Thoughts on “Deem & Pass”

As Steve has previously noted, House Democrats are thinking of employing a tactic called “deem & pass” to, well, pass health care reform.  I first saw mention of “deem & pass” in this query by David Kopel; in recent days, it’s received further attention from legal luminaries like Michael McConnell & Jack Balkin.  So what exactly is “deem & pass”?  Byron Tau enlightens us:

Okay, so here’s how the “deem-and-pass” procedure would actually work. The House Rules committee is often called the “traffic cop” of the House – controlling what bills come to the floor and how much debate is allowed on each one. On each bill, they pass what is called a “rule” – a resolution determining what kind of debate is allowed on each bill. The whole House must first pass the rule, then the underlying legislation. In the case of “deem-and-pass,” the vote on the rule would also have the effect of passing the Senate bill. According to the CRS report linked above, the House has used this procedure at least six times between 1989 and 2005 with both parties in charge. [emphasis added]

(A somewhat longer discussion can be found at The Monkey Cage.)

Why bother with such a convoluted procedure?  Ezra Klein explains:

The virtue of [deem & pass], for Pelosi’s members, is that they don’t actually vote on the Senate bill. They only vote on the reconciliation package. But their vote on the reconciliation package functions as a vote on the Senate bill. The difference is semantic, but the bottom line is this: When the House votes on the reconciliation fixes, the Senate bill is passed, even if the Senate hasn’t voted on the reconciliation fixes, and even though the House never specifically voted on the Senate bill.

It’s a circuitous strategy born of necessity. Pelosi doesn’t have votes for the Senate bill without the reconciliation package. But the Senate parliamentarian said that the Senate bill must be signed into law before the reconciliation package can be signed into law. That removed Pelosi’s favored option of passing the reconciliation fixes before passing the Senate bill. So now the House will vote on reconciliation explicitly and the Senate bill implicitly, which is politically easier, even though the effect is not any different than if Congress were to pass the Senate bill first and pass the reconciliation fixes after. This is all about plausible deniability for House members who don’t want to vote for the Senate bill, although I doubt many voters will find the denials plausible. [emphasis added]

IOW, “deem & pass” (aka the “Slaughter solution”, as it’s been called on the right) is intended to give House Dems some political cover, by (supposedly) enabling them to avoid having to vote on adoption of the Senate bill itself.

So, does the Constitution allow Congress pass a bill w/o having the House vote on it?  Michael McConnell says no:

Enter the Slaughter solution. It may be clever, but it is not constitutional. To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.

To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

Jack Balkin, on the other hand, says yes, observing that “There are plenty of precedents for passing legislation by reference through a special rule.”  However, he also notes that doing “deem & pass” constitutionally would effectively deprive House Dems of the political cover it’s supposed to provide:

… 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. Nevertheless, if both the House and Senate pass a reconciliation bill, then both House and Senate also can take political responsibility for getting rid of undesirable features of the original Senate bill. They can then both take credit for fixing the flaws in the former bill. Politicians taking responsibility for acts of legislation is the way the constitutional process is supposed to work.

Recall also the bolded passage in the aforementioned Tau excerpt:  in order for “deem & pass” to be used, “The whole House must first pass the rule” enabling its usage.  And, per the House Rules Committee, passage of such a rule requires a majority vote of the House.  Why is this important?  Well, if “deem & pass” requires a majority vote of the whole House to adopt the necessary rule, there’s the possibility that such a vote might end up being recorded.  In fact, this has happened in the recent past:  The same CRS report cited by Balkin (see also here for newer version) lists several instances where use of “deem & pass” resulted a record of the yeas & nays.

For example, as CRS notes:

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.

According to Thomas, this rule was passed by a vote of 259-169.

Another CRS example:

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.

Per the House Clerk, this rule passed by 228-198.

Yet another example:

On March 14, 2007, the House adopted H.Res. 239, which stated that committee amendments to a whistleblower protection bill (H.R. 985) recommended by the Oversight and Government Reform Committee shall be considered as adopted in the House and the Committee of the Whole.

This rule passed by 223-193.

Admittedly, the other examples given by CRS did not record yeas & nays, but that’s because they were passed either by voice vote or without objection.  Neither option would seem to be available to House Democrats on the Senate health care bill, given the size of their majority, and the text of Art. I, Sec. 5, cl. 3 of the Constitution:

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. [emphasis added]

Ergo, since Republicans comprise more than 20% of the House, they could demand that their Democratic colleagues put themselves on record when voting for “deem & pass”.  Hence, while “deem & pass” may allow House Dems to avoid directly voting upon the Senate bill, it won’t enable them to do so without voting for the rule that would enable such avoidance.  And Republican spinmeisters would probably have no trouble portraying a House Democrat’s vote for “deem & pass” as being, effectively, the same thing as a vote for the Senate bill.  Which would seem to defeat the whole purpose of using “deem & pass” in the first place.

So is “deem & pass” constitutional?  Probably.  However, as an NVA colonel once observed (albeit in a totally unrelated context):  “That may be true. It is also irrelevant.”

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