If Senate Majority Leader Harry Reid (D-Nev.) wants to pass President Barack Obama’s jobs plan anytime soon, he might have to use a House-passed repeal of the president’s signature health care reform to do it.
Though the above scenario may not play out for obvious political reasons, it is a situation that reveals the growing dysfunction and legislative gridlock in Washington.
The Constitution says the House should be the first chamber to pass any bill dealing with revenues, and the president’s jobs bill is filled with tax cuts, tax increases and other revenue measures. Reid has said he will force a vote in the coming weeks on Obama’s plan, a gambit Democrats hope will put pressure on the GOP-controlled House.
In practice, the Senate has skirted this procedural issue for years by taking a tax or spending bill from the House and replacing it with whatever measure the Senate wants to approve. When the Senate has moved its own revenue bills first, the House has either made the Senate repass such bills or rejected them out of hand.
With a divided Congress, Reid has only three viable revenue bills left on the Senate calendar: a bill to repeal the 2010 health care bill, a measure to prohibit government funds for abortion and a trade bill already being discussed as the vehicle for a larger Trade Adjustment Assistance deal.
On Thursday, Reid used a fourth piece of legislation on sanctions against Myanmar to pass a $6.9 billion Federal Emergency Management Agency disaster supplemental bill, but it is unlikely to pass the House.
So if the Majority Leader wants to follow standard protocol in moving Obama’s bill forward in the near future, he might have to force Democratic Members to vote again on one of two controversial bills, health care or abortion, in order to open debate and proceed. If the Senate moved to take up the bill, of course, Reid would be expected to replace the abortion or health care repeal text with the language of Obama’s jobs proposal.
Reid’s choice to use the Burmese Freedom and Democracy Act for the disaster bill rubbed even some of his own caucus members the wrong way. Although many acknowledged the leader did not have much of a choice, some of the underlying bill’s strongest champions, such as Sen. Dianne Feinstein (D-Calif.), lamented that noncontroversial legislation that usually passes by unanimous consent was being held up by something unrelated.
When one party controls both chambers, it’s much easier for the Senate to use and dispose of “shell” bills, because members of the Senate Finance and Appropriations committees can coordinate with the House Ways and Means and House Appropriations committees to resend the legislation.
With Republicans controlling the House, however, there is no incentive to designate more legislation as revenue-generating and pass them through to the Senate. Additionally, the breakdown of the traditional appropriations process, in which Congress would move separate spending bills to fund different parts of the government instead of passing block continuing resolutions, has also made fewer vehicles available.
When asked whether there had been a slowdown of bills coming from his chamber, House Ways and Means Chairman Dave Camp replied that the Senate has not been returning bills it receives.
“Well, there certainly are not that many items coming from the Senate, but there are some very important items that could come from the Senate in the next few weeks that I’m looking forward to,” the Michigan Republican said. “I hope the [trade] bill comes back with TAA attached to it. That would be a significant step forward.”
But not every lawmaker sees Reid’s shallow pool of revenue bills as detrimental to the legislative process. Rep. Scott Garrett, chairman of the Constitutional Caucus, said in an interview that the process of “shelling” bills is unfaithful to the Constitution.
“The framers intended that all revenue bills start in the House and not in the Senate. That was a protecting of the interests of the respective states to do that. We have subverted the system,” the New Jersey Republican said. “Theoretically, they could ... take the Obamacare bill, right, and strip everything out. Technically, they could do it and they don’t do it for their messaging reasons, but in reality, they should not be allowed to be doing any of those things. Neither party should be using those mechanisms because it subverts the Constitution.”
The other side of using shell measures is that bills that otherwise might have become law end up gutted. This year, four bills have been used as shells for other measures: A small-business bill was used to extend the USA PATRIOT Act in May, and three measures were used to raise the debt ceiling.
The most notable of these was the Faster FOIA Act, a bill that would have improved the Freedom of Information Act process and increased public access to government documents. When Congress used the bill, versions of which passed both chambers and were awaiting reconciliation, Rep. Brad Sherman released a statement criticizing the move.
“It is a shame that the Speaker has decided to replace a piece of bipartisan legislation with the partisan, ill-conceived Budget Control Act,” the California Democrat said in late July. “Taxpayers should have the opportunity to quickly and easily obtain information from the federal government. ... The Faster FOIA Act should not be used as a pawn in the debt limit debate.”
Senate Minority Leader Mitch McConnell, R-Ky., carries a musket on stage as he speaks during the American Conservative Union's Conservative Political Action Conference (CPAC) at National Harbor, Md., on Thursday March 6, 2014.