Today in Really Obscure Congressional Procedure

There's some good reporting today from Patrick O'Connor at Politico and Jay Newton-Small at Time on how the House might proceed.  It seems that we may have a self-executing rule to contend with.

What's that, you say?  Well, unlike self-sealing stem bolts, which were just a nice McGuffin (oddly enough, only bother clicking if you do know the reference, otherwise just ignore that bit), a self-executing rule is an arcane but not unusual House procedure.  Starting from the beginning: in order consider legislation on the House floor, the House must first pass a "rule" which governs procedures for consideration of that legislation.  Rules, specific to each piece of legislation, are crafted by the Rules Committee, which is (since the mid-1960s) a creature of the House party leadership.  Rules can specify which amendments can be considered, in which order, under what voting procedures, along with time limits for debate.  As time has gone on, however, rules increasingly have also been used not just to allow amendments, but to adopt them.  So if the majority party (and both parties have done this quite a bit while in the majority) wants to change a bill from the way it was approved in committee but isn't sure whether it has the votes to secure those changes, or just doesn't want to force Members to vote on the changes, then they'll use a self-executing rule to avoid the vote: if the rule is adopted, the amendments are considered to be adopted.  Example, from Barbara Sinclair's Unorthodox Lawmaking:

The major postcommittee adjustments the leaders crafted to the 2005 reconciliation bill were bundled into an amendment sponsored by the Budget Committee Chair; the rule stipulated that the amendment "shall be considered as adopted" and barred all other amendments.

For health care reform, apparently, the rule would bundle the Senate bill and the new reconciliation bill together for the purposes of the House vote.  The reason?  Members of the House would then (or so they believe) avoid taking on the vulnerability of voting on the Senate bill alone, with its Nelson deal and other much-mocked provisions that are eliminated by the reconciliation patch. 

So far, I think that's a reasonable procedure.  The House is being forced to improvise because of the Senate rules, which will not allow something with 59% support from passing.  The question is in the details, which according to the reporting are still a work in progress.  It sounds as if what the House wants to do is bring up the patch, add a self-executing provision to the rule saying that if the patch passes both the House and the Senate, that in that case the House would be considered to have passed the original Senate bill, and would then send both on to the president.  As the articles report, it's not clear whether or not the House can do that, and so they're working with the House and Senate parliamentarians to find a solution that would get the bill passed, but with as little exposure for Members of the House as possible.

Frankly, this all seems a little silly to me.  On the one hand, if challengers in November want to attack a Member of the House because he or she voted for a provision that never took effect because that same Member also voted to eliminate that provision...well, if that attack is effective, so would be the attack that a Member of the House voted for that same terrifying provision as part of a deliberately deceitful parliamentary trick that those insiders in Washington are always trying.  Politicians are notoriously risk-averse and paranoid about the electoral effects of their votes, but I think the distinction they're trying to draw here is ridiculous. 

That's one level of paranoia, one that all politicians share.  A second level of paranoia, particular to Members of the House, has to do with not trusting the Senate.  This one has been worked over, here and elsewhere, many times before...here's Jonathan Chait's attempt at it today:  

After all, Senate Democrats would be crazy to make specific promises to the House and then renege on them -- they would never pass another bill again. Democrats aren't planning to put non-budgetary items into a reconciliation bill, so Republican can threaten all they want to invoke the Byrd Rule, but they'll lose. Anyway, threatening to fight reconciliation is a threat to fight popular changes -- delaying the excise tax, canceling special deals for Florida and Nebraska -- after a comprehensive health care reform has already become a fait accompli. The GOP would be putting itself on the wrong side of public opinion to stop a bill that's already passed.

The trick, of course, is that (as Chait says) Republicans are eager to avoid that situation.  If the main bill has already passed, Senate Republicans are blocking popular features.  If, however, the House manages to write a procedure in which the Senate decision determines not only the patch, but the entire (two bill) health care reform, then Republicans can plausibly claim to be blocking unpopular stuff (that is, in their view, health care reform) by blocking popular stuff (such as the repeal of the Nelson deal). 

As I've said, the House is often correct to be suspicious of the Senate, which has in fact screwed them over several times in recent (climate/energy) and ancient (BTU!) times.  They just are wrong in this case.  The Senate will only need 50 votes (plus the Veep), and Senators will have a massive incentive to pass the bill because of the need to repeal the Nelson deal and other demonized provisions.  The House is worrying about nothing -- and it would be quite foolish of them to dilute the Senate's incentives by making the passage of the major (Senate) health care reform bill contingent on passage of reconciliation.

In other obscure Congressional procedure news, and as Chait alluded to as quoted above, Republican Senators are continuing to threaten Byrd rule challenges on reconciliation; it still, as Chait said as quoted above, makes no sense because the bill is being written to avoid Byrd rule challenges.  Worst case scenario for the Dems?  One or more challenges knocks out a provision (or a GOP amendment passes), and then the House would have to vote to accept the (ever so slightly) different Senate version of the patch.  Note that while Republicans can offer amendments, those amendments themselves can be challenged if they are not germane or if they violate the Byrd rule, so there are a lot of limits on the damage the GOP could do (they won't be able to toss in a gun control or death penalty amendment).

Also, a vote-o-rama update: apparently the newest GOP talking points call ending "vote-o-rama" the nuclear option.  A different Jonathan -- it's Cohn this time -- points out that using endless amendments purely to filibuster the reconciliation patch would be an innovative tactic, but that asking the parliamentarian to declare them dilatory would only be following existing Senate precedents (a multi-day vote-o-rama in order to force votes on particular amendments, however, is a normal minority party tactic).  I agree with Cohn -- it's hard to see how anything can be a nuclear option if it involves following current Senate procedures.