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Politics & Legal > Understanding Deem & Pass & Reconciliation
 

Understanding Deem & Pass & Reconciliation



Understanding "deem and pass" and "reconciliation" is difficult for the average American. Though both these procedures have a long bi-partisan history in Congress, conservatives are now crying that the "dirty cowards" (that would be the Democrats, I believe) are trying to cram health care reform down their throats using illegal, "back-door" tactics.  However, the facts say otherwise. 

When Republicans took power in 1995, they soon lost their aversion to self-executing rules and proceeded to set new records under Speaker Newt Gingrich (R-Ga.).There were 38 and 52 self-executing rules in the 104th and 105th Congresses (1995-1998), making up 25 percent and 35 percent of all rules, respectively. Under Speaker Dennis Hastert (R-Ill.) there were 40, 42 and 30 self-executing rules in the 106th, 107th and 108th Congresses (22 percent, 37 percent and 22 percent, respectively).Thus far in the 109th Congress, self-executing rules make up about 16 percent of all rules. ( https://wonkroom.thinkprogress.org/2010/03/16/deem-and-pass-harm/)

So far as the use of Reconciation is concerned, Democrats are amateurs compared to Republicans. Consider these facts.

Classification is very simple and involves two factors: (1) whether a Democrat or Republican was president at the time the bill was passed and (2) whether the bill was vetoed by the president. My assumption here is that if a Democratic president signs a reconciliation bill, then the reconciliation process was likely used by Democrats. If a Democratic president vetoes a reconciliation bill, then I’m assuming the process was likely used by Republicans. And visa versa. So here’s what we’ve got in the CRS report:


  • 11 reconciliation bills were signed by Republican presidents (Reagan: 7; Bush (41): 2; Bush (43): 2)



  • 5 reconciliation bills were signed by Democratic presidents (Carter: 1; Clinton: 4)



  • 3 reconciliation bills were vetoed by Democratic presidents (Clinton: 3).



  • 0 reconciliation bills vetoed by Republican presidents


Thus by my admittedly simple classification scheme, this would suggest that 14 of the 19 times reconciliation was used between FY1981 - FY2005, it was used to advance Republican interests. Or, to put this more precisely, it was used to advance bills that were signed by Republican presidents or vetoed by Democratic presidents. ( https://www.themonkeycage.org/2010/02/which_party_uses_reconciliatio.html) 

In an effort to add a small bit of sanity to the insanity swirling about these two rules, I am going to try to explain as best I can exactly what is transpiring and why.  First, both the House and Senate have passed health care reform.  Once both parties pass a measure, the two must reconcile their differences.

Since all bills regarding revenue must originate in the House of Representatives because it represents more accurately the entire population, it is up to the House to send the final bill to the President. 

For those who have read the two bills, they are quite similar.  The big discrepancy is that the Senate bill eliminates the public option.  The other differences are the issues that will go back to the Senate for one last final vote in the form of amendments to its original bill.

In an effort to save more time on this measure--the House of Representatives has compiled a list of amendments it wants in the Senate bill before it approves it.  (If you would like to read these changes, go to https://www.rules.house.gov/bills_details.aspx?NewsID=4606.  They are actually quite brief.

What the House will do, probably on Sunday, is vote on the amendments to the Senate bill.  If 230 members vote in favor of the amendments, the House will invoke the "deem and pass" rule which, simply put, approves the Senate bill with the amendments.  Pelosi will then "deem" the Senate bill passed and send it to the President for signing.   

Next week, the Senate will take up the amendments as a separate bill.  Remember, it has already passed its original bill with sixty members voting in favor of it.

Now, here's the caveat.  What a lot of people do not know is that the Senate governs itself.  What is means is that any Senate member can introduce rules governing the Senate.  If the Senate approves it, those rules apply to any legislation the Senate considers but only to the Senate.

If you want to know why the Senate now needs 60 votes rather than 50, which is a majority, the reason is the "Byrd Rule.", introduced in 1985 by Senator Robert Byrd of Virginia.   According to Ezra Klein, a political writer for The American Prospect, "The basic theory of the Byrd rule is that any legislation considered under the budget reconciliation process should principally affect federal revenues. A tax cut, for instance, can be considered under the reconciliation process. A new federal holiday cannot. But between those two examples sit crucial ambiguities."

What the respective rules committee of the the House and Senate have done is try to include in the amendments only those issues that affect "federal revenues."  They have gone so far as to consult the parliamentarian of the Senate, who has the final say on whether the amendments  directly affect "federal revenue."   They believe they have complied with those constraints.

If the parliamentarian agrees when he reads the amendments, now in their final form and available for all to read,  the Senate is free to pass the amendments through the Reconciliation rule.  

Why "reconciliation."  Quoting again from The American Prospect:

 It restores the primacy of the up-or-down vote. In the "regular order" -- which is to say, the Senate's customary procedure -- the time for debate is unlimited, and if a minority of 40 senators refuses to stop talking, then you need 60 of them to invoke the rule that shuts the others up and allows the bill to come to vote. If you don't have 60 votes to break the filibuster, it doesn't matter if you have 50 votes to pass the bill.

The reconciliation process, by contrast, limits debate to 20 hours and bypasses the filibuster altogether. It was instituted to ensure that minority obstruction couldn't block important business like passing a budget or reducing the deficit. But it was misused. At least, Robert Byrd thought so. He saw all manner of "extraneous" amendments and legislation sneaking beneath the radar of the reconciliation process. Rather than being used to reconcile the budget or reduce the deficit, it was being used to short-circuit the filibuster (much, one might say, like the filibuster itself, which was being used not to lengthen debate on legislation but kill that legislation altogether).

But the reconciliation process has been used for plenty that did not reduce deficits. Both of President Bush's tax-cut plans traveled through the process. And the very senators who speak reverentially of the filibuster now, voted for reconciliation then. Judd Gregg, in fact, voted for reconciliation every time it was used in the Bush era.

And even if reconciliation had only ever been used to cut the deficit, an observer might wonder what renders deficit reduction so much more pressing than, say, ending the punishing human cost of the health-care crisis, or saving the planet from catastrophic climate change. Why should cutting programs be exempt from the Senate rules but not saving lives?

 https://www.prospect.org/cs/articles?article=the_fifty_vote_senate

The important thing to remember is that these are not "back-door" tactics; they are bi-partisan rules of parliamentary procedure that have been used repeatedly and supported by those very Republicans who are now trying to misrepresent them to the American public.  

The real test of health care reform will be whether it does what it says it will do--provides health coverage to 95% of the public, curtails the power over individuals afraid to use their coverage for fear of having either another exorbitant price increase or their  coverage cancelled; and effectively reduces the federal deficit.  If it does this things, it will be a boon to the American citizens.  






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posted on Mar 19, 2010 1:48 PM ()

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