Under the plan, the House of Representatives would approve the Senate bill by "deeming" it to have passed as part of a separate measure governing the rules of a House debate on a follow-up health care measure. That follow-up legislation will be designed to change certain controversial portions of the Senate-passed version, a path more palatable to House Democrats who fear that voting for the Senate bill could backfire against them in elections this fall.
Yesterday, respected former federal judge and present professor of law at Stanford University Michael McConnell wrote that the proposed Slaughter solution is not constitutional.
Enter the Slaughter solution. It may be clever, but it is not constitutional. To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a "Bill" to "become a Law," it "shall have passed the House of Representatives and the Senate" and be "presented to the President of the United States" for signature or veto. Unless a bill actually has "passed" both Houses, it cannot be presented to the president and cannot become a law.However, there are apparently quite a few examples when the House has used this self-executing maneuver to pass legislation. So they have done this before. Read this thread on Volokh where a lot of intelligent people are commenting with quite a few interpretations of how this would or would not work and whether or not it's constitutional. It's enough to make anyone's head spin.
The reason to use this arcane and suspect procedure is to allow House Democrats to pull a John Kerry and say they voted against the Senate bill while also voting for the changes that they like. Those are the changes that Pelosi and company are negotiating now behind closed doors and that no one has seen yet. Nancy Pelosi herself admits that is why she wants to use the self-executing tactic.
The tactic -- known as a "self-executing rule" or a "deem and pass" -- has been commonly used, although never to pass legislation as momentous as the $875 billion health-care bill. It is one of three options that Pelosi said she is considering for a late-week House vote, but she added that she prefers it because it would politically protect lawmakers who are reluctant to publicly support the measure.There's your deliberative process at work. Voting while not voting and thinking that people are fooled enough that you can tell reporters all about it.
"It's more insider and process-oriented than most people want to know," the speaker said in a roundtable discussion with bloggers Monday. "But I like it," she said, "because people don't have to vote on the Senate bill."
I just think that, in this environment where people are energized and angry about the procedures that have been used to get votes in the Senate and now in the House, no Democrat will get away this fall with trying to persuade constituents that they voted against it before they voted for it. Legislators can no longer go to Washington and vote one way and then go tell their voters something different. The internet brings transparency to these sorts of shenanigans.
They'll end up with the worse of both worlds. They will have voted for a very unpopular bill - the Senate version and they'll bear the burden of having used such toxic-sounding tricks and gimmicks to pass it. The ads will virtually write themselves. If they're going to vote for the Senate bill and then try to fix it, that is what they should do and they should just forget about the Slaughter Solution. But they're not going to listen to such common sense.