Ashamed of their vote, ashamed of their process

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I am not a constitutional scholar, but I believe the recently announced “Slaughter Rule” approach is not consistent with the Constitution. Ms. Slaughter is the Democrat chairwoman of the House Rules Committee. Under the Slaughter approach a single vote is cast to (a) deem the Senate version of the health care bill passed, (b) pass reconciliation language that would revise the health care bill that was “deemed” passed, and (c) set a unique procedural rule for the House. If you follow the idea of the Slaughter approach, legislating will fundamentally change to a system fraught with confusion. The court would really need to think twice about its role interpreting basic legislative rules, but we are starting to look at a very bad set of facts.

Article 1, Section 7 of the Constitution says that in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate.” There should be a “bill” that is the subject of a vote in each body. The core problem under the Slaughter approach, as I see it, is not so much the name given to the vote. I think the House can vote to deem a bill approved, if it is just a matter of using a different word. My concern is that would be a single vote that tries to approve the Senate bill and the revisions to the Senate bill at the same time. That is a vote on a different bill not a vote on the Senate bill. That vote cannot be construed as passing the identical Senate bill. It does not represent a simple vote for the Senate bill. My read of the Constitution is that both chambers of Congress must each vote on identical bill before the President can sign them into law. Here the House is clearly voting revisions to the Senate bill. I think it would be fine if there was an up or down vote on the Senate bill, and even enactment followed by efforts at revisions.

The proposed Pelosi-Slaughter approach allows that the House can take a vote on multiple provisions at once. That single vote reflects the balance of those three provisions – not necessarily support for each of those three provisions alone. A bill must reflect an exact agreement between both bodies on language. What would the Senate need to vote on? It seems to me it would need to vote on the whole package – and that means the reconciliation rules could not apply. What do protagonists of the Slaughter approach believe this will lead to? From now on there could be a single vote in the House or Senate on multiple provisions following the Slaughter rule. Indeed the very provisions could be on the same substance and contradictory. So who gets to pick and choose what goes to the President’s desk or what gets taken up in the other body? The December Senate vote was flat out not on the same bill the House would be voting on. The confusion and uncertainty concerning this fabrication would echo for decades. There is a credible case that the Supreme Court would at least look at the issue.

Rep. Slaughter and others have noted that votes on a rule that deems a bill passed have occurred in the past. Therefore, she reasons, such an approach must be Constitutional. But the Constitution does not change because people ignore it or fail to challenge instances of its violation.

Representatives have one of the greatest responsibilities of our Republic– the ability to stand up and vote for or against a bill on behalf of their constituents. Democrats seem ashamed of their upcoming vote; they want to cloak their vote in as much smoke and mirrors as possible. This is hardly the up or down vote that President Obama claimed he was seeking. This process is far more pernicious to the Republic than just poor politics, confusion, and general political hypocrisy. There needs to be some reasonable and recognizable order in a legislative process. Congressman should be able to answer a simple question – did you, as a representative vote without any qualification or additional text, for the bill being placed before the president? If we have dozens of different interpretations of what happened here, the corrosive effect will linger for a long time. And legislative tactics will fundamentally change. Get used to more confusion and distrust.

Nandan Kenkeremath worked as a senior staff on Capitol Hill for 17 years.