March 17, 2010

Deemed to be Passed Gutless

Monique Chartier

An explanation by Byron Tau of "deem-and-pass", currently being contemplated by House Democrats as a means of getting health care reform on the books.

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.

Via the Washington Post's Ezra Klein who, more importantly, elaborates on the purpose of this mechanism.

... the problem with explaining deem and pass is that it's virtually impossible to explain why it's being used. Reconciliation is simple enough: Republicans insist on filibustering and Democrats want the health-care reform fixes to have an up-or-down vote. If Republicans wouldn't filibuster, Democrats wouldn't use reconciliation. It's as simple as that.

But deem and pass? House Democrats don't want to vote for the Senate bill because it includes the excise tax and the Nebraska deal.

That's right. Whether of the health care reform itself or of the fetid, district-specific vote clinchers, what House members want, and leadership is perfectly happy to provide, is deniability. "Oh, no, Constituent Smith/Reporter Jones, I didn't vote for that bill."

The pending health care reform is a really bad idea and nothing like it should become law. But minimally, members of Congress should demonstrate the courage of their convictions by actually voting "Yea" or "Nay" on the bill, not hiding behind a legislative dodge.

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What a shock that this cowardly device is being used for the signature legislation of a President who, while in the Illinois State Senate, voted "present" on so many pieces of controversial legislation!

Guess voting "aye" or "nay" is above all their paygrades . . .

Posted by: brassband at March 17, 2010 5:18 PM

Let me make an education guess - and I really want you to tell me if I am wrong...

During the 10-12 years when the GOP was largely in control of Congress, y'all didn't either study or care about the dozens of "sleazy" procedures that they regularly used, nor wrote or blogged about them.

If, as I suspect, that is true you are simply being partisan and hypocritical. If that is who you are, then you should look in the mirror.

My apologies if you were constantly yapping at Dennis Hassert and Newy GIngrich all those years....I must have missed it.

Posted by: Stuart at March 17, 2010 11:10 PM

" of a President who, while in the Illinois State Senate, voted "present" on so many pieces of controversial legislation!"

Yes, upon reflection, Brassband, deem-and-pass is spinelessly similar to voting "present". That would make it a repulsively appropriate treatment of this bill.

Posted by: Monique at March 18, 2010 7:27 AM

stuart --

When did Gingrich or Hastert use the device?

I had never heard of it until now, but
I'm convinced it's unconstitutional. I understand it has been used a few times in the past by both D's and R's, so if you can identify provisions of the U.S. Code statutes out there that were "passed" with this method, I'd consider challenging them if they ever come up in any of my cases.

Can you cite any examples?

Posted by: brassband at March 18, 2010 7:43 AM

This sleazy, embarrassing, appalling and very unAmerican attempt at legislative gimmickry by Obama, Pelosi and Reid will not survive legal challenge.
It will be "deemed" UNconstitutional.
Just how gutless and morally weak are these Dems to use gimmicks/bribes/secrecy to further a piece of legislation that will impact the lives of every single citzien in this nation? A piece of legislation that does not have the support of the majority of America's citizens.
And how many gutless Democrats hate the gimmickry being used on such an important issue and hate it to the core but lack the personal integrity to publicly say so??
If this ugly piece of Democratic party sedition is initiated in the coming days it will the lynchpin that overturns Congress in November and the spark for political violence in the coming months regardless of what the courts do.
To pass this is to spit in the face of the citizens of this country.
The citizens of this country will spit back and some will spit back with genuine force.

Stuart do any of you liberals possess any sense of right an wrong? Have the ability to simply tell the truth? We know you libs hate yourselves but why take it out on the rest of us? lol

Posted by: Tim at March 18, 2010 8:29 AM

So far I have detected no trace of education in Stuart's guesses. Why should this one be any different?

Posted by: BobN at March 18, 2010 8:46 AM

Here's a pretty fair summary of this issue, which addresses some of the previous uses.
I think the justiciability issue obviously presents a problem to anyone challenging this practice, but that obstacle would not make the practice constitutional.

Posted by: brassband at March 18, 2010 9:15 AM

Well, folks, take a few steps back.
The GOP spent hundreds of millions of dollars of TAXPAYER money investigating a sitting President because of a real estate deal - and nothing was found.
They then spent their energy not dealing with problems, but attempting to remove a sitting President for having sex - an effort which they lost. Is that what you want Congress doing?

Oh, as far as "sleazy" procedures, that is a world used by the same Clinton Impeachment hero Lindsay Graham (SC) to describe reconciliation, a process used many times by the GOP during the Bush and Clinton years.

Anyone who listened to the news over those years heard the VERY SAME republicans yelling for "up or down votes" on almost every issue. That is the current code for reconciliation. It is, after all, an up or down vote.

And tell me, were y'all yelling about the use of reconciliation then? Did you even know or care about it? My guess is no, because you were simply bowing to the desires of your Great Leaders (typical authoritarian model).

" Since 1980, 17 of 23 reconciliation bills have been signed into law by Republican presidents"
"A similar situation happened in 2000, when the Senate again used reconciliation to pass the Marriage Tax Relief Reconciliation Act 2000, which was also vetoed by Clinton. At the time the use of the reconciliation procedure to pass such bills was controversial.[4]
During the administration of President George W. Bush, Congress used reconciliation to enact three major tax cuts, each of which was predicted by the Congressional Budget Office to substantially increase federal deficits.[5] These tax cuts were set to lapse after 10 years to satisfy the Byrd Rule.
Efforts to use reconciliation to open the Arctic National Wildlife Refuge to oil drilling failed."

Yes, I know you are talking about other procedures now (deem and pass), but I would suggest studying for a couple years before you pronounce the legal and historical rules and procedures of Congress to be something sleazy.

Fact is, you usually get your "education" from right wing talk radio and TV, and that is no way to fill your minds.

Or, are you folks so well read that you knew about all this from civics class? Please...PLease tell me I'm wrong. You've known about all this for years, right, and held republicans to the same standards?

Well, we all know the answer to that!

Posted by: Stuart at March 18, 2010 9:30 AM

the Adler comment from Volukh refers to the DC Circuit's 2007 decision in Public Citizen v. District Court,

According to the Public Citizen decision, the attestation by the presiding officers of the House and Senate that a bill had passed both means that the bill has passed, and no judicial inquiry is permitted to look behind those attestations.

Why bother with a vote, or even a "deem passed" charade?

Posted by: brassband at March 18, 2010 9:41 AM


Is somebody arguing that reconciliation is unconstitutional? I thought the issue with that was that it side-stepped the Senate cloture process (which derives from tradition and Senate rules, not the Constitution).

With regard to Whitewater, by the way, I think there were several convictions coming out of that investigation, including a former Governor and former Supreme Court Justice from Arkansas, so I think you should reconsider your assertion that "nothing was found."

Posted by: brassband at March 18, 2010 10:18 AM

Republicans set new records for deeming under Speaker Newt Gingrich
(R-Ga.). There were 38 and 52 self-executing rules in the 104th and
105th Congresses (1995-1998), making up 25 percent and 35 percent of
all rules, respectively. Under Speaker Dennis Hastert (R-Ill.) there
were 40, 42 and 30 self-executing rules in the 106th, 107th and 108th
Congresses (22 percent, 37 percent and 22 percent,
respectively).Republicans also don't care when their own rank
hypocrisy is revealed in the "liberal media" ?when there are balanced
reports, for example, that they used the same arcane rules with wild
abandon when they controlled Congress. The Republican base will never
learn about their own pols? hypocrisy because these voters have been
trained to get their "news" exclusively from right-wing propaganda
outlets like Fox News and hate radio, where untidy facts like these
will never be mentioned.

Posted by: tara at March 18, 2010 10:32 AM

The stats are interesting, but how about some citations to actual examples?

What bills (now alleged laws) are included in these stats?

Posted by: brassband at March 18, 2010 10:36 AM

I understand that "deem and pass" has been used 33 times in the last 77 years.
I am unaware of the significance of the bills involved,but this bill has enormous impact.
I think this should be subject to a vote on the basis of respect for the citizens of the country by Congress.
I don't have a clue whether it would pass a vote in the House or not.That seems to be up in the air.
Tara-hate radio?How about hate blogs like Daily Kos and RIF?Don Roach very aptly described RIF as Pat Crowley's personal vomit zone.

Posted by: joe bernstein at March 18, 2010 12:10 PM

Joe, I think it should be voted on too, but to portray this deem and pass tactic as something new is unreasonable.
I think it will be voted on and passed. As the National Catholic Reporter endorsed it today...
"Nonetheless, the choice Congress faces is between the status quo and change -- and the current bill is a profoundly preferable step in the direction of positive change. The legislation will lower costs, not only for individuals and small businesses currently burdened by rising premiums, but for the Medicare and Medicaid programs, which threaten to strangle the federal budget. It will extend health care coverage to 30 million Americans who currently lack it. Finally, a society that covers most of its citizens will be a society more likely to eventually cover everyone -- our immigrant brothers and sisters included. .....
Bottom line: The current legislation is not "pro-abortion," and there is no, repeat no, federal funding of abortion in the bill.....Meanwhile, writing in The Washington Post last Sunday, T.R. Reid, a first-rate journalist, a Catholic, and author of "The Healing of America: A Global Quest for Better, Cheaper, and Fairer Health Care." argues persuasively [6] that industrialized countries that achieve universal or near-universal insurance coverage have a demonstrably lower abortion rate than we have in the United States. It should matter to those who believe in the sacredness of all human life that this legislation will not only provide health care to those who don't currently possess it, but will encourage women facing crisis pregnancies to choose life. Given the intractable nature of the abortion debate in the United States, this amounts to a pro-life victory of historic proportions. .....
Congress, and its Catholic members who seek to promote the common good, should vote yes.

Posted by: tara at March 18, 2010 4:11 PM

The facts are clear.
Lindsay Graham is all over the news calling reconciliation a "sleazy tactic".

You see, there is a good reason for this. He knows how stupid and uneducated YOU are! He knows you would not bother (or care) to look up how many times both he and his party used reconciliation.

Now, here are a few facts for you. The Health Care bill costs nothing. The CBO estimates it will cover 32 million more Americans than now, and SAVE 132 Billion over 10 years. It may save more, it may save less.

The Health Care Bill, y'all forget to mention, HAS ALREADY PASSED BOTH HOUSES. Now it is just procedures and small changes and updates. Yet you don't seem to understand that. What didn't you learn in civics class?

I would feel better if you just declared yourself the "mob" (as many of you well are) and said you don't care about laws and procedures, but wanted to kill democracy. At least you would have some consistency! But as it is, you are crying wolf over and over and over.

Posted by: Stuart at March 18, 2010 8:19 PM

Stuart --

"The Health Care Bill costs nothing."

Oh c'mon. You don't really believe that, do you.

How many folks are uncovered now? 30 Million? And we're going to extend coverage to them, but it's not gonna cost anything?

Oh, I forgot, they're gonna squeeze savings out of "waste, fraud, and abuse," right? Well how about doing that for the next two years, putting the savings in Al Gore's famous "lockbox" and then we'll use the savings to buy coverage for as many of the 30 million as we can?

And "the Health Care Bill" has most certainly NOT passed both Houses. There are many differences between the House Bill and the Senate Bill, and those differences would need to be ironed out in conference and then the Bill as modified would need to go back to both Houses for final approval.

Posted by: brassband at March 18, 2010 9:44 PM

Our "immigrant brothers and sisters"?If that means legal residents who currently have a waiting period for health benefits,okay.The waiting period could be eliminated. However if that includes illegal aliens,no way.
Oops,I guess it won't matter.Obama will push through amnesty with another "deem and pass"scam.
The good thing is,that Obama has guaranteed himself a single term.
Stuart can't be serious.Won't cost anything?It just doesn't make any sense.

Posted by: joe bernstein at March 19, 2010 12:51 AM