Damned If They Deem

Gosh, those folks in Congress sure are smart. House Democrats have figured out a way to pass the Senate health care reform bill without actually voting on it.

This is complicated, almost as complex as the Senate’s 2,700-page overhaul of the health care system, so bear with us.

It all started with Republican Scott Brown’s victory in the Massachusetts election to fill the late Ted Kennedy’s Senate seat. That deprived Democrats of the 60 votes they need to clear procedural hurdles in the Senate. The Senate had already passed health care reform, but its version differed from the House bill, so the legislation needed to come back for another vote in both chambers once the differences between the two bills were hashed out.

Many thought health care reform was doomed as a result of Brown’s election. But no! You can’t kill health care reform that easily. It emerged from its premature grave through a new strategy: The use of reconciliation, a procedure that prevents budget-related legislation from being filibustered. A bill under reconciliation only needs 51 votes to clear the Senate.

The original idea was for the House to pass the Senate bill, and then pass separate legislation, under reconciliation, that would fix the parts of the Senate bill the House didn’t like. But many House members don’t want to go on record in support of the Senate bill, which included unpopular provisions like Nebraska’s “Cornhusker Kickback” Medicaid deal. Some members don’t like the Senate bill’s tax on high-end insurance plans. Others don’t think it goes far enough to prevent taxpayer money from being used to pay for abortions.

The solution is something you won’t find in your civics textbooks. The House will only vote on the fixes to the Senate bill—the reconciliation measure. But the “self-executing” rule for this vote will state that passage of this reconciliation means the House “deems” the Senate bill to be passed.

“It’s more insider and process-oriented that most people want to know,” House Speaker Nancy Pelosi told bloggers Monday. “But I like it because people don’t have to vote on the Senate bill.”

Republicans, of course, accuse Democrats of procedural sleight of hand, even though they occasionally used the deeming trick themselves when they were in power. They’ll try to force the House to vote on the Senate bill, but they’re unlikely to prevail.

The problem with the Democrats’ strategy is that it’s hard to explain to the public. How can you just “deem” something to be passed? Why didn’t you just vote on the darn thing?

Use of reconciliation is tricky enough—many of the fixes the House would like to make in the Senate bill likely won’t pass muster because they aren’t budget related. But this deeming business really makes it seem like Democrats are gaming the system.

Plus, even though the House may vote on the reconciliation bill in just a few days, we still don’t know what’s in it. So much for Sunshine Week, the celebration of open government that began Monday. House leaders are waiting for costs estimates from the Congressional Budget Office before they reveal the package of fixes in the reconciliation bill.

The lack of details didn’t stop the House Budget Committee from passing an empty shell of a bill Monday just to get the reconciliation train rolling. The contents will be filled in later this week by the House Rules Committee.

Americans are split down the middle on health care reform. If Congress does pass a bill, it’s going to face lots of resistance. The “whatever it takes” procedural moves being used by Democrats are only going to increase public antipathy toward the bill, as well as toward Congress itself.

Democrats may regret their tactics come November.

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Kent Hoover is the Washington bureau chief for bizjournals.