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For Health Care, A Debate Over Process Threatens Policy

March 16, 2010 - by Eric Naing

Ironically, the legislative maneuver chosen to protect on-the-fence House Democrats from the political fallout of voting for the Senate health care bill (H.R.3590) could actually derail it. Conservative outrage over a plan to have the House pass the bill with a self-executing rule now has lawmakers arguing over process rather than policy.

For background on the self-executing rule, also known as “deem and pass” or the “Slaughter solution,” read our explanatory post here.

Conservatives are arguing that this “deem and pass" strategy is unconstitutional. But as Ezra Klein explains, this simply is untrue:

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.

And as Donny explained earlier today, “deem and pass” has been utilized by several previous Congresses, and by Republicans in particular.

The Atlantic’s Marc Ambinder also swats back the notion that “deem and pass” allows Democrats to pass the bill without voting on it:

In fact, [the Democrats] ARE taking an up or down vote on the Senate health care bill. They’re just doing it AT THE SAME TIME as they’re passing the reconciliation language, which countermands several controversial provisions. That is: House Democrats still have to vote for the so-called “Cornhusker Kickback,” and the “Gator Aid” provisions, but they’re going to do so while simultaneously passing the reconciliation fix that removes them. The two bills will essentially be merged into one vote.

But it’s still an up or down vote on health care — one that Republicans can use to bash Democrats with if they want to, but one that Democrats hope will provide them with some political cover — yes, they voted for the Senate bill, but they did so with its amendments attached.

Joel Benenson, President Obama’s pollster or choice, recently issued a memo warning Democrats that it’s process, not policy that is killing them in this debate. Politico highlights a key passage:

“Among both [Democrats and Independents], dissatisfaction is not focused on the broad outlines and goals of the Democratic agenda," write Benenson and his associate Danny Franklin. "Instead, it centers squarely on perceptions of a breakdown in the legislative process, exemplified by deal-cutting and special deals for the constituents of key swing Senators.”

At the same moment the president is traveling across the country to argue that the health care bill will provide coverage to tens of millions of uninsured Americans, Republicans are successfully pivoting from that policy argument to a complicated process argument that further reinforces the negative perceptions the public has of Democrats and how the bill has moved through Congress.

And now this debate over process is starting to sow dissent among House Democrats. The Hill reports that Blue Dog Rep. Jason Altmire [D, PA-4] has blasted the Democratic leadership for relying on both “deem and pass” and budget reconciliation:

There’s a lot of discomfort with the reconciliation process, the self-implementing rule, where you wouldn’t have a formal vote on maybe the most important policy of the past 40 years… I have a big issue with the way they’re doing the process. I think it’s wrong and my constituents don’t like it.

Altmire was a “no” vote on the House health care bill (H.R.3962) and has been considered “in-play” for the upcoming vote on the Senate bill. A big concern right now is whether Altmire and other on-the-fence Democrats use this conflict over “deem-and-pass” as an excuse to oppose the bill. And as I pointed out earlier, the supreme irony of all this is that House Speaker Nancy Pelosi [D, CA-8] originally saw “deem-and-pass” as a way to address the concerns of Democrats like Altmire.

To sum up: Democrats are correct on the merits. “Deem and pass” is not only constitutional, but also has a precedent in Congress. But this uproar over process is a problem of the their own making. Only on Capitol Hill would voting to approve a rule approving a bill be considered in any way different from voting for the bill.


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