Merged Slaughter the House Bill / Pass without voting

[Freddy]

But the best argument against using this strategy is that it doesn't make it any easier for House Democrats to get what they want. Not a single bit easier. The "cover" it supposedly gives House Democrats is actually more harmful than beneficial to any member who tries to invoke it with a straight face, and it doesn't change that the Senate bill would have to be signed into law, as is, before the Senate can proceed with reconciliation, which may or may not have the result House Democrats want.

 

[MikeMangum]

I'll be the judge of whether I'm being honest, thank you very much.

These are not extraordinary means. This is completely within the House rules, and were used by Republican-controlled Congresses of late many, many times. I don't think you heard me complain then (about the use of this device -- of course I complained about what they were passing).

There is a very big difference between "deeming" as passed an amendment to a proposed bill that has not yet been voted on and will still need to be voted on in an up or down vote...and actually implementing legislation without a vote. One of those two things actually implements law in direct contravention of the Constitution.

Health Care Reform is very important. Worth using every legal and honest means to pass.

And some that aren't as well, right?

ETA: "But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. "

 

[MikeMangum]

I don't understand why they don't make them actually filibuster. The Republicans threaten to filibuster, and the Dems just say, "well, I guess we better just give up. We don't have the votes for cloture."

Sure, in theory a filibuster can last forever. But at least make them do it for a week and prove they're really serious. I felt the same way with the Dems threatening to filibuster judicial nominees when they were the minority.

The problem is that the minority has the advantage. They only need to keep a handfull of people in the well of the Senate to keep debate going (which means reading the collected works of Bill Shakespeare into the Senate record ), whereas the other side needs to keep essentially all of their people there around the clock so that they have a quorum and can vote as soon the minority fails to maintain the filibuster. It's a lot easier keeping 1-5 people on the floor in shifts than to keep 51 people there around the clock.

 

[Freddy]

The problem is that the minority has the advantage. They only need to keep a handfull of people in the well of the Senate to keep debate going (which means reading the collected works of Bill Shakespeare into the Senate record ), whereas the other side needs to keep essentially all of their people there around the clock so that they have a quorum and can vote as soon the minority fails to maintain the filibuster. It's a lot easier keeping 1-5 people on the floor in shifts than to keep 51 people there around the clock.

This is a very good explanation. Thank you.

 

[headscratcher4]

I find it hard to believe this would pass constitutional muster. It would certainly break precedence. "We voted on one version, and we hereby pre-approve whatever the Senate/reconciliation spits out, ahead of time."

Congress is already forbidden from offloading its legislative powers precisely to keep them from becoming laws without (direct) representation. Regulatory agencies already strain this argument*. I do not believe the Constitution was designed to let a law pass without elected officials voting on the wording of the law.

It may be a right-wing slobberiffic talking point, but I doubt it would get anywhere with the SC.

It may not be a politically good or smart idea...but it has been approved by the Courts and the GOP was no stranger to using the slaughter rule when they ran the show.

Norman Orenstein on the topic:

http://blog.american.com/?p=11467

 

[mhaze]

The problem is that the minority has the advantage. They only need to keep a handfull of people in the well of the Senate to keep debate going (which means reading the collected works of Bill Shakespeare into the Senate record ), whereas the other side needs to keep essentially all of their people there around the clock so that they have a quorum and can vote as soon the minority fails to maintain the filibuster. It's a lot easier keeping 1-5 people on the floor in shifts than to keep 51 people there around the clock.

Agreed.

Another thing worth noting on the "Slaughter rule" is that although it has been used in the past for minor issues, that does not mean it is Constitutional. Not at all.

The progressive argument here is simple. It's that "We've progressed past the Constitution, now we can use this rule on this issue".

No, we have not. The fact that it's been done multiple times and the challenge has not been brought does not mean it is right and that it would withstand a challenge.

Which would certainly be the result of trying to use this silliness. And that challenge would likely be brought to coincide with either the 2010 or the 2012 election cycle.

Which to me means it would just be plain stupid to do that.

 

[Freddy]

It may not be a politically good or smart idea...but it has been approved by the Courts and the GOP was no stranger to using the slaughter rule when they ran the show.

Norman Orenstein on the topic:

http://blog.american.com/?p=11467

It's not that it has been "approved," but that due to separation of powers the Court declined to intervene. That doesn't make it Constitutional. However, it does make it unlikely that a challenge in this case would be successful. Not because it is Constitutional, but because the Court will not likely be willing to decide the question of its Constitutionality.

That's kind of a nit to pick. Same result, but I think it's worth noting the difference.

 

[Freddy]

Agreed.

Another thing worth noting on the "Slaughter rule" is that although it has been used in the past for minor issues, that does not mean it is Constitutional. Not at all.

The progressive argument here is simple. It's that "We've progressed past the Constitution, now we can use this rule on this issue".

No, we have not. The fact that it's been done multiple times and the challenge has not been brought does not mean it is right and that it would withstand a challenge.

Which would certainly be the result of trying to use this silliness. And that challenge would likely be brought to coincide with either the 2010 or the 2012 election cycle.

Which to me means it would just be plain stupid to do that.

It has been challenged. The Court declined to rule on the merits. The Court has never said one way or the other whether it is Constitutional (so you're right about that), but there is precedent indicating that it would refuse to consider this case as well, even if they think the procedure is Constitutionally suspect.

 

[headscratcher4]

It's not that it has been "approved," but that due to separation of powers the Court declined to intervene. That doesn't make it Constitutional. However, it does make it unlikely that a challenge in this case would be successful. Not because it is Constitutional, but because the Court will not likely be willing to decide the question of its Constitutionality.

That's kind of a nit to pick. Same result, but I think it's worth noting the difference.

Fair points all...but the larger point remains and that is that this is not a novel proceedural move. Indeed, many of those Members now outraged by its use, were perfectly fine with using it when they were in the majority. As Ornstein points out it doesn't make it wise, it does make it hypocritical. Now, hypocracy in politics is like chili on a coney island hot dog...but the mock outrage being voiced over a proceedural manouver is a little hystarical.

Recall when the House, run by the GOP, stopped the clock and kept a 15 minute vote open for three hours so they could get the votes they needed to pass the unfunded Medicare drup amendments? GOP members complaining of the Slaughter rule forget that they -- along with their Democratic colleagues -- have each in their own way contributed to novel procedural interprations.

Neither party has clean hands when it comes to proceedural monkey business.

 

[Freddy]

Fair points all...but the larger point remains and that is that this is not a novel proceedural move. Indeed, many of those Members now outraged by its use, were perfectly fine with using it when they were in the majority. As Ornstein points out it doesn't make it wise, it does make it hypocritical. Now, hypocracy in politics is like chili on a coney island hot dog...but the mock outrage being voiced over a proceedural manouver is a little hystarical.

Recall when the House, run by the GOP, stopped the clock and kept a 15 minute vote open for three hours so they could get the votes they needed to pass the unfunded Medicare drup amendments? GOP members complaining of the Slaughter rule forget that they -- along with their Democratic colleagues -- have each in their own way contributed to novel procedural interprations.

Neither party has clean hands when it comes to proceedural monkey business.

Of course, in politics there is a rebuttable presumption of hypocrisy. It never seems to get rebutted.

 

[JoeTheJuggler]

There is a very big difference between "deeming" as passed an amendment to a proposed bill that has not yet been voted on and will still need to be voted on in an up or down vote...and actually implementing legislation without a vote. One of those two things actually implements law in direct contravention of the Constitution.

I'm not 100% sure I'm parsing this right, but are you saying that "deeming" (the "self-executing rule") is unconstitutional? If so, you're wrong. See my earlier posts (especially number 45) where I've cited how many times this has been done.

What exactly is your Constitutional challenge to it? (After all, there is a vote, it basically just combines the vote on the bill with the vote on the amendments.) No one is passing legislation without a vote.

 

[JoeTheJuggler]

Another thing worth noting on the "Slaughter rule" is that although it has been used in the past for minor issues, that does not mean it is Constitutional.

First, since you obviously haven't read my post number 45 above, I'll repeat the quote here:

But despite Republican claims that such parliamentary gymnastics as reconciliation and self-executing rules are somehow in violation of House rules or rare, neither is the case, says Congressional scholar Thomas Mann of the Brookings Institution.

"On the self-executing rule, Republicans in their last Congress that they controlled, the 109th, used it 36 times; the Democrats, in the next congress they controlled, used it 49 times," Mann said.

And in many cases, Mann says, they were on some pretty major bills. "The reauthorization of the Patriot Act, the Tax Relief Reconciliation Act, the Deficit Control Conference Report; all kinds of major measures have been approved through self-executing rules, which means the House votes indirectly rather than separately on these measures."

So you're wrong in saying it has only been used for minor issues in the past.

Second, you're wrong on the issue of constitutionality. A law passed by Congress (including the law that created their own procedural rule that allows "deeming") is assumed constitutional unless or until someone can make a valid case that it is unconstitutional. It doesn't mean its constitutionality is proven, but it is assumed.

(Similarly, in criminal matters, we all enjoy the assumption of innocence, but the fact that you've never been convicted doesn't prove your innocence--yet you are assumed innocent unless and until you've been found guilty.)

So yes, the fact that this rule has been used many times in the past (even for large and significant legislation) and the court has refused to hear any challenge does mean it is now constitutional.

So again, what is the legal theory for the claim that this rule is unconstitutional? The reason the court refused to hear the challenge is probably that they didn't think there was any reasonable legal theory behind it.

 

[Meadmaker]

I'm not sure if I followed this whole process accurately, but I think I have, and I just can't get whipped into a frenzy about it.

It looks to me like this is the process if "deem and pass" is adopted. The Senate has voted on, and passed, a bill. The House doesn't like the bill, so they want to ammend it. In order to do that, they introduce a package of ammendments. Now, you can't ammend something that hasn't been recognized, so they pass the bill and the ammendments at the same time.

Now, every member of the House is on record as saying whether or not they want the ammended bill, and a majority have said yes to it. No problems. Everything looks good here. Now, the House has a bill, and everyone has voted on it, and the Senate has a bill, and everyone voted on it, and the majority vote held sway. However, the House bill and the Senate bill are different. So, the two houses have a process to work out how to fix that. It goes to a reconciliation process. From that process, a single bill emerges. If there are any changes from the bill that each House voted on before, they all have to vote again. Obviously, the Senate will have to vote again. If the conference committee makes further amendments, the House will have to vote again. If the unified legislation gets majority votes in both houses, the President signs.

Everyone votes. Everyone votes on the same legislation. It gets a majority vote in both houses. The President signs. Where's the issue?

 

[JoeTheJuggler]

I'm not sure if I followed this whole process accurately, but I think I have, and I just can't get whipped into a frenzy about it.
<snip>

Everyone votes. Everyone votes on the same legislation. It gets a majority vote in both houses. The President signs. Where's the issue?

I'm with you. I'm not sure why people want to call the use of this rule shady or devious or refer to it as "procedural monkey business". Even if it wasn't a rule anticipated by the framers of the constitution, it was passed legitimately by the bodies established by the constitution.

And it is not about passing a law without voting.

Similarly, when the rules of American football were laid out, I don't think the onside kick was anticipated. Yet, it conforms to the rules and it has resulted in another bit of strategy that can be used in a game of strategy. I wonder if those who claim the "deeming" rule is "procedural monkey business" consider the onside kick to be dishonorable.

 

[Region Rat]

Deem and pass is not a big deal when both sides are in agreement over is bill and the amendments and are saving time by not having to go through the voting process twice. That is pretty much what it has been used for. It's a "why waste time' procedure.

To use it on something as contentious as the health bill, when a vote on the basic bill may not provide the solution you want, is a bit beyond the intent of the procedure, in my opinion. If it won't pass on its own merits, then its obvious to me that more work needs to be done.

I still don't get why we don't do this in manageble chunks that both sides agree with to get the ball rolling and build from there. Let's see some tangible progress, see some success, and build the enthusiasm.

 

[Freddy]

Deem and pass is not a big deal when both sides are in agreement over is bill and the amendments and are saving time by not having to go through the voting process twice. That is pretty much what it has been used for. It's a "why waste time' procedure.

To use it on something as contentious as the health bill, when a vote on the basic bill may not provide the solution you want, is a bit beyond the intent of the procedure, in my opinion. If it won't pass on its own merits, then its obvious to me that more work needs to be done.

I still don't get why we don't do this in manageble chunks that both sides agree with to get the ball rolling and build from there. Let's see some tangible progress, see some success, and build the enthusiasm.

I generally agree, but to me, the interesting question is whether you can pass two distinct bills with the same vote, or whether the fact that the fixes and Senate bill are passed with the same vote means that they constitute a single piece of legislation. I think it is probably within the House's Article I section 5 powers to vote on two bills with one vote, but it isn't at all clear that it is within the House's rule-making authority under Article I sec. 5 to declare that multiple bills voted on with one vote are really distinct pieces of legislation. This is the first case of deeming ever where that is an issue.

You might say that the vote passes the fixes, and then the rule is triggered to deem the Senate bill passed, so it isn't really passing two bills with one vote. That's an interesting argument, but it is certainly not a meaningful distinction, functionally speaking. But is this a question of function or form? I don't know. Those who dismiss the Constitutional arguments are making a big mistake. This is a really interesting Constitutional question.

So what's the upshot? If it's a single piece of legislation, then it isn't the Senate bill. That would mean there's nothing for Obama to sign, since no bill would have passed both houses in the same form. No signature, no reconciliation. In that case, it would go to the Senate as new business, and the filibuster would be in play.

By the way, this is a Constitutional question that does not arise when deeming is used to pass an amendment to a bill that is then voted on. That means this use of deeming is legally distinguishable from all previous uses of the process, so the "it's been done many times before" argument is either false or irrelevant, depending on how you look at it. Even if past uses of deeming were Constitutional, this use of deeming could still be unconstitutional, at least if the "unfixed" Senate bill is what Pelosi submits to Obama (and it has to be, since the Senate hasn't passed the fixes). I still don't think the Court would intervene. But if they decide that it is outside the House's rule-making authority to call two bills that are passed with the same vote "distinct" bills, then they might intervene, and in that case they would rule against Pelosi.

Edit: I should add that what might well be unconstitutional under this analysis is not the use of deeming, but rather the subsequent submission of the Senate bill for Obama's signature.

 

[willhaven]

I'm not sure if I followed this whole process accurately, but I think I have, and I just can't get whipped into a frenzy about it.

It looks to me like this is the process if "deem and pass" is adopted. The Senate has voted on, and passed, a bill. The House doesn't like the bill, so they want to ammend it. In order to do that, they introduce a package of ammendments. Now, you can't ammend something that hasn't been recognized, so they pass the bill and the ammendments at the same time.

Now, every member of the House is on record as saying whether or not they want the ammended bill, and a majority have said yes to it. No problems. Everything looks good here. Now, the House has a bill, and everyone has voted on it, and the Senate has a bill, and everyone voted on it, and the majority vote held sway. However, the House bill and the Senate bill are different. So, the two houses have a process to work out how to fix that. It goes to a reconciliation process. From that process, a single bill emerges. If there are any changes from the bill that each House voted on before, they all have to vote again. Obviously, the Senate will have to vote again. If the conference committee makes further amendments, the House will have to vote again. If the unified legislation gets majority votes in both houses, the President signs.

Everyone votes. Everyone votes on the same legislation. It gets a majority vote in both houses. The President signs. Where's the issue?

This sounds like the case. Deem and pass has been used hundreds of times since the mid-90s. The first time it was used was 1933. It's not a new phenomenon and is used far more frequently than reconciliation.

 

[JoeTheJuggler]

Deem and pass is not a big deal when both sides are in agreement over is bill and the amendments and are saving time by not having to go through the voting process twice. That is pretty much what it has been used for. It's a "why waste time' procedure.

Historically, that's simply not true.

 

[JoeTheJuggler]

Here's a House report on self-executing rules:

http://www.rules.house.gov/Archives/98-710.pdf

Here's the definition:

Definition of “Self-Executing” Rule. One of the newer types is called a “self executing” rule; it embodies a “two-for-one” procedure. This means that when the House adopts a rule it also simultaneously agrees to dispose of a separate matter, which is specified in the rule itself. For instance, self-executing rules may stipulate that a discrete policy proposal is deemed to have passed the House and been incorporated in the bill to be taken up. The effect: neither in the House nor in the Committee of the Whole will lawmakers have an opportunity to amend or to vote separately on the “self-executed” provision.

Note: not being able to "vote separately" on the self executed provision is not the same as not voting on it.


This section with examples is also of interest, since at least a few people have made statements this contradicts:

Contemporary Use. Self-executing rules are still employed on matters involving
House-Senate relations. They have also been used in recent years to enact significant
substantive and sometimes controversial propositions. Examples from the Congressional
Record will illustrate:

• On August 2, 1989, the House adopted a rule (H.Res. 221) that
  automatically incorporated into the text of the bill made in order for
  consideration a provision that prohibited smoking on domestic airline
  flights of two hours or less duration.
• On March 19, 1996, the House adopted a rule (H.Res. 384) that
  incorporated a voluntary employee verification program — addressing
  the employment of illegal immigrants — into a committee substitute
  made in order as original text.
• H.Res. 239, agreed to on September 24, 1997, automatically incorporated
  into the base bill a provision to block the use of statistical sampling for
  the 2000 census until federal courts had an opportunity to rule on its
  constitutionality.
• A closed rule (H.Res. 303) on an IRS reform bill provided for automatic
  adoption of four amendments to the committee substitute made in order
  as original text. The rule was adopted on November 5, 1997, with
  bipartisan support.
• On May 7, 1998, an intelligence authorization bill was made in order by
  H.Res. 420. This self-executing rule dropped a section from the
  intelligence measure that would have permitted the CIA to offer their
  employees an early-out retirement program.
• On February 20, 2005, the House adopted H.Res. 75, which provided that
  a manager’s amendment dealing with immigration issues shall be
  considered as adopted in the House and in the Committee of the Whole
  and the bill (H.R. 418), as amended, shall be considered as the original
  bill for purposes of amendment.

 

[Freddy]

Here's a House report on self-executing rules:

http://www.rules.house.gov/Archives/98-710.pdf

Here's the definition:


Note: not being able to "vote separately" on the self executed provision is not the same as not voting on it.


This section with examples is also of interest, since at least a few people have made statements this contradicts:

In the examples you cited, the "deemed" amendment is incorporated in the bill itself, which is voted on in its entirety. I think that is perfectly Constitutional. But if that amendment wasn't in the Senate's version, then it has to be passed by the Senate before the bill incorporating that amendment can go to the President.

This case is different, because it isn't the combined Senate bill and fixes that will be sent to Obama, but just the Senate bill, which is only part of what would passed with the single vote taken if they use the Slaughter rule. They can't send the fixes to the Senate first, because the Senate can't pass them except through reconciliation, which requires that Obama sign the Seante bill first. That is why this is likely unconstitutional, in my opinion.