16 March 2010 
Here is the President, speaking in Strongsville, Ohio yesterday:
So, look, Ohio, that’s the proposal. And I believe Congress owes the American people a final up or down vote. (Applause.) We need an up or down vote. It’s time to vote.
This “up or down vote” language was originally interpreted to mean that the Congress should use the reconciliation process to avoid the possibility of a filibuster in the Senate. “A final up or down vote” means a vote on final passage, and that usually refers to a roll call vote on final passage, in which each individual Member casts a vote aye or nay.
Yet as the House approaches votes, possibly as soon as Saturday, the President’s words can have another unintended meaning. While the President is calling for “a final up or down vote,” the House majority is reportedly considering a legislative procedure which avoids just that.
The ranking Republican member of the House Rules Committee, David Dreier, has produced the best description and analysis I have seen of the procedural options. Rather than attempt to reinvent the wheel, I will just point you to his memo: The Slaughter Solution: Bending the Rules Beyond Belief.
Some, including Judge Michael McConnell, suggest that the deeming process being considered is unconstitutional. In the past the Court has been unwilling to “look behind the enrollment.” In effect, the Court does not analyze the process by which the House or Senate gets to a bill enrolled by the Speaker and the Senate’s President Pro Tempore. As I understand it, the Court considers legislative and voting processes pre-enrollment to be internal matters of the House and Senate that are not subject to Court review.
While regular readers know I am happy to delve into procedural details when they are outcome determinative, in this case I think they are a secondary issue. I assume the Speaker and Senate Majority Leader have a high probability of finding a procedural path to enactment, if they can find 216 and 50 votes for two substantive pieces of legislation.
At the same time, it says something significant when, to have a shot at getting those votes, both leaders feel they must push legislative procedures to their breaking point. This should be a warning sign: our democratic system is telling you to back off.
Rarely do you hear the argument that these bills represent good policy. Instead you hear that “this is an historic moment,” without much argument for the specific policy changes that would result. Health reform is not an ambiguous concept. It is now a massive set of proposed changes to one-sixth of our national economy. I think it’s terrible that 216 Members might be willing to try to enact this into law without the courage of taking a specific recorded vote. If these are good policy changes, then vote proudly. If your constituents disagree with you and might vote you out of office, but you feel that these policies are nevertheless deserving of your support, then say that, vote, and bear the consequences of that vote in November.
Deeming passage is trying to have it both ways – getting the policy and political outcome you desire, while trying to avoid the negative personal consequences of a recorded vote. That’s irresponsible.
The President says Congress owes the American people a final up or down vote. Will the House give it to them?
(photo credit: Nancy Pelosi)
Would the senate give democrats an up or down vote on a conference committee, or on the changes to the existing Senate bill that the house wants? Of course not. When you screw with the rules of one chamber (filibustering every, little, thing), the other chamber is going to respond in kind.
If filibustering indefinitely is okay, then using deem and pass should be okay too.
Keith…thank you again for your site.
I have two children, 16 and 17, about to go off to college. IF this student lending would lower the interest rates, you'd think I would be all for that. I am not. I cannot believe that our government cannot put their heads together and find other ways for health reform (examples…being able to buy across state lines, coverage for pre-existing conditions, and a few others) and as for the student lending, my gosh,I just went to a financial aid meeting at the high school the other night and I believe that the Parent's loans are at a 7% interest rate and the student loans are less. Do I like that? No. BUT…my husband and I will find a way to get our children through college. It is OUR responsibility.
My father told me that when he was growing up, they would work for one year, go to college for one year, etc. It might take 8 years, but no loans and they paid for it and they came away with a degree.
I am at a loss. I can't handle all this spending anymore. Pretty soon, we will all be paying 50% in taxes and the majority of us won't be getting anything better.
In response to the 1st comment, I don't agree with ANY of it! What's good for the goose is good for the gander mentality isn't helping. Maybe all of them should be voted out and let some "real" people that actually live in the "real" world run things.
Pat,
It wasn't meant as a "what's good for the goose" argument. It was meant that what do you expect the democrats to do. Due to lockstep obstructionism by republicans they can't get anything passed through the normal channels, so they have to get creative within the existing rules.
A great example is malpractice reform. It isn't in the bill, but how many republicans would vote for the bill if it was? This is supposedly a key plank of republicans health care reform plans, but it wouldn't even attract one vote.
The senate bill is a pretty close copy to the MA health bill, it's a pretty close copy to the alternative that republicans offered in the 90's when they opposed Clinton's plan, it's pretty close to what Daschle and Dole came up with. This is a centrist bill, (Unless of course you pull the right side of the spectrum so far over that the center becomes what used to be the far right). yet not one republican will support it.
When it comes to health care for 30 million
If Pelosi doesn't have the votes, then this is what she should do. Arrest some 40 Republican House members and take them to jail. While they are weaseling their way out, hold the vote and pass the bill. That way, the Dem Congressman where it is unpopular can vote against it if need be, and the bill can still pass.
And such a tactic has precedence, Abraham Lincoln (a Rethug) arrested half the Maryland Legislature to prevent them from seceding from the union.
wj…hey, i know you werent really making that argument, but i think that some DO have that kind of mentality lately. hey, i am totally sick of both the democrats AND the republicans.
who the heck knows who is telling the truth on this one…the dems say the pubs won't do this. the pubs say the dems are doing that. grow up!!!
wrote a letter to our congressman four years ago, asking for a breakdown of the 47 million people. gave me a form letter response and didn't give me an answer. i found it on this site…and when it was all said and done, it was a little over 10 million. pre-existing conditions, malpractice premiums, covering the 10 mill, fine.
but, by what i've heard through ALL media outlets, conservative and liberal, this bill has a lot of other stuff in it. take one thing at a time. all this proposed spending is getting scary.
Founding Fathers are Rolling Over in their Graves
"Barack Obama has long seen the U.S. Constitution as an obstacle to what he considers progress… The Founding Fathers, he implied, produced a defective document, much too passive in its understanding of government's possibilities. The founders had set up a form of government to protect liberty; he clearly wished they had formed a government to enact equality." – The American Spectator