Pass the Fargin’ Bill
I am someone who actually likes arcane questions of legislative procedure. I think the idea of self-executing rules that “deem” legislation passed is intriguing, if potentially problematic. But I do not think now is a good time to indulge in such curiosities.
Ezra Klein says “Democrats should stop being clever and pass the bill.” I think what Ezra means to say is this: Democrats should stop being complete and total pantywaist wankers and pass the friggin’ bill! Anyway, Ezra, Jonathan Cohn, Jonathan Bernstein, and everyone else with any sense at all think that option #1 of the following three options would be best:
(1) House passes Senate bill. POTUS signs Senate bill. (Health reform is law!) House and Senate pass reconciliation patch; POTUS signs patch. (Patch amendments are law!) Cohn calls this the Schoolhouse Rock option. With props to Yglesias, I’ll call it the Planet Normal option.
(2) House passes reconciliation bill with a rule that deems the Senate bill passed. POTUS signs Senate bill (Hurray!); Senate passes patch; POTUS signs patch (!). This is the Planet Pointless option.
(3) House passes reconciliation bill with conditional self-executing rule deeming Senate bill passed only when the Senate actually passes the reconciliation patch. If the Senate passes the patch, both bills would go to POTUS, who would sign the Senate bill (!) and then the patch (!). This I call the Planet Mystifying Preoccupation with Self-Defeat option.
Now, I actually don’t think there’s anything wrong with #2, even though it pointlessly obscures the meaning of its own historic passage of health reform. But whatever. I guess it saves the House some time—one vote instead of two—and gives some members peace of mind, however illusory. The real concern I’d have is that some Democrats will actually believe that they will somehow be avoiding the consequences of a direct vote on a bill that they will in fact pass by voting on the self-executing rule tied to the reconciliation bill. Here’s Jonathan Bernstein:
Look, this is nuts. If health care reform passes and then turns out to be unpopular, there’s no way that Members of the House will be spared because they didn’t vote directly for the Senate bill. If both parts of pass-and-patch are enacted, no one is going to go after them because they voted for the Nelson deal and then voted to repeal it a few hours or even a few days later. No one, that is, who isn’t already going to go after them on it.
…But as soon as the bills pass, the spin war changes — and it would be a very foolish move to make the first step of that spin war one that will look bad to the Broders of the world. The Democrats should just take the votes, and focus on the things they really want to sell about this bill, which are the immediate and long-term benefits for the American people.
The mystifying option #3 is the equivalent of #2, but with the added defect that it gives Republicans yet another opportunity to sink the whole bill. And how clever will it look if Senate Republicans force an amendment through a Byrd rule objection? That would send the reconciliation bill back to the House and raise yet another round of inquiries into the parliamentary metaphysics of “deeming” a bill passed versus voting on it.
Naturally, it looks like House Democrats want to try option #3. Both David Waldman and Igor Volsky are reporting that Pelosi indicated a clear preference for #3 in a roundtable with bloggers earlier today (Monday). If that’s the route we take, so be it. Hope for the best. I will be holding my breath.
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#2 actually seems slightly preferable to #1 to me. It’s not about avoiding voting for HCR, it’s about avoiding voting for the Cornhusker Kickback and the Cleveland Steamer. Yes, opponents of HCR will still go after them, but that will be one less argument in their arsenal. But I agree the main thing will be the overall popularity of the bill, which in the long run these special deals will have minimal impact on.
#3 looks like the one way they could really fuck this up. This guy says that’s Pelosi’s choice:
http://www.dailykos.com/story/2010/3/15/846363/-In-the-Speakers-Office
But EK is more likely correct
It appears that David Waldman (from Kos’ Congress Matters) was actually in the room with Pelosi when she indicated her preference for #3. And Igor Volsky’s account matches Waldman’s. Since Waldman and Volsky were in the room, and Klein wasn’t (according to Yglesias, who gives a helpful list of attendees), I guess we should believe them.
On your first point, that #2 removes the kickback argument from opponents’ arsenal, I doubt it will help. I wouldn’t count on Republicans respecting the distinction in their attacks. And if Dems rely on it, they’ll look like flip-flopping wankers who can’t give a straight answer.
I guess it would go something like this:
R: “My D opponent voted for the sleazy Cornhusker Kickback!”
D: “I did no such thing, in fact I refused to vote for HCR until we had passed a legislative fix to strip out the CK.”
R: “Yeah, but the CK technically became law until the reconciliation fix passed the Senate.”
D: “Obviously the procedure got complicated but I believe what the voters actually care about is results, and I fought for HCR without any special deals, and that’s what I helped deliver.”
I mean, who’s splitting hairs here? To me it sounds like the R’s.
Man, I hope they don’t do option 3 though. I understand why the House doesn’t trust the Senate, and I understand why Pelosi wants to fight for the prerogatives of her chamber… but it’s just a bad idea. While I’ll certainly take it passing any way she can muster, if it’s #3 then this game continues. If it’s either of the other options the game is essentially over. We win. Republicans won’t be able to hold a coalition together to defend the CK… the politics are just too bad.
Okay, it doesn’t have to be a disaster. My feeling is that the audience won’t be that discerning and that Rs will accuse Ds of voting for a trillion-dollar boondoggle packed with sleazy back-room deals no matter what happens. It seems really unlikely to me that voters will be receptive at all to either side’s disputations about the legislative sequence.
I would hope Dems would campaign on HCR as a triumph, rather than to act like they didn’t vote for it but only sort of “deemed” it into law. But you’re right, Ds won’t be automatically painted into their traditional hair-splitting corners.
Another thing about #3. I’d think it would be more historic, and more fun, to be the chamber that really passed this thing, rather than the chamber that passed HCR a couple of times before the other chamber passed it and took the glory.
Yeah, especially if you were Pelosi… if/when this thing becomes law It would be nice to have the picture that accompanies the headline be of her pounding the gavel, making it official. I mean, if the glorification appeals to her (call it ‘establishing her legacy’). But I would assume people would soon start comparing her to the great Spkrs.of the House in our country’s history…
And, yeah, it would be more fun!
Just saw Ezra Klein on Olbermann, and it turns out he was at that meeting with Pelosi. So…oh well. I don’t know. I guess nobody does. And, of course, the bigger problem is that we might not have the votes.
i’m gathering that republicans are getting some traction w/ the idea that “deem and pass” represents some kind of shady trick… so it looking like not such a good idea after all.
The problem seems to be that in order to explain that voting this way actually does mean the House will be voting on HCR you seem to defeat the purpose of the whole exercise, which is to obscure this fact so as not to be blamed for the most unpopular parts of the bill. So instead Dems have left it vague, but this turns out to just make everyone suspicious.
You could perhaps argue that doing it this way carries symbolic value and sends a message to the Senate about how important it is to pass the Reconciliation fixes. That’s kind of weak tea, but it’s something. But, the more I think about it I think just straight up passing HCR first makes the most sense.
But actually what makes sense is Pelosi doing whatever it takes to get to 216.