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DeMint's Curious Provision: Curious... But Inane and Not Unprecedented

December 22, 2009 - by Donny Shaw

With a parliamentary inquiry yesterday on the Senate floor, Sen. Jim DeMint [R, SC] stirred up a few interesting questions about a provision in the health care bill, along with a whole lot of outrage among conservatives. Video of the inquiry can be found here.

DeMint was questioning a provision of the bill contained in the section that would create a new “Independent Medicare Advisory Board” (the thing Sarah Palin refers to a “death panel”). The provision, Sec. 3403 (d)(3)(C), reads:

(C) LIMITATION ON CHANGES TO THIS SUBSECTION- It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.

Here’s what DeMint had to say about it on the Senate floor:

“This is not legislation, it’s not law; this is a rule change. It’s a pretty big deal. We will be passing a new law and at the same time creating a Senate rule that makes it out of order to amend or even repeal the law.

I’m not even sure that it’s Constitutional, but if it is, it most certainly is a Senate rule. I don’t see why the majority party wouldn’t put this in every bill. If you like your law, you most certainly would want it to have force for future Senates. I mean, we want to bind future Congresses. This goes to the fundamental purpose of Senate rules — to prevent a tyrannical majority from trampling the rights of the minority or of future Congresses.

Since he believes the provision is proposing an amendment to the Senate rules, he argued that 66 votes should be required to invoke cloture on the bill, not the usual 60, due to a Senate rule that requires a 2/3rds majority vote for changing Senate rules.

But the Senate Parliamentarian, a non-partisan Senate referee who was appointed by President Bush, disagrees. Responding to the parliamentary inquiry, the Parliamentarian ruled (via the Presiding Officer, Jeff Merkley [D, OR]): “the section of the proposed legislation addressed by the senator does not amend the standing rules of the Senate, and therefore its inclusion does change the number of votes needed to invoke cloture.” The Presiding Officer added that it “is quite common” to put binding legislation on future Congresses in bills.

Why would the Parliamentarian rule this way? John Wonderlich, blogging at the Open House Project, dug up a great law review article (.pdf) from University of Houston Law Professor Aaron-Andrew P. Bruhl that explains that these kinds of “statutized” rules are common in legislation, but generally do not carry much, if any, legal weight. From the article:

both chambers of Congress appear to have come quite firmly to believe that the Constitution grants them the prerogative to abrogate by unilateral action any statutory provision that concerns internal affairs within the purview of the rules power.  Their parliamentary guides are confident on the matter, stating that it “has been settled that Congress may not by law interfere with the constitutional right of a future House to make is own rules."

Indeed, as Wonderlich points out, just a few pages later the Senate health care bill even contains language specifically clarifying that “the constitutional right of either House to change the rules (so far as they relate to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.”

So, what’s the point of even including Sec. 3403 (d)(3)(C) in the bill if it can just be ignored? The answer’s not clear. Perhaps members of Congress put in language that seems to “statutize” the rules to satisfy a certain constituency, thinking they don’t realize that the language is actually non-binding. Perhaps members of Congress include such language in hopes that it will create some reluctance for future Congresses that may consider undoing their laws. Or perhaps members of Congress believes that statutizing a rule just one more time will lead to recognition of a precedent allowing such rules to have binding power.

Bruhl, the author of the article, provides this attempt at an answer:

One obvious possibility is that the Congress is just unwilling to commit itself fully. Like someone struggling to quit smoking, it promises up and down to abstain… unless it really needs a cigarette, in which case all bets are off.
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