Health Reform’s Virgin Birth

The brouhaha over the “Slaughter strategy.’

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House Republicans are up in arms over House Speaker Nancy Pelosi’s apparent intention to bypass the Senate health care reform bill with what they call the “Slaughter strategy” (named for Louise Slaughter, D-N.Y., chairman of the House rules committee). As Slate’s John Dickerson explained March 10, this would be achieved by a “self-executing rule” that would allow the House to “deem” the Senate bill already passed as it considers the clean-up reconciliation bill containing various corrections demanded by the House and the Obama White House. A sort of virgin birth, if you will, with the Senate cast as Mary, the House cast as Joseph, and health care reform cast as the baby Jesus. “We’re seeing a perversion of the rules to go ahead and ram through this trillion-dollar health care,” House Republican Whip Eric Cantor of Virginia  complained on Fox News. “It pains me to see,” said former rules committee chairman David Dreier.

But Time’s Karen Tumulty argues the Slaughter strategy could easily be called the “Dreier doctrine,” since Dreier himself used a self-executing rule on the 2006 ethics bill to shoehorn in, among other things, a controversial provision regulating “527” groups. Like the Senate budget-reconciliation process, self-executing rules are a parliamentary maneuver that came into being to unclog congressional arteries as the legislative process began to calcify during the 1970s. As with reconciliation, it’s a maneuver the minority party tends to complain about (in this instance, because it doesn’t allow for amendment or debate), while the majority party shrugs its shoulders. And as with reconciliation, the self-executing rule has become more popular as the political process has grown more nakedly partisan. In a 2006 article for Roll Call, Don Wolfensberger, a former House Rules staff director, counted only eight self-executing rules between 1977 and 1984 but 52 between 1997 and 1998 and 30 to 42 during the first half of the aughts.

Remember when Republicans were screaming bloody murder about the abuse of the reconciliation process in health care reform? In that instance, their outrage was absurd, since reconciliation had been used to pass all sorts of major legislation, some of which (say, welfare reform) had little to do with budgetary matters. Now Republicans are screaming bloody murder about the abuse of the self-executing rule. Here they would appear to have a better case. A 2006 Congressional Research Service report lists some of the more substantive and/or controversial bills passed in recent years using a self-executing rule: A 1989 ban on airline smoking; a 1996 voluntary employee-verification program aimed at illegal immigrants; a 1997 temporary ban on statistical sampling in the census; a 1997 IRS reform bill; a 1998 bill allowing the CIA to offer early retirement; and the 2005 immigration bill that never became law. Self-executing rules have also been used, apparently, to raise the debt ceiling.

None of these examples strikes me as being as significant as welfare reform or the creation of the Children’s Health Insurance Program—two bills enacted through reconciliation that help justify reconciliation’s use to pass health care reform. Using a self-executing rule to pass health care reform seems actually kind of a stretch. On the other hand, nothing the House has done for the past three decades has been as significant as health care reform, so perhaps no parliamentary maneuver used to pass it—not even a majority vote on the House floor—can avoid seeming strange and new.

On yet another hand, Ezra Klein of the Washington Post and Jon Cohn of the New Republic have pointed out that it isn’t obvious what a House member who hesitates to vote for the Senate bill will gain by voting instead for a reconciliation bill that, for all practical purposes, includes the Senate bill. You either voted for health care reform or you didn’t. You either voted for its abortion language or you didn’t. But on a fourth and final hand, I’ve never understood why the Senate balked at raising income taxes to pay for health care reform and so instead turned the Medicare tax into an income tax. Capitol Hill is ruled by more peculiar tribal customs and shibboleths than Papua New Guinea. If this is what it takes to pass health care reform, maybe it’s best to avert your gaze as you might do while attending certain rituals of far-flung premodern civilizations. Even better: Do as the Three Wise Men did. Skip labor and delivery and arrive two weeks later to appraise the newborn babe.

Update, March 17: On National Review Online, Ramesh Ponnuru  sneers, “The Slaughter rule can’t really be defended, but I’m okay with it anyway. So now we know exactly how seriously to take Noah’s complaints about the filibuster (if we didn’t already).” That’s a caricature of the foregoing, but if you want to know why I’m in favor of its use despite my uncertainty as to whether it’s appropriate, it’s precisely because of the filibuster’s evils. The filibuster is what got the House into this fix. Pelosi can’t require the Senate to alter its bill as a condition of House passage because the Senate no longer has a 60-vote Democratic majority; it “merely” has 59. It’s increasingly clear that the reason Pelosi wants to use the Slaughter strategy is because her members don’t want to vote for the Cornhusker Kickback (which would be eliminated in reconciliation) and the Senate version of the Cadillac tax (which would be watered down in reconciliation), even knowing they would alter these provisions in a followup reconciliation vote.  Nobody doubts there’s a 51-vote Senate majority to make these changes, but you need 60. Under ordinary circumstances the House would vote first for the Senate bill as is and then for the reconciliation measure. Pelosi wants to use the Slaughter strategy as a shortcut. I’m not wild about the idea. Nor am I convinced it offers much practical cover to the nervous holdouts Pelosi is wooing. But if that’s what it takes to honor the majority’s will, so be it. Do away with the filibuster and the House wouldn’t need to perform such contortions.

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