Tag Archives: reconciliation

Looking back at HCR procedural tactics

By Syndicated News | Published: April 1, 2010

While I'm on a brief vacation, I'll just take a few minutes to look back at some of the tactical maneuvering that took place over the last few weeks of the health insurance reform endgame in the Congress.

Specifically, I want to make the point that although the House moved first on agreeing to pass the "Senate bill" (H.R. 3590), and also moved first on approving the reconciliation bill, which they actually did after moving the Senate bill, I think that exploring the possibility of reversing all three of these options was nontheless critical to building toward the procedural success Democrats achieved.

Although they might have run into a brick wall in the person of the Senate parliamentarian, I think the House leadership had a good case to present for the argument that the Senate could have acted on the reconciliation bill before H.R. 3590 was signed into law.

And although the House eventually talked itself out of using a self-executing rule to deal with the concurrence in the Senate's amendments to H.R. 3590 upon taking up the reconciliation bill, as well as deciding to accept those amendments before moving on to the reconciliation bill, I think each of the ideas floated was critical to softening up resistance to accepting the Senate bill, and moving Members slowly into a position of increased comfort with what they needed to get done.

Heading into the final weeks and possibly lasting until the final hours before the vote, all indications were that there was still stiff resistance among House Democrats to voting for the Senate bill, especially if Members had to put themselves on record for it before securing (or at least firming up) the Senate's commitment to passing the reconciliation bill. But I think that the leadership's willingness to go out of its way (and sometimes out on a limb, politically speaking) to try to offer procedural methods for putting some distance between Members and a vote they found distasteful gave everyone the time and space they needed to get mentally prepared for the work ahead.

No, I'm not saying I think the various procedural options were floated as some kind of ploy or misdirection play. Rather, I think they were serious options that were taken off the table when the (manufactured) heat they generated spread beyond the leadership, but that that heat ended up motivating Dems to circle the wagons and stiffen their resolve to move the bills, such that in the end, they were perfectly willing to do so even without the procedural protections they'd earlier been offered.

That's why I think that despite the fact that none of the more exotic options were eventually utilized -- beyond the use of "ping-ponging" the Senate bill and using reconciliation for the tweaks, that is -- their proposal and discussion were nonetheless necessary and vital to the process. Maybe that's just the process blogger's slant on it, but I think arming the Democratic netroots activist base with the procedural understanding they needed to be able to carry the argument forward into the offline world, and offer their support to allies in Congress, helped immensely.

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Chris Matthews: I’m still right & Grayson wrong about reconciliation!

By Syndicated News | Published: March 25, 2010

Even as the world watched the United States Senate pass the reconciliation bill Chris Matthews said wouldn't and couldn't ever happen, Matthews is back to reassess his prediction. His startling conclusion: I was right and Grayson is still wrong!

The LA Times' James Rainey has the story:

Matthews told me that, smoldering YouTube clip notwithstanding, it was Grayson who got it wrong back in January. He said the congressman was obviously referring back then to the House passing a new piece of legislation, rather than signing on to the approved Senate health bill and then having differences reconciled.

"He denied the House had to pass the Senate bill and then have reconciliation," Matthews said at one point. "I never got an answer from him, all I got was a posture. He wasn't helping me explain it. He was just taking a position."

Kudos to Rainey for not buying it:

Let's just say that seems a tad, uh, ungenerous. Especially because the lawmaker had to make do mostly with sentence fragments, in the face of Matthews' unrelenting inquisition. When pressed by Matthews, though, Grayson did manage to suggest taking further action on a bill "already passed with 60 votes." That would seem to refer to the health reform passed by the U.S. Senate, not launching entirely new legislation.

Matthews further theorizes that Grayson wanted to use the reconciliation process as a backdoor to fulfill his goal of enacting the so-called "public option," giving Americans a government-run alternative to private health insurance. I'm not sure how the MSNBC star would know that, though, since the congressman never mentioned the public option. And his interviewer never asked about it.

Here's the bottom line: Matthews thinks he's right because in his mind that day, he was having a completely different conversation about reconciliation than Grayson was. And he was doing that because the conversation he wanted to have -- about how difficult reconciliation rules normally make it to establish policy in what's supposed to be a budget-related bill -- was one in which he could show off his general knowledge about what's widely regarded as an arcane and complex process.

Grayson, though, was talking about a specific, strategic and highly targeted use of the process. But more importantly, he was telling Matthews (or attempting to tell him, anyway) about actual plans the Democratic leadership had for using the process to help enact the biggest bill that Congress has passed in years, but Matthews wouldn't hear of it, because it interrupted his riff about what an experienced legislative hand he was.

Ordinarily, yes, it is said that you can't (or shouldn't) use the reconciliation process to establish policy -- that is, to authorize new programs, as opposed to working out financing for those that already exist. That's what lay at the heart of Matthews' challenge to Grayson to name a single program that had ever been established that way. (Matthews forgets about the COBRA health insurance extension program here, and the fact that COBRA stands for Consolidated Omnibus Budget Reconciliation Act. But it was the passage of COBRA that motivated the adoption of new and stricter rules against such provisions in reconciliation, so Matthews would doubtless insist he was still right.) But again, Matthews' challenge has little or nothing to do with what should have been the point of the interview -- that is, what are Democrats going to do about health insurance reform?

So I'm stuck having to restate my original objection here: Matthews was so wrapped up in the opportunity he'd created for himself to prove that he was a master of insiderism and Grayson a dirty netroots hippie that he purposely bypassed the giant scoop Grayson was handing him on a silver platter, and instead set to bashing his teeth in with a rhetorical baseball bat.

The rest of the exchange, of course, speaks for itself, especially in today's context, when the Senate has in fact passed the very reconciliation bill about which Matthews was speaking when he called it:

The secret route to the Indies that only you know about?

The very same reconciliation bill about which Matthews laughed out loud and said:

Wanna bet? Do you want to bet that they're gonna do this?

The very same reconciliation bill about which Matthews bellowed:

This is netroots talk! This is outsider talk, and you're an elected official and you know you can't do it. You're pandering to the netroots right now. I know what you're doing!

The very same reconciliation bill about which Matthews was screaming:

I know what I'm talking about! You ask anybody... you ask anybody in the Senate right now... Go call the Senate legislative counsel's office and ask them if you can do this. Go ask the parliamentarians if you can do this. You haven't bothered to do that.

Well, today they're doing it, Chris. And you're giving interviews to the press saying you were right when you said they couldn't?

I'm going to show this to you one more time, Chris. Rainey tells us:

Matthews told me that, smoldering YouTube clip notwithstanding, it was Grayson who got it wrong back in January. He said the congressman was obviously referring back then to the House passing a new piece of legislation, rather than signing on to the approved Senate health bill and then having differences reconciled.

"He denied the House had to pass the Senate bill and then have reconciliation," Matthews said at one point. "I never got an answer from him, all I got was a posture. He wasn't helping me explain it. He was just taking a position."

But look what you did to Grayson when the whole point of the plan actually came up:

MATTHEWS: OK, you ever call up a Democratic Senator and say why don't you do this by reconciliation?

GRAYSON: What makes you think they're not going to do it? What do you know that I don't know?

MATTHEWS: Because... they've refused to do it because they cannot get past the filibuster rule. The United States Senate is different than the House.

GRAYSON: I...

MATTHEWS: You're allowed to talk as long as you want in the Senate.

GRAYSON: Not with reconciliation.

MATTHEWS: Unless you get cloture.

GRAYSON: With reconciliation it's 51 votes, not 60 votes.

MATTHEWS: What do you mean, reconciliation? You can't create a program through reconciliation!

GRAYSON: You can create an amendment...

MATTHEWS: Nobody's ever done one!

GRAYSON: The bill's already passed with 60 votes, you...

MATTHEWS: Name a program that's...

GRAYSON: All you need to do is...

MATTHEWS: Congressman, just name me the program that's ever been created through reconciliation. Name one! One!

You set up the problem just fine, even though you were kind of a dick about it. But as soon as Grayson distinguishes the specifics of this situation from your general assertion about reconciliation by saying, "You can create an amendment..." you cut him off and go right back to screaming your most irrelevant talking point of the day, insisting that he name a program for you that had been created by reconciliation. A point which had absolutely nothing whatsoever to do with the strategy he was trying to describe to you, which turned out to be 100% on the money, and which everyone with eyes was able to watch happening live on national television today.

That's some nerve you've got to go to the papers and say you got that right. You ought to be ashamed of yourself, and frankly I believe you are, and that's why you're trying to cling to this idiotic notion that you were right about a question nobody was asking, even as Congressman Grayson was trying to get you to stop sputtering for long enough to recognize that news was trying to break on your show, if you would have shut up long enough to realize it and stop trying to stomp it to death.

FAIL.

Good day, sir.

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Strategy Memo: putting a silver lining on GOP obstructionism

By Syndicated News | Published: March 24, 2010

As debate on the reconciliation "fix" bill winds down and Senate Democrats have been unifying around a strategy of defeating all amendments (including a public option amendment, which is why we won't see it offered) so that the bill remains intact, I've been wondering whether that strategy could or should change if a Republican amendment were somehow adopted despite the plan.

The adoption of any amendment anywhere along the line would make the question of whether or not the reconciliation bill would have to go back to the House moot. Any change would send the bill back to the House. So if the bill were amended at any point, it would basically be costless to attempt to send the bill back to the House with a public option attached.

But it now occurs to me that the points of order the Republicans are threatening might not be handled until the end of debate on the bill and any amendments, so it may well be the case that Democrats are able to prevail against all amendments and keep the bill intact until that point, and only after the opportunity for amendments to be offered had expired would any of the changes that points of order could force actually be made. So it could be that supporters of the public option in the Senate would feel constrained from offering it until it was too late. The "costless" opportunity to add it by amendment might arise only after amendment time had come and gone.

But if the bill does have to be amended due to Republican points of order, that just creates an opportunity for public option supporters in the House. Yes, the path of least resistance at that point would be for the House to concur in the Senate's changes and pass the reconciliation bill without further amendment. But if the House is going to have to take another vote on the bill, it might as well extract some price for it.

That probably means that public option supporters need to be talking to the House as well, and that the House may be the front line for offering such an amendment, with the Senate only asked to concur in it if the House is the one to include it. Supporters should be thinking about that possibility, lining up sponsors and backers in the House, and letting Senators know that if that were to happen and the bill were to return to the Senate with a public option attached by the House, that'd have to be considered as having the public option "come up for a vote," and those letters they signed would either have to be honored or repudiated on that question. If the count of Senators who've said they'd support the public option "if it came up" are solid, then House Members would have reason to believe the provision could survive -- at least politically -- in the Senate.

I can't predict for you the likelihood that a proposal to add the public option in the House would be well-received at this point, if only because it means more work at a time when things looked to have been completed. But enthusiasm is running at elevated levels after the high-energy signing event at the White House. And if those are the dynamics of the situation, then let us plan accordingly.

The fact is that the leadership is likely not particularly charged about the idea of having to deal with the bill any longer than they have to. Adding a public option, they might feel, will only make that task more difficult.

But I'll also offer this up from a different angle that holds the door open and offers some "win" for the very fatigued leadership as well.

If there's a credible threat of offering a public option plan that can survive the Byrd Rule and get a majority in both houses, then at a minimum the public option ought to be held out as a threat. If the reconciliation bill survives the amending process intact, but is under threat from Republican points of order, a leadership armed with a survivable public option threat can warn that if the bill is changed by a Republican point of order, that ruling will be honored, but the bill will come back with that provision out and the public option in.

If Democrats can demonstrate their willingness to adopt a public option amendment in both houses and to bet on its Byrd Rule worthiness -- and they were willing to make its inclusion the penalty for Republican points of order being levied against the bill as currently written -- we might get through the Byrd Rule challenges a little quicker than we might otherwise, as Republicans opt to drop their points of order rather than face losing on the public option, to boot.

But that only works if the leadership is willing to make a credible threat on the public option. And of course, that depends on whether or not they believe it would survive the Byrd Rule.

If not, there might perhaps be some other issue about which they'd be more certain that they could use to create the same leverage. Medicare buy-in? Medicaid expansion? Some other provision that puts a silver lining on having to deal with losing on Republican points of order?

I understand the desire to get the bill finished unchanged. But if the decision is taken out of Democratic hands, they can opt to do something with the situation, or not.

Or, they can make the decision to aggressively pursue points of order more difficult (or at least more weighty) for Republicans, by laying out what the "punishment" for striking provisions of the bill is. And if it's a public option amendment, or Medicare buy-in, then the deal gets offered: drop your points of order, let the bill pass, and go on your way, or else this thing gets finished with one or more of the listed additions of the Democrats' choosing.

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Strategy Memo: putting a silver lining on GOP obstructionism

By Syndicated News | Published: March 24, 2010

As debate on the reconciliation "fix" bill winds down and Senate Democrats have been unifying around a strategy of defeating all amendments (including a public option amendment, which is why we won't see it offered) so that the bill remains intact, I've been wondering whether that strategy could or should change if a Republican amendment were somehow adopted despite the plan.

The adoption of any amendment anywhere along the line would make the question of whether or not the reconciliation bill would have to go back to the House moot. Any change would send the bill back to the House. So if the bill were amended at any point, it would basically be costless to attempt to send the bill back to the House with a public option attached.

But it now occurs to me that the points of order the Republicans are threatening might not be handled until the end of debate on the bill and any amendments, so it may well be the case that Democrats are able to prevail against all amendments and keep the bill intact until that point, and only after the opportunity for amendments to be offered had expired would any of the changes that points of order could force actually be made. So it could be that supporters of the public option in the Senate would feel constrained from offering it until it was too late. The "costless" opportunity to add it by amendment might arise only after amendment time had come and gone.

But if the bill does have to be amended due to Republican points of order, that just creates an opportunity for public option supporters in the House. Yes, the path of least resistance at that point would be for the House to concur in the Senate's changes and pass the reconciliation bill without further amendment. But if the House is going to have to take another vote on the bill, it might as well extract some price for it.

That probably means that public option supporters need to be talking to the House as well, and that the House may be the front line for offering such an amendment, with the Senate only asked to concur in it if the House is the one to include it. Supporters should be thinking about that possibility, lining up sponsors and backers in the House, and letting Senators know that if that were to happen and the bill were to return to the Senate with a public option attached by the House, that'd have to be considered as having the public option "come up for a vote," and those letters they signed would either have to be honored or repudiated on that question. If the count of Senators who've said they'd support the public option "if it came up" are solid, then House Members would have reason to believe the provision could survive -- at least politically -- in the Senate.

I can't predict for you the likelihood that a proposal to add the public option in the House would be well-received at this point, if only because it means more work at a time when things looked to have been completed. But enthusiasm is running at elevated levels after the high-energy signing event at the White House. And if those are the dynamics of the situation, then let us plan accordingly.

The fact is that the leadership is likely not particularly charged about the idea of having to deal with the bill any longer than they have to. Adding a public option, they might feel, will only make that task more difficult.

But I'll also offer this up from a different angle that holds the door open and offers some "win" for the very fatigued leadership as well.

If there's a credible threat of offering a public option plan that can survive the Byrd Rule and get a majority in both houses, then at a minimum the public option ought to be held out as a threat. If the reconciliation bill survives the amending process intact, but is under threat from Republican points of order, a leadership armed with a survivable public option threat can warn that if the bill is changed by a Republican point of order, that ruling will be honored, but the bill will come back with that provision out and the public option in.

If Democrats can demonstrate their willingness to adopt a public option amendment in both houses and to bet on its Byrd Rule worthiness -- and they were willing to make its inclusion the penalty for Republican points of order being levied against the bill as currently written -- we might get through the Byrd Rule challenges a little quicker than we might otherwise, as Republicans opt to drop their points of order rather than face losing on the public option, to boot.

But that only works if the leadership is willing to make a credible threat on the public option. And of course, that depends on whether or not they believe it would survive the Byrd Rule.

If not, there might perhaps be some other issue about which they'd be more certain that they could use to create the same leverage. Medicare buy-in? Medicaid expansion? Some other provision that puts a silver lining on having to deal with losing on Republican points of order?

I understand the desire to get the bill finished unchanged. But if the decision is taken out of Democratic hands, they can opt to do something with the situation, or not.

Or, they can make the decision to aggressively pursue points of order more difficult (or at least more weighty) for Republicans, by laying out what the "punishment" for striking provisions of the bill is. And if it's a public option amendment, or Medicare buy-in, then the deal gets offered: drop your points of order, let the bill pass, and go on your way, or else this thing gets finished with one or more of the listed additions of the Democrats' choosing.

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Stupak takes us into the weeds under the weeds of reconciliation

By Syndicated News | Published: March 19, 2010

Lordy, Lordy, Lordy.

You're not gonna believe how low down in the weeds we're gonna have to get for this one.

We just learned from mcjoan that Bart Stupak is after a deal that would somehow jam a foot in the health insurance reform door for his now-notorious Stupak amendment on abortion:

This morning, during an appearance on Good Morning America, Rep. Bart Stupak (D-MI) reaffirmed that he might vote for the Senate health care bill if Democrats pass the Stupak abortion amendment as a separate measure. Stupak said that Democrats have shown a "renewed" interest in tying his amendment to the Senate bill:

STUPAK: George, that’s called an enrollment corrections bill. I presented that to leadership about ten days ago. There’s renewed interest in that piece of legislation that I and a number of us are ready to introduce. It’s prepared. Everybody’s looking at it right now. That’s one way, maybe. But we set the deal with the Senate. You give us a vote in the House. We had a vote in the House. It was overwhelmingly 240-194, to keep public law, no public funding for abortion.

It seems to me that if the Senate parliamentarian is indeed insisting that the reconciliation bill address "current law," then that means the Senate bill must be not only enrolled, but signed by the President before reconciliation can be considered, at least in the Senate. I assume the House parliamentarian has no such objection to the House beginning its work (which is curious in itself), since he's apparently allowing the House to consider and pass reconciliation before the Senate bill is enrolled.

Will the Senate parliamentarian insist that the bill be signed before permitting the Senate to begin its reconciliation work on the floor? He may have no say over what the House parliamentarian approves with respect to when the House passes reconciliation, but he can prevent the Senate from beginning until the Senate bill becomes "current law."

So, does Stupak have an opportunity, then, to get the House and Senate both to approve an "enrollment correction" bill inserting his preferred language in the Senate bill, and get the Senate bill to the president for signature before the Senate takes up reconciliation?

And if he does have that opportunity -- and the tool for taking advantage of it even has a name, that is, an "enrollment correction" bill -- does that finally lay to rest the question of whether pending legislation can be amended by other legislation before the original underlying bill actually becomes law?

UPDATE:

Here's something else fun!

I found a previous use of the enrollment corrections process. It was used in the 108th Congress under Republicans.

Do you remember that crazy provision that got slipped into an appropriations bill that nobody would claim credit for  -- but which was eventually blamed on former Rep. Ernie Istook (R-OK) -- that would supposedly have given the Chairmen of the House and Senate Appropriations Committees the right to send people into the IRS to examine people's individual tax returns, etc.?

Well, that crazy piece of crap provision was removed with an enrollment correction bill when the Republicans got caught with it in the conference report and were too embarrassed to let it stand, but didn't want to have to vote on it because it would be to admit the "error," not to mention requiring recommitting the bill to conference.

But wait, there's more! The enrollment correction bill was designated H. Con. Res. 528, and do you know how the Republicans passed it?

They used "deeming" to pass it! Section 3 of H. Res. 866 (which was the rule for the appropriations bill) reads as follows:

SEC. 3. Upon the adoption of this resolution, the House shall be considered to have adopted House Concurrent Resolution 528.

Help! Police! Deeming! Socialismz!

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More about “deeming”

By Syndicated News | Published: March 19, 2010

I got an email today asking more questions about the so-called "deeming" issue that's grown out of the possibility that the House will use a self-executing rule to finish up work on H.R. 3590, which has become known as "the Senate bill" in the health care reform efforts. Essentially, the email relayed a reader's friend's challenge to my suggestion the other day that the use of a parliamentary motion in the Senate to concur in House amendments to a bill (rather than take up the text as amended and pass it) was equivalent to "deeming" the bill passed.

This gets weedy, but that's what Congress Matters is all about. Here's an adaptation of my answer:

Your lobbyist friend is in denial, probably because deeming legislation passed is far more common than anyone realizes, and no one refers to adopting motions to concur in the other house's amendments as deeming.

But the actual bottom line is that in the Schoolhouse Rock version of passage, when the House sends the Senate an amended bill, the Senate takes up consideration of the full text and votes directly on passage of that full text. The reality of how things are quite frequently done is that the Senate instead takes up a motion to concur in the House amendments, and when it does concur, it is understood (read: deemed) that the two houses have now agreed to the same text, and the bill is passed.

What upsets people about the health care deeming is that there won't be a free-standing motion to concur in the Senate amendment to H.R. 3590. Instead, there will be a vote on whether or not to accept the passage of the rule for the bill and then the later passage by the House of the reconciliation bill to stand in the place of a free-standing motion to concur.

At this point in my response, I referenced our correspondent's friend's attempt an analogizing his view of deeming this way:

Deem and pass is a House rule that says when we do action A, then these other actions will also have been deemed to occur.

It would be like if I were to announce my wife that we deem that, everytime I arrive home late with alcohol on my breath and reeking of cheap perfume, I had been on time, and brought her flowers and chocolates.

And then continued...

To use the rather stupid "arrive at home reeking" example, your friend would have to add first that he and his wife held a vote and agreed by majority rule that arriving home drunk and reeking would be regarded by his wife as having been on time, etc. If he and his wife agree to that, that's their business. He's trying to tell you that it can work exactly the same way if he makes it up after the fact and gets no agreement ahead of time on what the definition of flowers and chocolates are.

The fact that the side that doesn't like the idea loses the vote is what we call the consequences of losing the election.

Now, as for deeming in the Senate, it's a highly technical point, but one that even lobbyists overlook, because it "gets the job done," and most people (including and maybe especially lobbyists) don't care how those jobs get done, so long as they do.

Here's the difference. Look at the Senate's official online record of their roll call voting on, for example, the passage of  H.R. 3326, the Defense Appropriations Act. That was a bill originated in the House, was amended by the Senate, sent back to the House, amended again by the House, sent back to the Senate, and then finalized in the Senate. Look at how the Secretary of the Senate records the Senate's votes on what your friend considers "passage of the bill":

When the Senate first actually took up the full text of the House bill, amended it and passed it, the roll call lists the result as "Bill Passed."

That's because the Senate had taken up the full text, and though they amended it, they voted on the full text as amended and passed it.

Then the bill went to the House, where the House agreed to the Senate amendment, but added still another amendment. The House didn't take up the full text of the bill sent to them by the Senate, but instead made a motion to add new text, and as a result, the Clerk of the House records the vote properly as a motion agreed to on concurring to the Senate amendment with an amendment, rather than a vote "on passage," as it is recorded when the full text of a bill is actually under consideration, as in the unrelated example here.

Then, the House's amendment went over to the Senate, where it was once again agreed to on a motion to concur. You'll note that again, the result is not "Bill Passed," but "Motion Agreed to."

Why? Because the pending question was not on the passage of the full text of the bill as it last left the hands of the House, but rather on the simple question of whether the Senate would agree to the text of the latest House amendment.

And yet, at that point, the bill is then cleared for the White House.

Why? Because the House and Senate are now deemed to have agreed to identical text, since the language of the final amendment incorporates into it not only the changes, but also the instructions on how to integrate those changes into the body of the original bill -- that is, it includes instructions like, "strike out page 15, line 2 and insert XYZ." So the Senate can just give its OK to the amendment rather than insisting that the bill be re-engrossed with the changes made by the earlier amendments written into its text. It is instead now ready to be enrolled with the changes as directed by the amendment.

So the Senate never takes up the full text of the bill as last amended by the House and agrees to that. Instead it agrees to a package of changes and instructions for integrating those changes into the main body of the bill, and in so doing is deemed to have passed the same legislative text as the House, even though the Secretary of the Senate records no vote on passage of the bill, and just a vote instead on a parliamentary motion regarding its disposition.

That is a very subtle difference, to be sure. But deeming it is.

What people are forgetting about the health care bill is that it started life in the House as a very different kind of bill, but even so was in fact passed as a bill by the House. That bill was later amended by the Senate. Granted, it was an amendment in the nature of a substitute, but an amendment it was, and that was sent back to the House. The House now has the option to take up a parliamentary motion to concur in the Senate amendment. If it did that in free-standing form, it would be recognized in the vernacular as a direct vote, and referred to in popular parlance as a vote on passage. But in fact the Clerk would consider it a motion to concur and not a vote on passage, and the agreement to the motion would deem the bill passed. So even if they had a "clean" vote right on the amendment and nothing else, it would still be deeming it passed.

What makes this situation different is that the House instead is using its prerogative under Art. I., Sec. 5 to determine for itself the manner in which it will manifest the requirements of Art. I, Sec. 7. Those requirements are that a vote be taken, the yeas and nays be recorded by name, that those names and the result be recorded on the Journal, and that the same text be passed in identical form in both houses.

The deeming vote fulfills all of those Sec. 7 requirements, but manifests them in a different way. Instead of saying, "The House now agrees that under its ordinary practice, vote number 123 shall determine whether or not the House shall concur in the Senate amendment to H.R. 3590," the House is instead agreeing in advance (by majority vote, and with full knowledge of all the voting Members) that vote number 123 shall determine two things, those being:

  1. whether or not the House shall agree to the resolution setting forth the rule governing debate of the reconciliation bill, and;

  2. whether or not the House shall agree that the same vote shall designate vote number 124 as itself determining two things, THOSE being:

    1. that the House shall have passed the reconciliation bill, and;
    2. that the House shall have concurred in the Senate amendment to H.R. 3590.

There are few if any restrictions under Art. I, Sec. 5 as to how the House may choose to manifest its assent to any action, so long as the manifestation is chooses meets the minimum requirements of Art. I, Sec. 7. Its standard practice, under the current standing Rules of the House, is to record the votes of the Members by electronic device in 15 minute votes. But it may by special order (approved prospectively by majority vote) choose to record the votes of the Members by having the yea voters spin hula hoops for the duration of the 15 minutes, while the nay voters perform headstands. So long as the votes are recorded in the Journal by name and the result is that the text agreed to in both houses is identical, the requirements of the Constitution under Art. I, Sec. 7 are fulfilled, and the reservation to each house of the power to determine its own rules of proceeding under Art. I, Sec. 5 are beyond the reach of any reviewing authority.

People don't usually think to question the shortcut method of deeming a vote on a motion to concur in an amendment to stand in for actual passage of the full legislative text for exactly that reason. And those who do question it find their questions precluded by the courts since Marshall Field v. Clark.

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How might the Senate deal with GOP obstruction on reconciliation?

By Syndicated News | Published: March 18, 2010

Just by way of a reminder, once the House passes the reconciliation bill fixing the Senate health insurance reform bill, the fireworks begin anew in the Senate, where Republicans have promised a blizzard of amendments and/or points of order aimed essentially at creating a de facto filibuster where the "normal" filibuster would otherwise not be available to them.

But let's also recall what I thought they might be able to do about it:

There's an October 3, 1977 precedent from when Sen. Robert Byrd (D-WV) was Majority Leader, wherein faced with an exploitation of an old cloture rule loophole that allowed Senators to file the same sort of endless stream of amendments, even after cloture had already been invoked, he addressed the chair with this point of order, which was sustained by the chair:

I make the point that when the Senate is operating under cloture the Chair is required to take the initiative under rule XXII to rule out of order all amendments which are dilatory or which on their face are out of order.

The point having been sustained (and an appeal of the ruling tabled, which requires a simple majority vote), Byrd used his right of preferential recognition as Majority Leader to call up all the rest of the amendments one at a time, whereupon the chair ruled each of them out of order on its own motion. (Source - warning, PDF)

I would argue that if that point of order can be sustained for the post-cloture environment, when debate is limited to 30 hours, surely it should be sustained for the reconciliation environment, when debate is limited to just 20.

I believe the same point of order can and should be made and sustained -- if we even get that far, given what former parliamentarian Bob Dove had to say -- and that Harry Reid might then use his right to preferential recognition to call up all pending amendments, and have them ruled on immediately by the chair.

With that in mind, I offer you this bit of news from (subscription only) CQ:

Majority Whip Richard J. Durbin  , D-Ill., reaffirmed that Democrats will move to block what they consider an excessive number of Republican amendments by seeking a ruling from the presiding officer — in consultation with Senate parliamentarian Alan Frumin — to limit votes once an unspecified number is held.

"There’s some point beyond which everyone knows that it’s all about stopping the bill, and it’s not about amending it. I hope we don’t face that. But if we do, you know, there is an opportunity for the chair to rule at some point," Durbin said March 15.

Durbin said he hoped Frumin would declare excessive amendments "dilatory" and effectively put an end to floor votes on a reconciliation bill that would make changes to the Senate-passed health care overhaul bill (HR 3590). The House is currently drafting the reconciliation measure.

Do we take care of you at Congress Matters, or what?

Of course, there's also some bad news in the CQ article:

Durbin’s stance has unsettled moderate Democrat Ben Nelson  of Nebraska, who said he would likely oppose any move to cut off amendments. Nelson compared such an effort to the "nuclear option" — a change in Senate rules threatened by then-Majority Leader Bill Frist, R-Tenn. (1995-2007), to skirt Democratic filibusters of President George W. Bush’s conservative judicial nominees. Frist’s plan unraveled under opposition from Nelson and other members of a so-called Gang of 14.

"I did not support that type of effort back then. And I would not support something like that now," Nelson said.

Mark Begich, D-Alaska, also expressed qualms about cutting off amendments. "I might be a little uneasy about that. People need to have their voice," he said.

Of course, the good news about the bad news is: it only takes a simple majority to uphold the ruling of the chair on something like this. But I'm sure they'll be discussing the issue in caucus meetings, and I doubt very much whether the intention is to cut things off early. They'll likely be erring on the side of letting Republicans overdo things before trying anything like this.

Will we ever really see it? Who knows? You'll have to stay tuned and watch. But at least you've read the program going into the show.

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Capitol Hill News Open Thread

By Syndicated News | Published: March 18, 2010

Good afternoon, Congress Matters readers. This is your afternoon open thread to discuss all things Hill-related. Use this thread to praise or bash Congresscritters, share a juicy tip, ask questions, offer critiques and suggestions, or post manifestos.

This is an open source project, so feel free to add your own insights. Here's the news I found lurking around the Internets...

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Bipartisanship at last! GOP demands up-or-down vote on health care!

By Syndicated News | Published: March 16, 2010

Here's something I bet you thought you'd never see!

According to GOP aides, the resolution would require the House to hold an up-or-down vote on the Senate healthcare bill.

What? Republicans demanding an up-or-down vote on healthcare? Huzzah!

But what could possibly be going on here? We need more context.

House GOP leaders will try to force the House to vote on the Senate’s healthcare bill.

Rep. Parker Griffith (R-Ala.), who defected from the Democratic Party last December out of frustration on healthcare, will offer a resolution barring Democratic leaders from using the so-called "Slaughter solution."

Ah, I get it now! Republicans think they deserve to have an up-or-down vote on the Senate bill, but the Senate doesn't!

Why are we going through this self-executing rule exercise in the first place? Because Senate Republicans won't allow an up-or-down vote on making the changes contained in the fix bill. If they'd agree to an up-or-down vote on that, then the House could drop the self-executing rule (scary!) plan and the use of reconciliation (nuclear!) completely, and we could just have a good ol' fashioned who's-got-the-most kind of vote.

Which Republicans would then lose.

Which is why they instead find themselves shamelessly screaming for up-or-down votes on healthcare, after all this time dedicating themselves to preventing exactly that.

You really can't make this stuff up.

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Capitol Hill News Open Thread : Budget Blogging

By Syndicated News | Published: March 15, 2010

Good afternoon, Congress Matters readers. This is your afternoon open thread to discuss all things Hill-related. Use this thread to praise or bash Congresscritters, share a juicy tip, ask questions, offer critiques and suggestions, or post manifestos.

This is an open source project, so feel free to add your own insights. Here's the news I found lurking around the Internets...

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