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Health Care Opponents Demonize 'Deem And Pass' As The Media Gets It Wrong [UPDATE]

Health Care

First Posted: 05/16/10 06:12 AM ET Updated: 05/25/11 04:50 PM ET

Another day in the health care reform debate brings with it another battle over parliamentary procedure, and another example of the media struggling to get some basic facts right. Today, the battle is joined over deeming resolutions, the process by which House Democrats may finally overcome hurdles and worries to get the process of passing reform moving forward.

The GOP has advanced the idea that the "deem and pass" process -- also known as "The Slaughter Rule" because the idea was suggested by Representative Louise Slaughter (D-N.Y.) -- is tantamount to passing health care reform without voting on it. The media has largely accepted, or at least lent credence to this premise.

But does that sound right to you, Marc Ambinder?

...that's wrong. House Democrats aren't doing that.


In fact, they 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.

Here's what's going on. The House is stuck having to basically pass the Senate health care bill, because the bill cannot be reconciled in conference committee. Why? Because it will be filibustered. However, House members are averse to doing anything that looks like they approve of the various side-deals that were made in the Senate -- like the so-called "Cornhusker Kickback." The House intends to remove those unpopular features in budget reconciliation, but if they pursue budget reconciliation on a standard legislative timeline -- where they pass the Senate bill outright first and then go back to pass a reconciliation package of fixes -- they'd still appear to be endorsing the sketchy side deals, and then the GOP would jump up and down on their heads.

Enter "deem and pass." Under this process, the House will simply skip to approving the reconciliation fixes, and "deem" the Senate bill to be passed. By doing it this way, the Democrats get the Senate bill passed while simultaneously coming out against the unpopular features of the same.

YES. All of this is basically motivated by concerns over perceptions and other such cosmetic bullshit. This is all about the House Democrats being scared out of their minds that they'll have to spend even an hour explaining, "No, we do not approve of the Cornhusker Kickback." But that's America, circa 2010. It makes the Democrats look timid, but it doesn't make them wrong.

This is now the third round of opposition that's been put before the media ever since the "Slaughter Rule" was first proposed. The first round featured Republicans going nuts about it, on the grounds that it was some sort of unprecedented legislative maneuver. Just like they said about budget reconciliation! Sadly, that doesn't bear up under scrutiny. As Ryan Grim reports, however, deeming resolutions are pretty darned precedented:

The first time that the chamber used what's known as a "deeming resolution" -- the mechanism Democrats are leaning toward using to pass the Senate health care bill through the House -- was March 16, 1933.


Then, as now, it involved a bill that had little support in the chamber among individual Democrats, but all of them knew they had to pass it. Very few Democrats want to vote for the Senate version of health care reform, but most are okay with it as long as it's amended through reconciliation.

Less than two weeks into FDR's first 100 days, Congress needed to raise its debt ceiling, a ritual vote that hasn't gotten any easier for the majority party in the intervening 77 years -- and is still political fodder for partisan opponents.

Instead of voting on the underlying Senate bill to raise the debt ceiling in 1933, the House voted on Resolution 63, which stated that "immediately upon the adoption of this resolution the bill H.R. 2820, with Senate amendments thereto, be, and the same hereby is, taken from the Speaker's table to the end that all Senate amendments be, and the same are hereby, agreed to."

More recently, Grim notes that deeming resolutions were used by Republicans "36 times in 2005 and 2006," and by Democrats "49 times in 2007 and 2008."

The second salvo from health care opponents arrived in the form of complaints that Louise Slaughter once opposed the use of her own "Slaughter Rule" on the grounds that it was unconstitutional. As Ezra Klein explains, that's true:

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.

Of course, the fact that Slaughter learned that deeming resolutions were entirely above board is probably what informed her decision to employ a deeming resolution!

I don't think anyone captured the baseline of this ongoing back-and-forth raging over parliamentary procedures better than Matt Yglesias, who writes, "Everyone knows that 100 percent of the people who like the underlying health care bill will approve of the use of the procedural mechanisms necessary to enact it, whereas 100 percent of the process-objectors will also be people who don't like the bill." It stands to reason that if all the majorities were flipped and the GOP was about to use "Deem And Pass" to get something passed, they'd pull the trigger on it and never look back.

There's no doubt at all that this legislative obscuranta is confusing. But it's not impossible to explain, you just have to want to explain it. Unfortunately, the media is doing a terrible job at this task. Per Byron Tau, over at The New Republic:

But the way that some journalists are describing it, you'd think the House Democrats were willing a bill into law by magic. "House may try to pass Senate health-care bill without voting on it," blared a Washington Post headline. The Post's only explanation of the tactic came from Nancy Pelosi, who said, "It's more insider and process-oriented than most people want to know."


The Wall Street Journal editorial board went even further, beginning their editorial with a cutesy fairy tale setup:

We're not sure American schools teach civics any more, but once upon a time they taught that under the U.S. Constitution a bill had to pass both the House and Senate to become law. Until this week, that is, when Speaker Nancy Pelosi is moving to merely "deem" that the House has passed the Senate health-care bill and then send it to President Obama to sign anyway.

None of this is new! Does one side want health care and the other side not want health care and nobody wants to compromise? Yay! SHINY HORSE RACE FOR THE MEDIA TO COVER. Who cares if the contention that Nancy Pelosi wants to pass health care reform without a vote is a lie? To the political press, a lie is just an "interesting point of view."

UPDATE: Norm Ornstein weighs in: "Any veteran observer of Congress is used to the rampant hypocrisy over the use of parliamentary procedures that shifts totally from one side to the other as a majority moves to minority status, and vice versa. But I can't recall a level of feigned indignation nearly as great as what we are seeing now from congressional Republicans and their acolytes at the Wall Street Journal, and on blogs, talk radio, and cable news. It reached a ridiculous level of misinformation and disinformation over the use of reconciliation, and now threatens to top that level over the projected use of a self-executing rule by House Speaker Nancy Pelosi." More here.

[Would you like to follow me on Twitter? Because why not? Also, please send tips to tv@huffingtonpost.com -- learn more about our media monitoring project here.]

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