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June 16, 2019

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How a Harry Reid asset has turned into a liability

Harry Reid

Harry Reid

One of Harry Reid’s great political strengths — his ability to cut deals — is now among the Democrats’ chief liabilities in the health care debate, as House Democrats are unwilling to pass the Senate majority leader’s bill that is loaded with extras.

It has House Democrats considering an obscure but not unprecedented procedural maneuver: Move the health reform legislation as part of a package and avoid a stand-alone vote on the Senate health care bill that many House Democrats are reluctant to take.

Experts differ on whether this maneuver — known as a “self-executing rule” or “deemed passed” — would hold up in court even though it has been used since 1933.

Republicans used it in 1996 to pass one of the tenets of their Contract With America — the line-item veto — that President Bill Clinton signed into law. (The courts later struck down the line-item veto.) Democrats used it to approve the Family Medical Leave Act in 1993.

The bipartisan popularity of this procedural tool has not stopped Republican opponents of health care reform from attacking it in harsh — and humorous — tones.

Senate Minority Leader Mitch McConnell of Kentucky called it “deem and scheme.”

Rep. Dean Heller of Nevada called it an attempt to “hide the vote.”

Rep. Michael Turner of Ohio invoked the Saturday morning cartoons that explained civics to a generation: “There is no deeming a bill passed in ‘School House Rock.’ ”

Republicans, who just a week ago were decrying Democrats’ plan to use the budget reconciliation process to pass the bill with a simple majority, are longing for that up-or-down vote.

All of this might have been avoided, if only Reid had not loaded the Senate bill with favors that House Democrats, and even President Barack Obama, say are unbearable.

Then again, without the deals Reid cut with senators, “there wouldn’t be a Senate bill,” said Norman Ornstein, a congressional scholar at the American Enterprise Institute.

“This is standard legislative practice,” Ornstein said. Both chambers have long histories of deal-cutting to pass legislation.

What’s changed? The unending news cycle and a Republican Party that has found political success in railing against the deals.

Now, even Obama says the Cornhusker Kickback (which boosted Medicaid funding for Nebraska to secure a vote from Sen. Ben Nelson) and other deals must go.

“Is it backfiring now? Sure it is,” Ornstein said. “The opposition is very effective.”

House leaders have not decided whether to use a self-executing rule to pass health care reform.

George Washington University Law School professor Alan Morrison, who argued the court case that overturned the line-item veto, said the courts rejected the bill content, not the process.

The courts in 2001 declined to rule on a challenge to the House’s self-executing rule.

Still, Morrison thinks Democrats are playing with fire.

If this tool is used for the health care bill, he thinks it would be ripe for court challenges — and today’s more conservative Supreme Court may be less friendly than in years past.

“Maybe you could get away with it,” said Morrison, who helped found the watchdog group Public Citizen with Ralph Nader. “But the fact that it has yet to be stopped in the past 80 years doesn’t make it constitutional.”

Reid for his part has left it to House Speaker Nancy Pelosi and her leadership team to find the best route forward.

House Democrats face the task of trying to pass major legislation without a single Republican supporter. “Reid knows they are committed to passing this bill in a responsible way,” his spokesman said.

Besides, Reid will face his own challenges in coming days, if the bill returns to the Senate for final passage.

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