Rep. Mike Pence, Indiana Republican, was sitting on a couch outside the House chamber Wednesday morning, and The Daily Caller asked him about his claim Tuesday that it is unconstitutional for the Democrats to use a self-executing rule to “deem” the Senate bill passed once a reconciliation bill passes. Why did he vote for self-executing rules three times when Republicans held the House?
The exchange follows. His answer, basically, is that the health-care legislation’s sheer magnitude makes the move unconstitutional. He also cited one example of a self-executing rule that he voted for in the past where the procedure was used to amend a bill after it had already passed the House and was being reconciled by the Senate and House.*
The Daily Caller pressed Pence on how he can say that Democrats are passing the health-care bill without a vote when, if it passes, Republicans are going to turn around and start running TV ads blasting individual house Democrats for voting yes.
Pence makes an interesting (though seemingly unsubstantiated) claim that the Senate will not be able to pass the reconciliation fix to the version of the health-care bill that passed their chamber in December. Unless there is something he knows that the rest of us don’t, there is no information that would make it impossible — as Pence suggests — for reconciliation to pass the Senate.
**UPDATE – Mary Vought, a spokeswoman for the Republican Study Conference, e-mails to clarify that Pence wasn’t saying reconciliation can’t pass the Senate full stop, but rather that it won’t pass through the Senate without being amended.
“In the 22 times Congress has considered reconciliation legislation since 1980, there has only been a single instance, the Omnibus Reconciliation Act of 1982 (which initially passed both Houses without amendment by a voice vote), where the Senate has not amended the reconciliation bill,” Vought said.
Here’s the interview:
The Daily Caller: Yesterday you said the self-executing rule was unconstitutional. Is that correct?
Mike Pence: Well I think it’s probably unconstitutional. I know that there are leading legal scholars who believe it is unconstitutional. My background in law and constitutional issues suggests to me it’s unconstitutional. The whole idea is that Article 1, Section 7 clearly states that a bill must be passed by the House of Representatives and passed by the Senate to become law.
The DC: This is the Mike McConnell argument that he put out in the Wall Street Journal.
MP: Mike McConnell of Stanford makes this case. I saw his comment today — I’m not giving you a legal opinion about how courts would rule on it. I’m just giving you my opinion.
The DC: Sure, and Fred Barbash in Politico did a piece that said that there are legal scholars who may agree with you. But my question is —
MP: But I will tell you that, you know, the Constitution also encompasses the common sense and common understanding of the American people. The very idea that a bill that everyone in this building knows is the bill that will become law could make its way to the president’s desk without ever having a vote in the House is contrary to the express language of the Constitution and the expectation of the American people. So that’s why I said yesterday I believe that to allow the Senate bill to pass the House without anybody voting for it would be a betrayal of the obligation that every member of the House of Representatives has to the American people.
The DC: My question is, though, that Democrats say you voted for self-executing rules yourself on three occasions.
MP: Yeah, sure.
The DC: So what is the difference between your votes for self-executing rules and this. And were you voting for something that was unconstitutional?
MP: Well let me say that in the matters that have been deemed in the past, the Deficit Reduction bill, that had already passed the House.
The DC: So has this.
MP: No, no no. The Senate bill has never passed the House. The bill that’s going to become law is the Senate bill. That bill has never been considered by the House of Representatives … The House bill is dead. The Deficit Reduction bill as it was amended: it had been passed in the House, it came back. There have been rules that have been deemed increases in the debt limit.
The DC: Why did it come back to the House, the —
MP: The Deficit Reduction Act?
The DC: Was it a reconciliation process?
MP: It was a reconciliation process. That’s how we did $40 billion in savings after Hurricane Katrina. But the others, you know, we’ve deemed increases in the debt ceiling. But never before in the history of the Senate has legislation been deemed to pass. And I would submit that never before in the history of the House has legislation of this magnitude been passed by the House without a vote, without ever having had a vote. Deeming is a procedural motion, it is used for non-controversial matters. This is the most controversial and consequential legislation in my lifetime.
The DC: It’s an issue of the magnitude of the legislation?
MP: I think that’s part of it.
The DC: What’s the other part? Because here’s the other question for you: If they pass the Senate bill through the reconciliation as a rule, and deem it passed, most people are not going to accept the argument that they didn’t vote for it. [Pence runs off to vote and returns a few moments later]. What I’m saying is for all practical purposes, and I’m talking in terms of the voter and how they perceive it —
MP: Can you walk with me?
The DC: Yeah. In terms of the voter and how they perceive this vote, a vote for reconciliation is going to be a vote for the Senate bill. So procedurally they’re not voting for the Senate bill, and I understand your point about how legislation of this magnitude has never been passed, but for all practical purposes won’t it still be considered a vote for the Senate bill, a vote for reconciliation?
MP: I don’t think so, because I think my constituents this weekend were unbelievably well-informed about the abuse of the process that’s happening here.
The DC: But if you say you don’t think so then you can’t go saying that Democrats —
MP: The Senate bill cannot be fixed by reconciliation. The reconciliation bill that’s been talked about and contemplated can’t pass the Senate for a variety of substantive and procedural reasons. So all that we’re really doing here is passing the Senate bill in the House. That’s all we’re really doing and the American people know that and they’re intending to pass the Senate bill without ever voting for it.
The DC: But if you say that you don’t think this will be perceived as a vote for the Senate bill, you can’t go out and run ads against House Democrats saying they voted for health care.
MP: You lost me on that one. What do you mean?
The DC: I just mean that if you’re saying they’re passing it without voting on it then you can’t go out and say, ‘This Democrat voted for health care.’
MP: Well, but —
The DC: That’s having it both ways.
MP: Well but the reconciliation bill is their excuse for having allowed the Senate bill to be passed without voting on it. And they’re responsible for the outcome.
*Sentence added based on accurate reader input.