There Will Be an Up or Down Vote on Health Care

The Wall Street Journal's particularly caustic editorial on the self-executing maneuver that might allow Democrats to pass health care reconciliation legislation without having to first vote on that putrid Senate bill is full of absolutes and adjective constructions: it is an "amazing procedural ruse" -- a "concoction" that violates Article 1, Section 7 of the Constitution, which states that for a bill to become law, it "shall have passed the House of Representatives and the Senate."

Speaker Nancy Pelosi, because of the Stupak 12 and the compromises in the Senate bill, can't get enough Democrats to put their names down on the slate as voting yes on it as a stand-alone measure. The reconciliation fix is much more popular. Hence -- self-executing -- a parliamentary maneuver that essentially "presumes" the Senate bill into law by passing the post-facto fixes only.

Plain enough, right?  Even Democrats are buying into the notion, fretting about the optics of allegedly not voting.  Not really. In fact, the Journal gets it wrong. So do Democrats. So has the political class.  Democrats will still be on the hook for health care. Here's why:

Yesterday, conservative jurist Michael McConnell argued that that Democrats are trying to finish the health care bill without voting on it.  Mitch McConnell, the minority leader in the Senate, intoned that Democrats claim they never voted for it even though they'll vote to send it to the president for a signature.
But that's wrong. House Democrats aren't doing that.

In fact, they ARE taking an up or down vote on the Senate health care bill. They're just doing it AT THE SAME TIME as they're passing the reconciliation language, which countermands several controversial provisions. That is: House Democrats still have to vote for the so-called "Cornhusker Kickback," and the "Gator Aid" provisions, but they're going to do so while simultaneously passing the reconciliation fix that removes them. The two bills will essentially be merged into one vote.

But it's still an up or down vote on health care -- one that Republicans can use to bash Democrats with if they want to, but one that Democrats hope will provide them with some political cover -- yes, they voted for the Senate bill, but they did so with its amendments attached.

Republicans really don't have much of a constitutional argument because the Constitution gives the House and the Senate the power to define its own rules. If "deeming" a Senate bill as passed is ruled to be the same thing as passing it, then the bill is "passed," constitutionally. (As Rep. Sam Rayburn, in 1948, put it, "There is to be one vote only; and if the resolution is agreed to, it means that the House concurs in the Senate amendments.")

And while it's true that the rule has never been used for something this large, it's unusual for Republicans to be bothered by the idea that controversial legislation ought to be subject to an up and down vote on its merits.  GOPers, endorsed by their own rules guru, Rep. David Dreier of California, have used the maneuver to pass legislation large and small -- including a $40 billion dollar deficit reduction bill. Dreier in 2005 used the tactic to allow Republicans to avoid having to take a recorded vote on an immigration measure. It's also a bit rich for Republicans to complain about a parliamentary tactic being employed in a way that's not in keeping with the spirit of the traditions of Congress.

Truth be told, it's difficult to see the "deeming" move providing any plausible deniability for Democrats. It's just an easier -- and not controversial, or rare -- way for them to pass a difficult bill. In November, they'll still be on the hook.

Thumbnail photo credit: Tim Sloan/AFP-Getty Images