Deem and Pass: Pelosi Indicates That She May Pass Health Bill Under a Controversial Self-Executing Rule

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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45 thoughts on “Deem and Pass: Pelosi Indicates That She May Pass Health Bill Under a Controversial Self-Executing Rule”

  1. Lincoln’s Ghost 1, March 16, 2010 at 12:20 pm

    “There was a time in the not so distant past, when Congress was a place where men (and women) engaged in scholarly and learned debate to find solutions to pressing contemporary problems. We had comity in the Senate, and perhaps more robust debate in the House, but it was rarely as personal and vindictive as it’s become the last 12 or so years. ”


    Bwahahahhahahahahah! Are you serious? Do you really have no idea that South Carolina (“Home of the Crazy!”) Senator Preston Brooks beat another senator on the floor of the senate with a cane over some perceived insult? (Of course, he wasn’t man enough to fight the other guy one-on-one or with fair warning – he needed backup thugs, and jumpped the other guy while he had his back turned, sitting at a desk.)

    Back on topic – I really don’t like the use of these parliamentary manoeuvrings – but, sadly, the current Republican party is so obviously acting in bad faith, and is so obviously disingenuous about improving health care in the US, that this well-worn “trick” is all too justified.

  2. “The Republicans said no one would ever again be able to afford a new car if the government (pay attention here) REQUIRED every car have them factory installed.”

    Is the answer (A) Bunny Rabbits (B) Wings (C) Microwave Ovens or (D) None of the above 🙂

    So rcampbell, Does your above post mean that you would not be in favor of using “deem and pass”? Is that because it does not contain a public option?

    From the poll “Fifty-two percent (52%) say quality will get worse”

    Are 52% of American’s Republicans? You said “Only the Republicans, the party of no facts but plenty of fear, would think quality of care will suffer.”

    “If Conservativism wasn’t so dangerous to Americans’ health” Now who’s using “fear”?

  3. “Opposition continues to stem in part from unchanging views that the plan will drive up the cost and worsen the quality of health care in America?.

    Because fully half of those opposed to the Senate bill favor an accompanying public option. Many know that the insurers have NO allegience or concern for keeping rates affordable or for their customers (victims) in general.

    Only the Republicans, the party of no facts but plenty of fear, would think quality of care will suffer. The rest of us know that’s just another in the endless stream of lies, straw men, canards that the GOP could, but refuses to, stop even when completely disproved.

    The Republicans said no one would ever again be able to afford a new car if the government (pay attention here) REQUIRED every car have them factory installed. Imagine that, the government REQUIRING something that would and did save lives and was opposed by the GOP.

    If Conservativism wasn’t so dangerous to Americans’ health and well being of the America people, it would be just a laughable joke. Why do Republicans hate Americans so much?

  4. Ah, “deem and pass?” And, here I thought the reporters and commentators were calling it the “demon pass.” I like my version better.

  5. You really have to love it. No one speaks up in outrage when the Republicans use “deem and pass”. No one speaks up when they run up unprecedented debts and deficits. But by God, let a Democratic Congress, lead by a woman no less, use some political maneuvering and everyone goes nuts. Get a grip people.

    The Republicans have used the filibuster more times than ever before, and to anyone that has any doubt, they re not going to vote for ANY bill, in hopes that it will be to their political advantage. If it isn’t clear by now what they are up to, then you ain’t lookin’.

    Congressman Grayson stepped up to counter some of the right-wing nonsense coming from Michelle Bachmann, Sarah Palin, Chuck Grassley, and many, many others. Yes, he is outrageous, but at some point, Democrats have to stop being only the soft-spoken, common-sense, rational softies and start giving it back. Grayson and Weiner, among others are doing a great job.

    Time for some real reform to get Congress moving here, but let’s stop pretending this is the Democrats acting out.

  6. and TennCare went bankrupt as well. TN had to get rid of it. I don’t know if the same thing will happen if they implement it nationally but it is a good bet based on history.

  7. Duh:

    supposedly the Mass. health care system is or is verging on being bankrupt.

  8. The bill has already passed the House and Senate. Your hand wringing is laughable.

  9. “A new Rasmussen Reports national telephone survey finds that 43% favor the health care plan proposed by President Obama and congressional Democrats, while 53% oppose it. Those findings include 23% who Strongly Favor the plan and 46% who Strongly Oppose it…

    Democrats continue to overwhelmingly support the plan, while Republicans and voters not affiliated with either party strongly oppose it.

    Opposition continues to stem in part from unchanging views that the plan will drive up the cost and worsen the quality of health care in America. Fifty-seven percent (57%) of voters also believe the health care reform plan now working its way through Congress will hurt the U.S. economy.

    Despite the plan’s stated goal of reducing health care costs, 55% of voters believe the cost of health care will go up if the Democrats’ plan becomes law. Just 18% say it will make costs go down. Twenty percent (20%) predict costs will stay about the same.

    Similarly, just 24% of voters think the quality of health care will be better if the plan is passed. Fifty-two percent (52%) say quality will get worse, and another 19% say it will stay the same.

    Seventy-six percent (76%) of those with insurance now rate their own coverage as good or excellent.”

  10. What is all of this fuss about Deem and Pass by the Republicans and their apologists here? The Republicans used it dozens of times between 1994-2006. What is good for the goose is good for the gander.
    Mike A.,
    You hit the nail on the head. I think the Republicans doth protest too much!

  11. As insulting and self-destructive as this tactical procedure is, unfortunately, it’s a perfect metaphor for the bill itself and the process that has produced it.

    This is certainly one of the more important issues addressed in decades. But the Dems, despite resounding wins in Nov 2008, proved themselves woefully lacking the vision and courage to deliver a bill remotely appropriate to need that inspired it.

    Deference was give to all the adversaries: Repubs, corporate vampires, their lobbyists and the far right media.

    The people, who needed the reform and forcefully mandated it, were treated merely as insignificant pawns in the process. They have been given an illusion of reform, essentially treated like incidental fools, as if Bush/Cheney were still in power.

    Since Medicare for all, HR 676, has been totally ignored, Americans must still face galloping rate increases. Promises to reinstate drug cost negotiation were never addressed. These should garner support in the midterms, as the second depression gains momentum!

    Ever heard of a society strangling itself electorally in reaction to economic problems perceived as not adequately addressed?

    Having been given the opportunity and mandate to bolster our slipping position in the first world, the Dems have, instead, greased the skids on our SCOTUS-assisted, wild ride back into feudalism.

    What will be the Democrats’ rallying cry for the midterms: “Let’s see if we can do something with a 75% majority”?

    They have made “hope” into just another, obscene, four-letter word.

  12. I too would prefer that all votes on all matters be open and public. Of course, that will not happen in my lifetime. More to the point, I am not particularly moved by Republican cries for openness and transparency when they have spent the past year utilizing filibuster rules and pointless amendments to thwart majority rule and prevent the approval of presidential appointments. The Republican Party’s insistence upon the niceties of parliamentary procedure is a testament to its minority status rather than to its commitment to principle. Does anyone truly believe that Sen. McConnell would not prevent another vote on the bill if he had the ability to do so? The deem and pass rules are hardly ideal, but they are not a Democratic invention. They have been used frequently by both parties in the past and will be in the future. But a close examination of congressional rules and practices would probably reveal many similar devices relied upon as a substitute for courage.

  13. Oh, EC, I suppose you are not Irish or you’d know how to spell fight(ing).

  14. At least I know where you stand. Having been scolded by simon about spelling I suppose I should give a damn. Oh well, I’ll get back to you on that.

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