A Historically Memorable Speakership

Today is House Speaker Nancy Pelosi's birthday, and in light of the occasion -- as well as the monumental achievement over the past few days that was the passage of healthcare reform legislation (with student lending reform, to boot) -- I thought it worthwhile to take a moment to lay down a few thoughts on the Pelosi speakership.

When Nancy Pelosi was first elected Democratic leader in late-2002, the time was bleak for her party. The Democrats, who had been expected to fare well in the midterm elections -- perhaps even retaking the House of Representatives -- not only lost seats in the House but also lost control of the Senate. Indeed, the party's caucus in the chamber (205 members, including Independent Bernie Sanders) was as small as it had been in 54 years.

Today, after two straight elections in which Republicans sought to make Nancy Pelosi an issue, the Democratic caucus is strong and robust. At its peak earlier in this Congress, before retirements and a death marginally reduced the Democrats' numbers, the Democratic majority stood larger than any Republican majority in the House since just after the 1928 elections. Think about that. The current Democratic majority is larger than the Republicans have had in nearly 80 years -- this, after Republicans sought to make the last two battles for the House about Nancy Pelosi. Yes, there were hiccups along the road, and House Democrats lost further ground during the 2004 election. Still, today, it's quite clear that Pelosi has been, at least on an electoral level, a boon for her party rather than the albatross Republicans sought to make her.

And over the past few days, weeks and months, we have come to see that Nancy Pelosi has been a historically effective leader of the House. This week, the President signed the most monumental piece of domestic legislation in nearly a half-century. Just as Barack Obama was able to do what no President in more than 100 years had been able to do in making the case for universal healthcare coverage, so too was Nancy Pelosi able to do what no other Speaker in more than 100 years had been able to do in shepherding such legislation through the House. And not just healthcare reform legislation. The House has also passed, with the agreement of the Senate, major legislation in the areas of student lending reform, economic stimulus, jobs, anti-discrimination, credit reform, and tobacco regulation. The House under Pelosi's Speakership has also moved the ball forward on important climate change legislation, which while not yet passed by the Senate has nonetheless kept the issue at the fore. 

This is an historic Speakership -- there's no other way of describing it. So happy birthday Nancy Pelosi, a leader of the House of Representatives whose name is now firmly on path to join the names like Henry Clay, Joseph Cannon, Champ Clark, Sam Rayburn and Tip O'Neill.

Healthcare D-Day

The Moderate Voice founder Joe Gandelman calls today D-Day on healthcare reform -- a metaphor I find to be quite apt. Check out his whole piece.

Here is a list of people I will be following to get my news leading up to today's vote on healthcare reform. If you think someone's missing, please shoot me a tweet @jonathanhsinger or leave a comment in the thread below.

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Today's the day. This is history in the making.

UPDATE from desmoinesdem: The vote on the rules for the reconciliation bill debate passed 224-206 (roll call). A few Democrats who voted for the rules of debate on reconciliation are expected to vote against the health insurance reform bill later. The final vote on the Senate bill will be late tonight.

Cuccinelli Doesn't Understand Vote Maneuver He's Challenging

Earlier today on MSNBC, Virginia's ultra conservative Attorney General Ken Cuccinelli (don't say we didn't warn you about him a long time ago) explained why he believes the self-executing rule by which the House intends to pass the healthcare reform legislation already approved by the Senate at the same time as it passes a reconciliation bill fixing the Senate legislation is unconstitutional. I have already written about how this argument is more or less bunk. But it's worth adding that listening to Cuccinneli speak, it's not clear that he understands at all what a self-executing rule entails. Here's what he had to say:

They can do a number of procedural things to vote on it in ways that might be different than usual. But ultimately the record has to reflect that the Members of the House are voting on the same language -- even if they vote on something else at the same time, perhaps (that's an angle that we hear batted around) -- as the Senate bill.

What Cuccinelli highlights as a constitutionally sound mechanism of voting is in effect exactly what the House intends to do -- hold a majority vote on both the Senate bill as well as fixes to the Senate bill at the same time. As leading Congressional scholar Thomas Mann recently put it, such a rule would "make clear that the vote on the reconciliation package is in effect also a vote on the underlying Senate bill."

So if Cuccinelli intends to file suit, he might want to brush up on the legislative rule he's claiming to be improper.

Fineman: Kucinich a Yes on Healthcare Reform

Via National Review online editor John McCormack and The Hill reporter Jordan Fabian, Howard Fineman apparently reported tonight that Ohio Democratic Congressman Dennis Kucinich, previously a no on healthcare reform, will vote aye. If this report pans out -- and we should know for certain by tomorrow morning, when Kucinich is slated to hold a press conference -- the Democrats would have their first announced no-to-yes switcher on healthcare reform. The goal of 216 is looking increasingly achievable for Nancy Pelosi.

More as we hear it...

Hooey on Healthcare Reform from Michael McConnell

Writing today in the opinion page of The Wall Street Journal (full text here), former Tenth Circuit Court of Appeals Judge Michael McConnell argues that it would be unconstitutional for Democrats to utilize the "commonly used" tactic (the words of The Washington Post, not my own) of a self-executing rule to package a vote on the Senate's healthcare reform bill along side fixes to that bill. According to McConnell, such a move would violate Article I, Section 7 of the Constitution, which states that "in order for a 'Bill' to 'become a Law,' it 'shall have passed the House of Representatives and the Senate' and be 'presented to the President of the United States' for signature or veto."

Yale constitutional law professor Jack Balkin does a good job of slapping down this argument:

Despite Judge McConnell's concerns, which are textually well founded, there is a way that "deem and pass" could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule. Under Article I, section 5 of the Constitution, the House can determine its own rules for passing legislation. There are plenty of precedents for passing legislation by reference through a special rule.

If that weren't sufficiently clear, not all that long ago, a group of Congressmen filed suit in federal district court to have declared invalid the Deficit Reduction Act of 2005, which, as a result of an error by a clerk, was not actually passed in the same form by both the House and Senate -- then under Republican control. Citing the 1892 Supreme Court decision in Marshall Field v. Clark, the federal district court for the Eastern District of Michigan threw out the Congressmen's challenge:

Each of the courts that have addressed the identical issue presented here have held that enrolled bill rule announced in Marshall Field still applies today. Thus a claim of unconstitutionality for violation of Article I, Section 7, is not legally cognizable where an enrolled bill has been signed by the presiding officers of the House and Senate as well as the President. [internal quotation marks omitted]

In layman's terms, the court held, following more than a century of Supreme Court precedent, that individual Members of Congress have no valid federal claim where a bill has been certified as passed by both the Speaker of the House and the President of the Senate, and then signed into law by the President of the United States. If a court upheld as law a bill not passed into law in the same form by both chambers of Congress, it's hard to see how a court would strike down a bill passed by the majority vote of both Houses.

And to add just one more wrinkle, it is unclear just who would have standing to bring a suit challenging healthcare reform legislation. In order for a law to be successfully challenged, a plaintiff must not only have a valid claim -- which, as discussed above, is far from apparent -- he also must have the judicially recognized capacity to sue. McConnell doesn't touch this issue, and it is unclear why. Courts have been loath to extend standing to minority lawmakers believing themselves to be aggrieved by the tactics of the majority, and the Democratic Congressmen who filed suit in the Conyers v. Bush decision discussed above were found to lack standing (in addition to be lacking on the merits). If challengers to the healthcare reform legislation could prove that they had a majority of either chamber on their side on the issue they might be deemed to have standing -- but considering that healthcare reform, if it does pass, will have garnered at least a 216-vote majority in the House and a 50+1 majority in the Senate, it's hard to see how they would have standing to sue. 

I am not an attorney and this should not be read as legal advice. But at least from my vantage, McConnell's argument appears to be hooey, and nothing more than another political argument to try to make it harder for the Democrats to pass meaningful healthcare reform.


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