David Gergen and Gloria Borger do their best job of carrying water for Mitch McConnell by painting the Democrats using the self-executing rule as some
March 18, 2010

David Gergen and Gloria Borger do their best job of carrying water for Mitch McConnell by painting the Democrats using the self-executing rule as something underhanded even though as I've already noted here, it's been used over and over by Republicans when they were in the majority.

BLITZER: All right, Jack, thank you. New questions are being raised about the way House leaders may try to pass health care reform. We explained it to you yesterday in detail with a schoolhouse rock twist. But simply put, the House would pass a rule allowing Democrats to deem the Senate version of the bill passed without having to take a direct vote on that Senate bill.

Republicans suggest it isn't ethical. Here's the question though, is it constitutional? Let's bring in our senior political analysts Gloria Borger and David Gergen. Let's talk about this. One constitutional professor at George Washington University Law School, Alan Morrison, David, writes this.

"You run the risk that it could be declared unconstitutional if both Houses vote on the substance of everything, then I'm not troubled, but if it looks like the House is never going to vote on the Senate bill, that's very troubling. I wouldn't want to stake the entire bill on that". Does Professor Morrison have a good point?

DAVID GERGEN: I think he does, Wolf. I don't think anybody can say with certainty whether it would pass constitutional muster or not. There are arguments on both sides. The question becomes is there a credible argument against it? And experts say that there is a credible argument against it which does mean, Wolf that if the bill is passed in this way, someone could file suit and the courts might take it up.

And this whole health care fight would then be tossed over into the courts and conceivably struck down. There is a precedent from a case 12 years ago in which the court ruled that the House and the Senate have to pass the exact same text and they have to vote on the exact same text. And the question is whether these are. So I think there's a cloud here now, not only is the question as you say is it the right thing to do, but if it's going to be tossed into the courts, is American -- are Americans going to stand for that? Do the Democrats really want to do that?

BLITZER: That's a good question. And Gloria, so why would Nancy Pelosi and her colleagues in the Democratic leadership in the House even take that chance? What would be the gain for them?

GLORIA BORGER: Well I was talking to some Democrats about that today, Wolf. Clearly they don't have the votes yet and they want to win. And there is some thought that they don't care if they win on a technicality or if they win by casting one vote for essentially two bills. It will raise this constitutional question, you can be sure that there are going to be people who are going to want to throw this into the courts.

And I think on the larger issue, Wolf, it makes the Democrats look, shall we say, a tad desperate or a tad arrogant, and I think this is a larger problem for them because people have been paying attention to the process of health care. You know on a lot of issues they don't pay attention to the process. It's kind of wake me when it's over.

They have watched this play out. And the American public knows Democrats are trolling for votes. And they're going to look at this and say gee, isn't this a little underhanded. If you didn't have the votes, you want to pass it with a rule? Well that's kind of odd.

BLITZER: And this whole process issue, it may help explain why the opinion of Congress in this new NBC News/"Wall Street Journal" poll is so low, do you approve of Congress, 17 percent approve, 77 disapprove, six percent don't know. This is a Democratic-led House and Senate and they only get 17 percent approval, David.

GERGEN: That's an extremely low number taken by Peter Hartman and Bill McIntyre who are extremely well respected in their field of polling. And it does suggest that they've got to address this and come up with, in my judgment, with a clean answer. The president has argued for a clean up and down vote. And it seems to me that it would be so much more in the country's interest if they could come up with a clean up or down vote. And it will, I think, increase respect of Congress. If they go this other way, it gets thrown in the courts. We can be looking at 10 or 12 percent approval someday.

BLITZER: Yes, but as you know, there are still a few Democrats out there who under no circumstances say they will vote for that Senate legislation because it contains in there, if you don't -- if you forget about the amendments for the time being, that cornhusker kickback and the Louisiana Purchase and all those special deals.

BORGER: Well you know, you talk to Democrats and they say we don't want to vote for this because then we're going to get tarred with voting for special interest provisions. But when you're elected to be a member of Congress, you should be able to explain your votes. And you go to Congress to vote, unless I'm mistaken here. And so for folks to say we don't want to vote because we're going to have a tough time explaining this is really not a good answer to give to the American public. That's what they --

GERGEN: It's a vote-less vote.

BORGER: Right.

GERGEN: It's a vote-less vote.

BORGER: Exactly and that's what they elected you to do.

BLITZER: Guys, thanks very much.

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