Green Room

Pelosischlacht: Left Comes Out Swinging for the Slaughter Rule

posted at 1:59 pm on March 14, 2010 by

Predictably, commentators of the left have pounced, with a “tu quoque” argument, on conservative criticism of the “Slaughter Rule,” by which the House would adopt the language of the Senate health care reform bill without an actual vote.  (See Directorblue’s excellent summary of the issue here, complete with commentary from Mark Levin.)

The tu quoque argument – “Republicans do this too!” – is backed up by a case that the maneuver is too constitutional, and in fact has been used simply, like, all the time, ever since it was proposed by Dick Gephardt (former D-MO) in 1979.

But some conscientious commentators have done too much homework, or at least presented too much evidence on this matter.  If they left it at “You do it too, Pubbies!” their argument might take off as a mantra.  Republicans have, in fact, used similar “self-executing” rules to amend legislation without a vote (see link next paragraph).

The mantra is likely to perish aborning, however – except, perhaps, among the mainstream media – because the use of this particular non-voting legislation-adoption rule has been to raise the national debt ceiling.  That’s why Gephardt proposed it in the first place:  so the House could raise the debt ceiling without having to put the question to an actual full-House vote.  The maneuver was promptly dubbed the “Gephardt rule” and was used vigorously thereafter.  The Republican-controlled Congress of 2001 revoked the rule, but brought it back in 2003.

People of small-r republican bent will certainly find all such legislative maneuvers improper, and wouldn’t, in good conscience, let Republicans off the hook for keeping the Gephardt rule in their toolbox between 1995 and 2001, and between 2003 and 2007.  Let’s get rid of the practice entirely.  I’ve never been “for” it, any more than I’ve been “for” a lot of other things I had no power to prevent.

But people with a capacity for logic and sensible distinctions will also see the clear difference between raising the debt ceiling – or executing other fiscal maneuvers – without a vote; and changing the law of the land in an unprecedented way to tax, levy mandates on, and constrain the options of America’s 300-million-plus people, without a vote.

However bad an idea it is, raising the national debt ceiling is a measure to keep the path we’re currently on viable, at least for the short term.  It’s a means of not having to undertake sweeping changes in how the government is operating, and what the people expect of it.

The health care reform bills in Congress are the exact opposite of that.  They represent, above all else, sweeping changes:  an individual mandate to purchase non-liability insurance – something there is no precedent for and no analogy to at the federal level; business- and job-killing changes to employer mandates; a whole new set of embedded taxes; an enormous pile of unfunded mandates for the states; the infamous “effectiveness research institutes,” which would evaluate medical practices on a cost-benefit basis; and, of course, drastic cuts to Medicare, cuts that would unquestionably change the program’s very nature.  Not to mention the open door in the Senate bill to government funding of abortions.

The argument is likely to be made that each house of Congress has already had a Yea-Nay vote on these features of the bills, and reconciliation between the houses is now mere housekeeping.  This, of course, is the narrowly procedural view of the matter that serves the left’s perspective.

Aside from the abortion-funding question, on which the houses clearly don’t agree, the difficulty for this legislation all along has been that it is wildly unpopular with the people.  They are galvanized and vocal on this topic, in a manner clearly distinct from their long apathy on the methods used to facilitate expansion of the federal debt ceiling.  The people have every bit as much right to “legislative tactics” as Louise Slaughter and Nancy Pelosi do.  There is nothing the slightest bit inconsistent in the people demanding their crack at turning votes in the House, on game-changing legislation like this.

The people know that without reconciliation between the houses, no version of the bill can become law.  Failure to reconcile the different chambers’ bills has stopped legislation in its tracks on a number of occasions throughout the life of our republic, because that’s how the process is supposed to work.  We have a bicameral legislature precisely because the Framers wanted the two houses to be a check on each other, and the requirement for majorities in both houses to be a check on new legislation of exactly the kind represented by the current health care bills.  What the House would be doing by “adopting” the Senate language without a vote is making an end-run around that principle.

The indignation at potential use of the Slaughter rule to “adopt” the Senate language in the House, without a vote, is fully warranted.  Moreover, it’s quaint and out of date now for some to argue that the purpose of using it would be the same as the purpose of using the Gephardt rule:  to shield representatives from retribution by keeping embarrassing votes off their records.  Obama, Reid, and Pelosi have all made it clear they don’t really care about their members and their fate in November.

No, the purpose of using the Slaughter rule here would be to override the basic and pervasive political objections that make it unlikely Pelosi can win a Yea-Nay vote on the floor.  The Gephardt rule was used to kick the can down the road.  The Slaughter rule would be used to pick the can up, hack it into a sharp-edged tool, and heave it at the millions of Americans who don’t want the “reform” bills before Congress – as well as at the economy those Americans are trying, with increasing unease and even desperation, to keep afloat.

So, what does that title mean?  Germans have been some of the world’s foremost practitioners, chroniclers, and analysts of military strategy and tactics.  A number of terms used in the discipline come from German compound words, and one of them is kesselschlacht:  usually translated “cauldron battle,” and referring to a tactic of surrounding and annihilating an enemy.  But “schlacht” translates as “slaughter” too.  Apparently, Pelosischlacht has a chance to become the next neologism in the lexicon of political warfare.

Cross-posted at The Optimistic Conservative.

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I noted on another thread that if the HC bill passes without a Constitutional vote, the Members voting aye are, by definition, domestic enemies of the Constitution.

NaCly dog on March 14, 2010 at 6:02 PM

Use never makes a practice Constitutional.

Custom is not law.

Ragspierre on March 14, 2010 at 6:03 PM