The noise from the right about the constitutionality of “deeming” beggars description. Consider Limbaugh:
If [House Democrats] pass this using the Slaughter solution—in other words, literally shredding the Constitution.
I decline to comment on his claim that passing this bill by “deeming” it passed will literally cause someone to walk into the National Archives and ribbon the Constitution, because the point of Limbaugh’s literal metaphor is plain enough: if the majority of the House votes to “deem” the Senate version of the bill passed, Democrats would have skirted the Constitutional requirement that, to become a law, a bill must “have passed the House of Representatives and the Senate” as “determined by Yeas and Nays,” i.e. a simple majority.
How would the Democrats have accomplished this dastardly unconstitutional deed?
By a House vote on November 7, 2009, in which 220 Yeas passed H.R. 3962 over the objection of 215 Nays, followed by a Senate vote on December 24, 2009, in which 60 Yeas passed H.R. 3590 over the objection of 39 Nays. These votes were both constitutionally kosher; however, the House now plans to undermine democracy by “deeming” H.R. 3590 passed not by a floor vote “determined by Yeas and Nays,” but by a floor vote “determined by Yeas and Nays.”
The Democrats expect the American people to accept the unconstitutional results of a House vote in which members of the House vote to determine whether a bill should or should not be passed. The Democrats are determining the Rules of House proceedings, a practice the Constitution explicitly outlaws, in Article 1, Section 5: “Each House may determine the Rules of its Proceedings.”
I understand why conservatives are outraged: In order to defeat a parliamentary procedure not mentioned in the Constitution—the threatened Senate filibuster—House Democrats are exercising a right granted to them by the Constitution—the right to self-determine the Rules of their Proceedings—by voting in the manner the Constitution demands—a simple majority. Moreover, they’re doing so without passing the bill, because even if more representatives vote to “deem” H.R. 3590 passed, that merely means that a simple majority voted “Yea” on the question of whether H.R. 3590 should be passed. A vote to pass H.R. 3590 is, as all loyal Americans know, not the same thing as a vote in favor of a bill that “ensur[es] an up or down vote” to pass H.R. 3590. Why?
Because bypassing a direct vote on the bill allows Democrats to convince other Democrats to vote for health care reform now and claim a little distance from it in the midterm elections. Why do House Democrats need that distance? Because they know that Republicans are chomping at the bit to attack any and everyone who votes for health care reform, and they know that the tactics the Republicans will use will be dishonest. In the final tally, then: because they know that the next election will be all about death panels and the coming socialism, and because they know that Senate Republicans are determined to filibuster or bust, House Democrats decided to fight an extra-constitutional parliamentary procedure by exercising a right explicitly granted to them by the Constitution. How is this unconstitutional?
I’m being serious here: How is this unconstitutional?
Is it petty parliamentary gamesmanship? Without a doubt.
Does it make the Democrats who proscribed this practice in the past look like hypocrites? No more so, any objective observer would argue, than their Republican counterparts whose past use of this practice led the Democrats to condemn it.
Is a vote on a point of order that requires a two-third majority inherently more democratic than a vote on a point of order that requires a simple one? I’ll let you be the judge.
The point is, this is a procedural detour designed to avoid procedural congestion on a stretch of legislative territory as flat as a Texas highway. There is no moral high ground here. Anyone who claims otherwise believes that if they shout loud enough, people will mistake them for tall.