People who are opposed to health care reform are raising a real ruckus over a possible parliamentary maneuver being considered by Speaker of the House Nancy Pelosi (D-CA). She is thinking of asking the full House to vote on a package of amendments to the Senate-passed health care bill that would also contain language adopting the Senate bill. That may sound like a fairly exotic method of enacting important legislation, but is it inappropriate? My answer is no.
What this so-called “deeming” provision does is essentially join the two pieces of legislation into one. If the Senate had a different rule on debate this would happen in a conference committee. The House conferees would insist on amendments very similar to those now in the package that Pelosi is bringing to the floor, but the amendments and underlying legislation would all be wrapped together as a single conference report and voted up or down by both the House and Senate.
Because the 59 senators who support health care cannot shut off debate on such a conference report that option is not open, so the House has created this procedure as a substitute.
But, as some might ask, isn’t the 60-vote majority required to end a Senate filibuster part of the legislative process? Is it fair for the House to attempt to circumvent that process by joining two pieces of legislation—one that has already passed the Senate and the other that is being sent to the Senate for consideration?
The answer is yes. Although the filibuster is part of current Senate rules it has not always been. Further, while some continue to think that the 60-vote supermajority required to terminate debate in the Senate has constitutional origins, the Constitution in fact implies that such matters should be resolved by a simple majority—leaving the House free to take whatever view it chooses on the question of the 60-vote supermajority required by current Senate rules.
The possibly apocryphal story of George Washington and Thomas Jefferson arguing over the role of the Senate is often cited by defenders of the filibuster. Washington supposedly asked Jefferson, "Why did you pour that coffee into your saucer?" Jefferson responded, "To cool it.” Then Washington is said to have replied, "Even so, we pour legislation into the senatorial saucer to cool it."
But the Senate rules did not permit a filibuster at the time this conversation allegedly took place. Filibusters were not allowed under Senate rules until 1806 and they were not practiced until the 1840s—when they were used largely against legislation to limit the practice of slavery.
The Constitution did structure the Senate in a way that it would counterbalance the possibility for erratic tendencies in the House, which elects all of its members every two years. Senators are elected for six-year terms so that only a third of the body is subjected to the scrutiny of the electorate in any one election.
The Constitution does specify that supermajorities are necessary for certain actions by the Senate. For instance, the Constitution requires that two-thirds of the Senate must vote to approve the overturn of a presidential veto or to ratify a treaty. In five other instances the Constitution requires the Senate to act by a supermajority, but for matters such as the passage of ordinary legislation like the health care bill the Constitution provides it to be determined by majority vote.
The House can’t completely circumvent the current Senate rules, but it can respond to the Senate passage of legislation that is unpopular with House members by packaging it as though it were a conference agreement and sending it forward saying that the body agrees to this legislation only if it is amended as specified by the amendments contained in the rest of the package. That is not simply permissible but it provides the House with the only means of voting on the issue that reflects the true sentiment of the body.
Further, it should be noted that use of self-executing or deeming resolutions is in fact not all that exotic and that the record of those feigning great dismay over its use have repeatedly used exactly the same procedure themselves—often with far less justification than can be provided in the current instance. House Minority Leader John Boehner (R-OH) calls the proposed procedure “the twisted scheme by which Democratic leaders plan to bend the rules.” Yet during the 109th Congress alone (a portion of which Rep. Boehner served as his party’s floor leader when his party was in the majority) deeming resolutions were used 36 times and Boehner supported all of them.
What the speaker is now considering as a means of resolving the long-protracted debate on health care is putting the two pieces of legislation that deal with health care together so the House can vote on them up or down as one package. That is the way our new policy on health care should be considered and it is highly regrettable that the archaic and undemocratic rules of the Senate don’t allow that as the order of business in both houses of Congress.
Scott Lilly is a Senior Fellow at the Center for American Progress.
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