Right-wing media have falsely accused Democrats of hypocrisy for considering the use of a legislative procedure known as a self-executing rule to finalize health care reform in the House. Those media have falsely claimed Democrats criticized Republicans' use of a self-executing rule in 2006. In fact, those Democrats did not criticize the 2006 bill because it was passed using that process, but rather because the version of the bill passed by the House differed substantively from the version signed by President Bush.
Conservatives distort 2006 controversy to accuse Dems of hypocrisy
Tapscott falsehood: 2006 Dem argument "against using a self-executing rule" same as current GOP argument against rule. In a March 16 blog post headlined "Pelosi, Slaughter went to court against GOP's self-executing rule in 2005," Washington Examiner editorial page editor Mark Tapscott reported that in 2005, "the Republican majority in Congress approved a national debt limit increase using a self-executing rule similar to the Slaughter Solution," and that Speaker Nancy Pelosi, Rep. Henry Waxman (D-CA), and Rep. Louise Slaughter (D-NY) joined Public Citizen with amicus briefs in their suit alleging that bill was invalid "because the bill that was presented to the President did not first pass both chambers of Congress in the exact same form." Tapscott added:
If the Pelosi/Slaughter/Waxman argument against using a self-executing rule against a debt limit increase measure sounds familiar, it should because it's the same argument now being used by Republicans to oppose the Slaughter Solution for moving Obamacare through the House.
Right-wing blogs runs with Tapscott's post to accuse Dems of hypocrisy. The blog Sweetness and Light posted Tapscott's piece in full, commenting "To be fair, if it weren't for hypocrisy the Democrat leadership would have no principles at all." Similarly, Andy McCarthy linked to Tapscott's post at NRO's The Corner, stating:
At the Examiner, Mark Tapscott points out that when the Republican-controlled Congress used a "self-executing" rule very similar to the "Slaughter rule" to raise the debt ceiling in 2005, Rep. Louise Slaughter - along with Rep. Nancy Pelosi and Rep. Henry Waxman - went to court to try to reverse it, arguing that it was a blatant violation of the Constitution's procedure for passing legislation (art. I, sec. 7).
Michelle Malkin subsequently quoted that passage from McCarthy on her blog. Ace of Spades linked to the McCarthy post and commented: "A few years ago, Nancy went to go to court to stop Republicans from doing something similar, though on a much smaller scale. Good news, we've got her on hypocrisy."
But Dems were not criticizing use of the self-executing rule
Public Citizen case actually dealt with instance where bill did not pass both houses of Congress before signed into law. In the 2006 brief for the United States Court of Appeals for the District of Columbia Circuit to which Tapscott linked, Public Citizen argued:
Some constitutional provisions are open to interpretation. One constitutional requirement that is not ambiguous, however, is the requirement that every bill pass both houses of Congress before it can be presented to the President and become law. The Deficit Reduction Act of 2005 ("DRA") was presented to the President in violation of that requirement: The Senate passed one version of a bill, the House another, and then the Senate's version was presented to the President, who signed it. Under the Constitution, that bill has not become a law.
Public Citizen asked the appellate court to find the DRA "invalid because the version passed by the House of Representatives was substantively different from the version signed by the President."
Final House and Senate versions of bill differed. According to Public Citizen's brief, when engrossing the final version of the bill that passed the Senate for transmittal to the House, a clerk made a "substantive change" to a section of the bill, altering the duration of a Medicare payment provision from 13 months to 36 months. Subsequently, the House voted on the engrossed version of the bill, "which contained the clerk's error and, therefore, was not identical to the version of the bill passed by the Senate." After the House returned the legislation to the Senate for transmission to Bush, a clerk changed the Medicare provision's duration from 36 months back to 13 months. Thus, different versions of the bill had passed the House and the Senate; Bush subsequently signed a version that had only passed the Senate.
Pelosi statement criticized GOP House leaders for sending "to the President for his signature into law a bill they knew was different from what the Senate had passed." In February 2006, Pelosi issued the following statement (accessed from the Nexis database):
House Democratic Leader Nancy Pelosi introduced a privileged resolution on the House floor today regarding the culture of corruption surrounding the Budget Reconciliation bill. The motion asked for an ethics investigation into the abuse of power surrounding the bill because Republican House leaders sent to the President for his signature into law a bill they knew was different from what the Senate had passed. This was in direct violation of House rules, precedents, and the Constitution. Republicans killed Pelosi's resolution without debate. Their motion passed on a party-line vote.
"Once again, Republican leaders have burned the book on how our laws are made. Every elementary student knows that the exact same bill must pass the House and the Senate first, before it can be signed into law by the President.
"But on February 8, President Bush signed a version of the Budget Reconciliation bill that only passed the Senate; that bill is invalid.
"This happened with the full knowledge of House Republican leaders and because of the abuse of power by Republicans in Congress. Republican leaders chose to ignore House rules, precedents, and even the Constitution itself.
"That is just not right, and it is why, I offered this privileged resolution calling for an ethics committee investigation into the abuse of power surrounding the Budget Reconciliation bill. The American people deserve honest leadership and open government. And once again, the Republicans have chosen to sweep this under the rug and not even debate my resolution. This is yet another example of the Republican culture of corruption."
Pelosi's statement did not address the use of the self-executing rule.
Waxman letter similarly addressed signing of bill that only passed Senate. In February 2006, The Hill reported:
The Democratic leadership also distributed a letter written by Rep. Henry Waxman (D-Calif.) that cites the text of the Constitution, House rules and legal scholars to support the case that the bill has not actually been enacted. President Bush signed the legislation last Wednesday.
The GOP leadership has contended that the problem was rectified when Hastert and Senate President Pro Tempore Ted Stevens (R-Alaska) certified that the bill was correct and had been passed by both chambers before sending it the White House last week. "These leaders signed this statement despite the fact that the Republican leadership in both houses know that this was not true," Waxman wrote. "It is a major abuse of power."
2006 dispute and health reform cases are not analogous
Under reported proposal, both houses would approve identical bills. The circumstances regarding the 2006 passage of the DRA are not analogous to the current reported proposal to use a self-executing rule to finalize health care reform in the House. Under the current reported proposal, majorities of both houses of Congress would pass the Senate health reform bill, and majorities of both houses would subsequently pass a reconciliation bill amending that legislation.
Not the first time right-wing media have invented Dem procedural hypocrisy on health care
Conservative media revived "nuclear option" falsehood to accuse Democrats of reconciliation hypocrisy. Numerous conservative media pushed the falsehood that "the nuclear option" refers to the budget reconciliation process in order to accuse Democrats of hypocrisy for previously criticizing the nuclear option and now considering using reconciliation to pass health care reform. But Democratic criticism of a 2005 Republican proposal to change filibuster rules is in no way inconsistent with passing health care reform through reconciliation -- a process that has repeatedly been used to pass legislation, including major health care reform.