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Passing the Health Care Bill Without Actually Voting on It

March 9, 2010 - by Donny Shaw

As House Democrats struggle to round up the votes to pass the Senate health care bill (H.R.3590), they’re considering more and more obscure parliamentary rules to help them.

Politico reports:

Party leaders have discussed the possibility of using the House Rules Committee to avoid an actual vote on the Senate’s bill, according to leadership aides. They would do this by writing what’s called a “self-executing rule,” meaning the Senate bill would be attached to a package of fixes being negotiated between the two chambers — without an actual vote on the Senate’s legislation.

Under this scenario, the Senate bill would be automatically attached to the reconciliation package, if the House passes reconciliation. In other words, Bill A would just become part of Bill B if the House passes Bill B, and the Senate could then vote on a reconciliation package before sending it to the president. This allows House members to approve the broader measure without actually voting on it. […]

This would allow them to deal with the Senate bill without forcing their members to go on record in support of unpopular items, like the now-infamous Cornhusker Kickback or the so-called Louisiana Purchase, that could be used against them on the campaign trail in the fall.

The article notes that this is far from a done deal. “The same aides who confirmed this process was under discussion quickly noted that party leaders have not yet arrived at a final decision.” But let’s still take a look at what this procedure actually is. Here’s the definition provided by the Congressional Reserach Service (.pdf):

Definition of “Self-Executing” Rule. One of the newer types is called a “self-executing” rule; it embodies a “two-for-one” procedure. This means that when the House adopts a rule it also simultaneously agrees to dispose of a separate matter, which is specified in the rule itself. For instance, self-executing rules may stipulate that a discrete policy proposal is deemed to have passed the House and been incorporated in the bill to be taken up. The effect: neither in the House nor in the Committee of the Whole will lawmakers have an opportunity to amend or to vote separately on the “self-executed” provision. It was automatically agreed to when the House passed the rule. Rules of this sort contain customary, or “boilerplate,” language, such as: “The amendment printed in [section 2 of this resolution or in part 1 of the report of the Committee on Rules accompanying this resolution] shall be considered as adopted in the House and in the Committee of the Whole.”

Unlike the budget reconiliation process, this is getting firmly outside the teritory of standard congressional procedure. The Congressional Reserach Service notes that this procedure has typically been used to “expedite House action in disposing of Senate amendments to House-passed bills.” But it’s contained in the congressional rules, and, as CRS points out, in recent years it has been used more and more often to enact significant (and sometimes contentious) legislation.

  • On August 2, 1989, the House adopted a rule (H.Res. 221) that automatically incorporated into the text of the bill made in order for consideration a provision that prohibited smoking on domestic airline flights of two hours or less duration.
  • On March 19, 1996, the House adopted a rule (H.Res. 384) that incorporated a voluntary employee verification program — addressing the employment of illegal immigrants — into a committee substitute made in order as original text.
  • H.Res. 239, agreed to on September 24, 1997, automatically incorporated into the base bill a provision to block the use of statistical sampling for the 2000 census until federal courts had an opportunity to rule on its constitutionality.
  • A closed rule (H.Res. 303) on an IRS reform bill provided for automatic adoption of four amendments to the committee substitute made in order as original text. The rule was adopted on November 5, 1997, with bipartisan support.
  • On May 7, 1998, an intelligence authorization bill was made in order by H.Res. 420. This self-executing rule dropped a section from the intelligence measure that would have permitted the CIA to offer their employees an early-out retirement program.
  • On February 20, 2005, the House adopted H.Res. 75, which provided that a manager’s amendment dealing with immigration issues shall be considered as adopted in the House and in the Committee of the Whole and the bill (H.R. 418) [REAL ID Act], as amended, shall be considered as the original bill for purposes of amendment.

Since the partisanship of the procedure will come up over and over if it does end up getting used for health care reform, I’ll give the historical facts now. Of the 6 contemporary uses of the self-executing rule the CRS gives, only one of them was done by a session of Congress that was controlled by the Democrats (101st session). The other five instances were carried out by sessions that were controlled in both chambers by Republicans (104th, 105th and 109th).

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