Over the past several weeks President Obama has made the line “Congress owes the American people a final up-or-down vote” central to his pitch for final action on health care reform. It’s how he describes the complicated process of reconciliation. It’s very smart.
Unfortunately for the president, Democratic leaders in the House are considering a strategy that not only violates his call for “an up-or-down vote,” but many suggest it also violates the Constitution. It certainly violates the nature of our democracy and majority rule through the yeas and nays process of voting on all legislation.
Called the “Slaughter Solution” after the chairwoman of the House Rules Committee, Rep. Louise Slaughter is working to devise the rule under which the House will debate and vote on the Senate version of health care reform and the subsequent reconciliation bill. As described, the rule would have the House vote on reconciliation, which would “deem” the House as having also approved the Senate version without ever having taken the “up or down vote” as President Obama calls for (or a vote for the House rule would “deem” the vote to have occurred).
How appropriate it is that this is referred to as the “Slaughter Solution” as this looks to slaughter our democratic precedent and procedure. While Democrats will argue that this process has been used in the past, they cannot point to an occasion where this has been used for legislation this important, this big, or this consequential. And even if it has been used in the past, that doesn’t mean it could pass Constitutional muster if challenged. The problem lies with Article I, Section 7 of our Constitution, which states in the discussion for passing legislation:
But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively.
The language is clear; the framers of the Constitution expected Congress to vote on all bills before they became law. And since the Senate version of health care reform has never had a House vote, to “deem” it passed through a vote on reconciliation (or the rule) is absurd and a stretch to the point of tearing the fabric of the Constitution.
At the very least the idea of deeming the Senate bill passed even though no “up-or down-vote” will be taken turns the process into “something unseemly, and, more important, contrary to Democrats’ promises of transparency and time for deliberation” a point made by The Washington Post in a recent editorial.
The funny thing is that Democrats are considering this strategy because many Members have said they do not want to vote on or for the Senate bill. But no Member come November will be able to hide from voters behind this ruse. Jonathan Cohen in The New Republic writes (and then quotes Ezra Klein of The Washington Post):
“Of course, still unclear is whether the House will vote on the Senate bill and its amendments separately, or whether it will simply vote on the amendments in a way that “deems” the Senate bill passed. Pelosi said the latter was her preference, because her members don’t want to vote for the Senate bill directly if they can avoid it.
I remain baffled by this logic, for reasons Ezra Klein laid out very nicely today:
No one cares whether the House passed the bill or “deemed” the bill passed. People don’t pay attention to whether you voted using the passive voice or not. But by falling back on this bizarre locution, the House signals to voters that it thinks it’s passing a bad bill. Some members of the House may indeed think that. I disagree with them. But for their own sake, if they’re going to let this bill become law, they’d better pretend they agree to me.
Imagine the ads. “My opponent thought the health bill such a bad piece of legislation that he wouldn’t even vote for it. But nor was he brave enough to stand up to Nancy Pelosi and say no! Vote for the guy who’s not a wimp.” And what’s our hypothetical House members response? “No, you don’t understand. I only refused to vote yes or no because I was hoping to pass a small package of amendments and was worried that the Senate wouldn’t act on them fast enough?” You have to be kidding me.”
And so we find ourselves in this horribly tortured place where reason and sense have gone out the window or more appropriately “down the rabbit hole,” like in “Alice in Wonderland.” Today’s health care debate reminds me of author Lewis Carroll’s use of literary nonsense:
“If I had a world of my own, everything would be nonsense. Nothing would be what it is because everything would be what it isn’t. And contrary-wise; what it is it wouldn’t be, and what it wouldn’t be, it would. You see?” said Alice.
Whatever you think of the health care reform bill now moving to a final vote, this most current strategy makes a mockery of our history and our form of government.
I agree with President Obama, it’s time for an up-or-down vote. The public deserves it.
William Pierce is Senior Vice President for APCO Worldwide, Inc.