The Bipartisan Consensus Against 'Deem and Pass'

Will House Dems use the procedural tactic anyway?

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As we slog through the week, which the White House says it expects will end with the passage of health care, all the pressure is on House Democrats. Though they previously passed a reform bill, they must now pass the moderately different Senate version, as well as a separate package through reconciliation. House Dems, apparently worried they may lack the votes to pass the Senate version, are considering using a procedural tactic call "deem and pass."

The move, which has been used by Republicans and Democrats many times previously, is nonetheless controversial because of the sheer size of health care reform. It would allow the House to pass the separate amendments package, for which it has the votes, and then simply "deem" the Senate bill to be passed. The House Rules Committee has released a memo defending the procedure, which is either a mere test balloon or a serious effort to pave the way for using the deem and pass. But pundits across the spectrum--with a couple of notable exceptions--think this is a bad idea. Here's what they're saying.

  • Unconstitutional Affront  The Wall Street Journal is absolutely furious. "This two-votes-in-one gambit is a brazen affront to the plain language of the Constitution, which is intended to require democratic accountability." Dems will "leaving behind a procedural bloody trail that will fuel public fury and make such a vast change of law seem illegitimate to millions of Americans."
  • Symptom of Broken Congressional Rulebook  The Washington Post's Ezra Klein looks at the big picture: Dems use poisonous tools like this because Republicans rely on filibusters. "The whole thing is nuts, and it's done by both parties. The variables here are majority and the minority, not Democrats and Republicans." He says it's time to "clean the rulebook" once and for all. "This world where loopholes keep transforming Congress has created a norm of legislating using any process you can concoct, rather than in a single, agreed-upon fashion."
  • Pelosi Herself Opposed 'Deem'  The Washington Examiner's Mark Tapscott points out that Dem. Speaker Nancy Pelosi joined a 2005 District Court case on behalf of Citizens United, which was challenging the legality of "deem and pass." If Pelosi's 2005 "argument against using a self-executing rule against a debt limit increase measure sounds familiar, it should because it's the same argument now being used by Republicans to oppose the Slaughter Solution for moving Obamacare through the House." Of course, the court rules against Pelosi and on behalf of "deem and pass" as a legal procedure.
  • Why It Will Happen Anyway  Despite it all, the law is with Dems who want to use deem and pass. Below the Beltway's Doug Mataconis explores the legal history, ending, "So, once Nancy Pelosi and either Vice President Biden, as President of the Senate, or Senator Byrd, as President pro tempore attest that the bill has passed their respective houses, that is the end of the matter unless the Supreme Court ends up over-ruling a 118 year old precedent and creating a Constitutional crisis. I wouldn’t count on that happening."
  • Dissent: Deem and Pass Is Law of the Land  The Washington Monthly's Steve Benen notes that the procedure is frequently used by both parties and was primarily used by the same Republicans who now oppose it. Additionally, a 2005 District Court case ruled deem and pass to be a legal procedure. (Ironically, Dem. Speaker Nancy Pelosi joined the case against deem and pass.)
This article is from the archive of our partner The Wire.