Wednesday, March 17, 2010

The political firestorm over 'deem and 'pass': What it is and why it matters

“Deem and pass”: It sounds either like a gentlemanly gambit on a State Dinner dance floor or the most polite entry in an NFL playbook. But in the fierce endgame of Washington’s health care debate, the maneuver is provoking a partisan firestorm.

It all began Monday, when House Speaker Nancy Pelosi told a gathering of political bloggers that although the deem-and-pass gambit is “more inside and process-oriented than people want to know … I like it, because people don’t have to vote on the Senate bill.”

What the ‘deem’ part means
The House can “deem” that it’s endorsing the body of a bill passed by the Senate when the Senate submits the reworked language needed to make both versions of a bill win ultimate passage. Critics of the present, hypothetical proposal to deem the Senate version of the bill passed also call it “the Slaughter rule” – both because it sounds so thuggish and because House Rules Chairwoman Louise Slaughter of New York would be executing the tactic.

Under deem-and-pass, the House Rules Committee (which lays out the terms of debate for any bill the chamber considers) essentially stipulates that the legislation has passed both chambers, ensuring that the body votes only on the final Senate adjustments to the bill.

The move would have the effect of passing the Senate bill without anyone voting to endorse it – and as Pelosi indicated, many House Democrats don’t want to go on record backing the Senate measure. Liberal Democrats like Pelosi don’t like the Senate bill because it doesn’t include the “public option” of a government-run health insurance plan. And moderate Democrats (or, really, any Democrats facing an uphill re-election fight this November) don’t like the pork-laden side deals folded into the Senate bill to secure the votes of wavering moderate Democratic senators like Ben Nelson of Nebraska and Mary Landrieu of Louisiana.

What the ‘pass’ part means
The reason that leaders like Pelosi are pondering this shift in tactics is that it will permit House Democrats to essentially sidestep a formal vote on the Senate bill – and all the political controversy that comes with it. The House had formerly been planning to amend the bill the Senate eventually passes, via its own controversial, debate-shortening method of reconciliation. A House-amended version of the reconciled Senate bill would allow House members to assure their constituents they were “fixing” the parts of the bill that were too unpalatable – or too unpopular – to win their endorsement otherwise. But the Senate parliamentarian ruled out that approach last week, announcing that the House could amend the Senate measure only after President Obama had signed it into law.

So under deem-and-pass, House Democrats get to claim credit for moving along an ambitious and historic overhaul of the health care system – but they will also have plausible deniability when they confront voters upset about features in the legislation like Ben Nelson’s infamous $45 million “Cornhusker Kickback” (something that the White House has pledged to drop as well).

Will they actually do it?
In one sense, the deem-and-pass maneuver is nothing exotic on Capitol Hill. It has been used to move other controversial measures through Congress, such as a ban on using statistical sampling in the 2000 census and the employment verification system to weed out illegal immigrants. And as with reconciliation, it is not the monopoly of either party. Brookings congressional scholar Thomas Mann told USA Today that the deem-and-pass maneuver was employed 36 times in 2005 and 2006, when the GOP had majorities in Congress, and 49 times in the Democratic-controlled sessions of 2007 and 2008.

That, understandably, is not how conservative opponents of the health care package see things. As a Wall Street Journal editorial argues, the tactic has mainly come into play in resolving fairly technical disputes over a legislation’s wording – “but never before to elide a vote on the entire fundamental legislation.” And indeed, legal scholars tend to agree that if the House presses forward with the method, it could expose the final health care law to serious constitutional challenges.

It may also be the case that the more tried-and-true method of backdoor arm-twisting will get enough wavering votes into the House’s “yea” column so that Democratic leaders will be spared the drastic application of deem-and-pass. President Obama logged one such win Wednesday, when single-payer supporter Dennis Kucinich of Ohio – a stalwart ‘no’ vote on previous versions of the bill – announced he’d now support the measure.

As Pelosi and her lieutenants ponder the next step forward, they might do well to heed the many political wags who have pointed out the ominous election-year undertones of the other parliamentary term for deem-and-pass: the self-executing rule.

– Chris Lehmann is managing editor of the Yahoo! News blog.

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