Our constitution says that “each house may determine the rules of its proceedings.” Speaker Pelosi may need to squeeze every bit out of that language to make health reform happen.
The broad constitutional power to determine rules becomes operational in the workings of the House Rules Committee. One way out for the House Democratic leadership would be to turn to the rules committee to bring to the floor a self-executing rule to pass health-care reform. A self-executing rule marries procedure and substance. It is a resolution of the House of Representatives that provides that the passage of the rule has the effect of passing substantive legislation. Unusual? Yes. Subject to being shouted at as an arrogant abuse of power? Yes. An end to cooperation between House Republicans and Democrats this year on any other matter? Likely. But the generous view that the judicial branch has taken in interpreting the authority of Congress to “determine the rules of its proceedings” means a bill thus passed would still be the law of the land.
A self-executing rule could provide that (1) the House passes the Senate health-care-reform bill and (2) the House passes a reconciliation bill. All in one vote. The Senate health-reform bill would then be sent to the president for his approval. The reconciliation bill would be sent to the Senate for further action.
The reconciliation bill could include all the fixes that the Democratic leadership needs to dole out to get the votes required to get a majority to vote for the rule. The fixes could include deleting the Cornhusker Kicker and adding new measures to reduce fraud and abuse. Senator Coburn’s “secret shopper” proposal could be in there. That would provide cover for Blue Dog Democrats. Pro-life Democrats could be given whatever language it would take to get their votes, a gift given with the knowledge that the Byrd Rule in the Senate would make the gift get taken back during the course of Senate action on the reconciliation bill.
The audacity of a one vote, self-executing rule strategy would make jaws drop. Whether self-execution is a form of suicide for House Democrats, that would be up to the voters to decide.
– Hanns Kuttner is a visiting fellow at Hudson Institute.