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Why the Senate Plays Legislative Bait-and-Switch | Procedural Politics

Very few people take the time to follow major legislation as it wends its way through the congressional maze. For those who do, Congress’ two online bill tracking services, THOMAS and, make that easy to do, at least most of the time. Nevertheless, those who track the big bills sometimes find themselves ensnared in what appears to be a legislative bait-and-switch, with no public explanation of when or why the trap was laid. The hapless citizen is left stuck in a web of diversion — be-switched, bothered and bewildered.  

On two major occasions this year, language from Senate-numbered bills has been transplanted into totally different (and minor) House-numbered bills: the Iran Nuclear Agreement Review Act and the Bipartisan Trade Priorities and Accountability Act (aka trade promotion authority). Two other instances of bait-and-switch occurred on lesser bills passed as bargaining chips for the trade bill’s passage (Procedural Politics, “Senate Trade Bill, ” June 4).  

We are not talking about transferring Senate language into a companion House bill to facilitate a conference with the other body. Instead of a companion we are talking about third cousins, twice removed — very distant relatives at best. (Spoiler alert: Although this tactic sounds like a nefarious scheme shrouded in political intrigue, the final paragraph below will reveal a rational, even constitutional explanation.)  

The Iran nuclear agreement review bill was introduced by Sen. Bob Corker of Tennessee, chairman of the Senate Foreign Relations Committee. He worked tirelessly across the aisle with his ranking Democrat, Sen. Benjamin L. Cardin of Maryland, to build bipartisan support for a congressional review process for the Iran nuclear agreement, if and when it is finally concluded. The bill (S 615) was unanimously reported from committee with 66 co-sponsors. President Barack Obama, who initially opposed presenting the agreement to Congress, saw the writing on the wall and supported the reported bill after two key concessions were made.  

Yet, rather than taking up the committee-reported Senate bill, the Senate took up an unrelated House-passed bill (HR 1191), exempting volunteer firefighters and first responders from mandatory employer coverage under Obamacare. The bill was then used as the vehicle in which to insert the Iran language as a substitute. The president signed the bill after it passed both chambers overwhelmingly.  

The Senate trade promotion bill (S 995) was introduced by Finance Committee Chairman Orrin G. Hatch in mid-April. House Ways and Means Committee Chairman Paul D. Ryan, R-Wis., dropped a companion bill (HR 1890) the following day. Both bills were reported from their respective committees in early May. According to the online bill status reports, that’s where the trail ended for both.  

And yet, the Senate’s trade promotion bill’s language magically reappeared on the Senate floor as a substitute for an unrelated House-passed bill (HR 1314) to give certain organizations a right to appeal denial of tax exempt status. The Senate approved the bill after the two sidecar bills passed. On Friday, the House adopted the trade promotion authority portion of the Senate amendment but rejected the Trade Adjustment Assistance title. The House is expected to vote Tuesday on a motion offered from the floor by the Speaker to reconsider the TAA vote.  

Why did the Senate act first on the Iran and trade promotion measures? On the Iran bill, House leaders wanted the Senate to take the lead because it had done all the groundwork and bipartisan bargaining. There was no House companion bill. On the trade bill, Senate passage was expected to be easier, and that would build momentum for success in the House.  

But, why was the bait-and-switch tactic used for both bills as substitutes for unrelated House bills? The Constitution’s “origination clause” requires revenue-related measures to originate in the House, and both measures include revenue components. Had the Senate simply passed the original Senate-numbered bills and sent them to the House, the bills could have been “blue-slipped” (returned) to the Senate for violating the House’s constitutional prerogatives on tax measures. Although some may wonder at such unusual procedural contortions to satisfy origination clause concerns, that is exactly what happened and why. For those attempting to follow the process, it is a taxing experience.  

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.    



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