Fox News anchors can't grasp "pretty simple" legislative procedure

››› ››› GREG LEWIS

On March 16, Fox News anchors during their self-described daytime "news hours" repeatedly forwarded the false suggestion that, by using a legislative procedure known as the "self-executing rule" to finalize health care reform in the House, Democrats would be passing health care reform "without actually voting for it." In fact, implementing the proposed procedure requires a majority vote.

The New York Times reported on October 11, 2009, that Fox News claims its news hours are objective and defined as "9 a.m. to 4 p.m. and 6 to 8 p.m. on weekdays." Those weekday hours include America's Newsroom, Happening Now,and America Live, which replaced Live Desk in early 2010.

America's Newsroom: Procedure "actually pretty simple," but not for Fox's Hemmer

Hemmer: The self-executing rule "does not require a single vote." On Fox News' America's Newsroom, co-host Bill Hemmer stated: "We start this morning with what could be the latest tactic to pass health care. Democrats considering pushing it through the House without actually voting on it. Now, how's that work? It's called the self-executing rule that does not require a single vote, and lawmakers on the Hill are apparently ready to use it -- but how and when?"

Hemmer calls procedure a "political magic trick," but Cameron says it would simply pass the bill "in one vote instead of two." Later on the same edition of American Newsroom, Hemmer introduced a segment on the self-executing rule by asking: "So a fundamental question this morning, how do you pass health care reform without actually voting on it?" Hemmer added that the rule, which he called a "political magic trick," had never been used "on something as enormous" as the health care reform bill.

However, Fox News correspondent Carl Cameron explained during the following segment that the self-executing rule was "actually pretty simple," adding: "Deeming it as having been passed is not the same as actually passing it, but there are a whole host of ways in which Congress passes laws without actually casting votes. One of them is with unanimous consent. [...] There is a variety of ways." Cameron also reported that "Deeming has been used, literally, for centuries" and that Congress, by using this procedure, would pass health care reform "in one vote instead of two."

Happening Now: Fox's Scott doesn't "understand that by voting on one, you're also voting on the other"

Scott: "House Democrats are now considering a way to pass the Senate bill without actually voting on it." On Happening Now, co-host Jon Scott said that "House Democrats are now considering a way to pass the Senate bill without actually voting on it." Scott went on to ask Carl Cameron: "So how does this work? You pass a bill without voting on it?" Cameron noted in response that under the procedure, a majority of the House would have to vote to pass the rule under which the Senate health bill would be deemed to have passed.

Scott: Process "would deem that the bill is passed without actually taking a vote." During an interview with Rep. James Clyburn (D-SC) later in the broadcast, Jon Scott referred to reports that Pelosi would use the self-executing rule "which would deem that the bill is passed without actually taking a vote." Scott also asked: "[W]ouldn't it be fair to the American people to let their elected representatives put it to a vote?" Scott added that if "Pelosi deemed it to be passed, there wouldn't be a vote." Clyburn responded that the rule had been used "hundreds" of times during his time in Congress and that it was "nothing unusual."

Baier responds to Scott: "[B]y voting on the one [bill] you're also voting on the other." During another segment on Happening Now, Fox News host Bret Baier said to Jon Scott while discussing the self-executing rule: "[Pelosi] said she likes it because it would mean one vote for House members and they could conceivably tell their constituents that they didn't vote on the controversial Senate health care bill. Now, you would have to suspend your belief as a voter or as a constituent that you wouldn't understand that by voting on one, you're also voting on the other. But it is a little bit of a bank -- cushion shot in parliamentary procedure."

America Live: Fox's Kelly won't acknowledge Dems are "going to have to vote to do it that way"

Cameron explains the flaw in Kelly's statement that "[T]he House is now looking at passing the Senate version of the health care bill without actually voting on it." On America Live, Megyn Kelly reported: "[T]he House is now looking at passing the Senate version of the health care bill without actually voting on it. They will instead deem it passed and sort of say that it's passed and send it to Barack Obama for his signature, which is raising all sorts of issues." During the segment, however, Cameron explained that a majority vote would be needed in order to "deem it passed," stating:

There would be a vote on the reconciliation package of fixes [...] and in those fixes and corrections, there would be a line that says, oh by the way, the Senate bill is deemed passed and now we're onto the reconciliation fixes package. And that process would mean that there would be ballots cast on the rule for the reconciliation package, that would in the minds of Democrats and Robert Gibbs the White House spokesman just said a minute ago, would be the same as you would have a vote count that would say where people stand on health care.

After Kelly says Dems want to "just deem it passed" rather than giving bill "an up or down vote," Hume notes "They're going to have to vote to do it that way." During another America Live segment, Kelly reported that Democrats might pass the Senate bill "without giving it an up or down vote. Instead they'll just deem it passed." Fox News senior political analyst Brit Hume stated: "Well, this has been done before, but not on anything of this magnitude or this scale. But I'm not sure in the end if it matters, Megyn. They're going to have to vote to do it that way. They'll have to vote to adopt the rule under which that would be possible, and in effect they will be voting for the Senate bill when they vote to pass the so-called fixes." Hume added: "There's no way, really, around what would amount to an up or down vote on this whole package."


Kelly refers to the "Democrats' plan, potentially, to deem the Senate bill passed. In other words, they won't actually vote on it."
Also during America Live, Kelly referred to the "Democrats' plan, potentially, to deem the Senate bill passed. In other words, they won't actually vote on it, they'll just deem it to have been voted on and passed." Kelly's guest, Rep. Robert Andrews (D-NJ), responded that procedure would "pass this legislation by a clear public record, up-down vote."

Proposed procedure requires a majority vote in the House

Ezra Klein: "[V]ote on the reconciliation package functions as a vote on the Senate bill." In a March 15 blog post, The Washington Post's Ezra Klein explained that the legislative process Democrats are considering using, theself-executing vote "functions as a vote on the Senate bill" because "the House will pass the fixes under a rule that says the House 'deems' the Senate bill passed after the House passes the fixes." Klein wrote:

Here's how that will work: Rather than passing the Senate bill and then passing the fixes, the House will pass the fixes under a rule that says the House "deems" the Senate bill passed after the House passes the fixes.

The virtue of this, for Pelosi's members, is that they don't actually vote on the Senate bill. They only vote on the reconciliation package. But their vote on the reconciliation package functions as a vote on the Senate bill. The difference is semantic, but the bottom line is this: When the House votes on the reconciliation fixes, the Senate bill is passed, even if the Senate hasn't voted on the reconciliation fixes, and even though the House never specifically voted on the Senate bill.

It's a circuitous strategy born of necessity. Pelosi doesn't have votes for the Senate bill without the reconciliation package. But the Senate parliamentarian said that the Senate bill must be signed into law before the reconciliation package can be signed into law. That removed Pelosi's favored option of passing the reconciliation fixes before passing the Senate bill. So now the House will vote on reconciliation explicitly and the Senate bill implicitly, which is politically easier, even though the effect is not any different than if Congress were to pass the Senate bill first and pass the reconciliation fixes after.

CRS: Self-executing rule requires House's approval. A 2006 Congressional Research Service (CRS) report makes clear that passage of a rule by the House is required for the "self-executing" rule to be adopted. From CRS:

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. Rules of this sort contain customary, or "boilerplate," language, such as: "The amendment printed in [section 2 of this resolution or in part 1 of the report of the Committee on Rules accompanying this resolution] shall be considered as adopted in the House and in the Committee of the Whole."

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].

Fox News previously misled over budget reconciliation process

Fox News repeatedly falsely labels reconciliation as "nuclear option." Fox News hosts and guests have repeatedly pushed the falsehood that the "nuclear option" refers to the budget reconciliation process. The Fox Nation and Fox News personalities like Hannity, Van Susteren, Dick Morris, Bret Baier, and Bill Sammon have all falsely compared reconciliation to the "nuclear option," and the Fox Nation has previously coupled its headlines with images of a mushroom cloud from a nuclear bomb:

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