I think there's a good deal of confusion about what happened with the purposely complex rule used to "pass" the latest emergency supplemental in the House Thursday evening. And like I said, the complexity was intentional, so it's impossible to blame anybody for not parsing it correctly. In fact, given the effects that procedure can have on substantive outcomes, it's not even a given that there's a "correct" way to parse it.
So despite the fact that I'm starting with David Dayen's piece at Firedoglake, and will likely look at some of the positions taken by David Swanson as well, I really don't want this to be any kind of a "call out" story.
Let's break it down.
To begin with, this is undoubtedly correct:
The House wanted to pass war funding, and a substantial amount of members wanted to tack on some social spending. Antiwar progressives didn’t want to vote for both the social spending and the war money together. Others wanted their own vote to end the war or institute a timeline. And then there was the matter of the budget resolution, and this bill offered an inviting way to shoehorn that in.
This, however, is not:
It turns out the House took up five different votes. The first was a vote on the rule, which ended up being self-executing. In other words, the House voted to set the terms for debate on the bill, and never had to vote on the underlying bill. Inside the rule, the bill was “deemed” passed after the rule passed. That was a heavy lift, with opposition from Blue Dogs opposed to the social spending and progressives opposed to the war. It squeaked by, 215-210, with 38 Democrats voting no.
What's wrong?
The House did take five votes. The first was on the rule. But it's not the case that the entire rule was a self-executing measure. If it had been, the other four votes would have been not only unnecessary, but would have had no effect. Not only that, but there would have been no parliamentary vehicle under which they could have been addressed, the bill having been dispensed with.
Is it true that the House never had to take a vote on the underlying bill once the rule passed? Yes. How can that be if the rule wasn't self-executing? Because "the underlying bill" wasn't on the floor. What was on the floor was a motion to agree to Senate amendments to the bill with additional amendments.
Remember that the supplemental, H.R. 4899, was passed first (without war funding) back in March, and sent to the Senate for its consideration. The Senate amended the bill, adding the war funds, and passed their version in late May. The two versions being in disagreement and the Senate insisting on its amendment, a conference was requested. The House, however, declined to take up the question of convening a conference and instead opted to further amend the bill.
Having decided not to pursue a conference at this point, the House had the options of either: 1) refusing to take further action on the bill; 2) taking a vote on agreeing to the Senate amendment without further amendment, and letting the bill sink or swim on its merits as then written by the Senate, or; 3) agreeing to the Senate amendment with a further amendment of its own, sending the bill back for another round on the other side of the Capitol. In scenario 1, of course, the House does nothing, and no bill is passed. In scenarios 2 and 3, the House acts, but the question is on a motion to agree to the Senate amendment, and not on the bill itself. Accepting the Senate amendment without further amendment has the effect of putting the two houses in agreement, which for constitutional purposes means it's ready to be enrolled and sent to the President for signature. But further amending it keeps the houses in disagreement. But in none of the above scenarios is there required a vote on "final passage" of the bill in the way there was during its initial consideration in the House. And that's not because of any self-executing provisions of the rule, but because there's a motion under consideration and not a bill.
Now, were there self-executing provisions in the rule? Yes there were. The first, from the resolving clause, was this one:
The first portion of the divided question shall be considered as adopted.
The second, in Section 2(b):
a motion that the House concur in the Senate amendment to the title shall be considered as adopted.
The third, in Section 4:
House Resolution 1493 is hereby adopted.
The effect of the first self-executing procedure was to deem passed the first of the five amendments permitted under the rule. The one summarized in the Rules Committee report, thus:
The amendment pays for settlement of the Cobell v. Salazar and Pigford v. Vilsack class action lawsuits. Second, the amendment will allow local Workforce Investment Boards to expand youth jobs programs that were funded in the American Recovery and Reinvestment Act and support over 350,000 jobs for youth ages 14 to 24 through youth employment programs. The amendment would make two changes to title IV, the “Surface Transportation Extension Act of 2010,” of the Hiring Incentives to Restore Employment (HIRE) Act. First, it would distribute the Projects of National and Regional Significance (PNRS) and National Corridor Infrastructure Improvement (National Corridor) program funding so that each State receives a share equal to the greater of either (1) the amount of PNRS and National Corridor program funding that the State received under the HIRE Act or (2) the amount of PNRS and National Corridor funding that the State receives under this Act. The provision authorizes such sums as may be necessary from the Highway Trust Fund to provide these amounts. Second, the amendment would distribute “additional” highway formula funds (which the bill makes available in lieu of additional congressionally-designated projects) among all of the highway formula programs rather than among just six formula programs. Third, the amendment incorporates the President’s 2011 Budget proposal to require a minimum 10-year term for Grantor-Retained Annuity Trusts. It also would require that the value of the remainder interest must be greater than zero and that the annuity not decrease during the first 10 years of the GRAT term. Finally, in 2008, Congress enacted a $1.01 per gallon tax credit for the production of biofuel from cellulosic feedstocks in order to encourage the development of new production capacity for biofuels that are not derived from food source materials. This provision would limit eligibility for the tax credit to fuels that are not highly corrosive.
If you're looking for war funding here, you won't find it. Booooo-ring!
The second self-executing provision had just the effect you'd think it had from reading it. The House agreed to a change the Senate made in the title of the bill.
The third self-executing provision? Now that's a story. But it's not a war-funding story. It's a cat food commission story. (And a budget story, but that's not as sexy as the cat food commission story.) As you can see, the third provision deems as passed H. Res. 1493. That's the "deeming resolution" people have been talking about using as a substitute for adopting a full-blown budget resolution this year. Only they've been avoiding the use of the term "deeming resolution" this time, probably because of the bad experience they had with the "deem and pass" procedure that had been proposed for dispensing with the health insurance reform legislation earlier this year.
The deeming resolution is harmless enough in isolation. It's been used before, by both parties, to deal with budgeting when tensions ran high enough to make passing a regular budget resolution too difficult. And it has the added political benefit of not forcing Members to vote on deficit projections in an election year, the prospect of which undoubtedly contributed both to the tensions preventing them from passing a regular budget and to their attraction to this alternative.
But as observers have noted (though I only had a chance to hint at before running out the door to a meeting), H.Res. 1493 has buried within section (c) of its resolving clause, these sections (2)(D) and (E), which together read:
(2) SENSE OF THE HOUSE ON DEFICIT REDUCTION- It is the sense of the House that--
[...]
(D) prior to the adjournment of the 111th Congress, any recommendations made by the National Commission on Fiscal Responsibility and Reform and approved by the Senate should be brought to a vote in the House of Representatives; and
(E) any deficit reduction achieved by the enactment of such legislation should be used for deficit reduction only and should not be available to offset the costs of future legislation.
And it's the National Commission on Fiscal Responsibility and Reform that's popularly referred to as the "cat food commission." It's the sop awarded to the Blue Dogs and their allies way back in February of last year in exchange for their votes on the stimulus package. Remember that? If not, review these posts briefly:
So the third of the three self-executing provisions in the rule for consideration of the supplemental deemed H.Res. 1493 adopted, and that resolution included a "Sense of the House" provision that should the Cat Food Commission make formal recommendations, and those recommendations be approved by the Senate before the adjournment of the 111th Congress, then the House should vote on those recommendations as well. Further, that cuts recommended by the Cat Food Commission and considered by the House should be used exclusively for deficit reduction.
OK? Now back to Dayen:
The budget resolution was included in that self-executing rule, and while it’s not really a budget – it’s somewhat different because it doesn’t include the specific appropriations – it limits discretionary spending below the President’s budget blueprint, and (in a controversial move) “Commits the House to vote on any Senate-passed recommendations of the bipartisan Fiscal Commission and that net savings from any Commission recommendations will go to deficit reduction.”
No, the budget resolution was not included in the self-executing rule, but yes, as he notes, the resolution wasn't really a budget. A budget resolution -- in the sense of being the budget resolution -- would be the kind of full-blown budget document normally adopted each year, and we already know (as Dayen notes) that that's not what's being passed here. And again, I guess it's also worth noting that the entire rule wasn't self-executing, just parts of it were. Further, it's worth noting that no budget resolution ever includes specific appropriations. They include budget allocations, giving the appropriations committees and subcommittees upper limits to their authority to dole out funds.
But the really important part is still a yes: the resolution deemed passed does appear to commit the House to a vote on any Cat Food Commission recommendations that the Senate passes.
I say it appears to commit the House only because the language of H.Res. 1493 is styled as a Sense of the House provision, which is ultimately non-binding. Which brings me to this:
Speaker Pelosi had already promised on numerous occasions that the recommendations of the cat food commission would get a House vote. But adding statutory language is pretty obscene. If the package is particularly distasteful, say an all-cuts measure that lowers benefits for Social Security, Pelosi will be statutorily obligated to put up the vote even if a majority of her caucus disagrees with it.
You can see the problem with that. Neither the rule for the supplemental, nor H.Res. 1493, nor its Section (c)(2)(D) and (E) are statutory.
On to minor issues:
After the rule, we got five different roll call votes on amendments.
Four. After the rule, there were four roll call votes on amendments. There were five amendments, but remember that the first of the self-executing provisions in the rule deemed the first of the amendments as adopted. That left four votes: one on additional social spending, and the three on Afghanistan funding.
But I don't think I have any issues with Dayen's narrative that follows that minor point. I only bring it up because it's entirely procedural in nature, but that's what we do here. Please do make sure you look over his analysis of the substance and background of the social spending amendment. It's important and informative.
There's more to the story, of course, and lots that helps illustrate how procedure shapes (and sometimes, as in this case) trumps substance. But this post is running on as it is. But suffice to say that procedure holds the answer to the question this Open Congress blog entry begs:
If you asked the House of Representatives right now to approve $37 billion to continue the war in Afghanistan indefinitely without a plan in place for winding it down, the answer would be “no.” But through some carefully considered procedural maneuvering last night, Democratic leaders in the House managed to pass their war spending bill, [and] reject attempts at setting a withdrawal timeline....
How does such a thing happen? Procedure. Which is why it's so important to separate substance from procedure for the purposes of analysis, anyway, and not conflate the two until it's time to formulate your legislative strategy. There will be times when it behooves the passionate advocate to use procedure to do his substantive work. But unless you can separate the two for the purposes of mapping out the permutations beforehand, you've got little hope of getting it right when go time comes.