House Majority Leader Steny Hoyer (D-Md) arguing for health care reform
Since I have become the de facto health care blogger on Fiat Lux, I think my post this week has to deal with the most recent parliamentary maneuver under consideration by Democrats for passing health care reform. It is called the Slaughter Solution, also referred to as “deem-and-pass.” It would allow the House to pass the Senate Health Care Bill prior to the Amendment “fixes” the Senate is planning to pass using reconciliation without actually voting on the bill.
I have come out in favor of the use of the parliamentary maneuver known as reconciliation in past posts to pass health care reform. There is no provision in the constitution that requires more than 51 votes to pass a bill, and if Democrats want to pass a bill using a simple majority, as Republicans did several times under Bush, I think that is fine. But this maneuver is different. This isn’t passing reform using a majority vote, its using legislative slight of hand to avoid a politically costly vote in the House, effectively allowing the House to pass the Senate Bill without ever actually taking a vote on it.
Byron Tau explains:
The House Rules committee is often called the “traffic cop” of the House – controlling what bills come to the floor and how much debate is allowed on each one. On each bill, they pass what is called a “rule” – a resolution determining what kind of debate is allowed on each bill. The whole House must first pass the rule, then the underlying legislation. In the case of “deem-and-pass,” the vote on the rule would also have the effect of passing the Senate bill. According to the CRS report linked above, the House has used this procedure at least six times between 1989 and 2005 with both parties in charge.
Stanford Law Professor Michael McConnell questioned the constitutionality of such a move in an editorial in the Wall Street Journal yesterday. At best, the move stands on shaky constitutional grounds. At worst, the move violates the constitution and goes against two previous Supreme Court cases establishing the need for a vote of both houses to pass legislation. True, it has been used at least six times by both Republicans and Democrats. But should the Democrats use it to pass health care reform? I think the answer should be no.
I support health care reform despite its flaws because I think the bills on the table in the House and Senate are better than the status quo, despite the lack of adequate cost controls and the likely delay of the excise tax to 2018. But I don’t think Democrats should have to resort to constitutionally shaky parliamentary moves to pass reform. The stakes are high – if a bill isn’t passed before the Easter Recess, there is a significant chance it is dead for good. But I think Democrats should focus their efforts on passing the Senate Bill via a real vote in the House rather than the constitutionally questionable “Slaughter Solution.”