This week, House Speaker Nancy Pelosi is expected to ask Democratic Representatives to demonstrate their unconditional endorsement of the health care reform bill before Congress by—not voting for it.
In a parliamentary trick known as the “Slaughter Solution”—brought to you by Rule Committee Chair Louise Slaughter, who was last seen on TV at the Blair House summit carping about a constituent’s used dentures—the House would not ever have to actually vote for the unpopular Senate bill in order to pass it. (Weren’t Democrats the ones clamoring for an “up-or-down vote” for the last three months?)
Instead, according to Slaughter, House Democrats could simply vote for a reconciliation package written to remove any unsavory provisions from the Senate bill and bring it more in line with liberal House members’ liking. The package would contain what’s known as a “hereby” rule declaring that the Senate bill would be “deemed” to have been “already passed” by the House. The reconciliation package would be sent to the Senate for approval, and then it and the original Senate bill would go to the President for signature.
The only nagging detail in this plan is that Article 1, Section 7 of the Constitution states that every bill “shall have passed the House of Representatives and the Senate” before it may go to the President. In other words, a bill must be passed—not “deemed to have been passed”—by both chambers first.
In case this wasn’t clear, the Founding Fathers reiterated, “[T]he 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.” (Note: “Yea” in this case does not mean, “Yea, I don’t have to vote for the bill!”)
This little provision was clarified by a 1998 Supreme Court ruling that both chambers must pass identical versions of the bill, thus bestowing their joint approval upon it. Only minor, budget-related adjustments are permitted through reconciliation. Conference committees between the two chambers typically meet to work out differences, and then both chambers must vote again on bills with identical wording.
On the off-chance that this still isn’t clear to the Chair of the Rule Committee: Both chambers must vote on the same bill. One chamber may not pass another bill “deeming” the first bill to be passed and pre-amending it before it is voted on.
In addition to its flagrant violation of the Constitution, Congressional Democrats’ plan involving the Slaughter Rule is based on a flawed reasoning process. Specifically, House Democrats seem to believe that because the Senate has the upper hand, the House may do to the Senate bill whatever they want in order to appease their constituents. In the House’s view, the Senate has had their turn with the bill—now it’s the House’s chance to have a go at it.
It is true that most of the 59 Democrats in the Senate who voted for Obamacare would probably accept almost any version of the bill that could pass the House at this point, rather than see a year of effort, their plans for health care reform, and Obama’s presidency go down the drain.
But there’s a fundamental tactical reason that one chamber of Congress is not allowed to proceed according to the Slaughter Solution.
Namely: what if Senate Democrats vehemently opposed the House’s preferred version of the bill? What right would House Democrats have to trample on the Senate’s bill and unicamerally morph it into one of their own choosing?
What if passing the reconciliation bill required, for example, offering a series of bribes to House members that made the Cornhusker Kickback and Louisiana Purchase look like chump change—a tactic Obama has already signaled he is open to, and one that seems necessary to seal the deal?
Suppose the House inserts objectionable sweetheart deals for the states of representatives who are wavering on the bill. Then Democrats are right back where they started after Scott Brown’s election in Massachusetts, with one chamber being badgered to approve the other chamber’s distasteful version of the bill without having substantive say over its content.
The Slaughter Solution, in addition to being unconstitutional, anarchic, and embarrassingly and transparently desperate, sets an ugly precedent, whereby one chamber of Congress may steamroll the other with impunity, widen the historic trust gap between the chambers, and pass radical legislation that both chambers have not fundamentally agreed upon.
The Slaughter Solution has been referred to as a “self-executing” rule. Based on the initial reaction of voters to this ruse, Representatives who vote for it may find that this adjective soon comes to describe their careers in Congress.