Will The ‘Deem And Pass’ Rule Do More Harm Than Good?

House Democrats have signaled that they will avoid voting on the Senate health care bill by introducing a rule that would deem the bill passed once the reconciliation package is adopted. The so-called “deem and pass” rule has a long bipartisan history. Congress originally used the rule to “expedite House action in disposing of Senate amendments to House-passed bills” but has recently relied on the procedure to “enact significant, substantive and sometimes controversial propositions.” In 1995, Newt Gingrich’s Republican majority set a new record:

When Republicans took power in 1995, they soon lost their aversion to self-executing rules and proceeded to set new records under Speaker Newt Gingrich (R-Ga.). There were 38 and 52 self-executing rules in the 104th and 105th Congresses (1995-1998), making up 25 percent and 35 percent of all rules, respectively. Under Speaker Dennis Hastert (R-Ill.) there were 40, 42 and 30 self-executing rules in the 106th, 107th and 108th Congresses (22 percent, 37 percent and 22 percent, respectively). Thus far in the 109th Congress, self-executing rules make up about 16 percent of all rules. On April 26, the Rules Committee served up the mother of all self-executing rules for the lobby/ethics reform bill. The committee hit the trifecta with not one, not two, but three self-executing provisions in the same special rule.

In 2005, Republicans in Congress approved a national debt limit increase using “deem and pass” and Reps. Pelosi, Waxman and Slaughter — along with Public Citizen — “went to federal court to challenge the constitutionality of the move.” The court ruled against the Democrats (without ruling on the constitutionality of the procedure) and they’re now using the rule to avoid taking a tough vote. Predictably, Republicans are objecting to the maneuver, while Democrats are arguing that “deem and pass” is a time honored tradition.

Democrats may be right, but it doesn’t matter. The problem is that voters can’t be expected to understand how someone can pass a bill without voting for it (full disclosure: the Speaker had to explain the procedure twice yesterday to a group of bloggers who have been writing about this stuff for some time). Or how the President can call for an up or down vote on health reform but then allow Democrats to avoid directly voting for the Senate bill. The distinction is purely political, Washingtonian, and fairly dull and it really makes this process more complicated than it needs to be. Voters don’t even know the differences between the House and Senate health care bills and here you have Democrats jumping through hoops to ensure that voters understand that they never officially voted for the Senate measure.

The reality is, in their effort to avoid voting for “special deals,” cautious Democrats are forcing leadership to rely on a procedure that sounds as hokey as the Cornhusker Kickback. The rule only reinforces the Republican narrative about back room deals and “jamming through reform.” It energizes conservatives and allows Republicans to argue that not only is reform itself unconstitutional, but so is its passage!

At this point — given the loss of the 60th vote in the Senate and the united Republican opposition — House leaders believe that rule will placate paranoid caucus members and secure 216 votes before the end of the week. And if that’s the case, then so be it. Health care reform is more important than a short-term controversy over process. But if the whip operation drags on any longer, the organized opposition to “deem and pass” will scare the very same lawmakers who demanded it in the first place and doom this entire effort.