Network News

X My Profile
View More Activity

The arms race of rules

The conservative case against "Deem and Pass" is getting very complex, very fast. Yesterday, the argument was that it was flatly unconstitutional. But it turns out that Republicans used Deem and Pass dozens of times while they were in power. So today's furor is that Nancy Pelosi and Louise Slaughter joined Public Citizen in a lawsuit arguing that a bill that George W. Bush signed was invalid because Deem and Pass is unconstitutional. But the court ruled against Public Citizen, Pelosi and Slaughter. Deem and Pass, well, passed. And now Democrats are using it, too.

This is the sort of world I warned about in my article on the arms race of procedural gimmickry in the Congress. The minority makes the filibuster a constant presence. So the majority makes reconciliation a frequent friend. The Senate bogs down and so the House stops being able to trust that the Senate will be able to pass legislation, so they begin innovating methods of defensive legislating like self-executing rules and Deem and Pass. The whole thing is nuts, and it's done by both parties. The variables here are majority and the minority, not Democrats and Republicans.

As I said in the piece, it's time to clean the rulebook. I'd like a 51-vote Senate. If America chooses a 60-vote Senate, then so be it. But either way, let's decide how the place will work and set that into stone. This world where loopholes keep transforming Congress has created a norm of legislating using any process you can concoct, rather than in a single, straightforward fashion.

By Ezra Klein  |  March 16, 2010; 9:16 AM ET
Categories:  Congress  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   Del.icio.us   StumbleUpon   Technorati   Google Buzz   Previous: Does universal coverage reduce abortion?
Next: Think tank

Comments

If Pelosi unveiled the reconciliation bill and simply said "it passed, along with the Senate bill, via secret ballot; trust me" I guess that Ezra would be fine with that too.

For the rest of us (even Democrats in 2005) minority rights to full and fair debate is an important thing.

Posted by: JakeD | March 16, 2010 9:22 AM | Report abuse

glad you're admitting Ms. Nancy is hypocritical. Don't act like you're above the fray if you're not. its a slippery slope that both sides are on.

Posted by: visionbrkr | March 16, 2010 9:31 AM | Report abuse

I don't think anyone will stupid enough to think that a Democrat who votes for "Deem and Pass" is really voting for Obmacare. Somehow I don't think a Democrat running for re-election in bad Democrat year who goes around saying they voted for "Deem and Pass" but not Obmacare is going to fool anyone. If you vote for "Deem and Pass" you're voting for Obamacare period.

Posted by: RobT1 | March 16, 2010 9:31 AM | Report abuse

Ezra, one ought to say of the Public Citizen case that "a court," not "the court" approved of deem and pass. And it may well be that Judge McConnell's position would be rejected by the Supreme Court--but they would not be bound by the lower court decision you cite here.

Jack Balkin, while recognizing the textual soundness of McConnell's argument, makes a persuasive alternative case here: http://balkin.blogspot.com/2010/03/is-deem-and-pass-constitutional.html

Posted by: FrBill1 | March 16, 2010 9:33 AM | Report abuse

1) I don't see any way to change the rules to be 'set in stone' since the Consititution allows each legislative body to make its own rule.

2) I'm not sure why the 'deem and pass' strategy has been used in the past, although I think a number of times it has been used to allow Republithugs to avoid saying they have voted to raise the debt ceiling. But it's clearly being considered know because of the Repubs threats to ram a vote on the Senate bill down the throat of Dem house members in November, i.e., "You voted for the Cornhusker Kickback, nah nah na nah nah!" Personally, I don't think its much of a defense, since Repubs will simply lie at the top of their lungs about whatever has happened with the bill, and Dems are usually too spineless to deal with the tantrums effectively, but I don't see how you can blame Pelosit for using the tools at hand to try to deal with the cr*p she knows is coming.

Posted by: exgovgirl | March 16, 2010 9:36 AM | Report abuse

Heres a very simple rule: How about a ban on polarizingly partisan act of passing laws designed to bankrupt the USA into a communist revolution.

Lets tell the rigidly radical ideologues controlling both parties to knock it off!!!

Those of you who might have been mad that Republicans chose an inexperienced ideologue like George W. Bush over an accomplished moderate like McCain should be mad at yourselves for voting for an even more inexperienced and more radical ideologue like sub-1-term Senator Obama over McCain.

Had McCain won the election we'd have a very reasonable and effective healthcare reform bill passed by now with no gimmicks. And we'd be putting this era of visceral partisanship behind us and working toward a better America instead of trying to destroy each other.

Posted by: FastEddieO007 | March 16, 2010 9:36 AM | Report abuse

Does deem and pass have a substantive component, i.e. is it necessary for the House to vote on the the changes at the same time as the original Senate bill? Because it it is pure optics, I can't believe that House members are that foolish as to think this looks good.

Posted by: jduptonma | March 16, 2010 9:43 AM | Report abuse

By the way, what were the cases where "Republicans used Deem and Pass dozens of times while they were in power."

Obviously if these were idologically radical things Ezra would have specifically listed them...but he didn't?

What gives?

Posted by: FastEddieO007 | March 16, 2010 9:53 AM | Report abuse

@FastEddie: "Heres a very simple rule: How about a ban on polarizingly partisan act of passing laws designed to bankrupt the USA into a communist revolution."

I think you watched Red Dawn one too many times. :)

These laws aren't designed to bankrupt us--if they do, it's in spite of their good intentions, not because they want us to go belly up. And I'm fairly convinced they believe what they are doing is the best way to go for the most people.

That's being said, George W. Bush was not inexperienced, and wasn't much of an ideologue, unless by ideologue you mean he spent too much time listening to the braniacs over at Project for a New American Century. Yes, he did some form of tax cuts and attempted SS reform, but No Child Left Behind? Medicare Part D? Immigration Reform? New tones and "compassionate conservatism"? Whatever kind of ideologue he was, it wasn't conservative. And . . .

"Had McCain won the election we'd have a very reasonable and effective healthcare reform bill passed by now with no gimmicks"

Look, I held my nose and voted for McCain. I did. But I think you're giving him way too much credit. The Democrats would have smelled weakness (rightly so, which his "reach across the aisle" rhetoric) and attacked him and obstructed him at every opportunity. And his healthcare proposal sounded, quite frankly, a lot like what we've got now.

Plus, then this floundering economy would be all the Republican's fault. Better that Obama won, I think.

Posted by: Kevin_Willis | March 16, 2010 9:58 AM | Report abuse

If McCain won the election we'd have a health care bill with a tax on health insurance premiums, a tax on those that don't buy insurance (but not a mandate) a medicare commission to help lower costs, cuts to some of the "waste" in medicare" electronic records...oh wait that's the bill that is in front of the republicans, but they say that it's a socialist takeover - give me a break.
Also the bills have already passed, if the republicans weren't going to kill the conference committee through increments of 30 hours of "debate" for dozens of motions and amendments then it would have gone to committee, probably been a better bill, and probably passed by now, but because the combination of lock step party discipline with the filibuster has turned the senate into a legislative graveyard this is what we get.

Posted by: ChicagoIndependant | March 16, 2010 10:00 AM | Report abuse

@fasteddie:

http://swampland.blogs.time.com/2010/03/13/self-executing-rule/

Covers the stats. Nobody has done a full compilation of just what has been passed this way (thus why Ezra did not note it, the data has not, thus far, been circulated), but it looks like it's been, by and large, on smaller and more piece-meal bits of legislation than healthcare.

Posted by: Kevin_Willis | March 16, 2010 10:04 AM | Report abuse

I was going to say that a 51-vote senate is a communist plot, but I think FastEddie beat me to it. Stupid intertubes!

Posted by: TomServo | March 16, 2010 10:17 AM | Report abuse

Had we had McCain we would still be in the same place we are now, McCain is a Radical Ideologue just like the his Democratic counterparts are !!! McCain is one who needs to be removed along with most of Congress so stop the rhetoric already. Bush was by far a better President than the MSM is willing to give him, the Bills he signed into law for specifically the Medicare part D Drug plan was one that held it cost based on the CBO score and never went above that cost, go ahead and check the facts but the MSM continue to blame Bush for this but it's all BS coming from the left wing like BO who continues to spew the falsehoods on this !!!

The Slaughter rule/Deem & Pass which ever you prefer to use is all unconstitutional and if the house use this the Dem's should know that there not voting on the Senates Bill but rather the reconciliation fix it bill which again is illegal and all reverts back to the Constitution Article 1 section 7 as stated above in the original article herein, there all crook's and we the American People will impose are own Term limits starting this November and well into the future !!!

We The People do not need to sit around an wait for members of Congress to impose on itself Term Limits or any other terms that the American People have been asking they do for a very long time, hence the Grass Roots efforts of the Tea Party that we will do it for them!!!

On another note, why hasn't anyone here on WAPO or other internet blogs or newspapers talked about how the Dem's back in 1975 repealed the Glass- Stengel Act of 1933 that with it's repeal have allowed Banks to by smaller Banks to become Too Big to Fail Banks of today, where from 1975 thru to current have allowed INvestment firms, Big Banks, Wall Street, and 3rd party entities to play with The American Tax payers money and receive these huge bail-outs of our money because they were allowed to become TOO BIG TOO FAIL thus leaving the FEDS no choice but to bail them out !!!

As yourself this, when the market back in July of 2008 began to crash and where Barney Frank stated Publically that F&F were financially stable did anyone who posted here receive there bail out for the losses they incurred from JUly 2008 up thru February of 2010 ? Anyone get there's ?? I didn't think so !!!

All of what has happened in Congress since Carter was our president has done nothing but tear this Country apart every which way to sunday and everyone runs there mouths about who did what, and where, and who said what, there all guilty and they all need to be voted out again this is how and why the Tea Party was formed and what were for !!!

So all this fluff & Puff written every day here and else where is all smoke and mirrors but the majority of people are dumb enough to believe what someone sitting behind a desk says about this guy and that guy and this member of Congress, Wake the hell up People !!! Read the Glass Stengel Act of 1933 and get educated !!!!

Posted by: dirtydan64 | March 16, 2010 10:39 AM | Report abuse

http://www.constitution.org/fed/federa51.htm Funny that its #51 eh?

Posted by: jercary | March 16, 2010 10:44 AM | Report abuse

I have no problem with an arms race. As soon as the Democrats begin to wake up and realize they're in a permanent battle with a dedicated and vicious enemy they'll start kicking his arse.

After all, of the 300 million people in this country, the vast majority are on our side. The idea that the party that wants to make the country more civilized, and humane needs to shiver in the corner because of a bunch of hayseed reactionaries and idiots from flyover country who think the Earth is 6,000 years old and are terrified of the future is absurd. Bring it on!

Posted by: zeppelin003 | March 16, 2010 10:55 AM | Report abuse

Wow, Ezra. You've hit the big time with WaPo... you've been assigned your very own cadre of wingnut respondents. Commies and McCain and the Glass Stengel Act of 1933, oh my!

What each party recongnizes is the proof is in the pudding. Pass a bill (or not), satisfy your constituents, and that's that. As a number of posters on this thread inherintly recognize, they don't really care about the procedures or rules, as long as they get them to their end goal.

Posted by: Jaycal | March 16, 2010 11:03 AM | Report abuse

I really don't see a problem with this procedure as it is being used in this instance. The "deem passed" in this case is just being used to combine the original bill with changes. It's simply the House saying to the Senate " Your bill is passed only if you accept our changes". That's pretty transparent.

Posted by: marvyT | March 16, 2010 11:17 AM | Report abuse

Ezra, your post is entirely misguided. You miss the most obvious and consistently proven point in American Politics: IOKIYAR.

IOKIYAR - It is okay if you are Republican.

Posted by: nisleib | March 16, 2010 11:17 AM | Report abuse

marvyT:

The "problem" is that Obama is going to try to SIGN the deemed passed Senate bill even if the Senate doesn't pass the reconciliation "changes" you are referring to.

Posted by: JakeD2 | March 16, 2010 11:31 AM | Report abuse


"If Pelosi unveiled the reconciliation bill and simply said "it passed, along with the Senate bill, via secret ballot; trust me" I guess that Ezra would be fine with that too.

For the rest of us (even Democrats in 2005) minority rights to full and fair debate is an important thing."


there has been no full and fair debate because the republican leadership would not permit a full and fair debate, nor were they willing to bring anything to the table.
and so, they callously stall for time, bend the rules to stall urgent legislation and let one of the dumbest politcal movement s in our history, call their shots,
when you have legislators working against the urgent needs of the american people, they are the ones who are abusing their offices and endangered our legislative process with obstructionism.
when eric cantor sits at the table with the president and does a cheap dog and pony trick by mocking the size of the bill, then there is no chance for real dialogue. what it indicates, is that we have leaders like him who would rather mock the bill, than read the bill.
i would be willing to bet that eric cantor hasnt yet read the bill, nor could he converse knowledgeably about what it is in it.
thank G-d, nancy pelosi is wiling to fight this tooth and nail. and we have a president who was bi-partisan to the end, as the republicans played out every trick in the book.
now they can scream concernedly about obama being a one term president, but his popularity will soar with this bill being put into law, and the republicans are terrified of that.
and on a separate note, regarding the courage of this administration, it is high time that we had a president speaking out against wrong action everywhere. he is doing the right thing regarding our position toward israel holding back our envoy if they go ahead with the settlements.
it is highly courageous to go against the coffers of aipac, and take a moral stand.
but obama is making many moral stands.
and i am so proud of him for doing so.
and we will get this bill passed, because it is the morally right thing to do.
now, it is only a matter of time.

Posted by: jkaren | March 16, 2010 11:42 AM | Report abuse

jkaren:

Israel aside, minority rights here in America have a long tradition. Too bad you are being so short-sighted to think that the Dems are never going to be in the minority again.

Posted by: JakeD2 | March 16, 2010 12:12 PM | Report abuse

Bart Stupak: Pelosi has only 200 votes!

http://www.politico.com/news/stories/0310/34493.html

Posted by: JakeD2 | March 16, 2010 12:14 PM | Report abuse

Too bad you are being so short-sighted to think that the Dems are never going to be in the minority again.


the republicans have acted in bad faith.
a system, an agreement....nothing can work when one party acts in bad faith.

that makes all of the difference.

Posted by: jkaren | March 16, 2010 12:29 PM | Report abuse

Here's another example of how lawmaking by loopholes creates structual problems:
i'm a lawyer and have been working on a law review article recently about how to handle backlogs in FBI background checks for immigrants waiting to become citizens. See
www.cis.org/uscis-backlog or google it.

Anyway the background check requirement resulted from a 1997 appropriations bill. The 1997 appropriations act included a provision that no funding would be appropriated to INS (now USCIS) to complete naturalization applications (where immigrants obtain citizenship) unless a full background check was completed first. As a result of this law, thousands of people have had to wait for years to become citizens while waiting for a backlog in FBI name checks. more importantly for what we're discussing here, courts have spent thousands of hours trying to figure out exactly what the appropriations bill requires. If Congress wants all potential citizens to have completed background checks, that's fine, but they should actually pass a statute saying that, not using a funding loophole which creates mass confusion. This sort of legislating happens all the time.

Posted by: Levijohn | March 16, 2010 1:12 PM | Report abuse

Here's another example of how lawmaking by loopholes creates structual problems:
i'm a lawyer and have been working on a law review article recently about how to handle backlogs in FBI background checks for immigrants waiting to become citizens. See
www.cis.org/uscis-backlog or google it.

Anyway the background check requirement resulted from a 1997 appropriations bill. The 1997 appropriations act included a provision that no funding would be appropriated to INS (now USCIS) to complete naturalization applications (where immigrants obtain citizenship) unless a full background check was completed first. As a result of this law, thousands of people have had to wait for years to become citizens while waiting for a backlog in FBI name checks. more importantly for what we're discussing here, courts have spent thousands of hours trying to figure out exactly what the appropriations bill requires. If Congress wants all potential citizens to have completed background checks, that's fine, but they should actually pass a statute saying that, not using a funding loophole which creates mass confusion. This sort of legislating happens all the time.

Posted by: Levijohn | March 16, 2010 1:15 PM | Report abuse

Dreamer.

Posted by: golewso | March 16, 2010 1:17 PM | Report abuse

Actual governing takes a huge back seat to "will I get re-elected" - the easiest way to solve the health care debacle of for profit health care is simple - but handing a success to the other party - isn't how the political "game" is played.

Unfortunately our lives are caught in the cross fire of their STUPID GAME. And because of game playing we deregulated everything and created the global financial meltdown - ooppps - maybe proper management would have prevented that - but politics has never been about properly managing our resources - its about GETTING RE-ELECTED.

Healthcare is easy - here's how -

“Use Senate reconciliation and expand Medicare via the Senate’s buy-in provisions. The CBO has already signed off on this as a means of saving money.

More importantly, if more Americans can do a buy-in with Medicare, it creates more cost control (because there’s a genuine competitor to for-profit healthcare).

It also helps to solve the problems of pre-existing conditions, because Medicare does not deny coverage on this basis.

Allowing a Medicare buy-in to Americans under 65 would give people a genuine alternative to private insurance and thereby render the pre-existing question moot.

It would also lower Medicare costs by expanding the risk pool of patients (the great bulk of medical expenses are accounted for by a small number of people, mostly the elderly, requiring very expensive treatment).

And it would substantially enhance the global competitiveness of American corporations. After all, in what other country in the world is health care a marginal cost of production for business?” - Roosevelt Institute Marshall Auerback

Now get out there tell your neighbors, your friends, pick up the phone and email your representatives - because whether you like it or not we are all in this together - and it's us versus the politicians - not each other.

Paul Burke
Author Journey Home
Democracy For America

Posted by: JourneyHomeBurke | March 16, 2010 1:31 PM | Report abuse

Ezra, if we lived in Cuba, I would not think twice about the content of your article. But we don't. Hey, I want healthcare too, but the Congress is getting dangerously close to doing something that could cause irrepairable harm to the country and violence in the streets. We are not in Cuba, Ezra. And we are not talking about using technicalities to pass some rink-a-dink piece of legislation. Last time I read the founding document, it started with "We the people", not "We the Congress". You would do well to take a Civics class and write an article that supports people, not corrupt politicians. And that goes for both parties.

Posted by: donchew1 | March 16, 2010 4:34 PM | Report abuse

Read the decision. 1. The decision concerns differences between House and Senate versions of a bill, not specifically deem and pass. 2. The sweeping precedent, from 1890, is a Supreme Court decision (Marshall Field) that declares very broadly that the enrolled version signed by the house and senate officials will not be challengable in court as not validly passed due to error or even willfully, lest legislation signed into law not be reiliable to citizens and businesses that rely on it. 3. If we assume this court is not so wildly out of control as to overturn any law or precedent that it disagrees with politcally for any reason it can find, a self-executing rule is likely to meet the court's precedents based on the logic in the cited appelate court case, and the other cases cited therein. The end result is a bill that was engrossed (published as passed by one house) becomes enrolled based on a vote that follows the House's own rules. A footnote by Scalia in an affirming cases, which is discussed in the decision, seems to make it even less likely that he would vote to overturn.

Posted by: mfiller | March 17, 2010 7:30 AM | Report abuse

Ezra: You cite two very 'liberal' court decisions on 'Deem and Pass' (DC and DC circuit) as being constitutional ... when about 90% of all 'true' constitutional lawyers/professors in the nation are very, very uncomfortable that a 'non-direct' vote meets the 'direct' requirement in Art. 1, Sec. 7, §2 of the Constitution.

If you study the Constitution, its intent, supporting papers, and letters of the founders you will find that requiring a member to put his vote on the 'record' in respect to his vote on any issue was paramount ~ i.e. ownership and responsibility of/to/for that vote. This was how his constituents could hold a representative 'accountable,' to formulate his vote at a later time.

This procedure is an internal parliamentary 'procedural' to get around that requirement ... and is on the face 'Unconstitutional.' If the Dems use this procedure, we will have a Constitutional crisis ~ and this procedure and the invalid vote would be challenged directly to the Supreme Court of the U.S.

Posted by: MiguelSaavedra | March 17, 2010 8:04 AM | Report abuse

The Senate was set up for a 60 vote majority for a reason... Because the Senators are not distributed by population. 2 Senators to each State. the House works from a pure majority stand point because the members each represent the same number of Citizens.

Posted by: DarthNole | March 17, 2010 2:41 PM | Report abuse

44 BC; Death of the Roman Republic
1933: Death of the Weimar Republic
2010: Death of the American Republic

It was nice while is lasted.
the Slaughter solution was quite well named.

Posted by: CarlosHawes | March 18, 2010 8:30 PM | Report abuse

The comments to this entry are closed.

 
 
RSS Feed
Subscribe to The Post

© 2010 The Washington Post Company