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Bill Enrollment Errors Breed Partisan Suspicions

The recent “glitch” in the enrollment of the farm bill raised Republican suspicions of partisan skullduggery. In truth, it appears to have been nothing more than a clerical (or computer) error. But the episode illustrates how much partisanship has corroded the steel bonds of trust in Congress.

[IMGCAP(1)]The facts of the case are clear. The House and Senate passed the conference report to the farm bill in mid-May in identical form. President Bush vetoed the bill and returned it to the House, unaware that Title III, on “Trade,” had somehow been lost along the way. The omission was not discovered and reported to the House leadership until the day of the veto override vote.

At the outset of the override debate, House Agriculture Chairman Collin Peterson (D-Minn.) explained: “When the enrolling clerk enrolled the bill to send to the White House, somehow or another they inadvertently, or however it happened, did not include the trade title, title III of the bill, in the official documents that went to the White House. So the president vetoed the bill minus the trade title.”

Toward the end of the debate, House Minority Leader John Boehner (R-Ohio) rose and said he had “doubts about the process” and “doubts about the constitutionality of what it is we are doing,” and he suggested that the majority “consider suspending activity on this until such time as we have the answers to the questions that Members on both sides are going to have.” Peterson responded that under the Constitution, “when we have a veto, we are bound to deal with it.” The House proceeded to override the veto, 316-108.

The following day, as the Senate was overriding the veto, 82-13, two related things happened in the House. The House passed a correct version of the farm bill conference report (including Title III), 306-110, under a new bill number, and Boehner called up a resolution raising a question of the privileges of the House over the erroneous enrollment. The resolution called for an investigation of the incident by the Committee on Standards of Official Conduct and for the admonishment of the Speaker and Majority Leader for “their roles in the events surrounding the event.” The resolution was tabled along party lines without debate.

Boehner’s resolution was an overreaction in terms of its remedies, but two items in its preamble help explain, if not justify, his actions. First, it referenced a similar instance in the 109th Congress when then-Minority Leader Nancy Pelosi (D-Calif.) offered a question of privilege “accusing Republicans of concealment, incompetence, and corruption with respect to the enrollment error of the Deficit Reduction Act,” leading to numerous lawsuits. Pelosi’s resolution also called for an ethics committee investigation (but not an admonishment of GOP leaders). It too was tabled.

In that instance, it was a Senate, not a House, enrolling clerk who made an error in enrollment, changing from 13 to 36 the number of months Medicare patients could lease certain health care equipment (the 36 should have applied only to oxygen equipment). The change was made after the Senate adopted a substitute amendment for the reconciliation bill. The House then agreed to the Senate amendment (unaware of the error, though the majority leadership apparently was). The Senate clerk then corrected the error in the final enrollment before sending the bill to the White House.

That meant that the bill sent to the president had not been approved in the same form by both houses. The courts eventually rejected legal challenges to the law based on the Supreme Court decision in Field v. Clark (1892), which found that courts would not look beyond parchment enrollment, as certified by House and Senate officers, for proof of legitimacy. That is the same case Peterson and others cited in justifying going forward with the veto override vote last month.

The second item of interest in Boehner’s preamble called attention to a memorandum dated May 21 from Clerk of the House Lorraine Miller to Pelosi titled, “Farm Bill Omission.” In that memo the Clerk informed the Speaker that the “Enrolling Division staff expressed concern in receiving direct calls from the Leadership and the [Ag] Committee to accelerate the enrolling process.”

The reasons for calls to speed up enrollment are understandable (though not excusable): The farm program was about to expire in less than two weeks, coinciding with the beginning of Congress’ Memorial Day recess. The leadership was anxious to complete work expeditiously so as also to allow time to override the president’s anticipated veto.

While all this does not rise to the level of an ethics investigation, it certainly does warrant a thorough review by the House Administration Committee, which has oversight authority over the Clerk’s office. Miller has assured the leadership that she is “working diligently to make sure it will not happen again.”

But that will require more than a new proofreading policy. It should entail a bipartisan review of the incident by the committee, including interviews with appropriate staff, to determine exactly what happened and how best to insulate the enrolling staff from future political pressures to rush their work. The Clerk has proposed that only the Speaker should be allowed to communicate with enrolling staff. But is that in her role as neutral House officer or as party leader?

There should be no hint of possible political interference at the critical, final enrollment stage of a bill. If our nation’s laws are to be respected and accepted, the people must have full confidence that they accurately reflect what their elected representatives intended when they voted for them.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.

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