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To sleep, perchance to deem–ay, is there a rub? August 17, 2010

Posted by Guest Blogger in Analysis.
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By Barry Anderson

Barry Anderson is the former head of the Budgeting and Public Expenditures Division in the Organization for Economic Cooperation and Development (OECD) in Paris. Prior to joining OECD, Mr. Anderson was a budget advisor at the International Monetary Fund. Mr. Anderson has also served as the deputy director and then the acting director of the Congressional Budget Office.

With apologies to the Bard, the controversy over deem and pass appears to be much ado about nothing—or, at most, very little.

The practice of deeming legislation passed by a special rule has been used over the years by both parties, for technical fixes and substantive amendments.  For example, numerous federal statutes “deem” Washington D.C. a state and other statutes “deem” corporations as persons for various purposes.

Most recently, the House of Representatives has used this process in lieu of normal votes on the budget resolution and the FY2010 war supplemental.  Deeming the war supplemental was an essential compromise to keep skeptics of our operation in Afghanistan on board with the legislation.

There is no difference between these examples of technical deeming and passing a rule for a bill that deems the passage of another bill as part of the rule.

So why do it?  As the war supplemental situation suggests, some Members of Congress believe that it allows them to vote for something indirectly that they really don’t want to vote for directly.

Indeed, the deeming maneuver is familiar in the budget resolution process.  The best known and most frequently used example of deeming is the “Gephardt Rule”, House Rule XXVIII (see below for the exact language).   It says that when the whole House votes for the rule accompanying the conference report on the budget resolution reported by the House Rules Committee, the House is deemed to be automatically passing (and sending to the Senate) a separate piece of legislation that increases the debt limit by the amount of increase provided in the conference report on the budget resolution.

This happens every year the House passes the budget resolution conference report.

There is no real distinction between voting for a bill directly and voting for another bill that deems the original bill passed, but perhaps it provides some “cover” for wavering Members. Certainly, they feel that it does, as the frequent use of House Rule XXVIII indicates.  Nevertheless, for a bill to become law, both the House and the Senate must approve the same bill and present it to the president, whether that bill is passed through a deeming process or not.

Thus, in the context of the FY2010 war supplemental, a vote for the rule that deemed the bill passed was a vote for the bill itself.  If you examine the voting record, you’ll see that using this process enticed some Members to support it that otherwise wouldn’t have.  They hope that their constituents won’t untangle this situation and hold them accountable for an unpopular vote (at least in their district) and, given the thickness of this tangle, that hope is probably well founded.

Confused?  You should be.  Article 1, Section 5 of the Constitution says that “Each House may determine the Rules of its Proceedings …”  And over the years, the House and the Senate have created complicated and confusing rules that few inside—and even fewer outside—Congress can understand. But don’t despair.  Even though legislation is all-too-frequently assembled from “such stuff as [deems] are made on”, the checks and balances in our system usually prevent “a plague on both [y]our houses.”

House Rule XXVIII – Statutory Limit on Public Debt

Clause 1.  “Upon adoption by Congress of a concurrent resolution on the budget under section 301 or 304 of the Congressional Budget Act of 1974 that sets forth, as the appropriate level of the public debt for the period to which the concurrent resolution relates, an amount that is different from the amount of the statutory limit on the public debt that otherwise would be in effect for that period, the Clerk shall prepare an engrossment of a joint resolution increasing or decreasing, as the case may be, the statutory limit on the public debt in the form prescribed in clause 2. Upon engrossment of the joint resolution, the vote by which the concurrent resolution on the budget was finally agreed to in the House shall also be considered as a vote on passage of the joint resolution in the House, and the joint resolution shall be considered as passed by the House and duly certified and examined. The engrossed copy shall be signed by the Clerk and transmitted to the Senate for further legislative action.”

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