Critics Challenge Legitimacy of Plan to Avoid Direct Vote on Health Care

In this Aug. 12, 2009, photo, Rep. Louise Slaughter speaks during a news conference on health care on Capitol Hill. (AP Photo)

From Maine to Hawaii, Americans send people to Washington, D.C., to be their representatives -- to cast votes that represent the will of the people who elected them to do the job.

But now, as the House of Representatives moves toward approving one of the most sweeping pieces of domestic legislation in U.S. history, critics are fuming that Speaker Nancy Pelosi plans to usher through a health care bill . . . without a vote.

Pelosi, they say, is thumbing her nose at a cherished, basic principle of democracy for the sake of a legislative win.

House Republican Conference Chairman Mike Pence is calling the plan, which several Democratic leaders are defending, "a betrayal of the commitment of every member of this Congress to the American people."

And some say the move may not withstand a legal challenge.

"Doing it this way introduces a whole new level of risk," Michael McConnell, a former U.S. Appeals Court judge, told FoxNews.com, arguing that the tactic is not constitutional in this instance. "I think they're ill-advised to go this way."

Even a Democratic senator, Blanche Lincoln of Arkansas, released a statement late Tuesday saying "any plan to approve major reform without actually voting for it simply won't fly outside the Beltway."

But Pelosi and Rep. Louise Slaughter, D-N.Y., chairwoman of the House Rules Committee, are considering a process to pass the Senate's health care bill without forcing rank-and-file Democrats to go on record by voting to support it.

Here's how the process would work:

Under a tactic known as a "self-executing rule," the House could simultaneously approve the Senate bill while voting on a package of changes to it. This would "deem" the Senate bill to be passed, without compelling members to vote for it directly.

Democratic leaders are considering the option because many House Democrats don't want to cast a vote in favor of the unaltered Senate bill, which they oppose for numerous reasons. But the House must pass the Senate bill in order to move on to the package of changes intended to correct all the things about it that they don't like.

The Slaughter solution allows members to temporarily accept the Senate version -- but keep it at arm's length -- before they proceed to change it.

Democrats have come out strongly in favor of the method, noting that it's not rare and Republicans have used it plenty of times before. Plus, they say, there will be a vote, even though it won't be for the Senate bill alone.

"There is going to be a vote and it's going to be an up-or-down vote," Democratic National Committee Chairman Tim Kaine told Fox News. "Everybody's going to be up or down, on the record and be accountable either for a yes vote or for a no vote."

But even though the option has been used before, its potential use on such a high-profile issue has some questioning its legality.

McConnell argued that the move would violate Article 1, Section 7 of the U.S. Constitution, which states that a bill becomes law when it "shall have passed the House of Representatives and the Senate" and the president signs it.

His main contention is that the procedure would violate precedent stating that the House and Senate must pass identical versions of any bill -- since the House would approve a measure containing the Senate bill plus a package of changes, while the Senate would pass only the package of changes.

Rep. David Dreier, the top Republican on the House Rules Committee, pledged in an interview Wednesday to do whatever he can to stop the rule from being implemented. He and other House Republicans also lined up to decry the proposal at a press conference.

"You know what a self-executing rule is? It's self-executing," said Rep. Greg Walden, R-Ore., holding his hand to his head while pantomiming a gun with his thumb and index finger.