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Monday, May 26, 2008

Law - "Technical glitch" necessitates farm bill do-over

This ILB entry is not about the pros or cons of the farm bill, but about how a technical glitch can impact an enrolled bill, and is aimed at pulling this information together for legislative process wonks. (It also serves to reinforce previous ILB points with respect to the Indiana Code and Rules that technical errors happen, even in the digital age.)

From the May 21st CQ Politics:

Hours after the House voted overwhelmingly to override a farm bill veto, leaders agreed that a paperwork snag is forcing them to reconsider the bill again.

Lawmakers discovered Wednesday that one of the 14 titles of the bill (HR 2419) — the trade title that deals with foreign food aid, among other things — was inadvertently dropped from the version sent to President Bush. Bush vetoed the bill Wednesday and the House then voted, 316-108, to override, a tally that exceeded the needed two-thirds majority.

But that left lawmakers in a quandary about how to restore the missing title. Republicans questioned the constitutionality of a proposal to pass the dropped section separately, contending that it could open the entire farm bill to legal challenge.

After negotiations among top Democrats and Republicans and consultations with the House parliamentarian, Majority Leader Steny H. Hoyer , D-Md., said the House would probably take up the full farm bill again Thursday under a new bill number, though it might just vote on the deleted title. * * *

The error in the enrolled version sent to the White House was traced to an electronic printing machine used to print the parchment copy of the bill.

Hoyer said the White House did not catch the omission because administration officials looked at the printed conference report, rather than the single copy of the enrolled bill printed on parchment.

House Parliamentarian John Sullivan advised lawmakers in both parties that, based on Supreme Court precedents, the flawed enrolled copy of the bill would be regarded as the text of what Bush had vetoed.

“The courts have ruled that the parchment is the statute,” Hoyer said. “That’s what they look at.”

From the May 22nd issue of The Hill, in a story by Mike Soraghan:
A clerical error caused widespread confusion on Capitol Hill Thursday, stealing the spotlight from Democrats hoping to tout the second veto override of President Bush’s reign.

Democrats in the House and Senate won enough votes to override Bush’s veto, but one of the farm bill’s 15 titles was omitted from the official “parchment” copy sent to the White House.

Democratic leaders said the veto and the subsequent override by both chambers are still valid, and that most provisions of the bill are now law. They also noted that Bush mentioned the missing section — Title III on trade — in his veto message, suggesting he intended to veto that part of the bill. * * *

House Democrats on Thursday quickly passed a second, full version of the 1,768-page bill on the House floor, again by a veto-proof 306-110 count. The Senate, however, did not take up the House-passed bill. Instead, it simply completed the override.

Senators indicated all that needs to be done is to pass the missing title, but House plans to vote on a stand-alone bill containing that language were scuttled after angry Republican leaders lined up against it.

House Republican leaders, including those who supported the bill, complained that the measure is more vulnerable to lawsuits because of the error unless a whole new version is devised. They also complained that Democrats were not aboveboard in how they handled it. * * *

Ironically, the tables were reversed when a similar problem occurred during Republican rule of the House.

In 2005, an undetected clerical error led the House and Senate to approve slightly different versions of the Deficit Reduction Act. Bush signed the Senate-passed language into law.

House Democrats at the time argued the entire bill was unconstitutional and Pelosi, then the minority leader, demanded that the House vote again on the same bill. Republicans refused, brushing off the 2005 typo as a non-issue.

That led several Democrats to file lawsuits seeking to overturn the law. Judges ruled that what Congress certifies as the legitimate document is the legitimate document.

The House parliamentarian is now using that same 1892 Supreme Court precedent, now accepted by Democratic leaders, to say that the farm bill is law.

“Fourteen of 15 titles in this farm bill are now law,” said Senate Agriculture Committee Chairman Tom Harkin (D-Iowa). Of that remaining title, he said, “We’ll deal with that at some other point. It shouldn’t be much of a problem.” * * *

The episode opened a window onto the little-known world of what happens with a bill after it gets passed but before it gets to the White House, and how traditions established in the 1800s have passed into the digital generation.

BlackBerry-wielding lawmakers, reporters and staffers more accustomed to discussions of fundraising and infighting found themselves parsing the meaning of the “trail of the parchment.”

Pelosi told reporters she takes responsibility for the problem. But in a letter to House leaders, House Clerk Lorraine Miller said the problem stemmed from a process adopted 10 years ago, when Republicans were in charge. In order to save money, the official “parchment” copy was not proofread. Miller said that process is being changed.

But she also said “leadership and the committee” called the enrolling staff to hurry the process along. That point was raised in Boehner’s call for an ethics investigation.

More details from a story by Jluie Hirschfield Davis of the AP, dated May 23rd:
The missing section, on trade and international food aid, had cleared Congress, but apparently got lost in the shuffle when House staff aides performed the antiquated ritual of printing out the legislation on heavy parchment paper to be sent to the White House.

Things started going awry Tuesday, as staffers scrambled to complete the bill — called "enrolling" — so it could be signed by the House speaker and Senate president pro tempore and sent to the White House.

House leaders — eager to complete the popular farm bill and override Bush before Congress adjourned for a weeklong Memorial Day break — were pressuring the staff to go faster. In a memo about the mistake obtained by The Associated Press, Lorraine C. Miller, the House clerk, said the enrolling staff reported receiving direct calls from leaders and the Agriculture Committee urging them to hurry.

When it came time to print the legislation, one of the bill's 15 titles never made it onto parchment. The clerk in charge of poring over the final version — known as the enrolling clerk — apparently did not notice the omission.

Such errors — albeit not of this size — happen all the time. One possible reason for this week's goof: Congressional staff aides stopped proofreading the parchment copies of legislation a decade ago, citing the high cost of the paper.

That policy "has been rescinded effective immediately," Miller told congressional leaders in the memo. "We are working diligently to make sure it will not happen again."

"This happens more times than I would like to admit," said Robert B. Dove, a former Senate parliamentarian. "You don't want to see how sausage is made, and you definitely don't want to see how laws are made."

Dove should know. In 1986, he said he secretly agreed to re-enroll and essentially re-enact a massive spending bill that Ronald Reagan had signed and was already the law of the land.

Staff aides discovered that the part of the measure to pay for lighting and heating government buildings had never made it to the White House, and Congress had already adjourned for the year, with Election Day just one week away. Staff quietly prepared a complete copy of the bill, had House and Senate leaders sign it and sent it to Reagan for a second signature.

"Nobody picked up on it, and I never told anyone," Dove said. "It was, to me, the best of a miserable situation."

But it probably wasn't constitutional. "You don't get two chances" to enact the same bill, he said.

Jacob Leibenluft, who writes the Slate column, The Explainer, which answers questions about the news, had an excellent article Thursday, May 22nd about this situation.and about the general question of what happens if the bill contains an error. Some quotes:
How do bills get sent to the president?

They are delivered by hand on "parchment." Once a bill has been approved by both houses of Congress, the clerk of the House or the secretary of the Senate—depending on where the bill originated—is tasked with preparing the legislation to go to the White House. An enrolling clerk is responsible for ensuring that he or she has the final language of the bill in hand and then printing it onto a special kind of paper called parchment as prescribed by federal law. * * * According to news reports, the missing pages from the farm bill were left out during the parchment-printing process, and the president vetoed the bill based on a conference report that reflected the complete legislation.

After the bill has been printed, a certificate is attached to the last page to be signed by the clerk of the House or the secretary of the Senate, the speaker of the House, and the presiding officer of the Senate. Once the congressional officers have signed the bill, it is then hand-delivered to the executive clerk of the White House for the president's OK. * * *

What happens if the bill contains an error? * * *

Ever since an 1892 Supreme Court case (Field v. Clark) concerning a tariff act that went to the president with a paragraph on tobacco taxes missing, the courts have generally ruled that the version of a bill signed by the officers of both houses of Congress and the president stands, even if the language differs from what Congress voted on. So, if the mistake changes the substance of the legislation, then the erroneous language is usually law unless Congress decides to do something about it. In that case, Congress can pass "technical corrections" in separate legislation to remedy the mistake.

From the May 23rd Washington Post:
With an overwhelming 82 to 13 vote, the Senate yesterday completed the override of President Bush's veto of a comprehensive farm bill, shrugging off Republican concerns about an embarrassing legislative glitch to make the $307 billion bill the law of the land.

House GOP leaders continued to grumble that Democrats had violated the Constitution by pressing forward with the veto override after they discovered that a whole section of the bill on trade policy had been inadvertently dropped from the version vetoed Wednesday.

But Democratic leaders said they had court precedent and constitutional scholars on their side. * * *

Lawmakers said they would take up the farm law's trade section as a separate bill and pass it after their Memorial Day break.

An enrolling clerk dropped the section, which includes international food aid programs, as the measure was being sent to the White House. The glitch gave Republican leaders, who were badly divided by the bill itself, a chance to unite around a new cause. House Minority Leader John A. Boehner (R-Ohio) took to the floor to call for an ethics committee investigation, which was voted down on party lines.

House Democratic leaders did push the entire farm bill back through the House again yesterday, in case they decide to start the process over again. But that appeared doubtful after the Senate's action.

Citing the Supreme Court's 1892 decision in Field v. Clark, House parliamentarian John Sullivan released a statement yesterday saying that "the law that would result from a bicameral override of the President's veto on H.R. 2419 would be the text that was presented to the President on parchment, notwithstanding its omission of the congressionally intended [trade] title."

Manu Raju reports today, May 26th, in The Hill:
But House Republicans and other critics argued that the new law violates the Constitution, which requires each chamber of Congress and the president to consider identical bills.

In interviews, however, each of these groups said that it would be difficult to prove they had legal standing to sue. Even if they were successful on that front, Congress could easily quash the lawsuits by taking up the entire farm bill again and passing it by healthy margins, making litigation futile, the critics say. * * *

Supporters of the law say that they are on solid legal ground, pointing to an 1892 Supreme Court precedent in arguing that Congress has the last say in determining what is a legitimate document. In 2005, an undetected clerical error led the House and Senate to approve slightly different versions of the Deficit Reduction Act, which President Bush signed into law. Lawsuits seeking to overturn that law were unsuccessful because of the 1892 decision.

In addition, legal scholars say that courts may be wary of stepping into the dispute if both the legislative and executive branches agree that the measure is the law.

Posted by Marcia Oddi on May 26, 2008 12:24 PM
Posted to General Law Related