Slaughter House Rules - Passing the health-care bill | Hacker News Reader

Slaughter House Rules - Passing the health-care bill

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10 pointsbenpbenp24 comments

It's silly to rail against this when this situation is being caused by the filibuster being used by Republicans in the senate.

I recently found out that it was in the last 50 years that the Senate implemented dual-tracking, which lets the senate just move on when there is a filibuster threat, drastically reducing the consequences of doing so for the minority party. Some details are here:

http://voices.washingtonpost.com/ezra-klein/2010/03/how_dual...

I suspect the democrats would have fared better if they forced the republicans to filibuster 24/7 until public opinion turned against them for delaying work on other bills. It's important to remember that you only need 50 votes to pass the bill; 60 people only have to agree to let a vote happen. However, the democrats seem to have a much less effective political machine, so I can't imagine them making a move like this.

Strange, I've read elsewhere that the cloture process was established in 1917.

To be more precise: if it weren’t for the filibuster, the House and Senate could have just reconciled the differences between their health-care reform bills in a conference committee, and the whole thing could have been passed the way we learned about it in Schoolhouse Rock. But the conference committee’s version of the bill could be filibustered again, and the Republicans are determined to do everything in the power of their 41-vote minority to block the bill.

The House could just pass the Senate bill and then pass a separate bill (through the budget reconciliation process, which may not be filibustered) that incorporates the compromise, but House Democrats seem to be afraid that once the Senate Democrats get their bill passed, they won’t cooperate with the second bill. (“The Republicans are the opposition. The Senate is the enemy.”)

I haven't seen anyone explain how the prospect of Senate "betrayal" is diminished by application of the Slaughter rule, especially after the Senate parliamentarian ruled that reconciliation cannot commence until the original Senate bill is passed and signed into law by the President.

The Constitution states (Article I, Section 5) that “Each House may determine the rules of its proceedings”, and even though the self-executing rule strikes me as a way to hack parliamentary procedure, every member who votes for that bill will know what its effect will be.

Also, the Republicans had no aversion to using self-executing rules back when they were in power. (http://mediamatters.org/research/201003150041)

Self-executing rules may have issues, certainly, but this is the first time I've heard a fuss being made about that part of the Slaughter rule.

Everyone else is focusing on the prospect of the House "deeming" the Senate bill as being passed without actually voting on it. If you look at the actual "Right Wing Media" words that are quoted by Media Matters, you'll see that none of them include "self-executing".

This is an attempt at misdirection that doesn't hold up to even minimal examination.

Look at the quote from the CRS report:

This means that when the House adopts a rule it also simultaneously agrees to dispose of a separate matter, which is specified in the rule itself. For instance, self-executing rules may stipulate that a discrete policy proposal IS DEEMED TO HAVE PASSED THE HOUSE and been incorporated in the bill to be taken up. The effect: neither in the House nor in the Committee of the Whole will lawmakers have an opportunity to amend or to vote separately on the "self-executed" provision. It was automatically agreed to when the House passed the rule.

That report is from 2006.

You still need to come up with an example where the final language for a bill was "deemed" passed without actually being voted on. As far as I can tell from these excerpts, they apply to the process prior to final passage.

ADDED: if the Republicans had "deemed" the final language of a bill as being passed without actually holding a vote on it don't you think the Democrats would still be screaming about how they had "shredded the Constitution!" etc. etc.?

edit: Oops, was wrong about the jobless bill, n/m

Newt and Hastert have also made extensive use of this provision as well. It's tough to dig up news items on it as it wasn't controversial back in the day. Hastert was particularly keen on using it and the zenith of Bush's unpopularity as it allowed him to shield the president's massively unpopular legislation from house votes.

I’m really not enough of a politics junkie to know when this maneuver was used for the final language of a bill and when it was used for something else. It seems clear to me, however, that if the maneuver is constitutionally OK for one kind of House resolution, it’s OK for every kind of resolution.

Nothing is being “passed without actually being voted on”. There will be one vote, which will simultaneously have two effects: one described by the procedural rule, and one described in the text of the bill itself. Every Representative who votes on the bill will be perfectly aware of those two effects and can choose to vote yea or nay accordingly. And then the majority will rule, which is more than we get from the Senate.

OK, but I think it would be best to focus on the point that your opponents are arguing about, a final up or down vote on the final language of a bill, and not the red herring of how the sausage that comprises that bill has been made.

Especially in the current context where everyone has had a chance to analyze the 2,700 pages of the Senate bill that was passed ~ 2.5 months ago.

Sometimes when a system is broken, hacking is the only way of getting something useful out of it.

Oh please. Since when is something published on the opinion pages on the WSJ -- or any newspaper for that matter -- anything other than a political hit piece?

I'm shocked that people are shocked that the party in power will bend the rules to serve their own ends. I'm sure if you look back to the heady days of the Bush administration, you would find opinion pieces written in the New York Times railing against how "we have entered a political wonderland" when the tax cuts, etc. were passed.

Your argument might have more weight if you could point to a process abuse akin to "deeming" a bill as being passed without actually voting on it, especially if that bill is signed into law as required by the Senate parliamentarian but the Senate never manages to pass the reconciliation bill (the only one the House would actually vote on).

In the history of the Republic I can't remember anything even close to this.

If you don’t remember it happening before, it’s because nobody has made this much noise about it before. When Newt Gingrich was Speaker of the House, for example, this very process was used 90 times. See the link I posted in my other comment.

A process of "deeming" a bill passed without actually voting on it?

As I noted in my reply, "self-executing" is a red herring.

"tu quoque" (party A did this so that makes it right for party B) is not a valid argument. If it was unconstitutional then, it's still unconstitutional now (even if it's now a tradition). (Cf. Gephardt Rule)

how can facebook organize 400M people to tell each other what they ate for lunch, and yet we can't get ourselves organized to put pressure on the 535 people who are so interested in protecting their career politician status that they won't solve a single long term problem?

I'm upvoting this because as a political junkie I believe a historical change is underway in how the United States government operates. As such, these changes should be important to small business owners from here on out, no matter what your party or policy preferences are. i.e., it's not just about the current party or current proposed law.

But heck if I'll make a comment about the politics. While the overall story is historically important, bickering over the individual case here doesn't seem like a good use of time for anybody.

Indeed. Process changes, to the lower case "c" constitution (e.g. on the filibuster) or upper case "C" Constitution (potentially this one) are very important.

Changing the rules of the game will result in unknowable consequences, and as long as limited government is a distant memory our part of Main Street has to pay attention.

E.g. look at the Dodd bill that will decrease the number of angel investors by raising the net worth threshold and by either adding bureaucratic friction and delay or devolving regulation to the states. For all we know, angel financing in California could cease to exist in a few months or years.

(That's a different sort of "changing the rules of the game", but one of particular interest to all of us.)

One rhetorical question, simply because I find the meta subject fascinating.

I wonder just how much the House is allowed to set it's own rules of conduct? Could, for instance, the Congress decide that whatever bills the president proposes would have the full effect of law without a follow-up vote?

I think the answer is no, but I'm not completely sure. Congress has ceded a heckuva lot of authority already to the executive branch in terms of regulatory authority. If the answer is no, then where is the line and who the heck would adjudicate? The Supreme Court? The Court has been extremely hesitant to go anywhere near the legislature, and for good reason, but if a majority party were to cede all voting rights for the body, I'm thinking somebody somewhere would have to call them on it. I guess that means the Supremes do have something of a role in the legislature.

It's also interesting that something has to go wrong, or there has to be a big political firestorm, and then suddenly everybody is a constitutional scholar. Kind of civics class by crisis. What a country.

"Kind of civics class by crisis."

And one should be cogent of the maxim that "Hard cases make bad law." That from the judicial side of things, but apropos here.

On the other hand, I think we're fortunate to have a meta-process that the public is involved in, that seems to work better than a lot of the alternatives.

As for your question and uncertainty, I've seen quite a bit of good discussion at The Volokh Conspiracy in the comments to various postings (http://volokh.com/, it's a high quality group law blog by various law professors and the like). (In fact, if you haven't visited it before, check it out, all sorts of tasty stuff right now, e.g. the 11th Circuit has just made what is possibly a bad ruling on email and 4th Amendment search and seizure. I wish I had time to follow it...).

In the discussions you'll find some comments on at least one prior ruling by the Supremes in this area; they are very reluctant but not entirely so.

While the House has very broad discretion to make its own rules, the Supreme Court case striking down the line item veto provides pretty strong authority for saying that a "deemed enacted" method of purporting to pass a bill would violate Article 1, Section 7 of the Constitution.

According to Article I, Section 7, in order for a "Bill" to "become a Law," it "shall have passed the House of Representatives and the Senate" and be "presented to the President of the United States" for signature or veto. Unless a bill actually has "passed" both Houses, it cannot be presented to the president and cannot become a law.

In striking down the line item veto, the Court (in the case of Clinton v. City of New York (1998)) rested its decision squarely on the requirements of Article 1, Section 7, stating as follows:

"[O]ur decision rests on the narrow ground that the procedures authorized by the Line Item Veto Act are not authorized by the Constitution. The Balanced Budget Act of 1997 is a 500-page document that became 'Public Law 105-33' after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may 'become a law.' Art. I, sec. 7. If one paragraph of that text had been omitted at any one of those three stages, Public Law 105-33 would not have been validly enacted. If the Line Item Veto Act were valid, it would authorize the President to create a different law, one whose text was not voted on by either House of Congress or presented to the President for signature. Something that might be known as 'Public Law 105-33 as modified by the President' may or may not be desirable, but it is surely not a document that may 'become a law' pursuant to the procedures designed by the Framers of Article I, sec. 7, of the Constitution."

Michael McConnell, a Stanford constitutional law scholar, explained the problem with the Slaughter rule ("deemed enacted") as it would apply to this case:

"The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form."

Ergo, a clear violation of Article 1, section 7, as recently interpreted by the U.S. Supreme Court. This is not so much a political issue as a legal one - if this rather desperate approach is used to attempt to pass this bill, it will very likely be struck down as unconstitutional, notwithstanding the House's otherwise broad discretion in regulating its own affairs.

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