Nancy Pelosi says “deem and pass” is her preferred strategy for pushing healthcare reform through. And she is apparently surprised by the ferocious reaction. The self-executing rule is not an unusual, esoteric technique, she notes. There was no such ferocity before. It has been used countless times. Its constitutionality is not in question. So what’s the problem?
Let me explain.
So far as the legality or regularity of the procedure is concerned, Pelosi is correct. Reconciliation does raise a substantive issue: whether the Senate filibuster serves a rightful quasi-constitutional purpose. But if you accept that use of reconciliation is justified in the present case, as I do, “deem and pass” raises no further issue of that sort–because it is procedurally identical to the House passing the Senate bill and a reconciliation sidecar along with it.
My test of “procedurally identical” is simple. Suppose the House passes Pelosi’s rule, and then the Senate fails to pass the reconciliation alterations to its own measure. Would the unamended Senate bill, assuming the president signs the right paper, then become law? According to what I am told, the answer is yes. “Deem and pass” has exactly the same legislative function for the House as passing the Senate bill and separately passing the reconciliation changes.
Which raises the question, why do it? Pelosi says, because many of her members do not want to vote for the Senate bill. But if I understand this procedure correctly, that is what they will be doing, with the possible consequence that the Senate bill eventually becomes law. What Pelosi is saying, almost in these very words, is that she wants her members to be able to vote for the Senate bill while telling their voters back home they have not. Her method may be procedurally correct. It is also, quite explicitly, cover for her members to lie to their voters.
What, she asks, is wrong with that? She and her supporters seem genuinely puzzled, so I had better spell it out. (1) Lying to voters is wrong. (2) Doing it so nakedly insults their intelligence (which, in addition, is unwise).
Pelosi is equally perplexed, I imagine, by the fact that she and the institution she leads are held in such contempt by the people of this country.