Flawed process

First Senate Democrats eye changing the rules in the middle of the debate to bypass normal procedures to pass a health care reform bill with a "reconciliation" vote.

Now, the House might go even further and just dispense with a constitutional technicality like actually voting on legislation to ram through a health care bill of some sort.

It's a sign of just how desperate President Barack Obama and the Democratic-controlled Congress are as they come down to the wire in an all-out drive to salvage the centerpiece of their domestic program. And don't let the Constitution or Senate rules get in their way.

The Senate and House passed different versions of reform legislation. Ordinarily, they would work out the differences in a conference committee and then both chambers would vote again on the same version of a bill, as required by the Constitution, before sending it to President Obama for a signature. That runs afoul of Senate rules requiring 60 votes to shut off an anticipated Republican filibuster, so Democrats are shifting the ruling to fit the circumstances.

While the strategy is in flux, the plan has been to have the House approve the Senate version and then adopt a number of fixes to address what House Democrats disagree with in the Senate bill. The revisions would then go to the Senate for approval under the reconciliation plan allowing only a simple majority vote.

But voting on the Senate bill could harm politically vulnerable House members facing re-election this November. So Speaker Nancy Pelosi has a scheme to shield all 435 representatives from ever having to say they voted for or against health care overhaul.

Speaker Pelosi's ruse is the "self-executing rule" or "deem and pass." It would have the House vote on fixes to the Senate bill and "deem" the broader bill to be passed. No vote on the Senate bill per se, just say it passes. She even admits the maneuver is meant to protect lawmakers.

"It's more insider and process-oriented than most people want to know," the Washington Post quoted her as saying in blog discussions. "But I like it, because people don't have to vote on the Senate bill."

Then, there's a matter of the Constitution, which requires legislation to pass both the Senate and House before going to the president. Former appellate court judge Michael W. McConnell, in a Wall Street Journal column, raises constitutional doubts about "deem and pass." He cites a 1998 Supreme Court ruling the Senate and House must approve the same exact test of a bill.

President Obama has been campaigning for an up-or-down vote on health care reform. He won't get it with "deem and pass," but then that probably won't matter to him when he signs a bill in whatever form it takes. But any legislation so enacted would be clouded, even delayed, by constitutional issues that should be reviewed by the Supreme Court.