Donny Shaw of OpenCongress takes a hard look at what Deem and Pass has been used for with an in depth look at six specific examples.
Warning–spoiler alert–Health care reform isn’t in the same hemisphere.
Five of the six examples he lists were made by the GOP when they controlled both the House and the Senate. The sixth example occurred in 1990 while both chambers were controlled by Democrats.
1. Resolution containing self-executing rule:
101-H.Res. 221 – Waiving certain points of order against consideration of the bill (H.R. 3015) making appropriations for the Department of Transportation and related agencies for the fiscal year ending September 30, 1990, and for other purposes.Legislation that was deemed passed under the rule: Made in order for consideration a provision that prohibited smoking on domestic airline flights.
Vote to pass the rule: Agreed to by the Yeas and Nays: 259 – 169 (Roll no. 204)
2. Resolution containing self-executing rule: 104-H.Res. 384 – Providing for consideration of the bill (H.R. 2202) to amend the Immigration and Nationality Act to improve deterrence of illegal immigration to the United States by increasing border patrol and investigative personnel, by increasing penalties for alien smuggling and for document fraud, by reforming exclusion and deportation law and procedures, by improving the verification system for eligibility for employment, and through other measures, to reform the legal immigration system and facilitate legal entries into the United States, and for other purposes.
Legislation that was deemed passed under the rule: incorporated a voluntary employee verification program, addressing the employment of illegal immigrants.
Vote to pass the rule: Agreed to unanimously by voice vote.
3. Resolution containing self-executing rule: 105-H.Res. 239 – Providing for consideration of the bill (H.R. 2267) making appropriations for the Departments of Commerce, Justice, and State, the Judiciary, and related agencies for the fiscal year ending September 30, 1998, and for other purposes.
Legislation that was deemed passed under the rule: Incorporated a provision to block the use of statistical sampling for the 2000 census until federal courts had an opportunity to rule on its constitutionality.
Vote to pass the rule: Agreed to unanimously by voice vote.:
4. Resolution containing self-executing rule: 105-H.Res. 303 – Providing for consideration of the bill (H.R. 2676) to amend the Internal Revenue Code of 1986 to restructure and reform the Internal Revenue Service, and for other purposes.
Legislation that was deemed passed under the rule: Provided for automatic adoption of four amendments to the committee substitute made in order as original text.
Vote to pass the rule: Agreed to unanimously by voice vote.
5. Resolution containing self-executing rule: 105-H.Res. 420 – Providing for consideration of the bill (H.R. 3694) to authorize appropriations for fiscal year 1999 for intelligence and intelligence-related activities of the United States Government, the Community Management Account, and the Central Intelligence Agency Retirement and Disability System, and for other purposes.
Legislation that was deemed passed under the rule: Dropped a section from the intelligence measure that would have permitted the CIA to offer their employees an early-out retirement program.
Vote to pass the rule: Agreed to unanimously by voice vote.
6. Resolution containing self-executing rule: 109-H.Res. 75 – Providing for further consideration of the bill (H.R. 418) to establish and rapidly implement regulations for State driver’s license and identification document security standards, to prevent terrorists from abusing the asylum laws of the United States, to unify terrorism-related grounds for inadmissibility and removal, and to ensure expeditious construction of the San Diego border fence.
Legislation that was deemed passed under the rule: Changes related to asylum law.
Vote to pass the rule: Agreed to by the Yeas and Nays: 228 – 198 (Roll no. 27)
I’m a fan of Nancy Pelosi’s. She has, time and again, delivered on bills such as HCR and Cap&Trade, unlike her sad little shadow in the Senate. But when I see her admit this:
It is one of three options that Pelosi said she is considering for a late-week House vote, but she added that she prefers it because it would politically protect lawmakers who are reluctant to publicly support the measure.
“It’s more insider and process-oriented than most people want to know,” the speaker said in a roundtable discussion with bloggers Monday. “But I like it,” she said, “because people don’t have to vote on the Senate bill.”
I cringe for the future of the Democratic Party primarily because the slippery slope never looks all that slick, until you’re on the other side. The average voter is going to view this as the Democrats pulling the ultimate sneak move to get something passed that they may or may not have the votes for in the House.
And the Democratic Party, if they engage in this tactic, is going to rue the day when the Republicans do the same thing down the road. We leave ourselves without a leg to stand on if we choose this course.
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“Deem and Pass” “Demon Pass” “Slaughter-Rule” “Self-Executing Rule,” No matter what you call it, this undermines the legislative process.
For once, set the partisanship arguments aside. This is bad for everyone involved. It is a sneaky move when either party uses it, but to use it on such a key peice of legislation is down-right BS! Regardless of the ends sought, the means would do more damage to the process than any possible gain.
The President gave the Republicans a national forum to be bi-partisan. They just said start all over.
They will try and block everything the Democrats propose. If they keep that up, even if we lose the majority we can do the same. They have abused the filibuster
1.) this is not about the filibuster
2.) There needs to be a better reason than, “the republicans did it” or “it would be easier to do it this way”
I think there’s precedent for it and Republicans may not like it but God knows they used it on some pretty big budget items. But this?
If this is such a genius alternative, how come none of us–not a single politician, not a single economist, nor health care analyst nor blogger/community genius has ever once mentioned this as an alternative in the last 14 months? You know why? Because it’s a sneaky, underhanded last ditch maneuver designed to save some Democrats asses–yes, Betsy Markey, I am looking at you.
David Waldman has written about this and other options in detail for some time now. You can also find some other viewpoints on how and when it was used in the past.
It’s important to clarify what this procedural technique is being used for. It’s NOT to prevent democrats from having to vote for the health care bill. It’s to prevent them from having to vote for something that’s not the health care bill, that contains unpopular provisions that will never have the force of law.
When it comes to the actual bill, the one whose provisions will actually take effect, democrats are going to stand up and publicly vote on it.
So why does one party want democrats to have to record votes in favor of a bad bill that isn’t going to pass anyway? Well, I think we know the answer to that.
by “isn’t going to pass anyway”, I meant isn’t going to ever have the force of law. It will technically pass, then be immediately ammended.
I wonder how many Republican challengers are waiting for an “up-or-down vote” on the “Cornhusker Kickback” which will never see the light of day as a law…
I don’t find the use of ‘deem-and-pass’ in this instance odd at all; the House is taking a single vote on the entire health care reform package. What’s so wrong about that?
…that you can’t reconcile a bill that hasn’t been passed yet? Doing it in one step is wrong. That’s what conference committees were made for. They voted on a bill that was acceptable to them. The Senate voted on a bill that was acceptable to them. But using two different backhanded, sketchy procedural moves to pass a bill that Americans flat-out do NOT want is wrong.
Backhanded, sketchy procedural moves… Hmmm… Moves that both parties have regularly used in the past to pass legislation? Hmmm…
Sounds like you’re just angry you’ll have to change your signature soon.
…that only the part about health care deform passing would have been wrong. The part about Democrats losing their shirts for it would not. And it would only pass because of bribery, arm-twisting, and flat-out unconstitutional procedures. If it passes, prepare for a major legal challenge. If it is upheld in the courts (I can’t imagine how a SC justice wouldn’t understand the Presentment clause), count on every Republican (and Democrats in swing districts) campaigning to have it repealed.
But we still haven’t even seen the vote. You know, on the reconciliation package, not the legislation we’re actually talking about.
“Insurers have a Constitutional right to deny you coverage! That’s what the Founding Fathers intended!”
If Republicans really thought campaigning to repeal the bill would be easy, they wouldn’t be doing everything they could to keep it from passing. Whatever the polls say about the bill now, once it becomes law people will start taking it for granted.
As for “bribery, arm-twisting, and flat-out unconstitutional procedures,” the first part is false, the second part is how all legislation is passed, and the third part is just silly. Each house of Congress gets to make up its own rules, per the Constitution.
The Supreme Court has traditionally been reluctant to interfere in purely political matters. Of course it wouldn’t be surprising if this Court abandoned that precedent, but still I doubt they would try to throw out the entire bill on a technicality.
I would be shocked if the Supreme Court got involved here. I beleive the term is non-justiciable.
Certainly a political question.
Insurance is an industry based on actuarial risk management. When you take out the risk, you no longer have an insurance industry, just a bunch of shell organizations that act on behalf of and at the direction of the federal government. Another way to put that would be “government run health care.”
There is ample evidence of job offers and sweetheart deals used to purchase the votes of members of Congress…clear bribery. Arm twisting, I agree, goes on all the time, but this has been particularly aggressive arm twisting. And the Constitution is clear, and it supercedes any rules made by the House and Senate. It says that any bill, before it becomes law, must be voted on (in the same form) by both houses, and then presented to the President. And no bill can be “reconciled” until it becomes law (don’t take my word for it, that’s what the Senate parliamentarian said last week).
I’m not confident the legal challenge will succeed, but I am confident that this bill is absolutely atrocious and I’m willing to do whatever it takes to make sure it dies a swift and brutal death. So are Republicans in Congress, because they know how bad it is for America. Your argument is like saying, “hey, the Republicans have a gun to their head but they aren’t really confident they’ll survive the wound so they’re trying to dodge it. If they were confident they would survive, they would just stand their and take the bullet.” You see how stupid that argument is? They (read: America) don’t want to take such a huge risk.
The one and only thing that would give me hope is the fact that Republicans can use equally unscrupulous procedural maneuvers to repeal the bill. No need for a super majority in either house. Just the White House. Which should be in just enough time before most of the bill goes into effect.
Which part do you hate so much that you want it repealed? We could have a reasonable discussion about various aspects, if you really hate the bill because it’s bad for America, or you could keep doing this Red Dawn schtick because the bill represents Communism or Nazism or the boogieman or the devil. One of these might not be productive, but the other one certainly won’t be.
Which parts of the bill do you hate?
The ability to sell insurance across state lines?
Death panels?
Free healthcare for illegals?
Forced abortions?
The part that says pre-existing conditions cannot be the basis for denial?
this process is legitimate. A number of bills have been passed this way–more by Republican congresses that Dem–and the Republicans defended it, successfully, in court. You are reading a few legal critics and ignoring the Constitution, the House rules and the precedents.
As for “Americans flat-out do NOT want” this bill, you are reading the first line of some polls and ignoring the rest of the information. About a third of those who oppose this bill do so because they want a stronger bill. Thus, the polls show a strong majority of Americans want this bill or something more progressive. They do not want to kill reform, they do not want to “start over” when starting over will mean nothing passes.
Dems will suffer more in the next election if they do not pass reform. But the important thing is not the election outcome but that by passing HCR they will have done the right thing for the American people.
Is that the bill passed both houses with super majorities. Ordinary folks are beginning to think that Dems are doing this for the bill as a whole, which is a dangerous message for anyone who’s running in Nov. Dems better get their messaging nailed down…
with a super majority, it just squeaked by.
Which is why Pelosi is pulling insane BS like this out of thin air.
If you’re right, and it doesn’t have the votes, it will fail. This “insane BS” is about whether to have a second vote, on a bill that’s never going to take effect.
I agree that they shouldn’t waste time voting on a bill that’s never going to take effect.
Uh…doesn’t have to. Majority vote. As required in the Constitution. The House, after all, is the democratic branch, unlike the Senate.
My point was that Moderate wasn’t right saying it had.
with a super-majority either. Including Scott Brown, it got 59 votes – not enough to break a filibuster.
It had 60 votes when it passed.
…he was elected.
but it doesn’t change the vote that already took place. Or the fact Democrats could win approval for a conference report if Republicans weren’t using a procedural trick to keep the Senate from being able to cast an up-or-down vote.
Obama was elected because of any number of things that shrub did.
Doesn’t mean they didn’t happen.
The average voters doesn’t give a flying f*ck what procedure Congress used to pass legislation.
Sorry, it simply does not matter. Let Republicans stand up there this fall and argue against arcane procedural maneuvers while Democrats point to the end of abusive insurance practices and see how voters react. Democrats bitched and moaned about the filibuster (a concept that some people have vague familiarity with) for the past year and a PEW poll in January showed that about 25% of Americans had any idea that the GOP was forcing 60 vote clotures on every bill.
Results are all that matters in politics, I’m glad that the Democratic Party seems to have finally figured this out.
that some well-meaning Democrat will not try to sabotage other Democrats over it. Thanks Middle of the Road. This is why we can’t have nice things.
From Norman Ornstein:
The rules are the rules. There’s no such rule that says “We can do this, but only if it’s below a certain cost,” or “we can do this, but only if it doesn’t sound like a Nazi plan when you name it after Louise Slaughter,” or “we can do this, but only if Rush Limbaugh says it’s OK.” The rules of the House allow this to happen.
There is still a vote on the bill. It still needs a majority in the House to pass. It just combines two bills into one. The Senate passed bill A. The House passes bill A and B together. Then the Senate passes bill B. They’ve passed the same bills. What’s the problem?
to remind us that any Democrat that doesn’t agree and walk lock step with the rest of you is just “sabotaging other Democrats.”
Maybe you ought to reread your own linked article.
Oh and by the way? $40 billion doesn’t quite fall into the same category, same hemisphere or same logical argument as passing a $900 billion bill. Enjoy it while it lasts ’cause you’ll be the first one on this blog bitching up a storm when the Republicans use it on something you despise.
is that the House is having a very clear up or down vote about that 900 billion dollar bill. It’s scheduled for approximately noon on Sunday, last I heard.
What they are not having a vote on is the incomplete version that involves a bunch of earmarks and bad ideas… a version that isn’t going to take effect anyway.
but I appreciate your thoughtful input, cdsmith. Thanks much for that.
that the House is voting on the health care bill on Sunday? It’s a fact.
Fuck me, what about the actual people who are trying to accomplish something in Congress? What about the President? What about health care? What’s more important to you, bullshit talking points or passing health insurance with a majority vote?
I’m not surprised that Democrats criticized this in the past, but I’d be surprised to see many well-meaning Republicans criticizing their own party for doing it.
And how is a $40 billion bill different from a $900 billion bill? Because one can be bold-faced? Here, watch this. A $40 billion bill!
And yes, I’ll probably complain about Republicans passing legislation I don’t like. That’s why I actively work against Republican priorities. Because I disagree with them. If you think I’ll spend a lot of time trying to shame them by bitching about process bullshit nobody actually cares about, you don’t know me or Republicans very well.
I thought you, of all people, could do math.
Answer? It’s different by about $860 billion.
One of them is destroying the Republic and Democracy, the other is utterly noncontroversial. They both seem like pretty big numbers to me.
Do you have $40 billion under your couch cushions? Do you have to wait until Friday for your $900 billion paycheck? Where is this idea coming from that one of these numbers is tiny and the other is gigantic?
40,000,000,000
900,000,000,000
Just to clarify sxp:
You are saying that there is not a real difference “in principle” between $40 billion and $900 Billion?
This is the kind of thinking that gets republicans elected!
that was hilarious.
then you should sign up for some math tutoring.
The $900 billion is in the Senate bill–passed by the Senate with 60 votes, and will be passed by the house accepting the Senate bill. Remember the House already passed their own bill, now set aside, with similar numbers. So both houses have passed $900 billion bills, and soon both will have passed the same $900 billion bill.
This proposed process reduces the deficit by about an additional $25 billion over ten years (beyond the Senate bill). You compare this process to a “$40 billion deficit reduction package.” Different, yes–less money involved. If your concern is about the process, the difference is $15 billion less, not $860 billion more.
This HCR bill passed the Senate. It will now pass the House, on a Yea and Nay vote entered into the Journal (as required by the Constitution), and then in that same vote be amended.
The reconciliation part cuts the deficit by about $25 billion in the first ten years over the cuts in the Senate bill. That seems to me to be within “the same category, same hemisphere or same logical argument” as $40 billion.
Look around these intertubes a bit more. There are lots of legal, legislative and constitutional experts who give a much different view from this diary and comments. Even Rep. Eric Cantor had to admit today that this process is entirely proper.
because he couldn’t pass legislation. Passing legislation is not always a matter of getting everyone to agree. There are some things on which people just don’t agree, at all. Sometimes this is due to ideological disagreements, and sometimes it’s due to one party wanting the other to fail to win the next election, and sometimes it’s both.
Historically leaders got legislation passed by convincing people it was a good idea, by trading votes on other bills, and by using parliamentary rules to their advantage. (In varying amounts, of course.)
It’s hardly fair to simultaneously complain about how weak leaders are when they don’t do this, and complain about how aggressive they are when they do. Passing legislation is hard work, and it looks ugly sometimes. But that’s how we’ve gotten things passed.
Look at the parliamentary history of the 1964 Civil Rights Act. There are people who praise Congressional leaders for being able to pass a bill like this, in spite of obstructionism. It didn’t come from holding hands.
and I think Nancy Pelosi has done a shit ton of work along these lines to get this bill done. I won’t say she didn’t do some horse trading or arm twisting, but you are right, that is what is needed now.
IMHO this lady deserves a lot of credit – Reid, not so much.
and I think the general population will not rise to the bait. You can’t fool all of the people all of the time and the majority is tired of this “stuff”
its a parliamentary rule that the members agree to by being in the body. Controlling proceedings is the primary spoil of being majority party. The GOP has no problem using rules to its advantage, just like it is now–blocking over 250 pieces of legislation that have already passed the House by refusing to allow companion bills to come to the floor in the Senate, screaming NOOOOOO!
Why make the House vote on two bills? Let’s get all the drama over with. I am so very glad that Rep. Boehner and Sens. McConnell and Graham care so deeply about the fate of their opponents–in not wanting then to face electoral difficulties having voted for this bill, but excuse me if I suspect their motives a tad.
It is time, in the words of Larry the Cable Guy, to:
Git R Done
someone has a camera on Boehner after the vote. I want to watch his head explode.
which is saying something…
who not only dosen’t know what the hell is going on, he dosen’t care (in classic Bushy style). How someone with such a mediocre background, whose two main hobbies are drinking and golfing, came to be minority leader is amazing to me.
So that their 527’s can run ads saying that they voted for some wacky stuff- theat won’t be in the final bill.