By David Lightman
McClatchy Newspapers
WASHINGTON - As the battle over health care legislation built Monday toward a weekend crescendo, congressional Democrats considered trying to pass the controversial Senate version without voting for it, a tactic that Republicans and independent analysts warned could be politically treacherous and perhaps unconstitutional.
Under the plan, the House of Representatives would approve the Senate bill by "deeming" it to have passed as part of a separate measure governing the rules of a House debate on a follow-up health care measure. That follow-up legislation will be designed to change certain controversial portions of the Senate-passed version, a path more palatable to House Democrats who fear that voting for the Senate bill could backfire against them in elections this fall.
The maneuver would enable House members to avoid casting a politically risky vote on the Senate package, and to say they voted only for the more popular follow-up measure.
"Many of our members would prefer not to have voted for the Senate bill," said House Democratic Caucus Chairman John Larson of Connecticut. Once the Senate legislation is "deemed" to have passed as part of the rule governing debate, the House would vote only on the follow-up health care measure, known as a budget "reconciliation" bill.
However, using such a dicey procedure to enact President Barack Obama's biggest domestic initiative - the most far-reaching social policy change in decades - could inflame a public that's already annoyed at the legislation's tortured path and disgusted with Congress.
"This sort of thing does happen all the time. But in the health care debate, Republicans have been effectively arguing Democrats are using exotic procedures to pass important legislation," said Ross Baker, a professor of political science at Rutgers University. "That's a tough argument to refute."
Legal experts also raised concerns.
Michael McConnell, a professor of law at Stanford University, wrote Monday in The Wall Street Journal that such procedures are unconstitutional. He cited a 1998 Supreme Court ruling that once one house of Congress approves an "exact text," the other house must pass "precisely the same text" before the president can sign it into law. That's been the generally understood principle of how a bill becomes a law for centuries.
However, Pamela Karlan, a professor of public interest law at Stanford, wasn't so sure. "It's kind of complicated," she said, because, she and others said, it's not entirely clear what "same text" or "exact text" means.
Regardless, the move would be red meat to already-outraged conservatives.
"It opens up an entirely new front in the war against what they're doing," said Michael Franc, the vice president of government relations at Washington's Heritage Foundation, a conservative research group.
Obama, who took his health care campaign to northeastern Ohio on Monday, tried to refute critics by portraying the battle as having a bigger meaning.
"The truth is, what is at stake in this debate is not just our ability to solve this problem, but our ability to solve any problem," he said. "The American people want to know if it's still possible for Washington to look out for their interests, for their future."
Republicans quickly fired back.
"It's very painful and troubling to see the gymnastics by which they're going to avoid accountability," said Rep. David Dreier of California, the top Republican on the House Rules Committee.
Obama plans to talk with wavering lawmakers one on one this week; one of his pitches is expected to be that "the president would come in and campaign for them, if they want him," Larson said.
Democratic leaders hope to enact health care legislation by this weekend after more than a year of debate. One way or another, the House must pass the version that the Senate approved Dec. 24 and send it to Obama to sign into law.
Many House Democrats have problems with the Senate bill, including its excise tax on high-end insurance policies, the lack of a government-run insurance program and a special grant to Nebraska for Medicaid subsidies.
The reconciliation measure is expected to contain several House-inspired "fixes," such as delaying the excise tax's implementation until 2018 and raising the limits on who would be subject to it, providing additional Medicaid aid for all states and increasing government help for lower- and middle-income consumers' premiums.
Those changes, on the other hand, would raise the legislation's costs.
Democrats control 253 of the 431 House seats - four seats are vacant - so 216 votes are needed for passage. There are blocs of wavering Democrats, including about a dozen who want tougher anti-abortion language, 54 "Blue Dog" moderates to conservatives and a handful of liberals who think the bill isn't liberal enough, including Ohio Rep. Dennis Kucinich, who accompanied Obama to the state Monday.
Thirty-nine Democrats, including Kucinich, opposed the House measure in November, and virtually none of those opponents have said they're switching this time.