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  • Questions of Privilege: A Possible Countermove?

    According to the official site of the House Rules Committee, “questions of privilege” relate to “matters affecting the safety, dignity or integrity of the House, or the rights, reputation or conduct of a member acting as a representative.”

    House leaders are poised to use a procedural tactic of questionable constitutionality to move the single most consequential piece of legislation in over seven decades through the House without a vote. Here’s the idea: (1) pass a rule to bring to the floor a “reconciliation” measure that would detoxify certain provisions in the Senate-passed health-reform bill, and (2) insert in the rule a sentence that “deems” the Senate bill to have passed the House.

    As Stanford law professor and former federal appeals court judge Michael W. McConnell explained in the Wall Street Journal:

    It may be clever, but it is not constitutional. . . . According to Article I, Section 7, 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. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.

    To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

    That gets us back to the “questions of privilege” that are available to any House member who believes an action has maligned the “dignity” or “integrity” of the House, or the “reputation” of individual members. Because these motions are “privileged,” they preempt other House business and are brought up for debate and a vote immediately.

    Has there been any proposed action in the House — ever — more likely to besmirch its dignity or integrity, or more likely to malign the reputation of individual lawmakers, than sidestepping the Constitution to enact such a consequential law? Never has it been more appropriate for an enterprising House member to defend the integrity and dignity of this hallowed institution. Will a majority of the House actually be willing to take ownership, not just of the substance, but of the dangerous precedent House leaders want to establish to achieve reform? I think not.

    Raising such questions of privilege would be a dramatic procedural countermove and would require every member to let their constituents know in advance of the final vote exactly how they feel about this process. And there is precedent for it.

    Roll the clock back to 1989. A commission had concluded that members of congress were woefully underpaid and required an immediate and eye-popping 51 percent raise. Thanks to a 1981 law, the proposed increase would take effect automatically — no vote required — unless both the House and Senate voted to rescind it. Knowing this, former speaker Jim Wright adopted a rope-a-dope strategy, keeping the House out of session during the period leading up to the February 9 deadline when the raise would take effect.

    The Congressional Quarterly’s contemporary account makes for fascinating reading today:

    Editorial writers pummeled Congress not only for the size of the pay hike but for skirting a vote. Mail flooded the Capitol.

    Some of the most vociferous criticism came from consumer activist Ralph Nader and a network of radio talk show hosts around the country who gave people a forum for venting their against the raise. One station urged its listeners to send tea bags to congressmen with the slogan, “Read my lips: No pay raise.” Thousands did.

    Democrats were in disarray. Their retreat to the swanky Greenbrier resort in early February turned into a public-relations disaster, thanks to hostile questions from reporters and an unruly sendoff at Union Station by boatloads of protestors. California Republican William E. Dannemeyer complicated matters for pay-raise advocates by drafting a privileged resolution to force an up-and-down vote on the pay raise. [Full disclosure: I worked for Mr. Dannemeyer during this period and participated in the development of this strategy.]

    Things unraveled quickly for Speaker Wright upon his return from the Greenbrier. In a series of one-minute speeches Dannemeyer’s allies linked the nefarious process by which the pay raise would become law and the public outrage it had provoked to the reputation of Congress.

    “Mr. Speaker,” one Republican railed, “by our participation in this shameful pay raise conspiracy, we have deservedly brought down on this House the disgust of the American people…Mr. Speaker, save…what remnant of dignity and integrity we collectively have left by providing us the opportunity to vote on this burning issue. Only you, Mr. Speaker, can save us from ourselves.” Another bemoaned that “we are viewed as scoundrels who resort to sneaking pay raises through, while we publicly protest and point our fingers at others.”

    Democratic and Republican leaders mistakenly thought they could block Dannemeyer and run out the clock by quickly moving to adjourn the House. Normally, such procedural votes are party-line, with Democrats required to support their leaders and Republicans theirs. But this time 108 Democrats rebelled and the House voted 88–238 not to adjourn.

    The pay raise was formally interred the next day.

    Fast-forward to our present dilemma. Thanks in large part to the debate over health reform, the congressional disapproval rating has soared since January to as high as 80 percent (Fox/Opinion Dynamics). To put this in perspective, Gallup’s most recent survey found that, at 78 percent, the current level of public angst is the highest it’s been since 1974. Mailing tea bags to Capitol Hill has given way to a national and increasingly sophisticated Tea Party movement. State governments too have begun to rebel, passing laws and resolutions to exempt their residents from any new federal health mandates. For one branch of government to knowingly provoke an unnecessary constitutional crisis on top of all this turmoil will scald the body politic in ways that will take generations to heal.

    Surely health reform does not warrant such scorched-earth tactics.

    Cross-Posted at The Corner

    Posted in Obamacare [slideshow_deploy]

    31 Responses to Questions of Privilege: A Possible Countermove?

    1. Gary, PA says:

      This is an excellent opportunity to get a singular individual to stop this unconstitutional endeavor. However, that is only a temporary stop-gap.

      The people of the United States have abdicated their responsibility to the government. The government has abdicated its responsibility to future generations six, seven or more generations into the future. This healthcare bill will enslave even more generations.

      As I have written on my blog at Goodwrites.com, we have become the Abdication Nation. This Abdication Nation Will Not Stand as long as the majority takes more than it gives, and the minority gives more and more.

      We must stop this madness and prevent yet another generation from becoming enslaved to our desires and needs.

      We have reached the tipping point. Through a soft revolution we will triumph. We must triumph. Keep reading. Keep writing. Keep fighting.

    2. Billie says:

      These people are unacceptably intolerant, disrespectful and ABUSING the Constitution! They do not have the dignity to grasp it's strength of power to individual freedom.

      They have to open their minds and appreciate the realization of the inspiration behind this magnificent document, which addresses the freedom from and expectations of government, to all citizens of this country. He's also the inspiration of CIVIL law that apples to all mankind. He wasn't born white, definitely not in America, spoke no English, preached no religion. He lifted the weak and gave them strength to live free. Take on their well being all by their individual selves, within the means they (ONCE IN AMERICA,) had the freedom to provide for themselves. He taught the unteachable, changed many evil hearts into free hearts. Whatever path, freedom of choice takes you…

      Reprimand those that abuse! KILL THE BILL and LIVE FREE!

    3. Rodney Galles, Maryl says:

      This question of privilege in the House should be pursued. I feel certain that the first response of the Speaker will be to try to delay or sidetrack the question. There appears to be a death wish among the Democrat leaders that has them emulating Admiral Farragut, "Damn the Constitution, Full speed ahead."

    4. Kent Vana, Ada, MI says:

      I am a Kindle subscriber to The Foundry. Too often, esp. lately, the text of material on the Kindle version of The Foundry is incomplete and makes no sense.

      In communicating with Conn Carroll, he indicated to me that you are aware of this and "are working on it".

      I think it is important that you correct this problem soonest; The Foundry is an important communication and should present its material clearly and with the advantage of competent editing.

    5. Mr. Andrea A. Hilber says:

      In lieu of everything that is going on in the DC septic tank. The rather large turds have reached the highest stench level I have ever smelled be it Democrat or Republican. The local dumps smell a whole lot better than anybody in DC does. I am now so irritated by these piles of feces that I want to just remove them all from the system. So,my question now is what is the legal formal process in which we the people can begin the process of RECALLing every turd in DC. I am most interested in what needs to be done to remove the Hoyer TURD from Majority leader. I figure if we Marylanders can start something up that will cause this turd to stop for a micro second because he has to go into his career saving mode. We might be able to start getting the septic tank cleaned out. I am sick and tired of working long hours and finding that almost half of my money is taken away from me just because I work hard. This trash bill will only further destroy my hopes of ever retiring. We need to flush out the septic tank. So I am asking how to start this now!!! I want to really rattle the cage hard and shake out these turds clogging up the system..

    6. Barbara F Delo says:

      There are no words for such disregard of the will of the American people and the Democratic Process…

    7. Harry Thompson says:

      Re: Questions of Privilege

      Mr. Franc,

      To the political elites, `privilege` is not a question, it`s a right.

      Per the NObama healthscare scheme, is anyone mentioning a rule of pelosi`s most `ethical` house of representatives, i.e. rule XIII, 3(d)(1), which in effect requires pelosi to provide a statement citing specific powers granted to congress in the Constitution to enact the law proposed by the bill or joint resolution.

      Amen.

    8. Karen Newton says:

      It seems to me that the american people need to make the rules for congress, because they are incapable of making fair rules that apply fairly to each case consistently. Both the house and the senate want to make the rules up as they go along and for what ever whim that suits themselves or the majority. I did not make a mistake when I did not capitalize the house or senate. I my eyes they have become a den of theives

    9. Corky, Howey in the says:

      These people do not work for us the American People, they work for themselves. Pelosi is so caught up in obama that she's selling her soul to push this through. History will not be kind to this administration at all! obama is so bad he makes JImmy Carter look like a saint. AND I MEAN THAT!!!

    10. Zack says:

      both bush tax cuts passed the exact same way the healthcare bill is proposed to pass. the tax cuts total cost and increase to the defecit will be over 2.5 trillion dollars, twice the amount of the healthcare bill. bush and the republican led congress added a fiscal defecit of over 6.1 trillion dollars. the only two presidents to double the national debt -bush and reagan. let me tell you whats unconstitutional- tax cuts for the rich. invading a country and sacraficing over a million lives for no reason. profit driven monopolies that insure who has the most money. its funny that you take a blog from some conservative on this website and take it as truth. nothing is unconstitutional about the way this bill will get to the presidents desk. whats funny is when conservatives try and say the american people don’t want health care reform.(its not working) americans do want healthcare. the fear mongering and lies are drying up. you guys are anything but patriots or “freedom fighters”. try doing your own research instead of frantically trying to find “facts” on the heritage foundation website. so embarrasing.

    11. Drew Page, IL says:

      Is it any wonder why people distrust the members of the House and Senate? These hypocrites make their pompous speeches about helping their constituents when in reality they are only interested in helping themselves. They demand government run health care, but exempt themselves from it. They talk about Social Security being bankrupt, but over and over again they have spent the money in this fund on other things and left IOUs that future generations must pay off. And and of course, they exempt themselves from S.S. in favor of their own taxpayer funded pension plans. Do you realize that most people receiving S.S. pension benefits get less tha 10% of their former earnings, while federal employees get 80%?

      These people then have the nerve to say that they are offended when someone questions their ethics or integrity.

    12. Dennis Social Circle says:

      The dems, obama, pelosi, reid all think they are the only ones that matter. They all believe it is their way or the highway. Well I think we the people have a say. They all work for us, it is OUR way of the highway. Lets put them in the raod in 2010.

    13. Zack says:

      Comments are subject to approval and moderation but only if it fits the way we want it to fit. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish unless you provide facts disputing conservative ideals. Please be respectful of each other and the subjects of any criticism but you can call the President a socialist and a radical liberal that is trying to destroy our country, show your birth certificate, etc. While we may not always agree on policy (which we never do because we are right and liberals are wrong), we should all agree that being appropriately informed is everyone's intention visiting this site and by being appropriately informed because this website always offers information back by fact and not opinion. ahem… Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated unless of course you are calling the president and democrats evil anti-american socialists. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, but not the rights of same-sex marriage or a true seperation of church and state, we are obligated to our readers to maintain these standards that basically just include being conservative and christian and preferrably anglo-sa….Thanks for joining the one- sided conversation!

    14. Zack says:

      I love the heritage foundation! I'm so happy that it allows everyone to post a comment within the moderators approval. Its weird cause i just posted a comment that explained how much money was spent by the republicans yet it was not approved. Mr. moderator, your only helping the completely bias nature of this website….Thank you for just making it sooooo much easier.

    15. Zack says:

      I know the moderator will read this. I want you to know and all the other people at your "foundation" that I will do everything in my power to inform as many people as I possibly can about the partisan information that your website produces. How do you take a paycheck with a straight face? How do you feel blocking out the oppostion to conservative viewpoints? The comment I left about the defecit under bush was completely within the terms of comments that you ask for as well as being 100% accurate. Are you that much of a coward? Im embarrased to be in the same species.

      • Conn Carroll Conn Carroll says:

        Dear Zack-

        It's been a busy morning for us and, apparently, you as well. I've lost count of all of your comments that I have approved. If you think we still have missed some, please do re-post them. We won't get to them immediately but as long as they are without profanity or name-calling we will post them.

        All the best.

        -Conn

    16. KaratKoaMom, Georgia says:

      Dear Zack – go ahead and post, apparently your post got lost in the many, many rants you appear to post. I certainly don't have any issues with you have opposing views – just make sure they are backed up with FACTS. In addition, Bush is no longer in office and the last two years of his 2nd term, he worked with a Democrat Progressive controlled Congress.

      The hypocrisy of the Democrats in power knows no bounds. For Obama to say he wanted it open and transparent, for Pelosi to say that it would be the most ethical Congress – is just beyond belief. Term Limits for all elected officials – 2 tries and then you are out – only the American people can vote for a pay hike thru a referendum.

      At this point we have to hope that we will survive this current attack on our freedoms. We need our Founding Fathers to come back to save us from ourselves.

    17. Gregory Pace, Edmond says:

      Why don't we stop this stuff!

      The Senate, Congress and the White House is tearing the Declaration of Independence and Constitution to shreds.

      Get the lawyers working to file a lawsuit! I would think the words

      "That whenever any Form of Government becomes destructive to these ends, it is the Right of the People to alter or to abolish it, and to institure new Government"

      should give the "correct" side the power to enforce the rule of law of our land.

    18. Gary Edwards says:

      From what I have read about Rule IX, the Minority Leader would have to raise a "question of privileges of the house" in the form of a resolution that he sends to the House Clerk. The Speaker of the House would then have to rule immediately whether it constitutes a valid question of privilege. We all know that she will rule that the resolution is invalid. Could the Minority Leader or another member then raise a question of "personal privilege" against the Speaker of the House?Wouldn't she have to excuse herself from ruling and turn over her gavel to the next in line? At that point the member would get to explain the grounds on which the question is based. Even if the "question of privilege" is ruled invalid, we would gotten to have gotten the Speaker of the House to have to sit in the House Chamber and listen to him question her integrity.

    19. Mathew, Phoenix AZ says:

      Forgive my lateness to this discussion. I am new to the site, and have finally taken the time to read much, but not enough I think. Can some one tell me from the historical perspective, what was the Vote for Social Security and Medicare? Was a reconciliation method or rule used? Was there a special set of rules used? Was it passed with a simple majority or with a 2/3 or 3/4 vote. (I am sure it was not 3/4…but I am asking.) What were the majorities in the House and Senate? I am looking for the some sense of proportion in as much as this bill stands to impact my life and the life of all my family, my descendants and the country. It is not minor as the $$$ go. Can anyone address these questions? Is there a place on this site that I can find the information?

      Thanks.

    20. Billie says:

      Gosh, I love the heritage foundation. I'm surprised my comment in regard didn't post?

      Is explaining who the person is, who wasn't born black, not in America, spoke no English and preached no religion, that derived America's civil law and constitution, too harsh? Is truth too harsh for the weak in government leadership? This man I speak of, lifts the weak to gain strength, to live FREE…

      something this government is in opposition of.

      I'm crossing my fingers, Conn. I'll understand if not posted, it's for my own protection?

    21. Tony, Saint Augustin says:

      Will America Ever Trust Democrats Again?

      From the many comments posted here it is clear that most of you are reasonably able to formulate an intelligent opinion and communicate that opinion in relevant terms. How far of a stretch would it be to estimate that not one of you will EVER be willing to vote for another democrat as long as you are able to push the chads out of a ballot card, or electronically select a candidate of another party affiliation, even if it means giving up your left kidney?

      At what point did Churchill push away from the desk of intellectual debate and begin designing a strategy to destroy the enemies of freedom? I'll tell you when, when the Japanese bombed Pearl Harbor!

      Churchill wrote: "To have the United States at our side was to me the greatest joy. Now at A Newsboy Announces the Attack Redmond, CA Dec. 7, 1941 this very moment I knew the United States was in the war, up to the neck and in to the death. So we had won after all!…Hitler's fate was sealed. Mussolini's fate was sealed. As for the Japanese, they would be ground to powder."

      Seems rather strange to consider these words concerning the executive and legislative branches our own government, but then we have not faced such radical opposition to the standards of self rule and the rule of law, which are the basis for our constitutional republic, from marxists within our own government – until now.

      When state legislators find it necessary to revise the constitution of their state in order to protect their citizens from the federal government, and attorney generals of states threaten action against the federal branch as recourse for [passing] such blatantly unconstitutional legislation, then I really don't consider my words to be a bridge too far.

    22. Freddie L Barnett,Tu says:

      Can prevlidge be use here and now?

    23. Geezer says:

      Power corrupts and absolute power corrupts absolutely!

      Obama and Pelosi are looking for absolute power.

    24. Doug says:

      I feel helpless as an ordinary citizen sitting back just watching this. I know I have a vote but my Congressman and Representatives are in the minority already. This like watching a plane crash in slow motion. Our nation will be renamed to the Obama-nation.

    25. Ricky David Tripp, B says:

      When common sense is applied to the issue of passing the Pelosi-Reid version of healthcare reform, the legislation doesn't pass the smell test. It is almost torture to read such analysis as this. Only minutes into the read, the reader feels like standing up and screaming, "What are you doing?" What are they doing, indeed? I would submit to you that, based on the known facts, and the methods being used to arrive at passage, Pelosi and Obama know exactly what they are doing — the are fulfilling the dreams of decades of progressives, and taking America into the dark realm of socialism and government control. The only question that remains now is: Will we let them? Or will we stop them?

    26. Tony, Saint Augustin says:

      Will America Ever Trust Democrats Again?

      From the many comments posted here it is clear that most of you are reasonably able to formulate an intelligent opinion and communicate that opinion in relevant terms. How far of a stretch would it be to estimate that not one of you will EVER be willing to vote for another democrat as long as you are able to push the chads out of a ballot card, or electronically select a candidate of another party affiliation, even if it means giving up your left kidney?

      At what point did Churchill push away from the desk of intellectual debate and begin designing a strategy to destroy the enemies of freedom? I'll tell you when, when the Japanese bombed Pearl Harbor!

      Churchill wrote: "To have the United States at our side was to me the greatest joy. Now at A Newsboy Announces the Attack Redmond, CA Dec. 7, 1941 this very moment I knew the United States was in the war, up to the neck and in to the death. So we had won after all!…Hitler's fate was sealed. Mussolini's fate was sealed. As for the Japanese, they would be ground to powder."

      Seems rather strange to consider these words concerning the executive and legislative branches our own government, but then we have not faced such radical opposition to the standards of self rule and the rule of law, which are the basis for our constitutional republic, from marxists within our own government – until now.

      When state legislators find it necessary to revise the constitution of their state in order to protect their citizens from the federal government, and attorney generals of states threaten action against the federal branch as recourse for [passing] such blatantly unconstitutional legislation, then I really don't consider my words to be a bridge too far.

    27. Billie says:

      Thank you, Conn and or Michael!

    28. oldmomster, pennsylv says:

      The bribes, selling of votes, deal-making in return for favors in return for supporting legislation – it's time to see indictments and the citizens of the US are rising up to make sure these criminals end up in JAIL!

    29. Fine American, Westv says:

      I am sure there have been other times in history that "we the people" would have less proud of our elected officials. That said, I can't remember one!

      NOTE TO ALL: Keep calling your Congressmen and women. Even if they are in the bag! Call until your fingers hurt from dialing or the battery goes dead!

    30. Helle Dale, Great Fa says:

      Great blog, Mike! I hope members of the House are paying attention.

      Best, Helle

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

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