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Questions of Privilege: A Possible Countermove?



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According to the official site of the House Rules Committee, “questions of privilege” relate to “matters affecting the safety, dignity or integrity of the House, or the rights, reputation or conduct of a member acting as a representative.”

House leaders are poised to use a procedural tactic of questionable constitutionality to move the single most consequential piece of legislation in over seven decades through the House without a vote. Here’s the idea: (1) pass a rule to bring to the floor a “reconciliation” measure that would detoxify certain provisions in the Senate-passed health-reform bill, and (2) insert in the rule a sentence that “deems” the Senate bill to have passed the House.

As Stanford law professor and former federal appeals court judge Michael W. McConnell explained in the Wall Street Journal:

It may be clever, but it is not constitutional. . . . According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.

To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

That gets us back to the “questions of privilege” that are available to any House member who believes an action has maligned the “dignity” or “integrity” of the House, or the “reputation” of individual members. Because these motions are “privileged,” they preempt other House business and are brought up for debate and a vote immediately.

Has there been any proposed action in the House — ever — more likely to besmirch its dignity or integrity, or more likely to malign the reputation of individual lawmakers, than sidestepping the Constitution to enact such a consequential law? Never has it been more appropriate for an enterprising House member to defend the integrity and dignity of this hallowed institution. Will a majority of the House actually be willing to take ownership, not just of the substance, but of the dangerous precedent House leaders want to establish to achieve reform? I think not.

Raising such questions of privilege would be a dramatic procedural countermove and would require every member to let their constituents know in advance of the final vote exactly how they feel about this process. And there is precedent for it.

Roll the clock back to 1989. A commission had concluded that members of congress were woefully underpaid and required an immediate and eye-popping 51 percent raise. Thanks to a 1981 law, the proposed increase would take effect automatically — no vote required — unless both the House and Senate voted to rescind it. Knowing this, former speaker Jim Wright adopted a rope-a-dope strategy, keeping the House out of session during the period leading up to the February 9 deadline when the raise would take effect.

The Congressional Quarterly’s contemporary account makes for fascinating reading today:

Editorial writers pummeled Congress not only for the size of the pay hike but for skirting a vote. Mail flooded the Capitol.

Some of the most vociferous criticism came from consumer activist Ralph Nader and a network of radio talk show hosts around the country who gave people a forum for venting their against the raise. One station urged its listeners to send tea bags to congressmen with the slogan, “Read my lips: No pay raise.” Thousands did.

Democrats were in disarray. Their retreat to the swanky Greenbrier resort in early February turned into a public-relations disaster, thanks to hostile questions from reporters and an unruly sendoff at Union Station by boatloads of protestors. California Republican William E. Dannemeyer complicated matters for pay-raise advocates by drafting a privileged resolution to force an up-and-down vote on the pay raise. [Full disclosure: I worked for Mr. Dannemeyer during this period and participated in the development of this strategy.]

Things unraveled quickly for Speaker Wright upon his return from the Greenbrier. In a series of one-minute speeches Dannemeyer’s allies linked the nefarious process by which the pay raise would become law and the public outrage it had provoked to the reputation of Congress.

“Mr. Speaker,” one Republican railed, “by our participation in this shameful pay raise conspiracy, we have deservedly brought down on this House the disgust of the American people…Mr. Speaker, save…what remnant of dignity and integrity we collectively have left by providing us the opportunity to vote on this burning issue. Only you, Mr. Speaker, can save us from ourselves.” Another bemoaned that “we are viewed as scoundrels who resort to sneaking pay raises through, while we publicly protest and point our fingers at others.”

Democratic and Republican leaders mistakenly thought they could block Dannemeyer and run out the clock by quickly moving to adjourn the House. Normally, such procedural votes are party-line, with Democrats required to support their leaders and Republicans theirs. But this time 108 Democrats rebelled and the House voted 88–238 not to adjourn.

The pay raise was formally interred the next day.

Fast-forward to our present dilemma. Thanks in large part to the debate over health reform, the congressional disapproval rating has soared since January to as high as 80 percent (Fox/Opinion Dynamics). To put this in perspective, Gallup’s most recent survey found that, at 78 percent, the current level of public angst is the highest it’s been since 1974. Mailing tea bags to Capitol Hill has given way to a national and increasingly sophisticated Tea Party movement. State governments too have begun to rebel, passing laws and resolutions to exempt their residents from any new federal health mandates. For one branch of government to knowingly provoke an unnecessary constitutional crisis on top of all this turmoil will scald the body politic in ways that will take generations to heal.

Surely health reform does not warrant such scorched-earth tactics.



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