Posted: 9:10 pm Tuesday, December 22nd, 2009
By Jamie Dupree
The lines were buzzing on talk radio the last two days about a provision in the Senate health care bill that would not allow a future Congress to repeal or amend part of a new health care law and would change the rules of the House and Senate along the way.
I guess my blog of December 7, “More Health Details”, didn’t get wide readership, where I discussed exactly that.
The issue centers around Section 3403 of the Democratic bill in the Senate that lays out how the Congress would deal with recommendations from a special Medicare Commission, which would be charged with finding ways to save money in the program.
The panel would send Congress its recommendations, then lawmakers would have to approve them on an up or down vote, with no changes, just like the decisions made in the past by military base closing panels.
The text of the bills says that once the panel is set up, Congress can’t tinker with its makeup.
“It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”
As I noted earlier this month, that seems a bit of a legal stretch to say the least, since Congress writes the laws.
Critics also have harped on language that requires a three-fifths supermajority in the House and Senate to waive those requirements. The same section also requires a three-fifths supermajority to approve any recommendation from the Medicare commission.
As I noted earlier this month, the rules governing how Congress would consider these plans go on for 18 pages, which seemed a tad bit lengthy and bureaucratic.
In there were mentioned rules changes in the House & Senate over how these plans would be dealt with.
I remember being somewhat puzzled by that, since rules changes are treated differently in both chambers. For example, they are approved in a resolution, not a bill. And in the Senate, they must have a two-thirds supermajority to take effect.
Because of that, Sen. Jim DeMint (R-SC) challenged the provision on the floor of the Senate. The parliamentarian ruled that the establishment of set times for debate and other matters in this section were not “rules” but “procedures” – which Republicans immediately denounced as a semantics game, and another example of Democrats bending the rules to help the health care effort.
So then I started thinking, were those rules/procedures just dreamed up for this bill?
The answer is no. The first section is from the Democratic health care bill in the Senate, which you can find on page 1028.
RULES OF THE SENATE AND HOUSE OF REPRESENTATIVES.–
This subsection and subsection (f)(2) are enacted by Congress– “(A) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and is deemed to be part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of bill under this section, and it supersedes other rules only to the extent that it is inconsistent with such rules; and “(B) with full recognition of the constitutional right of either House to change the rules (so far as they relate to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.”
The next paragraph is from the bill that set up the military base closing process, the Defense Base Closure and Realignment Act of 1990.
RULES OF THE SENATE AND HOUSE.–
This section is enacted by Congress–(1) as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a resolution described in subsection (a), and it supersedes other rules only to the extent that it is inconsistent with such rules; and (2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.
You will note that the language is almost identical. So if was good enough for the base closure process, it must have been judged to be okay in terms of rules/procedures for this one as well.