Folks, they're afraid to pass this legitimately
But the Democrats do fear that they may not have the votes. Worse, the phone lines to Capitol Hill are jammed with Americans calling their representatives, and reminding them of their political mortality. "Awful nice job you got there; be shame if something happened to it." And therein lies the other problem Democrats have: they're afraid of the fallout to follow their vote. But Pelosi, Reid, and Barry are all demanding their colleagues fall on their swords for this disastrous legislation. As this continues down the road Democrats persist in prolonging the drama:
House Majority Leader Steny Hoyer declined to say Wednesday if Democrats have enough votes to pass historic health care legislation, but hinted that they're poised to use an arcane parliamentary process to get it done.
Hoyer's Republican counterpart, Rep. Eric Cantor, acknowledged that such a process is permissible under House rules. Under the procedure, a Senate-passed health bill would be "deemed" to have passed if House members voted in favor of a rule governing a separate bill with amendments to it.
Cantor, R-Va., said he couldn't understand why Democrats would use such a parliamentary detour with a bill of this magnitude and reach.
Asked on ABC's "Good Morning America" to say if he had the 216 votes necessary to pass the legislation in the House, Hoyer, D-Md., replied, "I don't have a precise number. Having said that, we think we'll get the votes. ... We think we will have the votes when the roll is called."
Appearing on the same show, Cantor asserted: "They don't have the votes yet ... The problem is, there's still a lot of uncertainty surrounding this bill. The American people think there's a better way."
The partisan parrying has increased in intensity in the past few days as President Barack Obama and House and Senate Democratic leaders have increased pressure to at last resolve the health care issue, which has been before the Congress for over a year. Obama is due to leave Sunday on a trip to Asia, and he has said he wanted it finished by then.
I'm sorry, Mr. Cantor, but this procedure -- the so-called "Slaughter Solution" -- is improper and unconstitutional to use at this time on this issue. Former 10th Circuit Court judge Michael McConnell lays out how this is unconstitutional: (Subscription required; alternate link here from the Hoover Instuitute, which Judge McConnell is a senior fellow of.)
Democratic congressional leaders have floated a plan to enact health-care reform by a procedure dubbed "the Slaughter solution." It is named not for the political carnage that it might inflict on their members, but for Rep. Louise Slaughter (D., N.Y.), chair of the powerful House Rules Committee, who proposed it. Under her proposal, Democrats would pass a rule that deems the Senate's health-care bill to have passed the House, without the House actually voting on the bill. This would enable Congress to vote on legislation that fixes flaws in the Senate health-care bill without facing a Senate filibuster, and without requiring House members to vote in favor of a Senate bill that is now politically toxic.
The Slaughter solution cannot be squared with Article I, Section 7 of the Constitution.
Senate rules protect against majoritarian overreach by allowing a determined minority to filibuster most types of legislation. The majority needs 60 votes to override a filibuster. One exception, adopted in 1974, is legislation that makes adjustments to spending or revenues to reconcile current law to a budget resolution that has passed Congress. These are called reconciliation bills, and they require only a majority vote.
Last Christmas Eve, the Senate approved a health-care bill by 60 votes, overcoming a Republican filibuster. This is the bill that contains the so-called Cornhusker kickback, the Louisiana purchase, taxes on high-cost health insurance plans and coverage for abortions. Virtually no one now supports that version of the bill, but Senate Democrats no longer have enough votes to pass an alternative bill under ordinary procedures.
That is where reconciliation fits in. If the House passes the Senate bill and the president then signs it into law, reconciliation would permit Congress to pass new legislation making changes to that law. Reconciliation might not solve the abortion coverage problem or other nonbudgetary issues, but it would allow Democrats to correct most of the Senate bill's offensive features.
The rub is that, according to the Senate parliamentarian, reconciliation is permitted only for bills that amend existing law, not for amendments to bills that have yet to be enacted. This means that, for the Senate to be able to avoid a filibuster, House Democrats first have to vote for the identical bill that passed the Senate last Christmas Eve. That means voting aye on the special deals, aye on abortion coverage, and aye on high taxes on expensive health-insurance plans. Challengers are salivating at the prospect of running against incumbents who vote for these provisions.
Enter the Slaughter solution. It may be clever, but it is not constitutional. To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a "Bill" to "become a Law," it "shall have passed the House of Representatives and the Senate" and be "presented to the President of the United States" for signature or veto. Unless a bill actually has "passed" both Houses, it cannot be presented to the president and cannot become a law.
To be sure, each House of Congress has power to "determine the Rules of its Proceedings." Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.
The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the "exact text" must be approved by one house; the other house must approve "precisely the same text."
These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 "the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal." These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.
Judge McConnell lays out the case succinctly that what the Democrats are proposing, if they can't rack up the votes (Despite Kucinich's switch, the Dems are still shy 11 votes, not four as Pelosi boasted today so they don't have the votes, and clock is ticking because, as the CNN story points out, Barry wants this bill on his desk by Saturday.) He also says that the maneuver is wholly unconstitutional. The problem is, as Shannen Coffin at NRO's The Corner points out, the federal courts won't accept a challenge based on the argument that the bill didn't pass the prescribed method laid out in the Constitution:
The Supreme Court, since an 1892 decision in Marshall Field & Co. v. Clark, has refused to look behind the signature of the speaker of the house and president of the Senate (or president pro tempore) on an enrolled bill to challenge the process by which that bill was enrolled and a claim that the bill was not properly enacted. There was a bit of daylight opened in a more recent decision in which the Court examined whether a properly enrolled bill was nevertheless enacted in violation of the Origination Clause (which requires that bills that raise revenue originate in the House), but lower courts (such as the D.C. Circuit in the recent challenge to the Deficit Reduction Act linked by Andy) have reasoned that the enrolled bill rule itself wasn't affected by that later decision.
Sad that the Supreme Court wouldn't entertain a challenge on these grounds, but she's right. The Supreme Court doesn't like to step on the toes of Congress when it comes to their rules. Why? Because Article I, Section 5, clause two specifically states that "Each House may determine the rules of its proceedings ..." Those rules aren't Constitutional Law. They're rules that each House of Congress is allowed to make. Yes, using the "Slaughter Solution" does -- technically and legally -- break a substantial provision within the Constitution, but the SCOTUS and lower federal courts are leery of challenging Congress's established rules.
But between the arm-twisting, bribes, and pressure, the Democrats are doing their level-best to whip their caucus to support this bill, knowing full-well that November promises to be a political bloodbath for them. They know they will face an angry constituency that is Hell-bent on tossing them out of office. Remember folks, the Blue Dogs were purposefully chosen by Rahm Emanuel in 2006 because they were moderates, and came from, for the most part, conservative-leaning congressional districts. Their political morals were the key to getting them elected. It was also the bane of Nancy Pelosi's tenure as Speaker for the last year. And it's also why so much of the Chicago political thug tactics have been executed to get them on board.
But like all fiends, the Democrats instituted a back-up plan, just in case their whipping didn't produce results. That's what the "Slaughter Solution" was created for. If they don't have the votes, they'll execute Louise Slaughter's unconstitutional idea. Truth be told, they know they have to resort to these tactics because they don't have the votes to pass this legitimately. No one, in an election year, wants to risk cutting their own political throat. Pelosi, Reid, and Barry should be paying attention, but they're too focused on their end goal: the federal seizure of 1/6th of the nation's economy through the health care/health insurance industry, and all because they want a lasting legacy.
The legacy won't be pretty when history judges this mess if it's passed and signed into law.