Merged Slaughter the House Bill / Pass without voting

[JoeTheJuggler]

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.

I don't follow. This is only a House rule and says nothing about what the Senate does with it. I think all these examples (and the 80 plus times it's been used in the previous two Congresses) are the same as the present case as far as the point you're raising goes. Are you saying in these examples the House invoked this rule but didn't have amendments that weren't part of the Senate version? (FWIW, any amendments the Senate made would have been voted on in the Senate if the bill had already passed the Senate, and would already either be incorporated in the bill or not.)

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.

This is the rule being applied. The House would vote on the "fixes" and at the same time (if it passes by majority vote) the Senate version of the bill would be deemed to be passed by the House.

You are correct that the Senate doesn't have to pass the amendments, and that only the unchanged Senate version of the bill would go to the White House, but again, I think the Senate will pass at least some of the "fixes" as part of a compromise with their co-partisans in the House.

 

[Thunder]

Look. voting for the amendments to the Senate bill is just as good as voting for the original Senate bill. everyone knows that. i don't understand the need for secrecy.

 

[Freddy]

I don't follow. This is only a House rule and says nothing about what the Senate does with it. I think all these examples (and the 80 plus times it's been used in the previous two Congresses) are the same as the present case as far as the point you're raising goes. Are you saying in these examples the House invoked this rule but didn't have amendments that weren't part of the Senate version? (FWIW, any amendments the Senate made would have been voted on in the Senate if the bill had already passed the Senate, and would already either be incorporated in the bill or not.)

In this case the House is taking a single vote on the Senate Bill + fixes. My argument is that they will have passed a single piece of legislation consisting of the Senate bill and the House's amendments (this sentence is debatable, but it's quite defensible). If that is true, they can't send only part of that piece of legislation for signature (if the previous sentence is correct, then this is not debatable). And they can't send the whole thing, either, because the whole thing hasn't been passed by both Houses (also not debatable if it counts as a single piece of legislation).

This is the rule being applied. The House would vote on the "fixes" and at the same time (if it passes by majority vote) the Senate version of the bill would be deemed to be passed by the House.

You are correct that the Senate doesn't have to pass the amendments, and that only the unchanged Senate version of the bill would go to the White House, but again, I think the Senate will pass at least some of the "fixes" as part of a compromise with their co-partisans in the House.

You can pass as little or as much as you want with one vote; the question is whether you get to call the various parts "distinct" bills, such that you can submit some of them, but not others, for the President's signature. It's kind of the mirror image of the line item veto (which is unconstitutional).

Can the House withhold from the President a part of a bill that has passed the House (a part passed only by the House), while submitting another part of the same bill for signature (the part that the Senate has passed also)? Not if it's a single bill we're talking about. That's why it matters whether "deeming" can be used to pass two distinct bills at once (which it has never been used to do), or whether the "deemed" part has to be incorporated into the bill that gets voted on (which has always been the case with "deeming"). If it has to be incorporated, then what the House is consdering is unconstitutional.

 

[dudalb]

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

There is no question that the Slaughter rule is legal, no question the GOP has used it and are being big Hypocrites about it now, but, as others have pointed out, there is a difference between using it on low profiles bills and using it on something as big as Health Care Reform.
It is going to look as if the Dems are using a shady though legal parliamentary gimmick to get it passed, and they might pay the price for it in November.
And I do note a certain "ends justifies the means" mentality among those who are approving the use of this to pass the Health Care bill. I just do not want to hear these folk scream "foul" the next time the GOP uses it. I know they will but I can still hope.....

 

[dudalb]

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.

I have to point out that if it is unconstitutional, it is just as unconstitutional on minor issues as it is on major issues.
What some of us have problems with is the GOP shouting "foul" about this when they have used it on a number of occasions.
Everything you say about "progresives"in COngress in this post applies to conservatives as well,since the GOP has used it on occasion.
I gotta love the Partisan blinders that both sides seem to have on.

 

[Freddy]

There is no question that the Slaughter rule is legal, no question the GOP has used it and are being big Hypocrites about it now, but, as others have pointed out, there is a difference between using it on low profiles bills and using it on something as big as Health Care Reform.
It is going to look as if the Dems are using a shady though legal parliamentary gimmick to get it passed, and they might pay the price for it in November.
And I do note a certain "ends justifies the means" mentality among those who are approving the use of this to pass the Health Care bill. I just do not want to hear these folk scream "foul" the next time the GOP uses it. I know they will but I can still hope.....

The Slaughter rule itself is probably Constitutional. However, using it in this way may be unconstitutional, and not because of the subject matter of the bill. The Slaughter method has never been used to pass two things that the House later claimed to be separate bills. It has never been an issue, because it is only used to amend bills, an amendments are part of the same bill that they amend. In this case, they must claim that the Senate bill and their fixes are completely distinct bills, or else they can't comply with the Constitution's requirement of bicameralism: if it's a single bill, then it isn't the Senate bill anymore. It's not the use of the Slaughter rule that may be unconstitutional. It's submitting only part of a bill to the president, when another part of (arguably) the same bill has yet to pass the Senate.

 

[Freddy]

Look. voting for the amendments to the Senate bill is just as good as voting for the original Senate bill. everyone knows that. i don't understand the need for secrecy.

Comment changed. I agree. It doesn't give them any real cover, and it doesn't make it any easier to pass healthcare reform.

 

[JoeTheJuggler]

There is no question that the Slaughter rule is legal, no question the GOP has used it and are being big Hypocrites about it now, but, as others have pointed out, there is a difference between using it on low profiles bills and using it on something as big as Health Care Reform.

But again, it has been used on other large and important bills. It has not be reserved only for "low profile" bills. For that matter, if you look at net effect on the Federal budget, the Healthcare Reform bill is a smaller (actually negative) impact than, for example, the renewal of the Patriot Act.

I think the only thing you have here is a tautology: this is the first time the "deeming" rule has been used to pass the 2009 Senate healthcare reform bill in the House.

I have to point out that if it is unconstitutional, it is just as unconstitutional on minor issues as it is on major issues.

Excellent point. It's not like, by analogy, that murdering one person isn't murder, but murdering 10 people suddenly is murder.

At any rate, this isn't the first time the rule will have been used to pass large, substantial or controversial bills.

 

[JoeTheJuggler]

The Slaughter rule itself is probably Constitutional. However, using it in this way may be unconstitutional, and not because of the subject matter of the bill. The Slaughter method has never been used to pass two things that the House later claimed to be separate bills. It has never been an issue, because it is only used to amend bills, an amendments are part of the same bill that they amend.

I don't think this is true (except that the rule has never been known as the "Slaughter method" in the past). In the past, in the examples I cited, I'm pretty sure it was used to pass two things at once. (That is, one matter is settled by deeming it as having passed, and the language that does that is included in the other part.) I don't think this distinction you keep trying to make exists between this application of the rule and past applications. The two-for-one vote is exactly what the rule does. And I don't think anyone is subsequently trying to claim that the two pieces were passed in the House separately. I think in a week or so, the "fixes" and the Senate bill will both pass into law.

And I've yet to hear any legal theory for why this is unconstitutional (other than the bogus statement that it is passing a law without a vote). Congress has the power to make these rules. If you want to throw away all the rules the two chambers have made and see what the Constitution itself says, it only requires a super-majority vote in the case of a presidential veto.

 

[joobz]

I have to point out that if it is unconstitutional, it is just as unconstitutional on minor issues as it is on major issues.

I don't think this is completely true.

For instance, "under god" on the pledge is ruled as constitutional, but a 10 commandments statue in a court house isn't.

Warrentless fingerprinting of suspects is constitutional, but warrentless blood sampling may not be.

Shouting "don't go in there" in a theater is a constitutionally protected speech, Shouting "fire" in a theater isn't.

So, I think magnitude does make a difference in interpretation.

 

[JoeTheJuggler]

I don't think this is completely true.

For instance, "under god" on the pledge is ruled as constitutional, but a 10 commandments statue in a court house isn't.

Warrentless fingerprinting of suspects is constitutional, but warrentless blood sampling may not be.

Shouting "don't go in there" in a theater is a constitutionally protected speech, Shouting "fire" in a theater isn't.

So, I think magnitude does make a difference in interpretation.

I'm sorry, but not one of these was argued and decided based only on a difference in magnitude.

At any rate, the argument that the "deeming" rule has never before been used for large, important or controversial pieces of legislation is false.

 

[joobz]

I'm sorry, but not one of these was argued and decided based only on a difference in magnitude.

I disagree:
a 10 commandment statue represents a categorically specific faith. "under god" represents a nebulous deistic view. There is a magnitude distinction in specifics.

The shouting in a theater analogy represents a magnitude difference in public risk.

The fingerprinting blood samples represents a magnitude change in invasiveness.

At any rate, the argument that the "deeming" rule has never before been used for large, important or controversial pieces of legislation is false.

I agree. I was merely addressing the argument of "magnitude being irrelevant to constitutionality".

 

[Freddy]

I don't think this is true (except that the rule has never been known as the "Slaughter method" in the past). In the past, in the examples I cited, I'm pretty sure it was used to pass two things at once. (That is, one matter is settled by deeming it as having passed, and the language that does that is included in the other part.) I don't think this distinction you keep trying to make exists between this application of the rule and past applications. The two-for-one vote is exactly what the rule does. And I don't think anyone is subsequently trying to claim that the two pieces were passed in the House separately. I think in a week or so, the "fixes" and the Senate bill will both pass into law.

And I've yet to hear any legal theory for why this is unconstitutional (other than the bogus statement that it is passing a law without a vote). Congress has the power to make these rules. If you want to throw away all the rules the two chambers have made and see what the Constitution itself says, it only requires a super-majority vote in the case of a presidential veto.

I can't find a single instance where the self-executing rule was used to do anything more than add an amendment to a bill without having a vote on the amendment itself. The amendment was deemed to be incorporated with the passage of the underlying bill. So yes, with one vote, they approved both the bill and the amendment, but the final product was a single bill that included the amendment. If that is all they are doing here, then they are not passing the same bill, word for word, that the Senate passed. By passing the Senate bill with amendments, they are passing an amended bill. If that is the case, then there is no bill that has passed both houses in the same form. Both houses must approve the same bill, word for word, before the President can sign it. If a single word is different, then the bill is not validly enacted.

Perhaps the rule can say explicitly that they are passing the Senate bill just as it is, but if they are passing the exact same bill as the Senate so as to satisfy bicameralism, then they don't get to say that they didn't vote for the Cornhusker kickback and the Louisiana Purchase, and the Republicans do get to say that they did. And that defeats the entire purpose of using the Slaughter rule in the first place. This has nothing to do with the importance of what they are deeming. I agree that is irrelevant.

 

[JoeTheJuggler]

I disagree:
a 10 commandment statue represents a categorically specific faith. "under god" represents a nebulous deistic view. There is a magnitude distinction in specifics.

The SCOTUS' reasoning on the "under God" (which I disagree with) is that it's not a religious statement at all but simply a matter of tradition. The difference is of kind and not degree. (For that matter, I'm not sure how a single courthouse monument is a larger degree than billions of occurrences on every bit of currency and coinage made by the U.S. Mint since the 1950s.)

The shouting in a theater analogy represents a magnitude difference in public risk.

The difference between protected speech and speech aimed at creating a dangerous panic is kind, not degree.

The fingerprinting blood samples represents a magnitude change in invasiveness.

Only if you consider "zero invasiveness" to be a degree of invasiveness. (And if you do that, you could re-cast any difference in kind as a difference in degree.)

And, by the way, I think there isn't the distinction you're claiming there is. If you leave cells containing DNA somewhere, the police can use it as evidence. Just as they can get your fingerprints off the soda can they offer you during questioning.

I agree. I was merely addressing the argument of "magnitude being irrelevant to constitutionality".

I understand--which is why I think this bit of discussion is moot, but I also disagree with you that magnitude alone can make something unconstitutional.

 

[JoeTheJuggler]

I can't find a single instance where the self-executing rule was used to do anything more than add an amendment to a bill without having a vote on the amendment itself. The amendment was deemed to be incorporated with the passage of the underlying bill. So yes, with one vote, they approved both the bill and the amendment, but the final product was a single bill that included the amendment. If that is all they are doing here, then they are not passing the same bill, word for word, that the Senate passed.

I'm quite sure that's about what they're suggesting.

By passing the Senate bill with amendments, they are passing an amended bill. If that is the case, then there is no bill that has passed both houses in the same form. Both houses must approve the same bill, word for word, before the President can sign it. If a single word is different, then the bill is not validly enacted.

Yes, and then the Senate can pass the amendments by reconciliation vote (which is why the "fixes" must all be items that affect the budget). I'm pretty sure that's exactly what's being planned.

I think you're wrong in saying that reconciliation is only used after a bill is signed into law.

Maybe what you heard is that what reconciliation will change is budget items on a budget that has already been signed into law (which is true--the healthcare bill and the amendments would affect the existing budget; in this sense, the entire bill and the amendments can be construed as changing existing legislation).

 

[Freddy]

I think you're wrong in saying that reconciliation is only used after a bill is signed into law.

The Senate Parliamentarian disagrees, and he is the one who officially decides the question. It is only the changes, not the entire bill, that will be passed through reconciliation. The bill has to be law before the changes can be passed in the Senate in that way. Now Joe Biden can overrule him, but I haven't come across anyone who thinks the Democrats are willing to be so bold. That would be quite the naked power grab.

 

[Meadmaker]

I can't find a single instance where the self-executing rule was used to do anything more than add an amendment to a bill without having a vote on the amendment itself. The amendment was deemed to be incorporated with the passage of the underlying bill. So yes, with one vote, they approved both the bill and the amendment, but the final product was a single bill that included the amendment. If that is all they are doing here, then they are not passing the same bill, word for word, that the Senate passed. By passing the Senate bill with amendments, they are passing an amended bill. If that is the case, then there is no bill that has passed both houses in the same form. Both houses must approve the same bill, word for word, before the President can sign it. If a single word is different, then the bill is not validly enacted.

Of course. The Senate must vote again on the revised bill. So the House will vote, and the Senate will vote, and the President will sign. (Assuming the Democratic leadership puts together a bill that will pass.)

All this parliamentary maneuvering is doing is getting around the filibuster. Since the Senate will be voting on a revised version of a previously passed bill, they don't need to debate it. Since it doesn't need to be debated, there's no need to close debate.

I heard Rush and Sean today on the radio. You would think martial law had been declared and we were all being sent to reeducation centers next week. It was kind of bizarre.

 

[JoeTheJuggler]

Of course. The Senate must vote again on the revised bill. So the House will vote, and the Senate will vote, and the President will sign. (Assuming the Democratic leadership puts together a bill that will pass.)

All this parliamentary maneuvering is doing is getting around the filibuster. Since the Senate will be voting on a revised version of a previously passed bill, they don't need to debate it. Since it doesn't need to be debated, there's no need to close debate.

That's my understanding of the process. The "deeming" rule is just to give the 30 or so House Dems who wouldn't otherwise vote for the Senate bill the wiggle room to say that they only voted for it along with the amendments addressing their concerns.

The sequence of events from this point will still have to be: pass in the House, pass amendments in the Senate, and then go to the WH for Obama's signature.

I don't think it's what Freddy has been saying: if it passes in the House by deeming, the existing Senate bill would go to Obama, and only after it's signed into law would the Senate consider the amendments passed in the House.

 

[Freddy]

Of course. The Senate must vote again on the revised bill. So the House will vote, and the Senate will vote, and the President will sign. (Assuming the Democratic leadership puts together a bill that will pass.)

All this parliamentary maneuvering is doing is getting around the filibuster. Since the Senate will be voting on a revised version of a previously passed bill, they don't need to debate it. Since it doesn't need to be debated, there's no need to close debate.

I heard Rush and Sean today on the radio. You would think marshal law had been declared and we were all being sent to reeducation centers next week. It was kind of bizarre.

The Senate Parliamentarian has said that Obama must sign before reconciliation can happen. The only thing for him to sign is the original Senate bill, assuming the House passes the original Senate bill. So the Senate has already passed its bill. The House must pass the Senate bill in its current form, then Obama must sign that bill into law. Then the Senate and the House must pass identical reconciliation bills, which the President can then sign. The House's reconciliation bill must be a separate bill from the underlying healthcare bill that the House passes. They can pass it whenever they want, even before the pass the Senate bill, but they still must pass the Senate bill exactly as it is. It can't amend the Senate bill until after Obama signs the Senate bill as it currently exists. The question is whether it counts as a separate bill if it's passed with the same vote. If not, the House hasn't passed the Senate bill and Obama can't sign it, which is a prerequisite for reconciliation. I am quite sure about all of this.

Update: The Washington Post reported last week that the Parliamentarian said the bill had to be passed and signed first. That's where I got that claim, and I assumed it was correct. Now (30 minutes ago) Huffington Post quotes Democrats saying he didn't say that. He won't comment. What a clusterfark. My analysis is absolutely correct if he did say that. Otherwise, you guys are right.

Either way, I think it would be very foolish to pass the bill this way, even if it is possible.

 

[JoeTheJuggler]

I suspect he misspoke and meant that it would have to pass the House (one way or another) before the Senate would consider reconciliation.

Meanwhile, Kucinich now says he'll vote for the Senate bill, after a chat with Obama on Air Force One. This may be a sign that other House liberals will accept it, and the "deeming" rule would be unnecessary.

ETA: I never thought you were just dreaming this up out of thin air! And I've been carefully hedging my comments (with phrases like "I'm nearly certain") in case it turns out you're right about this. At any rate, it sounds like we're in agreement on how "deeming" works, but not 100% on how reconciliation works. And if I'm wrong, I'll happily fess up! Wouldn't be the first time I've had to eat crow in the JREF forums.