Byzantium on the Potomac
From this morning’s Washington Post:
After laying the groundwork for a decisive vote this week on the Senate’s health-care bill, House Speaker Nancy Pelosi suggested Monday that she might attempt to pass the measure without having members vote on it.
Instead, Pelosi (D-Calif.) would rely on a procedural sleight of hand: The House would vote on a more popular package of fixes to the Senate bill; under the House rule for that vote, passage would signify that lawmakers “deem” the health-care bill to be passed.
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.
“It’s more insider and process-oriented than most people want to know,” the speaker said in a roundtable discussion with bloggers Monday. “But I like it,” she said, “because people don’t have to vote on the Senate bill.”
A “deem and pass” — is that what philosophers call a “performative utterance” and theologians call a “Hail Mary pass?”
Sounds like a practical solution to a volatile political situation. Thirty Million people profit or is that no ones concern? “Deem and a Pass” might refer to this situation. http://www.nytimes.com/2010/03/16/world/europe/16church.html?th&emc=th
Or is that no ones concern?
“A Hail Mary Pass”? Shouldn’t we be Praying for a “Hail Mary” interception?
We were told by the usual suspects, from the beginning, that this National Health Care Bill was “neutral”, as if not placing restrictions on abortion could ever make abortion “nuetral”. The House, recognizing that the usual suspects were wrong, included the Stupak language and passed their Health Care plan. The Senate, wanted the Stupak language to be modified, so they did so, passing their Health Care plan. The usual suspects, ignoring the fundamental Right to Life that has been endowed to every Human Individual from the moment that Human Individual is brought into being at Conception, continue to claim that abortion is Health Care, and insist that insurance be available for this “reproductive” right after reproduction has already taken place, because it “cuts costs”.
Including abortion in this Health Care Plan, has been a lie, from the start.
It’s not a “deem and pass”, it’s a “demon pass.”
Bill-
Should passage of the health care bill (which I support) come at any cost? Even the cost of what is legal? Not a few legal scholars think that this legislative legerdemain may be unconstitutional. Does the end justify the mean? Hmmm. I wonder.
Anthony
This is insulting to the great Byzantine empire — please!!!
Anthony: What do you mean by “this” and who are those legal scholars? Not, I hope, people like John Boehner, who darkly warned at the health-care summit that the whole bill might be unconstitutional. Which is of course absurd.
Can you cite a comparable manoeuvre from Byzantine history? If not, why the allusion?
“Or is that no ones concern?”
O William, apostrophize, apostrophize!
“[B]ut she added that she prefers it because it would politically protect lawmakers who are reluctant to publicly support the measure.”
The need for political protection for one’s vote??? Just when I thought Congress as a whole couldn’t stoop any lower.
An important legal scholar making the “unconstitutional” claim is Michael McConnell, a professor at Stanford and a former federal judge who has been prominently mentioned as a potential Supreme Court nominee. As a member of the University of Chicago faculty he was the one to call attention to Barack Obama as a possible faculty hire at the Law School.
The House Health-Care Vote and the Constitution
http://online.wsj.com/article/SB10001424052748704416904575121532877077328.html
Any others? My subscription to WSJ has run out.
You can access the article by going to google and entering “wsj mcconnell”
I’m sure there’ll be many others.
If both sides of the abortion divide had agreed that the Hyde Amendment would control the extent of abortion funding under the House and Senate bills, then we wouldn’t be in the present state of confusion with statutory construction piling on statutory construction piling on yet another statutory construction, all resulting in ambiguity that inclusion of Hyde would have avoided. Frankly, both sides share the blame for failing to maintain the status quo, i.e., Hyde’s limits on funding, and for failing to leave the abortion fight to another day. And I say that as a liberal who considers himself staunchly pro-life.
“she added that she prefers it because it would politically protect lawmakers who are reluctant to publicly support the measure.”
I’m just happy to see someone in DC acknowledge that the tail is wagging the dog when it comes to counting votes on health-care reform. It’s a little late in the day to stop pretending otherwise, but I’ll take it.
Fr, Imbelli –
Interesting question about a performative utterance (a saying that also does something — they often bind the sayer somehow). From what you say it seems, however, that a deem and pass says something about a non-existent vote == it says that the bill has already been passed. But this amounts to a lie. Now another interesting question: can a lie bind? I think it can. For instance, if you sign a contract not intending to fulfill the obligation you *say* you’re taking on, are you bound legally to fulfill the terms? Indeed you are, even if you didn’t mean to at the outset.
ISTM the deem and pass is something like a proxy vote, but who knows what evil lurks in the heart of Congress.
According to Whispers in the Loggia, the USCCB has come out against the health care bill. I for one find their position to be repugnant.
The Speaker really needs to think hard and long-term about this. Passing a bill this gargantuan by such a method (“sleight of hand” seems accurate if mild) can’t help but weaken the constitutional underpinnings of the country.
If anything is certain, it is that the Democratic majority in Congress is not certain. If this Congress can “deem it passed”, can a future Congress “deem it shut down”, without the need to take a vote?
They’re a legislature. Legislatures pass legislation by voting on it, not “deeming it passed”.
Tea Partiers may march on Washington if they do it this way. I might be in the throng.
Sorry, meant to say, “the Democratic majority in Congress is not permanent”.
Timothy Noah calls it health reform’s “Virgin Birth”!
http://www.slate.com/id/2247882/?hpid=topnews
And he makes the good point (to me) that House members who balk at voting for the bill will still be held accountable for passing health care because they’ll have to vote fore the reconciliation package. Time to (wo)man up!
Grant-
I had read the same article in the WSJ referenced above. Maybe it is time to renew your subscription? Or I am sure you can borrow Msgr. Kieran’s.
Anthony
(I note the lack of reference to the common good in lots of posts.
This thread, as many others, seems to run along politically perceived lines by the usual suspects.
Such is blogging -thought, thanks to Grant, somewhat more civil here.
The conventional wisdom I have seen on the various Sunday morning roundtables is that if the bill passes, the American people won’t remember a few months from now how it was passed. They will either like it, in which case the Democrats will be in good shape, or they won’t like it, in which case the Democrats will be in bad shape. Democrats, of course, are counting on the people liking it. The rest is “inside the beltway” stuff. (Although I personally find it fascinating.)
Do people need healthcare? YES. Has the market satisfied demand for healthcare? NO. Are there escalating negative externalities to the healthcare status quo? YES. Are the “resources” of healthcare equitably or even efficiently distributed? NO.
That’s textbook MARKET FAILURE. Guess What? That means it’s time for government intervention. PASS THE BLASTED BILL.
Bob,
Who gets to decide what the common good is? You and I obviously disagree what course of action is for the common good. A constitutional process exists to settle these differences. I am willing to accept those outcomes I disagree with because they came out of the process. So, we are now suppoosed to ignore these processes because the people who agree with you have the power to do so? That’s for the common good?
When people ask why I have a fundamental distrust of government (an opinion shared by Jefferson, Madison, and Adams) – this is why.
Sean,
If the bill is passed in violation of the constitution, can’t it simply be challenged and overturned? It is not as if you wouldn’t have the Supreme Court on your side.
On the other hand, I would hope that anyone — liberal or conservative — would admit that the legislative process has become severely flawed and needs fixing. But that does not mean that if a law is passed by wheeling and dealing and parliamentary maneuvering that it is an invalid law. Anywhere there is procedural law, both sides will try to use procedures to their advantage. The argument now isn’t really against anything the Democrats are doing. The argument is, “Yes, all this has been done by both parties before, but this time it’s different.”
Jonathan Chait (as usual) is useful in understanding what this is all about:
They’re going to get attacked either way; this is just picking their poison.
Beyond the political shenanigans, it looks to me like there are two advantages to using a “self-executing rule” in this context.
1> The House passes a bill that is identical to the Senate bill if it says “we pass a bill that is identical to the Senate bill.” This seems to be a point of this procedure, though it looks like it was used primarily to accept Senate amendments. I have not read McConnell’s article, so I could be completely off-base here. Or it could be that there is a real divergence of opinion about how to pass identical bills in both houses.
2> The House does not trust the Senate, as has often been noted in discussions leading up to this. By creating a single vote for both the Senate bill and amendments the House wants passed, the Senate has to agree to the amendments for the ‘deeming’ to occur. IOW the House will have passed the Senate version only if the Senate agrees to their amendments.
Procedures like this are common, no matter how much people want to complain about them. If we drop all such schemes, it will mean dropping Senate filibuster rules, which is what created this situation. How about if we agree on that — we drop all attempts to use intricate procedural rules on this legislation: No budget reconciliation, no deem and pass, and no filibusters.
Jim
Procedures like this are common only as a matter of efficiency, not as a way to get around the constitutional requirement that both houses approve the same bill before it becomes law.
Technically, this isn’t even about the filibuster, it’s about getting a simple majority in the House.
Saying this scheme of using the twofer self-executing rule and budget reconcilliation is “common” because the procedures have been done “all the time” in the past is kind of like saying a dinghy and an aircraft carrier are the same because they both float on water.
Sean, thanks for giving me the chance to clarify. I try to be clear, but seem unable to say things in a way that people will always understand.
I am saying the filibuster is a scheme like deem-and-pass or budget reconciliation. the filibuster created this situation because the legislators in the seem to think they should be allowed to legislate. That would require concurrence from the Senate, which is impossible because of the Republican intransigence.
Schemes like these, and I use scheme in an entirely non-judgmental way, are common in almost any group. They allow for ways to get around the rules when the rules are obstructing business.
Hearing no objection to this, I declare that we unanimously consent to the use of these schemes.