Can’t Win for Losing

By Miryam Ehrlich Williamson

As the saying goes, Sometimes you can’t win for losing. That seems to be the theme of 2010 in the U.S., for all but the one percent of Americans whose income this year will be equal to that of the bottom 50 percent.

Congressional Democrats can point to a couple of wins: the Affordable Care Act, for one, and this week, the FDA Food Safety Modernization Act. Except for this:

Turns out that USDA may get to not-adequately-inspect food for another half century or so, thanks to an oversight that may kill S. 510. Or maybe not, but that will depend on some fancy magic.  Talking Points Memo explains:

The U.S. constitution requires that any revenue-raising bill must originate in the House of Representatives. To honor this provision, the Senate often finds a discarded old House bill, strips it bare, and uses it as a “shell” and passes it back to the House.

They somehow forgot to do that this time.

It would take considerable cooperation between Democrats in the House and Senate, not to mention the 15 or so Republicans who helped pass the food safety bill by a margin of 73 to 25, to tuck the same wording (the Senate’s protects little local farms from costs and paperwork that would drive most of them out of business) into a bill adopted by the House but not dealt with in the Senate — and have both chambers approve the measure before the clock runs out on the 111th Congress.

It could be done, but then you have to wonder which august Senator this time will block consideration of the bill his colleagues just passed so resoundingly.  And not only that, but there are egos in the House, particularly on its Ways and Means Committee, that are seeing the Senate’s failure to remember that money bills start in the larger chamber as an insult and not an oversight. Some committee Democrats may stop the bill in its tracks to teach the Senate who holds the purse strings, forcing the House to pass the bill again and send it back to the Senate.

The omission would be easier to forgive, to be sure, if the Senate hadn’t made the same error earlier this year in a bill promoting tourism that also should have originated in the House. When will they ever learn?

But even if the Food Safety Act comes back to the Senate, it will take unanimous consent of that body to consider it without more days of debate. And we can probably count on Sen. Tom Coburn (R-OK), the bill’s chief opponent, to object — that is, if Majority Leader Harry Reid even puts it back on the calendar.

You have to wonder how such a thing can happen, let alone happen twice.  Granted, the tourism bill and the food safety one probably came out of different Senate committees, so we can thank their respective legislative staffs for overlooking the Constitutional nicety about where bills that include raising money begin. And before the bills got to the committees, there were the Senators whose offices originated them. Senators have legislative staffs too. It would be too much to ask for to have had one of the bills’ co-sponsosr, or someone on their staffs, or the Majority Leader, or someone on his staff….

As always, when there’s plenty of blame to go around, no one is to blame. Reminds me of the blended responsibilities for food safety in the USDA and FDA that gave rise to the probably defunct FDA Food Safety Modernization Act. (For a discussion of this, see the S. 510 blog just below this one, and especially the comments attached to it.)

But wait — there’s more. Another oversight, this one at least as elementary as the food safety act’s one, casts doubt upon the signal accomplishment of the Democrats and the head of their party, the President — the Affordable Care Act. A number of rightist groups are suing in Federal courts to get the health care bill thrown out., arguing, in part, that it is unconstitutional to require people to buy health insurance. If a court were to agree, some, but not necessarily all, provisions of the Act would be thrown out. But in this case, a sufficiently hostile judge could thrown out the whole thing.

Ordinarily, legislative drafters include a provision known as the “severability clause.” It says that even if a court finds one part of the bill unacceptable, the rest is left standing. The Affordable Care Act has no severability clause. Therefore, if a judge struck down one provision the whole law might be discarded.

That’s not likely to happen; the judge could provide for severability in the written opinion. But it could, and the tricky part would be for the judge to decide just which parts of the law were not entangled with the part found unacceptable. And then the question comes, if there’s  no mandate for healthy people to buy insurance, what happens to the provision putting an end to excluding people because of pre-existing conditions? That was predicated on the idea that some people would pay for insurance they didn’t need.

One ray of hope concerning Affordable Health and severability comes from a recent Supreme Court decision:

In an opinion written this year, Chief Justice John Roberts struck one provision of the Sarbanes-Oxley bill, which lacks a severability clause. “We agree with the Government that the unconsti­tutional tenure provisions are severable from the remain­der of the statute,” he wrote.

Sarbanes-Oxley was enacted in the wake of the Enron and related scandals, to increase corporate accountability and financial disclosure.

Oh, what a tangled web gets woven when legislators forget to tend to their knitting.  Sometimes you just can’t win.

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One Response to “Can’t Win for Losing”

  1. […] the FDA Food Safety Modernization Act fiasco? It was all but enacted when someone discovered a Constitutional glitch: it should have been passed […]

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