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The health care reform debate: What 'deem and pass' really means

"Deem and pass."

It may sound like a football play, but it's House Speaker Nancy Pelosi's favored procedural maneuver to pass health care reform.

Such legislative gymnastics have Republicans up in arms, including Rep. Cliff Stearns, R-Ocala, who lamented the tactic in a speech on the House floor.

"There is no precedent for what the Democrats are doing with this deception," he said Monday. "We have never written a reconciliation bill to amend a law that does not exist."

Stearns is talking about a series of procedural tools that House and Senate Democrats plan to use to pass their health care overhaul. He and other Republicans say the move flouts congressional rules and may even be unconstitutional.

Before we can decide if he's right, there are some essentials for understanding the arcane world of congressional procedure. Listen up, because you're going to be hearing these terms thrown around in the showdown on health care:

Reconciliation: Bills considered under this procedure cannot be filibustered; they need only a simple majority to pass. Reconciliation was created as part of the 1974 Congressional Budget Act in order to make it easier to bring revenues and spending in line with caps set by the annual budget resolution. The authors of the procedure did not envision it as a way to fast-track policy legislation, but Congress has used it to pass nonbudget measures, including welfare reform in 1996 and changes to Medicare and Medicaid.

"Deem and pass": This phrase refers to a House tactic that allows it to pass a bill without actually having a roll call vote; it is technically known as a "self-executing rule." Here's how it works: The House Rules Committee is in charge of writing rules for floor debate. The rule dictates what amendments can be offered to a given bill and how long it will be debated, for example. A self-executing rule is essentially a two-for-one special; when the House votes to adopt a self-executing rule, it simultaneously adopts a separate bill or amendment, which is specified in the rule itself. The House "deems" another bill to be passed as it adopts the rule.

The House and Senate have both passed versions of the health care bill. There are big differences between the two, so typically the two chambers would pick a handful of lawmakers to hash out those discrepancies in a conference committee. Then, the House and Senate would vote again on the final product, called a conference report.

But Senate Democrats lost their 60-vote, filibuster-proof majority in January when GOP Sen. Scott Brown was elected in Massachusetts. That means Senate Republicans could block a conference report.

The process is further complicated by a large portion of House Democrats who don't like the Senate bill, opposing such things as a tax on so-called "Cadillac'' insurance plans and a special Medicaid perk for Nebraska.

So the Democrats are turning to this complicated strategy to pass health care reform.

Here's how it could go down: The Rules Committee will cobble together a self-executing rule for the House to consider the package of reconciliation fixes to the Senate bill — for example, eliminating special Medicaid subsidies for Nebraska — but that also includes language that "deems" the Senate bill passed once the House adopts the rule.

Meanwhile, the Senate parliamentarian has said that the Senate bill must be signed by the president before any of the House changes can be made. So, presumably, President Barack Obama will approve the bill as soon as the House deems it passed. Then, the Senate will debate the package of reconciliation fixes passed by the House. The package will only need a simple majority to pass, but there's still plenty that could derail it.

The tactic serves two purposes. It keeps House Democrats who dislike the Senate bill from having to vote on it, and it potentially solves the problem of making changes to the Senate bill without needing 60 votes to pass.

The GOP is calling foul, saying the strategy is unfair and potentially unconstitutional.

"What's really remarkable about this whole business is that not only the American people rejected this plan but Democrats are so desperate to pass it that they're willing to trample on the traditional rules of the House and Senate and even trample on the Constitution of the United States to get it done," said Indiana Republican Mike Pence.

But is it unprecedented, as Stearns claims?

Self-executing rules are not uncommon in the House. For instance, the chamber used the procedure on Feb. 3 to adopt a Senate amendment to a resolution about raising the statutory limit on federal debt. House Republican leaders used it 36 times between 2005 and 2006 and Democrats used it 49 times in 2007 and 2008, according to Brookings Institution congressional scholar Thomas Mann writing for Politico.

And the reconciliation process has been used repeatedly for policy-related measures. For instance, Congress used reconciliation in 1996 to make big changes to welfare, including separating it from Medicaid.

Norm Ornstein, a leading congressional scholar with the conservative American Enterprise Institute, said the GOP in 2006 used a very similar tactic to what the Democrats are now proposing, employing a self-executing rule to pass $38.8 billion in budget cuts without having to vote on an immigration measure.

So, there's a whole lot of precedence for the individual tactics Democrats are proposing to use, though the specific combination of a self-executing rule and reconciliation is a bit unusual, said Jim Horney, a budget expert at the left-leaning Center for Budget and Policy Priorities.

"There's nothing about (the process) that's dramatically at odds with the way things get done," Horney said. "With almost every bill, you can find some way in which the circumstances are a little different. But to imply that it's somehow a big departure from the way things are done could be wrong."

Donald Wolfensberger served on the House Rules Committee for over 10 years, and was around when reconciliation was first used. He follows Congress closely as director of the Congress Project at the Woodrow Wilson International Center for Scholars, and agrees with the other congressional experts we spoke with that there's precedent, but not for this specific tack. The 2006 instance mentioned by Ornstein is "the closest analogy," to what the Democrats are proposing. "It would be pretty similar," he said.

Wolfensberger also said it's the first time he has seen Congress write "a reconciliation bill to amend a law that does not exist," as Stearns said. On that point, Stearns is correct, he said; the president will not have signed the Senate bill before the House passes the package of fixes.

So, that brings us back to Stearns' original claim. While the combination of a self-executing rule and reconciliation is a relatively novel combination of procedural tools, all the congressional experts we spoke with agreed that there are plenty of similar examples of what the Democrats are proposing to do, nor is the party flouting procedures that are already on the books. As a result, the first part of Stearns' claim is somewhat misleading. However, Stearns is right that this is the first time Congress has written a reconciliation bill to amend a law that does not exist.

The statement

"There is no precedent for what the Democrats are doing with this deception. … We have never written a reconciliation bill to amend a law that does not exist."

U.S. Rep. Cliff Stearns, R-Ocala, Monday on the House floor

The ruling

The congressional experts we spoke with agreed there are plenty of similar examples of what the Democrats are proposing to do and that the party is not flouting procedures already on the books. However, Stearns is correct that this is the first time Congress has ever written a reconciliation bill to amend a law that does not exist. We rule his claim Half True.

The health care reform debate: What 'deem and pass' really means 03/18/10 [Last modified: Friday, March 19, 2010 11:30am]

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