Republican leaders are openly mocking a tactic House Speaker Nancy Pelosi is considering that would enable House Democrats to pass the Senate's healthcare proposal without voting directly on it.
The GOP objective: to render the reform package even more unpopular and politically dangerous by highlighting the extraordinary measures that Democrats are willing to resort to to pass it.
Democratic leaders already plan to employ the parliamentary maneuver known as reconciliation. Under reconciliation, Congress agrees on general objectives and uses reconciliation to plug in specific numbers later. It is intended to streamline legislative debates and amendments related to budget-related legislation.
Reconciliation became necessary following Sen. Scott Brown's upset win in Massachusetts, which cost Senate Democrats the 60th vote they need to head off any filibuster of new legislation.
Unlike regular legislation, reconciliation requires a simple majority – 51 Senate votes – rather than the 60 votes needed to bring a bill to a vote on the Senate floor.
Pelosi faces an additional problem, however: Many members of her caucus believe that voting for the Senate's unpopular healthcare bill could be politically fatal, even with the subsequent changes in the reconciliation process that Senate Democrats are promising to make.
Pelosi's solution: another maneuver, called "deem and pass."
In its resolution on the reconciliation changes it wants, the House simply would "deem" that it had passed the Senate legislation — without members of Congress actually ever voting on it.
Representatives presumably then could tell constituents that, although they voted on changes to the Senate bill, they never approved the bill itself.
Democrats on the House Rules Committee say there is plenty of precedent for the "deem-and-pass" technique, also known as a "self-executing rule." In 1996, it was used in House Resolution 391, "The Senior Citizens' Right to Work Act." In 1993, it was employed to adjust House Resolution 71, the "Family Medical Leave Act."
Conservatives counter that there is a vast difference between using "deem and pass" as a convenient, bipartisan way to enact modest changes to relatively routine legislation, and using it as a partisan tool to force a major entitlement program through Congress. Article 1, Section 7 of the Constitution says that, for a bill to become law, it "shall have passed the House of Representatives and the Senate."
"There is no precedent for what they're trying to do in the House right now," Brian Darling, the Heritage Foundation's director of Senate relations, tells Newsmax. "There is precedent for using deeming regulations and self-executing rules. But in this situation, they're trying to set up a circumstance where the House will pass a bill with no vote being taken on it, and at the same time pass a reconciliation measure. So that makes it unprecedented."
A wide range of Republican leaders are lambasting the legislative device, contending that it reflects the underlying flaws in the legislation itself. Why would Democrats need to cover themselves with a procedural fig leaf if the legislation itself is sound, they ask.
In a Tuesday editorial in The Wall Street Journal, House and Senate GOP leaders Rep. John Boehner and Sen. Mitch McConnell write: "This bill is so toxic that House Democrats are concocting a scheme by which they would pass it but spare themselves the embarrassment of actually voting for it.
"Democratic leaders claim they can 'fix' the dreaded Senate bill through the reconciliation process, but the American people won't be so easily hustled."
On Fox News Sunday, GOP House leader Rep. Eric Cantor of Virginia remarked: "We're seeing a perversion of the rules to go ahead and ram through this trillion-dollar healthcare bill."
As those remarks suggest, Republicans intend to hammer away at the maneuver Pelosi says she is considering, which could stoke voters' doubts about the soundness of the healthcare overhaul itself. Polls show the bill is already unpopular with the electorate.
"You can't pass this healthcare bill the right way," Rep. Paul D. Ryan, R-Wis., charged Tuesday on the House floor. "And so now you'll pass it the Washington way. We are not governing here today. We are greasing the skids for an abuse of the budget procedure intended to control the growth of government, not expand it."
Ryan held up for special ridicule a statement Pelosi made March 9 in a news release from her office, which read in part: "We have to pass the bill so that you can find out what's in it, away from the fog of controversy."
Said Ryan: "This is the vaunted transparency that the president promised? The arrogance, the paternalism, the condescension to the American people is just breathtaking. This is not just a simple fixer bill either. This is the linchpin for healthcare."
A Wall Street Journal editorial declared Tuesday: "We have entered a political wonderland, where the rules are whatever Democrats say they are. Mrs. Pelosi and the White House are resorting to these abuses because their bill is so unpopular that a majority even of their own party doesn't want to vote for it."
Such criticisms raise the question of whether Democrats, with the midterm elections just around the corner, can afford the political exposure that the "deem-and-pass" technique would cost them.
Voters generally ignore arcane Beltway maneuvers. Says Darling, "Procedure usually isn't important to the American people. But the American people can see through this, that it is an extraordinary procedural abuse to pass Obamacare this way."
Darling is among those who believe the extended, contentious debate over healthcare reform could exact a high political price if Democrats resort to extraordinary methods to get the bill across the finish line.
"The American people are already hearing arguments that the bill is unconstitutional," Darling says. "Now they're hearing arguments that the measures being used to get it through Congress are unconstitutional as well. Add to that the polls which show the majority of Americans are against Obamacare, and that adds up to a perfect political storm that Democrats will have trouble overcoming."
Even some Democrats sound nervous. Sen. Chris Dodd, D-Conn., told CNBC Tuesday: "If you asked me would you prefer to this done without these exotic procedural moves, absolutely. I would prefer we did this in a straight manner. But you've seen what happened here politically."
A poll released Monday by conservative pollster Kellyanne Conway, involving 1,200 surveys in 35 swing congressional districts, provides additional indications that representatives who vote for the unpopular reforms could soon find themselves clearing out their congressional offices and moving back home.
Seven in 10 respondents — including 45 percent of Democrats, 72 percent of independents, and 88 percent of Republicans — said they would vote against any House member who votes for the Senate healthcare bill, which is laden with provisions to appeal for special interests.
Of course, President Obama has ordered that the notorious inducements used to win votes in the Senate, deals known as the "Louisiana Purchase" and the "Cornhusker Kickback," be stripped from the final measure. But both ABC News and The Associated Press reported Monday that insiders say it appears at least some of those special arrangements will not be removed. The $100 million measure targeting construction of a hospital in Dodd's home state, for example, is expected to survive.
Pelosi and the president's aides continue to express confidence that they will soon have the votes they need for reconciliation. Sen. Jim DeMint, R-S.C., said that, given the extraordinary pressure House members are under, he's less confident now that Obamacare can be thwarted.
Rep. Bart Stupak, D-Mich., who has led the anti-abortion blue dogs in the House who oppose the measure, says Pelosi isn't even close to getting the votes that she needs.
Former senior White House and Fox News commentator Karl Rove, meanwhile, said Monday that he gives Obamacare just a 40 percent chance of being signed into law.
If Democratic leaders do find a way to force a bill through to Obama's desk, the political repercussions over how they do so may continue to be felt for years to come.
“It will make it a partisan and less productive place than it’s been, I’m afraid,” Sen. Joe Lieberman, D-Conn., told Politico.
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