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)