Disgraceful Democrats

It was bad enough when the Democrats resorted to sleazy deals to get Obamacare through the Senate (see, e.g., The Louisiana Purchase and The Cornhusker Kickback). Then they had to plan to ram it through via reconciliation.

But now the Dems have gone past tawdry to outright malfeasance. The Washington Post reports that, in order to avoid having her members have to actually vote on the Senate version of the bill, Nancy Pelosi is leaning towards using the "sleight of hand" maneuver known as deem and pass:

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.

I think it's instructive that even a left-leaning paper like the Post calls this "a procedural sleight of hand." I also find it instructive that even a left-leaning blogger/law professor like Jack Balkin thinks the Dems can't avoid political accountability:

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. ...

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.

Deem and pass may make some members of the House feel better by providing a sort of fig leaf, but to be constitutional the process cannot rid them of political responsibility for passing the Senate bill. If it did, they would not have created a valid law.

Inevitably, some will say "well, the GOP did it too," just as they have with reconciliation. But so what? In the first place, two wrongs don't make a right. What the hell happened to changing the way Washington works?

In the second, whatever the GOP may have done via reconciliation or "deem and pass" in the past, they never used them to (a) pass the biggest entitlement program and most important social legislation in decades or (b) to fundamentally reshape the rules of the game for 1/6th of the entire frakking economy.

Obamacare may yet pass. In my book, however, it will always be the illegitimate offspring of sleaze and procedural sleight of hands. And that leaves me angrier than I can ever remember being about anything in politics during the 30-odd years I've been paying attention.

Comments

[Brett McDonnell]

It seems to me there's a big distinction between deem and pass and reconciliation. The former does really smell bad, and looks like a way to implausibly avoid accountability. But reconciliation is quite different: it has been used by both parties for major legislation, and it is simply a way of getting a majority vote up or down on some matters. Where's the sleaze in that? The Senate rules are filled with odd procedures that allow sometimes tiny minorities to block the majority; why is one procedure that goes the opposite way illegimate?