I've argued that the use of a self-executing rule is constitutionally and legislatively valid. Now I'll argue that the Democrats seem to have completely bungled the very legit procedure they hope to use to give wavering moderates some cover. Quite simply, no one seems to have explained the rule to them in a way that they can understand and explain. The rule that governs voting for the reconciliation bill will include language that says that the House accepts the entire text of the Senate bill.
As Jack Balkin writes, "The House must say that the House has consented to accept the text of the Senate bill as its own political act.
" The reconciliation rule language will say precisely that. Assuming the Senate passes the reconciliation bill, Obama will still have to sign TWO bills into office. House Democrats will be on the hook, collectively, for the unpopular Senate bill. What they'd gain, in theory, is the ability to say, look: we know the Senate bill stinks. That's why we consented to its passage only by immediately passing a bill to fix all those thing we didn't like. It's an up or down vote without each member having a roll call vote -- that's basically the advantage.
I don't think any Democrat is going to claim to have voted against the Senate bill but voted for health care -- and if they do, they'd be lying. The short term benefit of not being forced to take a roll call vote on the Senate bill may be outweighed by the long-term consequences of their fear-based (but, again, legit) tactic. Republicans have galvanized around the talking point that Democrats are using tricks to avoid taking responsibility for the vote. They're right. The rule is being used to allow Democrats running for re-election to avoid having their names attached to the Senate's compromises and deals.
At a briefing today, Majority Leader Steny Hoyer said that Americans
don't care about process; that's not true. Indeed, one reason why
Democrats have suffered politically from health reform is because
Americans (prodded by Republicans) really got into a funk about the
process. His colleagues don't seem to understand that every bit of the Senate bill will be included in the rule that will govern the reconciliation bill. So there will be an up or down vote -- albeit a collective one -- on the Senate bill. To claim otherwise -- to oversell the case, as James Clyburn, the majority whip in the House did on Fox, is to invite the type of criticism that Republicans are only happy to provide.