I have to admit that I was glad the House Democrats abandoned the attempt to use a process called “Deem and Pass” to enact Health Care Reform. My qualm came not from moral concerns, but from an excess of legalistic caution. The constitutionality of Deem and Pass has never been tested, and so tested, it might very well not fly.
But, if ever there was a case where a challenge on the basis of constitutionality should have been drummed out of court on the grounds of equitable estoppel and unclean hands, it would be for a Republican challenge of this bill for such a reason. As with “Reconciliation,” the Republican Party has previously used “Deem and Pass” to enact legislation. While, unlike in the case of reconciliation, they have apparently not previously used it to pass major bills, the constitutionality of the procedure does not hinge upon the newsworthiness of the legislation it is being used to pass.
Morally, there is and was nothing particularly objectionable about Deem and Pass. Nothing.
Every member of the House was going to be recorded voting on a final bill. What the Republicans so objected to was the possibility that no Democrat was going to be forced to be recorded voting on the bill which actually passed the Senate, but was never actually going to be allowed to go into effect without the changes which were also that day being enacted. Republican did not want Democrats to be allowed to avoid voting for a bill containing Ben Nelson’s pork banquet. The fact was that such a law was never going to go into effect, but the Republican wanted to make political hey out of Nebraska corn and other provisions of the Senate bill which were going to be eliminated without ever being enforced.
The irony is that, even absent Deeming, the Democrats are engaging in this complicated procedural dance not because they are disrespecting the rules, but because they’ve respected them, and perhaps too much so. Many on the party’s left have from the beginning urged Senate Democrats to use control of the Chair and their simple majority to run roughshod over the Senate’s ridiculous and preposterous anti-Majoritarian rules. They have been vilified in Daily Kos, the Bill Maher Show, MSNBC and elsewhere for their failure to do so.
Perhaps they could have gotten away with it. Perhaps a little ruthlessness could have gotten us to a robust public option. But for many and varied reason this did not happen. For some, like Bob Byrd, there was actually reverence for the rules. For others, it was the memory of being in the Minority themselves. Still others like the power the Filibuster gave them as individuals more than they liked the power it robbed them of as part of a majority collective. And for some, it was about the fact that after the vote was over, they still had to do business in a Senate which, as hostile it had gotten in recent years, still depended in large measure on collegiality to get its daily business done.
The irony is that the Senate rules which nearly lead to the use of Deem and Pass are not themselves mandated by the constitution; in fact, some scholars on both the right and left have questioned their constitutionality, and yet to comply with the ropes the Senate chooses to tie itself in, the House nearly took a route of questionable constitutionality which might have endangered the law’s ultimate application.
Since the evil Senate bill which was to be deemed was never going to become law in any meaningful sense, the Republican cries that it should be given a straight up and down vote were the height of hypocrisy.
And yet they had a strange resonance.
I agree. I am all for straight up and down votes; as many as possible.
In the Senate.
If there could have been a straight up and down vote in the Senate, the most egregious portions of the Senate bill would never have been there. There would have been a far different bill, and the bill being voted on in the House, before the “reconciliation” amendments, also being voted upon, would never have been placed upon the House floor. .
I’ve long disdained “process liberals”; those more concerned about the niceties of process than the ultimate product often miss the point.
But sometimes, process distorts product.. This is one of those times. The process should change. Sixty votes to pass a law in an already malapportioned body is just too much. In its context, short-cuts like reconciliation are not cheating; the cheat is the rules reconciliation is being used to overcome.
Its time for more up and down votes. It is time for majority rule, or at least something closer to it.
I know it seems like a funny time to discuss process instead of substance, but listening to the astonishing comparisons of this bill to Bolshevism, and the endless insincere complaints about how this bill will cut Medicare spending coming from a party with a not so secret plan (authored by Paul Ryan, the Ranking Republican on the House budget Committee) to gradually eliminate that program, I don’t think Congress is really discussing the substance of this bill.
And if they aren’t going to do it, I don’t see why I should.