Legislative Strategy Project Case Study

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Self-Executing Rules (Deem and Pass)

The self-executing rule, also known as 'deem and pass' has recently been criticized by Newt Gingrich and Joe Scarborough. The self-executing rule is a method of procedure that the U.S. House of Representatives use to approve legislation. This rule is in the form of a simple resolution and serves to specify which bills are under consideration by the House. When the House votes to approve a rule that in inclusive of a self-executing provision, the House at the same time agrees to dispose of a matter that is separate as the self-executing rule specifies. This allows modifications or amendments to bills to be passed simultaneously to the bill underlying the modification or amendment. While this procedure does serve to streamline the process of legislation, and is reported to have been used on 85 different occasions in the five years between 2005 and 2010 (Oleszek, 2005, Matt, 2010, and Montgomery and Kane, 2010), this procedure is questioned by some legal scholars in regards to its constitutionality. (Linkins, 2010; Barbash, 2010)

Background

The self-executing rule was first used in the 1930s according to the work of Linkins (2010) and between the 95th and 98th Congress (1977-1984) the self-executing rule was used a total of eight times. The self-executing rule was used 20 times in the 99th Congress and 18 times in the 100th Congress, 39 times during the 104th Congress under Speaker Gingrich and 52 times in the 105th Congress. The self-executing rule was used 40 times in the 106th Congress, 42 times in the 107th Congress and a total of 30 times in the 108th Congress. (Wolfensberger, 2006)

III. Review of Roll Call Article (Newhauser, 2012)

The Roll Call, the Newspaper of Capitol Hill since 1955 article entitled "House GOP Uses Once-Reviled Tactic for Budget Measure" reports that House Republican leaders utilized an "arcane legislative maneuver to enforce Budget Chairman Paul Ryan's financial blueprint Tuesday, highlighting how quickly a procedure maligned when in the minority can become a useful tool when in control of the gavel -- and vice versa." (Newhauser, 2012, p.1) The Democrats are calling the Republicans hypocrites as the Republicans used the self-executing rule to "tack the Wisconsin Republican's budget onto an easily passable bill, the Sportsmen's Heritage Act." (Newhauser, 2012, p.1)

This term is familiar to most people as in the last Congress, Nancy Pelosi, Democrat from California and then-speaker gave consideration to use of the procedure in passing the health care reform law, although, Pelosi decided against the use of the procedure. At the time Pelosi considered using this procedure the Republicans are reported to have "cried foul, giving it nicknames such as 'demon pass' and 'scheme and plot'." (Newhauser, 2012, p.1) The article states that Pelosi actually utilized the process in 2010 "to deem budget numbers without actually passing a budget, a process to which Ryan and then-Minority Leader John Boehner (R-Ohio) objected." (Newhauser, 2012, p.1) Gerrit Lansing, stated that the procedure is not the same move made by the Democrats during the debate on health care and specifically Lansing is reported as having stated as follows:

"The glaring difference is that we're trying to do our jobs in the House of Representatives by giving an already-passed resolution the power to guide our work in the House -- we're not trying to circumvent democracy by passing a law this way, much less a takeover of 17% of the economy, [reference to the health care law] we're trying to fix a sequester that everyone wants fixed and yet no one is willing to advance solutions for. When Democrats decide to take seriously our generation's defining challenge, we'll be glad to have them join the table of adults who are working to solve our debt crisis." (Newhauser, 2012, p.1)

However, as noted by Newhauser, the most recent use of the self-executing 'deem and pass' resulted in protests by the Democrats. One of the nicknames assigned by the Democrats was Republics "dream and pass" states Newhauser as it read in a circulated memo passed out by House Democratic leadership. Caucus Chairman, John Larson is reported to have revealed to reporters that he believes the procedures use is avoidance of another debate on the floor on what is 'unpopular legislation'. Larson states that it is being deemed by the Republicans "because they know that it can't stand up to the scrutiny." (Newhauser, 2012, p.1) The Republicans have set records for the use of "such rarely used maneuvers…during the years when the Republicans controlled the House…" (Conason, 2010, p.1) The Democrats are not protesting the actual use of the self-executing rule on its own merits according to what Larson stated but instead are protesting the content attached to the bill in terms of its unfairness.

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The Republicans were just as worked up over its use in 2010 when the self-executing rule was being considered for use in passing a health-care related budget fix. The way that this works is that the House votes once and approves what is termed by Benen (2010) as a "sidecar measure" which essentially deems that the bill was passed.

The article in the Roll Call is very straightforward in its presentation of the issue and explains that the procedure was to be used in a bill promoting hunting and fishing on public lands and exempt bullets and fishing lures form the Toxic Substances Control Act and states that the deem and pass would enable the House to enforce "a fiscal 2013 spending cap of $1,028 trillion instead of the $1.047 trillion cap agreed to last year in the Budget Control Act." (Newhauser, 2012, p.1) A long explanation was released by the committee in an attempt to justify its decision to pass and deem or use the self-executing rule to deem the budget which states as follows:

"The Rules of the House and the enforcement mechanisms in the Budget Act rely on the numbers in a budget agreed to by both House and Senate to ensure that Congress doesn't overspend. When the Senate refuses to act, the House must take steps to ensure that it can responsibly proceed with the appropriations and budget process. While we'd prefer an agreed-upon budget resolution, it is essential that some budget enforcement be put in place, absent Senate action on its own budget and a House-Senate agreement, the House cannot move forward on key budget priorities." (Newhauser, 2012, p.1)

In a separate article, Kasperowicz (2012) writes that the rule, House Resolution 614, was approved by Members in what was a "mostly party-line vote of 228-184, after a contentious debate in which Democrats accused Republicans of trying to force the budget from Budget Committee Chairman Paul Ryan (R-Wis) onto both the House and the Senate." (p.1) House Minority Leader, Nancy Pelosi is noted as having stated "We must enact a budget that reflects our nation's values of fairness and opportunity, and puts the American dream in reach for every American. Yet House Republicans simply refuse to listen to what the American people are saying to us. Instead they have decided to pull a stunt here today, a 'deem and pass' of their devastating budget." (Kasperowicz, 2012, p.1) The Republicans are noted to have stated that the Democrats "were making too much of the vote, which they cast as a procedural necessity." (Kasperowicz, 2012, p.1)

Analysis

The Republicans claim that they are actually passing something that occurred three weeks ago and that the Senate had failed to allow the House to move forward and that the Senate had more than 1,000 days to do so. Bishop is noted as having stated that the House should not be "paralyzed by their inaction because of their inaction" and stated "Of the 1,081 days since a Senate budget was passed" that "Henry VIII married, divorced, and beheaded his wife in less time than that." (Kapserowicz, 2012, p.1)

While the self-executing rule is now being demonized by the Democrats, they have used the deem and pass historically to gain their own edge over the Republicans in the House. It appears that the self-executing rule is only a bad rule if one is on the side opposed to the content that the self-executing rule is used to pass. Republicans who in years past and most specifically when Nancy Pelosi considered use of the self-executing rule were adamantly against the usage of the rule, are not adamantly in favor of the use of the self-executing rule and vice versa for the Democrats. It appears that the use of this rule is not so much held to be unconstitutional as held to be an unfair advantage by the political party who is not actually the party using the self-executing rule in any given case.

As noted in this review, the Republicans have historically made use of the self-executing rule more than the Democrats have but scream in protest just as loud and emphatically as do the Democrats when they are not the party making use of this very convenient and expedient rule allowing content….....

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