Media conservatives have falsely characterized a legislative proposal reportedly being considered to finalize health care reform in the House as unprecedented, undemocratic, and unconstitutional. But the rule in question is an accepted part of House procedure, and Congress repeatedly used the rule under GOP leadership, according to a former GOP staff director of the House Rules Committee.
Self-executing rule is accepted part of House procedure
Politico: House leaders considering "self-executing rule" to finalize health care reform. A March 9 Politico article reported that Democratic House "leaders have discussed the possibility of using the House Rules Committee to avoid an actual vote on the Senate's bill, according to leadership aides. They would do this by writing what's called a 'self-executing rule,' meaning the Senate bill would be attached to a package of fixes being negotiated between the two chambers -- without an actual vote on the Senate's legislation."
CRS: "Self-executing rules may stipulate that a discrete policy proposal is deemed to have passed the House." In a 2006 report, as Time's Karen Tumulty pointed out, the Congressional Research Service defined the self-executing rule as part of the House rulemaking process:
Starting about twenty-five years ago, in response to developments such as increased partisanship and uncertainty with respect to how long or controversial the amendment process on the floor might be, the Rules Committee began to issue more procedurally imaginative and complex rules.
Definition of "Self-Executing" Rule. One of the newer types is called a "self-executing" rule; it embodies a "two-for-one" procedure. This means that when the House adopts a rule it also simultaneously agrees to dispose of a separate matter, which is specified in the rule itself. For instance, self-executing rules may stipulate that a discrete policy proposal is deemed to have passed the House and been incorporated in the bill to be taken up. The effect: neither in the House nor in the Committee of the Whole will lawmakers have an opportunity to amend or to vote separately on the "self-executed" provision. It was automatically agreed to when the House passed the rule.
Self-executing rules require a vote. The CRS report makes clear that passage of a rule by the House is required for the "self-executed" provision to be adopted. Don Wolfensberger, former chief of staff for the House Rules Committee under Republicans, stated in a 2006 Roll Call column: "Almost every major bill must obtain a special rule, or resolution, from the Rules Committee permitting immediate floor consideration. The resolution also specifies the amount of general debate time and what amendments will be allowed. A special rule also may contain other bells, whistles, gizmos and gadgets.One of these optional attachments is a self-executing provision, which decrees a specified amendment to have been adopted upon the rule's passage [Emphasis added]. In other words, once the House adopts the special rule it effectively has adopted the amendment before the bill has even been called up for consideration [Emphasis added]."
Republicans "set new records" for use of rule
Wolfensberger: Republicans "set new records" for using self-executing rule. Also in his 2006 Roll Call column, Wolfensberger stated that the Republican Party "set new records" for its use of the self-executing rule:
Self-executing rules began innocently enough in the 1970s as a way of making technical corrections to bills. But, as the House became more partisan in the 1980s, the majority leadership was empowered by its caucus to take all necessary steps to pass the party's bills. This included a Rules Committee that was used more creatively to devise procedures to all but guarantee policy success. The self-executing rule was one such device to make substantive changes in legislation while ensuring majority passage.
When Republicans were in the minority, they railed against self-executing rules as being anti-deliberative because they undermined and perverted the work of committees and also prevented the House from having a separate debate and vote on the majority's preferred changes. From the 95th to 98th Congresses (1977-84), there were only eight self-executing rules making up just 1 percent of the 857 total rules granted. However, in Speaker Tip O'Neill's (D-Mass.) final term in the 99th Congress, there were 20 self-executing rules (12 percent). In Rep. Jim Wright's (D-Texas) only full term as Speaker, in the 100th Congress, there were 18 self-executing rules (17 percent). They reached a high point of 30 under Speaker Tom Foley (D-Wash.) during the final Democratic Congress, the 103rd, for 22 percent of all rules.
When Republicans took power in 1995, they soon lost their aversion to self-executing rules and proceeded to set new records under Speaker Newt Gingrich (R-Ga.). There were 38 and 52 self-executing rules in the 104th and 105th Congresses (1995-1998), making up 25 percent and 35 percent of all rules, respectively. Under Speaker Dennis Hastert (R-Ill.) there were 40, 42 and 30 self-executing rules in the 106th, 107th and 108th Congresses (22 percent, 37 percent and 22 percent, respectively). Thus far in the 109th Congress, self-executing rules make up about 16 percent of all rules.
On April 26 , the Rules Committee served up the mother of all self-executing rules for the lobby/ethics reform bill. The committee hit the trifecta with not one, not two, but three self-executing provisions in the same special rule.
Media conservatives attack rule as unprecedented, unconstitutional, and undemocratic
Limbaugh calls rule a "twisted scheme" to "bend the rules." During the March 11 edition of his nationally syndicated radio show, Rush Limbaugh stated that Rep. Louise Slaughter (D-NY) proposed using the self-executing rule to finalize health care reform legislation. Limbaugh said: "So, the scheme -- the twisted scheme by which the Democrat leaders plan to bend the rules to ram Obama's legislation through Congress now has a name: the Slaughter solution."
Doocy: "They can pass the health care bill without actually voting on it." During the March 11 edition of Fox & Friends, co-host Steve Doocy stated that "the "Slaughter solution" rule would declare that the House deems the Senate version to have been passed by the House, and then House members would then have to vote on whether or not to accept the rule. So, by passing that rule, then they can pass the health care bill without actually voting on it. That is crazy."
Hannity: Democrats' "latest solution: Don't vote at all." During the March 11 edition of his Fox News show, Sean Hannity stated (via the Nexis database), "The desperation among Democrats to pass this health care bill has reached new heights. Now they lacked the votes in the House to jam this bill through. So their latest solution: Don't vote at all. Now that's what House rules chairwoman Louise Slaughter is proposing. Now she wants to create a rule that would consider the Senate bill passed and once and for all by passing a minor bill that makes corrections to the Senate bill."
Fox Nation asks: "Should Rep. Slaughter be expelled from Congress?" On March 12, Fox Nation displayed the following graphic on its webpage:
Big Government: Slaughter's rule is "violating the Constitution." A March 11 post on Andrew Breitbart's Big Government website stated, "The Slaughter Solution has one very large obstacle -- the Constitution Article I, Section 7," and that "if this Congress continues down this path of violating the Constitution, the 'people' will have a viable case, class-action or otherwise, in the US courts because it is going to be extremely difficult for a judge to ignore that the 111th Democrat-Progressive led Congress violated Article I, Section 7 to the most obscene extent."
Jim Hoft: "Democrats will use the unconstitutional 'Slaughter Rule.' " In a March 14 post on his Gateway Pundit blog, Jim Hoft stated, "Democratic leader Rep. Chris Van Hollen admitted today on FOX News Sunday that democrats will use the unconstitutional 'Slaughter Rule' to ram their pro-abortion nationalized health care bill through Congress. Democrats announced this tactic last week. They will pass the bill without voting on it. They will take over one-sixth of the US economy without even voting on it."
Hot Air: House is using self-executing rule "for the first time in U.S. history." A March 14 Hot Air blog post stated, "We're hours away from Slaughter revealing the strategy and Democrats have no other mechanism to pass a bill other than using an extra-Constitutional procedure. They don't have the votes to pass the Senate Bill, so they are -- for the first time in U.S. history -- about to rule that they actually passed a bill they never voted on."
Malkin calls Rep. Slaughter a "Constitution-butcher." On March 13, Fox News contributor Michelle Malkin displayed the following graphic on her website: