It appears that House Speaker Nancy Pelosi is contemplating the use of a “deem and pass” tactic to secure passage of the health-care bill. The procedural tactic is designed to allow members to avoid accountability for their votes and would reflect a conclusion that, in an up or down vote, the bill for fail.
Instead of a direct vote, Pelosi just vote on popular fixes to the Senate bill and declare that the health care bill is deemed passed.
Pelosi was remarkably honest about the purpose of such a maneuver: “It’s more insider and process-oriented than most people want to know. But I like it, because people don’t have to vote on the Senate bill.”
That is precisely why it is more convenient than principled. While the Republicans are hardly credible in objecting after they engaged in similar tactics when in control, it is not the way that one of the most important pieces of legislation in decades should pass. The courts would likely uphold the tactic. This procedure has been used many dozens of times by the Republicans, including with major funding bills. The courts are highly deferential to Congress on its internal rules and Article I requires a vote of both houses, which Pelosi can claim is satisfied by the vote on the reconciliation language. However, it will only fuel criticism that the White House is seeking to avoid a direct vote — particularly in the Senate where it lacks the votes.
The tactic is called a “self-executing” rule that embodies a “two-for-one” procedure. The House agrees to pass one matter while saying that the other matter is deemed passed as well. It is routinely used for less important or non-controversial pieces of legislation.
While legal, I believe it is a mistake and bad precedent for Congress. If they use this tactic, they will give the GOP another rationale for seeking to repeal the bill if they regain control of Congress. More importantly, given the unpopularity of the bill in many parts of the Congress, this will reaffirm in the eyes of critics that the bill was passed by procedural trickery rather than democratic process. Members should vote on the record and the Speaker should not work to help members avoid accountability for their decisions. I do not like the GOP tactics or scare tactics on the bill any more than Pelosi but this is not the way to take the high ground in the debate. Instead, it validates the GOP tactics. Let’s have an honest debate and honest vote. If the GOP kills health care, we have an election around the corner to seek a public verdict on the matter.
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