Should They Slaughter the ‘Slaughter Rule’?

If there were ever an unfortunate name to have in politics, it would be the situation that Representative Louise Slaughter (D-NY) currently faces.  As head of the House Rules Committee, she is being given the dubious honor of having a dubious idea to pass health care reform in the House of Representatives known as “deem and pass”.  As if reconciliation itself wasn’t controversial enough, many conservatives are howling that using the tactic, formally known as an “execution rule”, to pass health care reform without actually voting on it.  Of course, a Washington Post article yesterday to that effect does not help matters.  The jury is still out in the media as to whether it actually is that way, but regardless of that debate, it is the most controversial idea I have seen.  Those of you who have been following the health care debate as much as I have been since the latest push began last year have seen some pretty controversial things emerge.

Unlike reconciliation, the “deem and pass” rule is fairly straightforward in application.  According to the Huffington Post, assuming the rule is adopted by the House, legislators would be able to skip the vote on the main Senate bill and vote directly on the reconciliation package that would amend the Senate bill.  If the reconciliation amendments pass in a normal up-or-down vote in the House, the rule would deem the Senate bill to have passed as well.  Seems logical to me, since you shouldn’t be able to pass a package of amendments to a bill that hasn’t also passed.  In addition, by essentially voting on both at the same time the proposed rule would dodge the thorny question that has been raised over reconciliation thus far: does President Obama have to sign the Senate bill into law before reconciliation can be applied?

In theory, House Democrats would absolutely love to vote on both at the same time.  Due to traditional mistrust between the two legislative bodies, House lawmakers want to ensure that the reform push does not stop with the Senate bill.  Under standard legislative processes, the House would have to go back and apply the reconciliation fixes later; many lawmakers are afraid that if reconciliation breaks down, they are stuck with having voted for the special deals that everyone hates in the Senate bill.  Even if the talks do not fail and reconciliation ultimately passes, many believe that their records will have already been tainted by the special deals.  The Slaughter Rule has also been used before, according to the above-linked Huffington Post article.  While this is certainly the most monumental use of the idea, it has been used at various times throughout history.  It may have precedent, but is it even legal?

It might not be, argues Politico.  The article states that there has been no definitive answer to this question yet, but I would be careful about trying to use it, if I were Speaker Pelosi.  This is such a major thing that there will likely be lawsuits somewhere the minute President Obama signs it.  The last thing we need is to risk it being ruled unconstitutional due to a procedural question in the House.  Given how we have the most conservative Supreme Court in generations, if a constitutional question about health care reform reaches the Court, they may very well overturn it.  This is especially true after the ruling in Citizens United v. FEC, where the Court struck down many campaign finance restrictions.

President Clinton had the line-item veto overturned after a similar question was raised in 1998 about the line-item veto.  Thus, it is fairly safe to assume that such a question would invariably come up again with health care if the House uses this method.  I can already imagine the GOP’s reaction to health care being ruled unconstitutional on a technicality related to its passing; heck, they would probably be dancing in the streets.  Article I, Section 7 of the Constitution sets out a process for passing legislation; does Speaker Pelosi really want to jeopardize the President’s signature legislative goal by appearing to deviate from that?  In theory, the Slaughter Rule would be a great way for House Democrats to appease their conscience, but I strongly ask them to shy away from it if at all possible.