“Deem and Pass” Procedure
During the Health Care debate, they talked about the House “deeming” the bill passed without voting on it. How did that work?
They didn’t do it. What was procedurally possible was deemed to be politically unwise! Democrats in the House made clear to their leadership they would not support such a tactic – the public backlash was too great just from having it under discussion as a possibility.
“Deeming” is a procedure that is not at all unusual in the U.S. House – but it took a bill with the high visibility of the health care reform bill for folks to become aware of its existence. The procedure certainly bothers a lot of people - it doesn’t seem like something a transparent representative legislative body should be doing. Literally, “to deem” is defined to mean “to consider to be.”
Instead of voting directly on passage of a bill, the House votes on a separate resolution that more or less says: “If you pass this resolution, you have hereby deemed the bill described in this resolution to have passed.” Now known as “deem and pass,” this procedure is technically known as a “self-executing” rules resolution.
Special “rules resolutions” are routine in the House. They are used to bring bills to the floor under specified debating conditions. They recommend to the House how long the debate on a certain bill should be, and how many, if any, amendments can be offered and other, sometimes unique, stipulations for a bill’s consideration. If the House passes this special rules resolution, it has agreed to take up the bill in question under the guidelines set forth in that specific rules resolution. This is to be expected in a chamber of 435 Members: not everyone can talk as long as they want nor can they offer any and all amendments they want.
In the late 1970’s, the House began to include, on occasion, a clause in these special rules resolutions that is now known as a “self-executing” clause. This part of the resolution said, if you adopt this special rule, you have hereby also adopted the bill which this special resolution covers. Rules resolutions that contain such clauses are called “self-executing” because they automatically trigger the passage of a bill without any further action needed on the part of the House.
The House takes a vote on the rule – but they don’t need to take a second vote on the bill itself; it has been deemed to have passed when the rules resolution was adopted. . . two measures passed for the price of one vote.
This deeming device was invented for a benign enough reason: to take care of technical corrections and deem them to have been made – so the House would not have to return to vote on something that was corrected after they had already passed it and left town. But, over time, deeming started to get used for bigger and more comprehensive legislation. Its use shifted from technical corrections to avoiding political accountability.
Starting in 1980, Democrats used it repeatedly to raise the public debt ceiling without a direct vote, eventually incorporating the practice into the House Rules, as Rule XVII, the so-called “Gephardt Rule,” named after former Democratic Majority Leader Dick Gephardt, who came up with this method of avoiding a direct vote on raising the public debt limit. Republicans, when in the majority, also used deem and pass on big bills – namely multi-billion dollar budget bills.
Both Democrats and Republicans, when they are the majority party, have used deeming via self-executing rules liberally and often. It would not be accurate to say that it is a device exclusive to one party or the other. What is also true is that whichever party has been in the minority at the time has bitterly complained about the use of deeming something passed without a straight up or down vote on the bill.
Regardless of which majority party is using deeming, it is inherently unfair to the average Member of the House. Deeming denies full debate and deliberation and gives the Rules Committee, acting on behalf of the Majority leadership, the power to make decisions that citizens expect their elected representatives should be making through separate and transparent votes.
Congress has always defended its right to establish its internal procedures by pointing to Article I, clause 5 of the Constitution, which says: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”
Congressional counsels have argued proper enrollment meets the constitutional requirement that a bill pass the House and Senate in identical form prior to presentation to the President. So, deeming resolutions have been careful to stipulate that the bill being presented to the President is an enrolled bill – and is appropriately signed by both the Speaker of the House and the President pro tempore of the Senate - and attested to by their signatures as having passed both bodies. The President takes their word for it.
And so have the courts. Lower courts have upheld the practice as appropriately within the authority of the Congress. Until the Supreme Court hears a case directly addressing this practice, Congress continues to “deem and pass” via self-executing rules.