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March 20, 2010

Rules Committee Gets Unruly
Update: Demon Pass Dropped; House Will Vote On Standalone Bill

Update: Washington Post reporting Demon Pass dropped.

My fear is that this means they have the votes. But then, I think that about everything.

Alternately, it could just mean they couldn't take the heat on it, and it couldn't accomplish what they wanted it to anyway.

Cardoza Threatened to Vote Against Demon Pass: He's one of the two Democrats bribed with water in the San Joaqim Valley.

Rep. Dennis Cardoza (D-Calif.) appeared to switch positions on healthcare on Saturday, saying he'd vote against a rule that deems the Senate bill as passed.

Cardoza, a previously undecided lawmaker who'd voted to pass Democrats' healthcare bill in November, said he would vote against the process his party plans to move forward on healthcare.

"I don't believe it's smart of us to pass a bill this momentous with a deemed rule," Cardoza said in a Rules Committee markup. "I want to make the announcement in the committee right now that I don't support that, and won't support a rule that does it that way."

So dropping the Demon Pass strategem, I guess, secured his vote.


They can't figure out what they're trying to do. Neither can I.

Here is the problem: The Senate has passed its HCR bill. If the House passes the same bill, it goes on to the president; once he signs it, the bill becomes law. But House Democrats, when they vote for the Senate bill using the “Deem & Pass” dodge, also want to simultaneously pass a package of amendments to the law. Except HCR will not, at that point, be law. It will only become law when the president signs it. Congress can amend the law — it does so all the time — but can it amend something that isn’t law?

Which is where Democrats are tripping up. Passage of their HCR proposal should be very simple: Senate passes it, House passes it, president signs it. But House Democrats are terrified of voting for the unpopular bill, so they hope to pass it by “Deem & Pass,” in which they will vote, not for the bill, but for a rule that both deems the Senate bill to have passed and, in the same vote, passes the package of amendments. So House Democrats will have two fig leaves: 1) they didn’t vote directly for the Senate bill, and 2) they voted to simultaneously amend — to “fix” — the Senate bill.

The problem is the sequence. Can the House vote to amend something that isn’t the law, as the Senate bill will not be law before the president’s signature? The Rules Committee meeting turned into mass confusion when Democratic Rep. Henry Waxman said, “We’re not going to ‘deem’ the bill passed. We’re going to pass the Senate bill…I would be against the idea of ‘deeming’ something — we either pass it or we don’t.”

To Republican ears, that sounded as if Waxman was speaking out in support of a direct vote on the Senate plan. “I hope we’re making news here,” said Republican Rep. Joe Barton. If so, Barton added, “Praise the Lord!” Other Democrats jumped in to say that no, there would not be a direct vote on the Senate bill.

I've mentioned this before, but I have trouble figuring out conceptually what they're trying to do, and if it's even ballpark legal.

The House wants Demon Pass not just (I think) to avoid a direct vote but also to bind the Senate's hands. I think their idea is that this is a two-for-one bill, and both parts must be passed by the Senate for it to become law. The Senate has already passed the underlying bill; the House wants, I think, to link the underlying bill with the reconciliation package so that if the reconciliation bill isn't passed as-is then the entire House bill (fixes plus "deemed" underlying bill) fails, and there is no bill at all agreed on by both houses and nothing, therefore, for the President to sign into law.

I think that is what they are attempting. To "deem" the Senate bill passed if and only if the House "fixes" are passed too.

This gets at the idea of a bill having to be be passed by both houses, with perfectly identical language, for it to become a law.

But here's the thing: The Senate can only use reconciliation if the Senate bill is passed by the House as-is and then signed into law by the president.

Do you see the problem? Or the contradiction the Democrats are attempting? They are attempting -- lawlessly, I think -- to both claim the Senate bill has been passed as-is and also that it has not been passed yet, not until the fixes are passed too.

It can't be both. Either the Senate bill has been passed by the House and now only awaits the President's signature to become law, or the Senate bill has not been passed yet by the House, in which case, fine, but if it hasn't been passed by the House yet it can't become law and the Senate cannot employ reconciliation at all to pass the fixes, but rather must pass such fixes (if at all) through the normal course of business, filibusters and all.

This is I think the ultimate goal here, some kind of unconstitutional fudge in which the Pelosi and Reid pretend the Senate bill has been passed as-is for one purpose (to pretend it is now a "law" and therefore reconciliation can be used) but pass it only with changes so that this supposed law can't go into effect without those changes.

Either the bill has been changed and requires further action by the Senate to approve those changes or it hasn't been changed. It can't be both.

I am nowhere near sure of this, but I think that is the logical contradiction the Democrats are struggling to overcome with fudging.

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posted by Ace at 01:51 PM

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