Explaining the Slaughter Solution

Note, 3/18: more comments are posted.)

(Note, 3/17, 3:38 p.m.: Several replies to my question have just been posted.)

According to Rep. David Dreier, the ranking member (i.e., the ranking minority member) of the House Rules Committee, of which Rep. Louise Slaughter is the chairman, the Democrats are indeed going to pass the bill by means of the “Slaughter Solution,” by which the the House in voting for the “fixer” to the Senate bill, will “deem” the Senate bill itself to have been passed. This is considered by critics to be a gross violation of the Constitution, which says that a bill, in order to reach the president and become law, must “pass” both Houses of Congress (i.e., not be “deemed” to have passed).

Now, as I said last week, I have read numerous articles dealing with the Slaughter Solution (and I’ve read many more since last week), and I haven’t found one that explains clearly and persuasively what is the purpose of having the House “deem” the Senate bill to have been passed rather than simply passing it. Various explanations have been proferred by various journalists and Republican House members. The most frequently iterated explanation is that the purpose is to pass the Senate bill while avoiding the necessity of members putting themselves on record as actually having voted for it. But that is obviously absurd. If they vote for the “fixer” which “deems” the Senate bill to have been passed, then they will have voted for the Senate bill.

If there is anyone who understands what the purpose of the Slaughter Solution is and can explain it, or has an article that explains it, please write to me. Note: I do not want just any article that goes through the motions of explaining the Slaughter Solution (there are many such articles); I want an article that actually does explain it.

- end of initial entry -

March 17, 3:38 p.m.

Steve R. writes:

I’m pretty sure this is the answer and it’s really not much different from what you’ve speculated but this example should explain why what seems minor is important politically:

Imagine I am a Democrat from a district likely to be enraged with the Ben Nelson deal (the Cornhusker Kickback). Naturally, I don’t want to be on record as having voted for the bill that contained that very distasteful provision giving his State special privileges. By only requiring me, to cast my vote for the “fixer” bill—the one that does not have Nelson’s provision—a future political opponent cannot claim that I, personally, ever favored the Ben Nelson deal. By having the Senate bill deemed passed, I have been spared of having to cast my vote in favor of all the provisions that my constituents or myself might find extremely offensive.

If my interpretation is wrong, I have confidence that a VFR reader will correct me.

LA replies:

To me, your interpretation simply cannot the correct one. The hypothetical member has voted for the fixer bill that contains the rule that deems the Senate bill to have passed. Therefore he has voted to make the Senate bill the law of the land. Not only will the “deeming” NOT relieve him of the responsibility for having voted for the Senate bill, but it will also mark him down as a person who voted to pass this nation-changing legislation by such fraudulent and sleazy methods that depart in the grossest manner from the Constitution.

Finally, since everyone who votes for the fixer bill that contains the “deeming” rule will be seen as having voted for the Senate bill, why should the deeming get any more votes than the Senate bill itself?

Therefore, as I’ve said before, the notion that the purpose of “deeming” is simply to pass the bill without being seen as responsible for passing it, cannot be correct. There must be another purpose of the deeming.

Steve R. continues:

Having reread your question I can see why my first answer was insufficient for you. It only explained why each Democrat doesn’t want to vote for the bill that came out of the Senate. What I didn’t explain is why they have to deem it to begin with. Here goes:

The Congressional Budget Office (CBO) only evaluated the Senate bill. It currently has CBO approval. The original bill from the House was not approved by the CBO. [LA replies: I don’t see how that could be. I thought a House could not bring a bill to a vote unless it had CBO approval.]

Once the bill is “deemed,” there is now a bill approved by both houses and the CBO so it can be said that the bill has met all qualifications for being a bill (except the signing by the president). All the House’s “fixit” changes can then be added on to what was now deemed to be a passed bill by both Houses. But the fixit items that can be framed as having a further beneficial effect on the budgetary aspects of the bill. Thus when the fixit bill returns to the Senate only a reconciliation vote will be necessary to pass it.

The key is that with Scott Brown in the Senate, no new bill could have been offered up to the CBO that the Senate could pass.

LA replies:

Steve, I’m sorry, I may be wrong, but I don’t see how this comment addresses my question of what the Democrats accomplish by passing the bill by “deeming” it, instead of by simply voting for it. The scenario you’re just described would apply just as much to the House voting for the senate bill in the normal way as to the House deeming it passed.

Jonathan W. writes:

I think I understand the whole “deeming” business. Basically, the House wants to send its reconciliation fixes directly to the Senate. They say that this “deems” it to have passed, on the basis that they wouldn’t reconcile a bill that they didn’t support passing in the first place. However, this solution allows the House to tie its reconciliation vote to the deeming, which is in effect, the regular vote. That way if the Senate rejects the House’s fixes, the original Bill is not passed. Its basically a way for the House to posit to the Senate, “Look, we’ll pass your Bill on the condition that you agree to our changes. If you don’t, we won’t pass your original Bill.” Whereas if the House passes the Senate bill in a separate process, the House loses the ability to make any demands of the Senate.

This all seems similar to a counteroffer in Contract law. If someone offers to sell you their blue coat with a scarf included for $100, and you turn around and offer $80, everything but the price in the agreement remains the same. Whereas if you said, “Yes, I’ll buy it for $100,” and then tried to haggle on the price afterwards, the seller would be under no obligation to negotiate.

Of course, none of this is intended to support what the House Democrats propose doing, which is truly outrageous.

LA replies:

I think this is getting closer to the truth, but I don’t think we’re there yet.

The House passes the fixes, along with the rule that that deems the Senate bill to have passed. But if the Senate then rejects the fixes, the House will then retract the deeming, and the Senate bill is not law, and the House is not responsible for making the unfixed Senate bill into law. Is this what you meant?

But here is the problem I see with this. According to the Senate Parliamentarian, a bill must actually be signed into law by the president before the Senate can pass changes to it by reconciliation. Therefore the House would not be able to retract its approval of the Senate bill, once the bill is sent back to the Senate, because by that point, the Senate bill would already be law.

Mark M. writes:

I agree with you that as presented in the press the Slaughter Solution makes absolutely no sense. If House Democrats vote for a rule that says that the Senate Bill is deemed to have passed, they will be deemed by the voters to have, in effect, voted for the Senate Bill. The only thing that the Democrats would seem to accomplish with such a strategy is to make themselves look sneaky. However, it occurred to me (just pure speculation on my part) that the Democrats might have a concern about a constitutional problem that they are not sharing with their buddies in the press. Article I, Section 7, of the Constitution requires that “[a]ll Bills for raising Revenue originate in the House of Representatives.” If the House simply passes the Senate Bill as is, it reverses that process. Once signed into law by President Obama, the bill or, depending on its severability provisions, the bill’s revenue raising features, could be challenged in court on that basis alone. The Slaughter Solution arguably solves this problem by having the House declare by fiat that it had passed the Senate Bill at some point in the past. [LA replies: there was something I read a couple of weeks ago about a ghost bill which the House passed, then gutted its contents and replaced them with the Senate bill, which was the House’s bill of getting around this problem. But that also seems patently unlawful and unconstitutional. How can the House claim that it passed a bill in the past that it didn’t pass? James Madison has been replaced by Rod Serling!]

Now this is where the Slaughter Solution becomes diabolical. In addition to requiring that all revenue-raising bills originate in the House, Article I, Section 7, requires that every bill pass both the House and Senate before it becomes law. And a reviewing court might reasonably ask, “Well, if the Senate Bill did not pass the House when the House adopted the Slaughter rule (and, hence, after the Senate passed the bill), when did it pass it? However, at that point—a year or so after the bill would have been signed into law—Obama’s Justice Department lawyers could concede that the Senate bill was passed by the House when the House adopted the Slaughter rule, yet nonetheless maintain that this did not constitute a violation of Article I, Section 7, because when the House sent the Slaughter rule along with the fixes to the Senate that it sent the Senate a new bill that the Senate later ratified. In so arguing, these lawyers would be conceding that the Senate violated its own rules by passing the bill by majority vote. But, because of separation of powers, there is nothing a court could do about that. The Senate is the final authority as to its own rules. Thus, the Slaughter Solution would appear to accomplish two things: (1) it avoids an obvious constitutional problem that would arise if the House simply passed the Senate Bill and sent it to the President for his signature and (2) gives Senate Democrats cover for violating Senate rules.

LA replies:

This is tough to follow and I’ll have to re-read it.

John Dempsey writes:

What “deeming” accomplishes is what would have been impossible otherwise. It pushes a bill through as having been passed without actually having the votes to pass it. The Senate bill will be deemed to have been passed simply by voting for the reconciliation bill. [LA replies: but, as I said above in response to Steve, there still have to be enough votes to pass the deeming bill. The same members who don’t want to vote for the Senate bill would also not want to vote to for the deeming bill.] Here is a NY Times article that was posted on their homepage for about an hour yesterday, not it’s in their Health section. It explains the process a little better than the Post article.

Let’s also keep in mind what Paul Ryan has said about the reconciliation bill. After it is passed, it will be stripped of its actual provisions and changed to suit whatever the Rules Committee has agreed that it should say. So in actuality, none of the legislation will have been passed by vote in the House, including the actual contents of the reconciliation package.

This is my understanding anyway.

Jonathan W. replies to LA:

“Is this what you meant?”

Yes, you summarized perfectly the point I was trying to make. However, I was not aware of the rule as stated by the Senate Parliamentarian that the bill must have already been signed into law before it can be “reconciled.” The only thing that I can think of is that the House is not considering Senate rules, and is proceeding on its own according to the House’s own rules.

Cindi writes:

I read your post questioning how the Democrats can avoid admitting voting for this bill by, instead, voting for the rule change/deeming bill, because voting for the latter is, in effect, voting for the former.


I heard just a snippet of Brett Baier’s interview of BHO wherein the Poseur in Chief ADMITTED—no, AVERRED—that the process is immaterial, as no matter which method is used to vote on which “bill,” it is, in effect, voting on (and passing) the bill. I’m paraphrasing, of course, but there it is.

Right again, PITA!

Cindi continues:

Here’s the exact quote:

“I don’t spend a lot of time worrying about what the procedural rules are in the House or Senate. What I can tell you is that the vote that’s taken in the House will be a vote for health care reform. And if people vote yes, whatever form that takes, that is going to be a vote for health care reform. And I don’t think we should pretend otherwise. And if they don’t, if they vote against it, then they’re going to be voting against health care reform and they’re going to be voting in favor of the status quo.”

LA replies:

For newer readers, “PITA” is Cindi’s nickname for me, an acronym based on David Horowitz’s description of me when I asked him why, during a time when I was a regular contributor at his site, he had written an e-mail to a leftist enemy of mine saying that I had “racist” positions, thus giving the leftist a weapon with which to attack me,

Steve R. writes:

Regarding the CBO and the House. Are you saying that the CBO approved the House’s bill? I will look into that but I didn’t remember that happening. [LA replies: I don’t know that they did, but I thought that had to be done for every bill.]

Regarding the rest of what has been said I still hold to my understanding of the “deeming.” Here’s why:

Larry said:

“The scenario you’re just described would apply just as much to the House voting for the Senate bill in the normal way as to the House deeming it passed.”

Indeed it would, but there are Democrats who will not put their personal name on a vote for the Cornhusker Kickback—only on the fixit bill. By having the Senate bill deemed passed by Pelosi every Democrat is spared that problem. [LA replies: Well, we’re running around in circles here; You believe that this transparent ploy would somehow conceal the fact that the given members had voted to deem the Senate bill passed; I don’t. There’s no point in going over this again.]

Larry said:

“there still have to be enough votes to pass the deeming bill”

I believe this is where the misunderstanding lies. I am pretty sure there is no vote that would take place on a deeming bill. Pelosi simply deems it to be passed. [LA replies: absolutely not. The deeming is part of a rule that is attached to the fixer bill. It says that in the act of passing the fixer bill, the House has deemed the Senate bill to be passed.]

Larry said:

“The hypothetical member has voted for the fixer bill that contains the rule that deems the Senate bill to have passed.”

This presumes that there is only one bill going back to the Senate. My understanding is that there are in effect not one, but two separate bills that would be sent back to the Senate. Why else would the House be worried that the Senate will accept one and reject the other?

Larry said:

“Therefore he has voted to make the Senate bill the law of the land. Not only will the “deeming” NOT relieve him of the responsibility for having voted for the Senate bill, but it will also mark him down as a person who voted to pass this nation-changing legislation by such fraudulent and sleazy methods that depart in the grossest manner from the Constitution.”

That presumes the Democrat voter will place a high value on intergrity. The Democrat house member has a constituency with values that allow him to overlook the intergrity issue a la the following: [LA replies: But you’ve forgotten how much outrage there was among Democrats over the Cornhusker, Purchase, etc.]

Challenger: You voted for the Cornhusker Deal Incumbent: I did no such thing and I never would. Pelosi deemed it passed. I only voted on the bill that was acceptable to the voters. Challenger: That’s B.S.; you’re vote relied on the Senate bill being deemed as passed. Incumbent: Look, deeming a bill passed has been done 50 times before by Democrats and 36 times by Republicans. Why should we have been prevented from using this procedure now, especially on such an important issue as healthcare for the American public. Do you think we should have just rolled over and let intransigent Republicans decide when this procedure can be used and when it can’t? You want to let the guys who don’t give a d—n about the little guy win again?

Larry said:

” a bill must actually be signed into law by the president before the Senate can pass changes to it by reconciliation.”

Yes, even though the “deeming” procedure has been used many times in the past, this would be the first time ever that it would be used in conjunction with passage of a reconciliation bill. It is upon this basis, the two rarely used procedures occurring simultaneously, that a court battle will definitely be fought. Putting on his Constitutional lawyer hat, Mark Levin went into all this, in detail, yesterday.

March 18

Steve R. writes:

For the record,

1) You were correct (I wasn’t) about the CBO and the original House bill.

2) I realize now that you are thinking of the one bill as the deeming bill and I’ve been thinking of the same bill as the fixer and this explains why, to a large part, we’ve been arguing past each other (as well as some of my redundancy).

3) My words “Pelosi deems it to be passed” were ill-timed in the argument and contributed to the misunderstanding.

4) Your NY Times link, at one point, mimicked my explanation so I’m now thinking that the original question you were posing was likely not what I thought it was but more like “How could they think that this ‘deeming’ bill is actually going to help them?”- And to you it just isn’t clear.

P.S. It’s pretty humorous that while I’ve been struggling to deal with this one post, you’ve moved on to about ten others.

Kathlene M. writes:

I too have been struggling to understand how the Slaughter Rule would supposedly shield House members who vote for this two-for-one trickery. Fortunately this Orange County Register article corroborates what you’ve been writing:

Using “deem-and-pass” will not, as Speaker Pelosi has said she hopes, shield reluctant moderate Democrats from criticism in the November elections. Those who vote for the “fix” will be “deemed” to have voted for the whole package and criticized for sneakiness besides. [LA replies: right. So, once again, what do they gain from it? What does it accomplish for them?]

And here is a very good explanation of how the Slaughter Rule works:

A self-executing rule allows a “two for one” procedure, whereby the House, by voting on one piece of legislation, simultaneously disposes of a secondary piece, which is “deemed to pass” if the main bill is passed. In this instance, a law to “fix” the Senate health care bill with provisions the House wants changed…. would be voted on. If it is approved, the basic Senate bill being amended would be “deemed to pass” without the inconvenience and potential embarrassment of House members casting a separate vote to approve it.

So, if the House uses this gimmick to pass this very partisan and unpopular healthcare bill, can Americans just “deem” that they pass on paying their taxes? I think it would be a very justified response for Americans to make up their own rules as well.

I look forward to the lawsuit which will challenge the legality of a bill passed in such an underhanded manner. Mark Levin’s draft of his Landmark Legal Foundation lawsuit correctly notes that the House’s action invites “chaos; economic, political and constitutional.” (Page 8, paragraph 31)

The Democrats are opening up a Pandora’s box of troubles.

Posted by Lawrence Auster at March 16, 2010 01:01 PM | Send

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