To self-execute or not to self-execute, that is the ….

by Sarah Binder on March 16, 2010 · 15 comments

in Legislative Politics

“Nothing is so boring to the layman as a litany of complaints over the more obscure provisions of House procedures. It is all “inside baseball”….We Republicans are all too aware that when we laboriously compile data to demonstrate the abuse of legislative power by the Democrats, we are met by reporters and the public with that familiar symptom best summarized in the acronym “MEGO”—my eyes glaze over.”

So bemoaned then Minority Leader Bob Michel in this Letter to the Editor of the Washington Post in 1987. Well, the ballgame’s gone outside. Just when you thought reporters had tired of refereeing reconciliation, the Byrd Rule, and filibusters, everyone’s trekked over to the House ballfield for a game with self-executing rules. (Like CalvinBall, but different.)

I can’t do justice to the entire body of legislative scholarship on House restrictive rules in a short blog post, but the place to start would be Stan Bach and Steve Smith’s classic work, Managing Uncertainty in the House of Representatives, which can be found here. Others, including Barbara Sinclair, and Keith Krehbiel, offer competing perspectives on House majority party use of restrictive rules.

Here, I want to offer a brief perspective on the use of self-executing rules, given the many claims made in recent days about these rules, as House Democrats have debated how to structure the upcoming votes on the Senate-passed health care bill and the reconciliation “fix.”

1. What are self-executing rules?

These special procedures provide that the House—upon adoption of the special rule—is considered or “deemed” to have taken some other action as well. In the case of health care reform, the idea is that the special rule for considering the reconciliation bill would include a “deeming” provision. One form of this deeming provision could provide that when the House votes to approve the special rule for the reconciliation bill (or, alternatively, when the House votes to pass the reconciliation bill), the House is simultaneously considered to have voted for and passed the Senate-passed health care overhaul. In short, the vote on the temporary rule also provides for passage of the Senate-passed health care bill. Contrary to all the handwringing from the left (Jack Balkin’s blog) to the right (okay, far right, editorial page of the Wall Street Journal), there’s nothing unconstitutional about the maneuver.

2. Why do majority parties use self-executing rules?

Self-executing rules are simply one form of temporary “restrictive” rules that House majorities use to structure consideration of major bills on the House floor. Restrictive rules are attractive to majority leaders as they allow them (assuming a chamber majority concurs) to structure vote choices on the chamber floor in a manner intended to protect the majority party’s favored policy outcomes from challenge. For example, restrictive rules often limit or exclude amendments on the floor if the majority party does not want to risk altering the bill or wishes to avoid asking its members to cast a tough vote. (But note, restrictive rules are not exclusively used by majority parties to attempt to move policy choices off-center; closed rules for Ways and Means tax bills can protect bipartisan compromises, for example.) As the parties have become more polarized and especially in periods of tight party margins, both Democratic and Republican majorities have turned increasingly to restrictive rules and in an increasingly creative (or, from the minority’s perspective, abusive) way. Here, I show the percentage of special rules adopted each Congress that included restrictive procedures. The trend is stark:

restrictrulesfix.jpg

3. Are self-executing rules unprecedented?

Self-executing rules certainly have precedent in the House’s repertoire of restrictive rules. My morning count of self-executing rules from back issues of the House Rules Committee’s Survey of Activities produces the following count (shown as the percentage of restrictive rules each Congress that included self-executing provisions):

selfexecute.jpg

4. Have self-executing rules been used on major bills before?

Just like the debates over reconciliation, most observers have claimed that self-executing rules have never been used for such a major bill. Even NPR this morning intoned that self-executing rules were common, but “not on anything as big as health overhaul.” It is certainly true that self-executing rules are more often used for less controversial measures—quite often to have the House adopt Senate amendments to a House-passed bill—simply in the name of efficiency. Still, perhaps the most salient use of self-executing rules—reaching back to 1979—allows the House to avoid casting a direct vote on raising the federal debt limit. The rule for adopting the concurrent resolution on the budget typically deems as passed a measure to increase the debt ceiling. It’s hard to argue that there’s any measure more central to the functioning of the nation than its ability to issue debt. (See Don Wolfensberger’s nice history of this practice—formerly known as the Gephardt Rule, the Hastert Rule, and now apparently the Slaughter House Rule.)

5. C’mon. Aren’t Nancy Pelosi and the Democrats crazy?!

As Bob Michel would remind us, most legislative games aren’t watched this closely. And, I would hazard, most close observers doubt that it will make a difference to voters whether Democrats explicitly voted for the Senate-passed bill or voted for a procedure that allowed it to be passed. But legislators sure think that it matters. They seem to think that it offers a method of avoiding blame should they be attacked come election time for their votes.

And, lest we forget, the machinations over the rule originated in House Democrats’ concern that the Senate would fail to pass the reconciliation fix, leaving Democrats on the hook for having enacted the Senate-passed bill (when they preferred a “fixed” version). A “well-crafted” self-executing rule—one that sent both the overhaul bill and the reconciliation bill to the president at once—would have allowed Democrats to bridge that increasingly wide gap of distrust between House and Senate. Alas, Congress and health care is not a game of inside baseball, and everyone is watching.

{ 15 comments }

Keith Krehbiel March 16, 2010 at 3:29 pm

Taken literally, procedures for health care legislation are amusing. Democrats in the ostensibly warm and fuzzy Senate want to use reconciliation, while Democrats in the apparently suicide-prone House prefer to be self-executing – a process that Sarah, with characteristic clarity, reminds us is kind of re-deeming.

Matt Jarvis March 16, 2010 at 3:34 pm

Sarah,
It might also be a useful thing to post what happens if that vote on the self-executing rule fails.

I *think* I know, but I’m not sure if the self-executing rules are somehow different.

Keith Krehbiel March 16, 2010 at 4:07 pm

In reply to Matt’s inquiry, let me guess: Slaughter et al. have written into the rule a provision that states: “In the event that this resolution (H.Res. X) fails, a clone of it numbered H.Res. X+1 shall be deemed to have been passed.”

Semi-seriously, this seems not to be that much of an exaggeration of the structure of self-executing rules. In this case particularly, such a rule specifies a counterfactual to have happened. In effect, “Each House shall determine the rules of its proceedings” all but becomes “Each House may decree things to have happened that didn’t happen or otherwise wouldn’t have happened.”

Does anyone else think this manifestation of endogenous rules is a Constitutional stretch? Also, is a copy of the rule in the public domain? I am guessing it is not, but if so, I would like to see it.

Sarah March 16, 2010 at 4:32 pm

Matt and Keith,

Here’s the straight and narrow response to Matt’s question (though Keith’s response is better…).

Republicans would have two options were they to seek to derail the rule.

1. Defeat the previous question motion. If successful, the minority leader could offer an amendment to the rule. Presumably, the amendment would separate the two measures into separate votes (or recommit the whole thing to committee or ….). As Keith suggests, we have likely not yet seen the limits of leaders’ procedural ingenuity.

2. If Republicans couldn’t defeat the previous question motion (or didn’t want to try), the GOP could try to reject the actual rule. That would kill the bill until or unless a new rule was reported by the Rules Committee.

A rule for the bill(s) has not yet been released publicly.

Russ March 16, 2010 at 6:25 pm

http://www.law.cornell.edu/supct/html/97-1374.ZO.html

1998 case of William Jefferson Clinton vs City of New York states that the Slaughter Rule is unconstitutional, that both houses of congress must vote and pass the exact same language.

Jeff Jenkins March 16, 2010 at 7:25 pm

Aren’t congressional salary increases these days done by self-executing rules?

Sarah March 16, 2010 at 9:58 pm

Jeff

There was at least one episode in which a congressional pay raise was rejected via a self-executing rule. Barbara Sinclair explains the strategic situation in Legislators, Leaders, and Lawmaking (p. 150).

Pay raises today are governed by the 1989 Ethics Act. That law sets up automatic adjustments in legislators’ pay unless Congress explicitly rejects or amends the scheduled increases.

Jeff Jenkins March 17, 2010 at 12:26 am

“In short, the vote on the temporary rule also provides for passage of the Senate-passed health care bill.”

Of course, to the degree that the temporary rule is highly visible, it becomes pretty clear to even inattentive publics that the vote on the rule is a vote on the substance. Or at least this will be the goal of the Republicans. Does Pelosi have the votes to pass the *rule* at this point?

anon March 17, 2010 at 11:18 am

While the 1998 case (as well as Chadha) have been cited in press reports as relevant precedent, neither seems really on point; in this case, there will be a vote in each chamber and then presidential presentment. A possibly more relevant precedent is Field v Clark (which, if relied upon, would mean the courts wouldn’t examine the minutiae of procedure as long as certain criteria were met).

R.G. March 17, 2010 at 12:47 pm

In my humble opinion, references to Clinton v City of New York are not completely on point. A self-executing rule, to me, seems perfectly constitutional _provided_ that the exact language of the bill has been voted on (in some manner) by both chambers _AND_, in the case of a revenue-raising bill, the exact language of the bill originated in the House rather than the Senate. It’s that second nuance regarding revenue-raising bills that might become a point of argument: in this particular instance, the House will not only did not originate the revenue-raising language but will also never have actually voted on it. I would at least pause to hear the argument from both sides.

CaseyMcG March 17, 2010 at 6:41 pm

R.G.: first of all, the House WILL be actually voting on the Senate bill at the same time that it votes on the reconciliation items, despite what all the lazy media and others don’t seem to get. That bill, including the full text of the Senate bill and the reconciliation items, will then be “enrolled” and signed by the presiding officer of the House.

The relevant question is not whether the procedure is unconstitutional because of a purported lack of vote, but whether Congress can make its own procedural rules for how it will authenticate legislation “approved” (the Constitutional requirement) by such means as, say, agreeing to vote on two items at the same time (in this case, the Senate bill and the reconciliation items). Based on well-established Supreme Court Separation of Powers doctrine, it undoubtedly can.

A relevant precedent is Public Citizen v. USDC, 486 F.3d 1342 (2007), applying Marshall Field v Clark, 136 US 649 (1892) and rejecting a Bicameralism challenge to the Deficit Reduction Act of 2005. link: http://bit.ly/9a6YyG

See the section starting at paragraph 30, especially,

The Court crafted a clear rule: “[I]t is not competent for [a party raising a bicameralism challenge] to show, from the journals of either house, from the reports of committees or from other documents printed by authority of Congress, that [an] enrolled bill” differs from that actually passed by Congress. Id. at 680, 12 S.Ct. 495. The only “evidence upon which a court may act when the issue is made as to whether a bill . . . asserted to have become a law, was or was not passed by Congress” is an enrolled act attested to by declaration of “the two houses, through their presiding officers.” Id. at 670, 672, 12 S.Ct. 495. An enrolled bill, “thus attested,” “is conclusive evidence that it was passed by Congress.” Id. at 672-73, 12 S.Ct. 495. “[T]he enrollment itself is the record, which is conclusive as to what the statute is . . . .” Id. at 675, 12 S.Ct. 495 (internal quotation marks omitted).

or put simply further on in the opinion,

“[T]here can be no Bicameralism Clause challenge when a bill has been authenticated in the manner provided by Congress.”

Clinton v City of New York has no relevance here. In that case a Bicameralism challenge succeeded because the executive was, in effect, amending a statute of Congress unilaterally, even though Congress had given the President that power through the line item veto. The Court ruled that only a change in the Constitution can give him that power, and not simply legislative approval. The Clinton opinion said nothing about whether a particular procedure used by one house of Congress (such as voting on multiple items at the same time) is or is not a matter that the federal courts have jurisdiction over, given separation of powers concerns.

marc sobel March 18, 2010 at 11:59 pm

You might color code the graphs by Majority party. (red/blue)

anon March 19, 2010 at 10:44 am

Thanks, CaseyMcG for laying out the more detailed explanation of why Clinton v City of New York is not relevant. On another point made by R.G., the House need not originate the exact revenue language in the final version of a revenue measure (though the House does have to vote on that language, which they will be doing when they also vote on the reconciliation bill). The legislative vehicle just needs to be a House-originated revenue measure. Revenue bills frequently include language that was included via a Senate amendment to a House (revenue) bill; the House just has to agree to that Senate amendment (or to a conference report that includes it), not originate the language itself. See the full text of the constitutional provision (Art 1, Sec 7) on revenue measures having to originate in the House: “but the Senate may propose or concur with amendments as on other bills.”)

MSS March 23, 2010 at 1:28 pm

So, as someone who tuned into the game only as it was entering extra innings, I ask:

Was the final vote a vote on a self-executing rule, or did the weekend bargaining lead to a different set of tactics?

Sarah March 23, 2010 at 1:39 pm

MSS–
In the end, the rule for the health care bills did NOT include the self-executing provision that had coupled the Senate-passed bill and the reconcilation bill. The rule provided for up-or-down votes first on the Senate-passed bill and subsequently on the reconciliation bill.

It’s not clear to me whether the change in strategy resulted from 1) pressure from a handful of rank and file Democrats who wouldn’t vote for a self-executing rule or 2) the realization by Democratic leaders that 216 for the Senate-passed bill alone was in reach. Probably the latter, as that obviated the need to use the self-executing provision for the main two votes.

Sarah

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