“Deem and Pass” and TARP

Posted by John Samples

The leaders of the House of Representatives plan to address health care through a “deem and pass” strategy.  Professor Michael McConnell believes this strategy violates the Constitution.  But put that aside for now. Ms. Pelosi has chosen “deem and pass” because, as she said, “people don’t have to vote on the Senate bill.” The “people” in question are House Democrats whose votes are essential to passing the bill.  These members fear voters would penalize them for voting for the Senate bill. As the Washington Post put it, “deem and pass” would “enable House Democrats not to be on record directly as supporting the Senate measure.”  A House Democrat running in a tough election will be able to deny voting for the Senate bill if it passes into law. We would then have an odd situation in which a bill became law even though only a minority of House members are willing to take responsibility for having supported it. It would be, as it were, a mystery how the bill became law.

This all reminds me of the TARP legislation. In my recent policy analysis of how Congress performed badly in the TARP case, I found that members of both of chambers were concerned mostly with avoiding responsibility for voting for the bailouts. In the tough cases, and probably many others, Congress does what it can to avoid being held accountable.

Many people inside DC will look at “deem and pass” through the lens of political hardball. If Pelosi can pull it off, she will be praised as tough and shrewd, a risk taker who gets her way by any means necessary.

But there is a larger problem here.  The willingness and capacity of Congress to shirk responsibility for its acts suggests deep institutional decline and corruption.  That decline implicates more than Congress itself. How can representative democracy work if voters cannot hold their representatives accountable?

If the House Enacts the Senate Health Care Bill without Voting on It…

Posted by Michael F. Cannon

…are we under any obligation to obey it?  The answer may be no.

Democrats are considering a scheme that would “deem” the Senate health care bill to have passed the House if a separate event occurs (specifically: House passage of a budget reconciliation bill).  That strategy has been named after its contriver, House Rules Committee chair Louise Slaughter (D-NY).  House Speaker Nancy Pelosi (D-CA) says of this scheme: “I like it because people don’t have to vote on the Senate bill” (emphasis added).

Not so fast, says former federal circuit court judge Michael McConnell in The Wall Street Journal:

Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

Democrats have already hidden 60 percent of the cost of the Senate bill, effected an obscenely partisan change in Massachusetts law to keep the bill moving, pledged more than a billion taxpayer dollars to buy votes for the bill, and packed the bill with an unconstitutional individual mandate and provisions that violate the First Amendment. It’s almost as if, to paraphrase comedian Lewis Black, Democrats spent a whole year, umm, desecrating the Constitution and at the last minute went, “Oh! Missed a spot!”

And these people want us to put our trust in government.

The CIA Is Not the Nation’s Security

Posted by Jim Harper

Michael Hayden went on Fox News Sunday this week, fiercely objecting to the Obama administration’s release of Bush-era memos regarding “enhanced interrogation techniques.” He and three other former CIA directors objected to the release.

That common front might draw the memo release into doubt if it wasn’t a given that CIA directors are always going to defend the interests of the CIA.

Hayden trotted out the tired “war” on terror metaphor. This framing may be exciting to him and his colleagues, but it is strategic error to address terrorism this way, and the American public chose a presidential candidate last November who campaigned to emphasize hope over fear. Intoning about war did not help Hayden’s case.

The heart of his argument was that release of the memos would allow our enemies to train for “enhanced interrogation techniques” and that we would lose the benefits of those techniques. But a telling moment came when he shifted his argument:

There’s another point, too, that I have to make, and it’s just not the tactical effect of this technique or that. It’s the broader effect on CIA officers. I mean, if you’re a current CIA officer today – in fact, I know this has happened at the agency after the release of these documents – officers are saying, “The things I’m doing now – will this happen to me in five years because of the things I am doing now?”

Moving from tactical considerations to the “broader effect,” Hayden spoke of how the memo release would chill CIA activity. That’s not irrelevant, but it’s not the broader effect that matters: the strategic effect of using torture in counterterrorism activity. Like the myopic critic I wrote about in my post last week, Hayden is not focused on countering the strategic logic of terrorism, but on defending the interests of the agency he headed.

Chris Wallace showed a brief clip of White House press secretary Robert Gibbs criticizing “enhanced interrogation techniques” on a strategic level: “It is the use of those techniques . . . in the view of the world that [has] made us less safe.” Being a secretive torturer drives allies away from the United States.

Hayden didn’t get it, answering, “Most of the people who oppose these techniques want to be able to say, ‘I don’t want my nation doing this,’ which is a purely honorable position, ‘and they didn’t work anyway.’ That back half of the sentence isn’t true.”

Against the argument that the use of torture is strategic error, Hayden responded, “But it works!” Arguing its tactical utility does not meet the strategic case against torture.

And Hayden was well back on his heels when asked whether Khalid Sheikh Mohammed was waterboarded 183 times in one month.

Hayden is a fierce defender of the CIA. The CIA provides some elements of the nation’s security. But the CIA is not the nation’s security.