Some History About Process

As Congress moves forward with comprehensive health insurance reform, one option for consideration of the legislation is under a rule for reconciliation that would adopt the Senate-passed bill as amended with improvements based on the President's proposal and the will of a majority of Congress. This rule would have to pass the House with a majority vote, but some opponents of reform are objecting to this process in an attempt to kill the bill. Historically, the House -- under both Democrats and Republicans over almost eight decades -- has passed a "deeming" rule many times that "considers as adopted" a provision or bill:

This practice has been in use since at least 1933 -- and has been commonly used under both Republicans and Democrats.

In 1948, the Republican-controlled House passed a resolution to consider as adopted Senate amendments to a bill to change tax rates.

In 1993, the House adopted a resolution to consider as adopted the Senate amendment to the Family and Medical Leave Act.

In 1996, the Republican-controlled House adopted a resolution to consider as adopted the conference report on Line Item Veto.

Just last month, the House approved a provision on PAYGO that simultaneously increased the debt limit. Separately, beginning in 1980 -- and most years thereafter -- the House has had in place a standing rule that approves automatically a joint resolution to increase the public debt limit upon adoption of a Budget Resolution that contemplates such an increase. Such a resolution has occurred 20 times in the last 30 years.

At a press conference this afternoon, Speaker Pelosi was asked about the "deeming" rule and said the following:

We have several options available to us. And we we've asked the Parliamentarian and the Rules Committee tell us what our options are and they've given us some. I've told the Members that until we see the substance from the CBO, we won't make a determination about how we go forward, but we want to know what our options are.

Noted scholar Norman Ornstein, of the conservative American Enterprise Institute, blogged on the "feigned indignation" from opponents of the bill this afternoon, writing:

Any veteran observer of Congress is used to the rampant hypocrisy over the use of parliamentary procedures that shifts totally from one side to the other as a majority moves to minority status, and vice versa. But I can't recall a level of feigned indignation nearly as great as what we are seeing now from congressional Republicans and their acolytes at the Wall Street Journal, and on blogs, talk radio, and cable news. It reached a ridiculous level of misinformation and disinformation over the use of reconciliation, and now threatens to top that level over the projected use of a self-executing rule by House Speaker Nancy Pelosi. In the last Congress that Republicans controlled, from 2005 to 2006, Rules Committee Chairman David Dreier used the self-executing rule more than 35 times, and was no stranger to the concept of "deem and pass."

Other scholars agree:

Julian E. Zelizer -- Professor of History and Public Affairs, Princeton University:

Republicans who now complain about tactics have very little to stand on given this history... This is a legitimate mechanism and Democrats have the right to use it. They also have precedent, including what Republicans did when they were in power, on their side...

Thomas E. Mann -- Senior Fellow, Brookings Institution:

The speaker is considering the use of a self-executing rule to create for her Democratic members an opportunity to indicate that their support of the Senate-passed bill is coupled with the set of amendments to it that will be considered in a separate package under the reconciliation bill. Such a rule was used 36 times by the House Republican leadership in 2005-6 and 49 times by the Democratic leadership in 2007-8... It is a new twist (like the use of reconciliation to approve changes to the underlying bill negotiated by House and Senate leaders) to an old and perfectly legitimate parliamentary tool...

Timothy Stoltzfus Jost -- Law Professor at the Washington and Lee University:

The "deeming" procedure that the Democrats may use was in fact routinely used by House Republicans to conduct business when they were in the majority... Insuring 30 million uninsured Americans is far more important than the procedural rule that is followed in getting it done. It is time to finish this up and get on with the business of the country.

Dean Baker -- Co-director, Center for Economic and Policy Research:

The Democrats who vote for the bill will be accountable for the bill if it gets passed. If the public likes it, then they will be fine. If it doesn't, then they will pay a price. No one other than the whining class will care about the exact procedures used to pass the bill. It will be voted up or down based on majorities in both houses. Those who have problems with democracy should look for another country.

It is crucial to pass health insurance reform for American workers, their families, and small businesses across the country. As Speaker Pelosi said today:

If you don't want to talk about substance, talk about process. And if you want to talk about process, let's talk about the process that the insurance companies use when they say to you, 'you become sick, your insurance is canceled.' When they say to you, 'you're on the way to an operation but your insurance is rescinded because we just feel like it and we can do it, so we will.' Or what they say when they say to somebody that, 'you have a pre-existing condition and so you cannot have health insurance.' Let's talk about that process. If you want to have some outrage about process, let's apply it to the insurance companies.