get it. That's the biggest example not examined by anyone I've encountered.
These would be people who don't get insurance through their employer and make too much to qualify for Medicaid and therefore would be forced into the exchanges with an indexed level of affordability credits to subsidize their purchase of insurance. Are the affordability credits sufficient? I believe the President is somewhere between the House and Senate's costs where the Senate's costs were more punitive to the consumer given they extend less credits. More importantly is that I haven't seen a good analysis regarding the affordability of any of the three proposals or how premium inflation will correlate to wage inflation after year 1. I think that's far more important than how each of the three plans affect the deficit yet the deficit impact has gotten all the attention.
Given the lack of media coverage on the affordability issue there might have been a chance of getting the President on the record failing to adequately "look out for the folks" in terms of his being able to confidently validate these new mandates were affordable. I assume the President is best boned-up on the most popular talking points in opposition. Can you imagine if he failed? Fox would have far better ammunition to argue that the President is 'out of touch' and just another 'beltway politician' not 'looking out for the folks'. Instead the propagandist is increasingly becoming one of the targets of their propaganda as we see with an idiot like Matt Baier.
*Baier had emails that suprisingly matched the talking points of Fox News. What a coincidence? /snark
Posted by: Michael Heath | March 18, 2010 4:37 PM
Anybody else think this could go down in history as a catalyst for a freedom of information / transparency movement?
Posted by: Buffoon | March 19, 2010 1:20 AM
Buffoon--that thought crossed my mind. For a few moments I thought that perhaps the Republicans were inadvertently doing us a favor with their false outrage. But then I came to my senses. I think our public and our media are too far gone. The issue will only stick as long as Fox News and Rush Limbaugh find it useful to scream about it, and then it will disappear. That's my prediction anyway.
Micheal Heath--"Nothing that gets into law will not be voted on by any of these three entities..." I respectfully disagree. Voting on amendments X and Y, under a rule that says, "If X and Y are passed, then we deem Q to have passed also," is not the same as voting on Q.
Posted by: James Hanley | March 19, 2010 8:12 AM
James @ 11,
I agree it's "not the same as voting on Q" from a pedantic perspective, but "Q" is also not what is being considered in the House. Instead the House is considering "Q minus some elements plus some other elements". I was referring to the fact that what is ultimately passed will be voted on in the House, contra to what Republicans and their media are claiming. When it's all said and done and if the House uses this process, we'll have a clear voting record on who voted yes or no on what is being proposed in its totality, which is what I would think nearly all Americans should really care about. I say this as someone with a firm opinion on being pro-Senate filibuster. When it comes to the essence of democracy as its expressed in the House, i.e., simple majorities for the most part, I don't see the House rule violating that principle at all, but in fact buttressing it.
The Republicans appear to not want this process to be used merely so they can lie about House Democrats voting for elements of the Senate Bill that are not being proposed as being in the final bill. I've got a major problem already with Republicans lying in their campaign ads and overall rhetoric. Why should I want to add mud to the public square when the House rule provides us with what we want, an up and down vote on what is being proposed in its totality.
If HCR reform passes as its current proposed, then a House Representative has voted on the elements of Q that made it into law. As will the Senate but in two votes, as it should be since they did propose passage of the elements the House and President find objectionable (along with most Senators that voted yes). Therefore it's fair game for opponents of the Senate Bill to point to those elements and claim Senator Y voted for such, but its not fair to point to Representatives who support HCR to do so.
My point is very simple, all Congress-people appear to have an opportunity to either vote yes or no on what will be HCR if the initiative passes. Assuming HCR passes as currently proposed, we can easily look at the elements of what passes and determine whether Representative X voted for or against passage. In fact I would argue it's an even cleaner process since it doesn't require Representatives to vote for or against elements that will in no way make it into law.
Please elaborate on how I'm wrong from practical perspective because from a regular Joe perspective, I think the House process is far superior than instead having to vote for the Senate bill and then vote for amendments. I use this perspective since I don't claim to know the constitutionality of the applicable House rule and therefore don't consider it one or the other in my argument.
Posted by: Michael Heath | March 19, 2010 9:02 AM
Michael,
I guess I just simply don't get it. If a large group voted no on the whole bill, and then some small elements are removed and the bill is passed, is it substantially proven that the bill has satisfied enough legislators to become law in its passed form?
Posted by: Buffoon | March 19, 2010 12:02 PM
CHV @ 6
Well, are we sure the deem & pass process is constitutional?
Posted by: Buffoon | March 19, 2010 12:04 PM
Buffoon @ 13,
Sorry, but I don't understand your question. Especially because House members will not be voting on the Senate Bill without knowing what will be added/changed/deleted if they employ Deem and Pass. There arguably might be elements being voted on that wouldn't survive if the House voted on the Senate Bill first where there was some chance the Obama amendments could be modified by House members subsequent to the vote on the Senate Bill. I'm not sure if there are rules in place or not that wouldn't allow subsequent amendments to the Obama amendments if deem and pass weren't passed so I'm not sure if transparency is an issue or not when it comes to the marginal differences between normal rules and deem and pass.
That's one more argument to use deem and pass if no such rules exist prohibiting changes to the Obama Amendments after the Senate Bill vote if deem and pass weren't used. Unless I'm missing something the more I perceive using deem and pass as the principled thing to do, the less I see any sly trickery or skating around principle on this particular initiative. Voting once on the Obama Amendments where the Senate Bill only passes it if his Amendments are approved effectively means what is presented to the Senate if HCR passes the House using deem and pass is the marginal differences to what they already passed. From an effective perspective it is the most concise accurate method to correlate a specific vote to what is being considered.
If they used the normal rules Representatives would be judged against a bill that was never completely in play in the House. That would be an unfair mark against their voting record and would be used against them when the campaign season heats up. Therefore one could not correlate a vote to support or rejection for what is being considered in its totality. You can tie support or rejection cleanly and completely by using deem and pass.
Posted by: Michael Heath | March 19, 2010 4:20 PM
As James Hanley points out in #7, it is not just Republican politicians and apologists saying that it is unconstitutional. Michael McConnell has a follow-up in the weekend WSJ. (You can read it yourself here.) In it, he points out that while deem and pass may have been used many times before, he was unaware of any situation that mirrors what is going on now. Here's the real legal issue as he explains it:
1) The Senate parlimentarian ruled that reconciliation can only be used to make budgetary changes to existing law. (It seems that it has typically been used to make changes to previously enacted budgets in the past.) This is why the House must pass the Senate bill for Obama to sign before the reconciliation process can officially kick in.
2) The Constitution is explicit that the House and Senate must pass the same bill before it can be signed into law by the President. The deem and pass procedure would seem to violate that because what the House would actually vote on is not in the same form as what the Senate passed. Combining bills to vote on them all at once is one thing, but to then break it apart again for the President to sign just that part doesn't make a lot of sense, legally or otherwise.
The whole reason why first reconciliation and now deem and pass are coming up is that the country and the congress are deeply divided by this legislation and the Democrats are trying to squeak it through any way they can.
Michael Heath also sees another issue correctly explains it here:
This is why the Republican politicians are so up in arms over deem and pass. They were salivating at the prospect of hitting swing-district House Democrats for voting for the deeply unpopular deals built into the Senate bill, not to mention their use of the abortion issue. But the impure motives and hypocrisy of Republicans doesn't make the deem and pass procedure constitutional in this case.
I'm also with James Hanley in saying that process matters. The whole reason we have rules is to provide checks and balances. If we allow our leaders to bend and twist the rules just because we like the results, we might as well toss the whole constitution and let our lawmakers do whatever they can get the votes for. That may seem hyperbolic or a straw man argument, but it really isn't. The rule of law has to always apply if it is to mean anything.
Posted by: JasonTD | March 19, 2010 11:23 PM
JasonTD @ 16:
I don't think my arguments argue that process doesn't matter. I remain unconvinced that those promoting the Slaughter rule have ceded this ground. I also think its important to remember that we develop rules to insure fealty to principles. We can probably all cite examples of people violating a principle while remaining within the rules and vice versa, e.g., Bush's OLC memos justifying torture arguably being one example (though there are arguments this isn't a good example). I don't offer this observation up to promote breaking the rules to pass HCR, merely to argue I don't think we have convincing evidence that the side promoting deem and pass would be breaking the rules in this case. I do find their advocacy of using this rule both a principled one and consistent with both democratic and republican government while again noting my mundane ignorance on its constitutionality.
Actually, my problem with principle is the simple majority reconciliation rules in the Senate given I support a Senate which always requires 60 votes for cloture. However, I also do not support filibustering merely because you object to what is being considered. I'd prefer seeing cloture votes used only to defend the process when good faith Senators believe insufficient progress has been made considering all good faith amendments or analysis. I.e., if Senators are working in good faith on improving a bill than filibustering a vote is principled, filibustering merely to avoid voting on a bill is unprincipled.
This position is an adaptation of mine where I previously preferred 60 votes not merely for cloture, but also for passage. The folks making arguments in this forum regarding the U.K. were particularly persuasive in causing me to modify my position.
I also think the use of simple majority reconciliation rules in the past has helped increase partisan rancor since it provided an avenue to getting things done without 60 votes rather than forcing Republicans to work with the Democrats. It helped isolate them not just from the Democrats but 70+% of the country and the country's business. I would also argue that the Republicans' unprincipled and unserious obstructionism is far more damaging to the country than the Democrats using reconciliation rules to get a vote on HCR. So I'm peeved the media spends so much time on Congressional rules rather than far more time on the content of the bills, their ramifications, and the deeply dysfunctional state of the Republican party and the grave generational damage it has and continues to do to this country.
Posted by: Michael Heath | March 20, 2010 8:43 AM
Just a little bit more on deem and pass before I address your more recent post. One more reason not to like that procedure here, from a non-legal scholar point of view, is that House members will be voting on the bill with the understanding that they are voting for (A + B), where A is the passed Senate bill, and B is the changes that will still have to go through reconciliation in the Senate. The deem and pass rule may state that a vote on B is also a vote to pass A, but there are many House members that wouldn't vote yes on (A + B) unless they were certain that B will get through the Senate and become law. And this is not guaranteed by the procedure. As I said above, as soon as the house votes on the combined bill, Obama will have to sign the Senate bill into law before reconciliation can start. But this will occur without any guarantee that the Senate will be able to follow through. This isn't over, by a long shot, even if the House does pass this plan. It isn't inconceivable that the process breaks down and leaves the Senate bill as law with Congress having to start over on any modifications. I don't think that's what the House wants, and therefore is a reason to oppose deem and pass.
The regular procedure for passing bills is to match up House and Senate bills in conference committee and have each chamber vote on that bill. But because Democrats haven't been able to peel away a single Republican Senator (and their 60th vote got lost to Scott Brown who explicitly ran saying he'd be the 41st vote against the Democrats' proposals), that won't work, hence reconciliation, and because many House Democrats don't like features of the Senate bill and don't want to be on record as voting for it, we get deem and pass.
So, it really all does come down to the filibuster, doesn't it? Without that, none of the other Rube Goldberg legislating would be necessary. So let me give my defense of why a filibuster based on purely policy objections, rather then just defending procedure as you advocate, is a good idea.
Elections should have consequences, but voters have a very wide range of reasons to vote as they do. So voting in a majority of one party doesn't mean that a majority of voters are going to support that party on a given issue. The 2008 election wasn't about health care reform. That was a relatively minor issue when compared to the state of the economy, two wars, and the extreme displeasure with Bush. Obama and Congressional Democrats needed to build a solid majority of public on this specific issue in order to make a push for major reform to a system that effects every single person in the country. They haven't done that.
It has been said many times about how individual pieces of the Democrats' plans poll very well, but that doesn't mean as much as you might think. When you look at a plan this big, it is how everything interacts with each other to produce the total product that matters. For instance, eliminating the ability of insurers to deny coverage for preexisting conditions polls well and sounds great, but how does that effect everyone's insurance rates? What is going to prevent people from going without insurance until they get sick?
How many major reform initiatives have passed on bare partisan majorities in the past? Not many, and I would argue that anything this deeply involved with people's lives shouldn't pass without very broad support. If Democrats had come up with a plan that had that kind of support, Republicans wouldn't have had anything to grab onto for their opposition. They would have been the ones in the November hot seats for stubborn opposition. Perhaps you can argue persuasively that Republican opposition to Democrats' plans hasn't been principled (or in cases where it is based on principles, they are either the wrong principles or they use twisted facts). But whatever crap they have pulled, I have yet to see an independent poll that puts support for the total package of Democrats' plans in range of a solid majority. The people are speaking, and those voicing displeasure with the plan are about even with those supporting it. Polls that ask how their congressperson's vote will affect what they do in November have it about even as to whether it will make it more or less likely for them to vote for them. Given all of this, 60 votes seems like a reasonable requirement to be sure that Congress was doing its job correctly.
Posted by: JasonTD | March 21, 2010 4:11 PM
It looks as though Pelosi got enough votes (219-212), according to late night reports I've read. Stupak caved in for an executive order that doesn't look to me any different than established policy (the Hyde amendment) on federal funding of abortion. It seems that House Democrats also abandoned deem and pass and voted on the Senate bill and package of amendments separately. But as I said before, getting those amendments through reconciliation in the Senate won't be easy.
Posted by: JasonTD | March 21, 2010 11:57 PM