Another Look at "Deem and Pass"

So now this should be more academic. The House abandoned its attempt to use the deem-and-pass, self-executing tactic for health care, so the issue is no longer tied to this specific proposal. It’s been used in the past by both sides. Presumably, the GOP will control Congress again (cue ominous music and “Muah hah hah hah” sound effect) and may find their previous dismay at this procedure a bit uncomfortable to remember.

So perhaps we can simply look at it anew, and if we decide that it really doesn’t mesh with what the Constitution requires, we can kill it now, without the death being tied to any specific party or legislation.

Here’s what I’m thinking, based in part on an analysis from a former Supreme Court clerk. Let’s imagine a Senate bill, and a Senator who likes it and votes for it. But he doesn’t like the reconciliation changes proposed by the House, so he doesn’t vote for them. That is, i think we can all agree, a very appropriate choice for a Senator to be able to make – right?

Now let’s imagine a House member who feels precisely the same way. He doesn’t have that same choice. With deem-and-pass, our imaginary Congressman could not vote for the original Senate bill alone. He would HAVE to vote yes on the Senate bill plus the House changes package, or vote no on the complete package. He can’t express the same view by vote as the Senator can.

Since the Constitution requires that both houses pass the same bill, this would seem to make a real, actual difference. If the House voted on the Senate bill alone, and THEN voted voted on a changes package (as happened with health care) then obviously everything’s kosher. But to given the House members ONLY the option of voting on the complete package, while the Senate has the option of voting on each part, means that the House and Senate are approving two different things, substantively.


Wrong. The Senate bill is passed regardless. Only the House bill is in play. I would have thought that was clear enough.

But the scenario described – in which if a member of Congress likes some part of the proposal, but not others, he isn’t afforded a vote on each part of the proposal to suit his tastes – is the identical dilemma faced by every member on every bill ever presented in the history of the Congress. At some stage of the legislative process, every member is faced with a choice on whether to support or oppose not only the legislation, but also the process by which it is considered. They have ample opportunity to express opposition to the manner in which bills are being considered.

In the Senate, senators are generally given more leeway to propose amendments. If they don’t like the way something is going, they can filibuster, or make motions to separate the question.

In the House, if a member doesn’t like the prospect of dealing with two bills at once, he can vote against the rule that would allow that process to move forward, without actually voting against the substance of either bill.

And I disagree with this notion that the House and Senate are passing different bills. In this hypothetical case, the House would be voting not on bills, but what is essentially a parliamentary motion to pass two bills in a single vote. The bills are identical to what the Senate passed, and thus there is no issue with the presentment clause.

The House has to pass the same wording as the Senate, but I don’t really think the fact that the bill is coupled to another bill changes that.

Plus, I don’t really think the Courts ought to be telling Congress what it means to “pass bills”. The chambers are allowed to make their own rules, presumably that means they can decide what it means to “pass” a bill. If it means they couple it to another vote, then I think thats their choice.

I’m missing the part of the analysis that proves that affording each Congressmen a vote on each part of the proposal is something protected or mandated by the Constitution. Certainly, with omnibus bills, no Member of Congress is given the opportunity to vote on each provision. Shall we question their constitutionality as well?

Could the House decide that “passing” a bill means that if it garners 40% of the votes in the chamber, it passes?

There is no such requirement.

But if the House doesn’t, and the Senate does, then can it be said that they are passing the same bill?

The issue is not whether the Constitution requires a vote on each part of a proposal. it does not, obviously. The question: does the Constitution require that each chamber afford its members the identical chance to vote on the identical bill?

True. But I think the Constitution speaks to what each chamber does, not what may happen in committees.

They did. The House passes two bills simultaneously, but they’re still different bills. Surely you understood that part.

I don’t see any problem with that procedure. It really just comes down to in what order the votes are taken. Congress gets to set its own rules, and this is a rule they seem to think is useful. In the end, I really don’t think Congresscritters can hide behind the “I never really voted for the bill” dodge, since the vote on the rule ends up enacting the bill (plus changes).

I sounded really strange when I first heard about it, but upon further reflection, it just doesn’t seem like that big a deal.

While we may not like it I am not sure where in the constitution it says they can’t do that.

Presumably. I mean the Senate has an effective 60% threshold. While that elicits a lot of grumbling, I don’t think anyone has made any progress challenging its constitutionally.

They do have to vote on the same bill. No question about that.

What you are missing is if the House did a Deem & Pass on healthcare (adding in their amendments) then the bill goes back to the Senate which votes on it as it was amended by the House. Heck, if the Senate wanted to they could then amend it further and then it would go back to the House for a vote.

Indeed they do this sort of thing all the time. The House constructs a bill and votes on it. The Senate constructs a similar (but different) bill and votes on it. If passed by both chambers they send the two bills to a reconciliation committee (different kind of reconciliation) which endeavors to make the two bills into one bill. Then that composite bill is voted on by both.

If there isn’t anything in the constitution forbidding that, then why not? I would suspect that the party which pushed for such a rule would suffer a bit in the next election.

Not to mention the problems in voting that rule into place at all. :wink:

In real life, no voting assembly would ever agree to such a rule, because it would be very easy for two conflicting proposals each to gather 40% of the vote. So that’s a hypothetical that is rather pointless to discuss. It’s a bit like, “What if the House of Reps made a rule that the member with the lowest number of votes was elected as Speaker?” – it could never happen, because it would be so clearly against the interests of the majority.

Let me turn that around. The House has a procedure known as the suspension calendar that a bill may be quickly considered if it garners a 2/3rds vote. If it doesn’t get 2/3rds, then the bill fails. Surely that’s not unconstitutional?

I think the OP is getting at the same point I was gesturing toward in this post:

If there’s not a way for a House member to vote for the unamended bill and against the amended bill, then there really aren’t two separate bills, there’s just one bill–and it’s not identical to any single bill the Senate passed.

There are two bills to be passed in the senate. What it means for there to be two bills (IMO) is that there are two proposed laws, each of which each senator may vote on independently of his vote concerning the other.

In the house, the two bills (the one passed the other day, and the amended one they deemed passed) can not be independently voted for or against. One can’t vote for the deemed bill without also voting for the unamended bill. But that just means, (IMO) that there aren’t two bills. There’s just one. For there to be two bills, it must be possible to vote on each of them independently. That is not possible in this case–so there aren’t two bills.

If there are two bills in the Senate, and just one in the House, then this seems like a clear violation of the constiutional rule that each bill must be passed by both houses. Since the house passed one fewer bills than the Senate, some Senate bill somewhere never got passed by both houses, and so can’t be law.

I know this argument goes against established case law, but it is how it seems to me.

I’m speaking of what happens on the floor of each house. In the House, the rule on how bills are to be debated are created in committee, but they have to be approved by the full House before they have any effect.

I noted this above.

You are correct that they must pass identical bills.

So, when the House amends the Senate version it is not the same. The amended version goes back to the Senate for a vote.