Yes, the Republicans are being a bit hypocritical in their anger over Speaker Pelosi’s use of the “self-executing rule” to “deem” the health care bill passed in the House of Representatives.
Republicans have generously used this legal loophole provision since 1980 to reconcile amendments to various acts. By some accounts Republicans have used this loophole on amendment reconciliation almost twice as much as Democrats.
Golden Rule: You know the rule. While often hypocritical in their use of parliamentary procedures, Republicans have never passed a bill into law without seeking a majority vote on the bill itself. If the Republicans retake Congress in 2010 or 2012 does anyone mind that they make use of the “self-executing rule” to pass laws? I would. You should too regardless of which party is in power.
Constitutional Challenge: In 2005, Speaker Pelosi joined in a constitutional challenge to the Deficit Reduction Act of 2005. Speaker Pelosi and allies argued that Article I, Section 7 of the Constitution requires the verbage of both the House and the Senate bills to be exactly the same and that the Constitution requires “… in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively.”
Speaker Pelosi outlined the very simple basis for a constitutional challenge in 2005 to use of the “self-executing rule”. The court ruled against the challenge as the content was the same but with a few minor wordsmith differences.
The challenge before us is that what is happening now is not a matter of minor wordsmithing. There are many more than just a few content issues between the Senate and the House bills.
Bottomline: If I were a Democrat I would push through the health care bill using reconciliation and 216 votes. As most of you know I do not support passage of either the Senate or the House version of the current bill. But I believe that Democrats are within their rights to use a reconciliation vote of 216 to do this. That is how the world works sometimes. But I very much oppose reconciliation using the “self-executing rule” and failure to actually vote on the bill itself.
A constitutional challenge will be swift and will invalidate the bill’s passage if the “self-executing rule” is used. The Constitution is crystal clear on what it takes to pass a bill for presentation to the president for signature. If the “self-executing rule” is used and a constitutional challenge is successful — and it would be with the current court — then it will be a generation or more before we revisit health care reform.