Editore"s Note
Tilting at Windmills

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December 2, 2010

DEM ERROR MAY HELP GOP KILL FOOD-SAFETY LEGISLATION.... As frustrating as political developments have been lately, Tuesday offered some good news: the Senate easily passed a sweeping overhaul of the nation's food-safety system with bipartisan support.

Erik Olson, deputy director of the Pew Health Group, declared, "This is an historic moment. For the first time in over 70 years, the Senate has approved an overhaul of F.D.A.'s food safety law that will help ensure that the food we put on our kitchen tables will be safer."

Great news, right? It would be, except Senate Democrats made a procedural mistake, giving Republicans a chance to kill the legislation once and for all.

[B]ecause of an arcane parliamentary mistake, the bill must be sent to the House of Representatives, which must approve it and return it to the Senate to be approved one more time. Only then, can the measure be sent to President Obama. [...]

The arcane problem in the food safety bill stems from a provision that gives the secretary of health and human services the authority to collect fees from food facilities and importers for inspection, recall, re-inspection and importation activities.

Part of the fee also covers the administration of the "Voluntary Qualified Importer Program" which helps expedite access to imports that pose no meaningful food safety risk. And because the fee pays for administration, not directly for a service provided by the government, it is a revenue provisions that, according the Constitution, must first be approved by the House.

By late Tuesday, the plan appeared to be pretty straightforward: the House would simply pass the Senate version and send it on to the White House. In light of the Senate error, that's not an option, making it necessary for the House to pass the bill and then send it back to the Senate once more.

Under normal circumstances, even that wouldn't be too big a deal. Given the way the Senate has traditionally operated, and the fact that the legislation has broad bipartisan support, "the Senate might simply reapprove the bill by unanimous agreement, bypassing the need even for a formal roll call vote."

But Republicans have abandoned institutional norms -- after the House re-passes the food-safety bill, the GOP intends to start the obstructionist process all over again, forcing Dems to "spend the better part of a week cycling through procedural votes just to get the measure back on the floor." And given the limited lame-duck calendar, there's just no time for that.

So to summarize, a Democratic procedural slip-up + Republican dickishness = more salmonella poisoning.

This is what governing in the United States in the 21st century is like when there's a Democratic majority -- and it's going to get much worse next year.

Steve Benen 8:00 AM Permalink | Trackbacks | Comments (11)

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For those of us who work in the real world, when you're up against a deadline you work overtime. And if you're a salaried worker you work for free.

Each time the Republicans commit another act of "dickishness", Harry Reid should add another hour to the Senate's work week. If Republicans continue to be dicks, the Senate should end up working twenty hour days, six days a week and working though December 31 with only Christmas Day off.

Posted by: SteveT on December 2, 2010 at 8:11 AM | PERMALINK

In sports, if you don't know the RULES, you won't make the team.

In politics, it is apparent that who you know is more important than what you know.

Nowhere is the Peter Principal more evident than the Senate!

Posted by: DAY on December 2, 2010 at 8:14 AM | PERMALINK

Thanks for the best (really, only) coherent description of the problem that I've run across. According to the Supreme Court, a revenue-raising provision originating in the Senate doesn't violate the Origination Clause even if the revenue is deposited in the general treasury and used for general public purposes, if that revenue is "incidental" to a regulatory program. United States v. Munoz Flores, 495 U.S. 385 (1990). The case is distinguishable from this one, of course, as every case is distinguishable from any other (in Munoz-Flores, the revenue -- expected to be small -- was the excess from funds accumulated in the regulatory program itself, whereas here the revenue is apparently from fees for a "separate" but obviously related regulatory program), but I would think that good lawyers advising the House and Senate could develop a more substantial argument than the one I've sketched here. At the least, I don't think people should go around saying that there's an insurmountable constitutional obstacle to House adoption of the Senate version. Maybe there is, but it takes some work to explain why, given the Court's decisions.

Posted by: Mark Tushnet on December 2, 2010 at 8:23 AM | PERMALINK

I gotta ask it again - what do the Republicans have against the American people? Why do they hate America? Why can't Obama ask that question? (rhetorical of course)

Posted by: John R on December 2, 2010 at 8:38 AM | PERMALINK

Can't anybody play this game?

Posted by: SW on December 2, 2010 at 9:07 AM | PERMALINK

I am in favor of safe food (who isn't?) and all and am in favor of this bill but...

LET IT GO FOR NOW. If it is going to tie the senate up in knots before the end of the session, take up time that could be used to bullrush other bills and priorities through of greater IMMEDIATE importance, THEN LET IT GO.

They f*cked up bigtime. Feckless morons that the Dems are in the senate, it is their own petard that they are impaled upon. Cut bait and move to something of equal or more importance and go back to this later. It DID pass with a great deal of GOP support - it is just that RIGHT NOW it is sure to be jacked up by GOP political posturing while they attempt to had bazillionaires permanent protection from any taxation ever. That and trying to murder countless poor Americans by taking away ALL their safety net and support. Gotta clear some ground so more resources can be stolen from the little people and handed over, free and clear, to the elite uber-rich you know.

Posted by: Praedor on December 2, 2010 at 9:23 AM | PERMALINK

This screw-up comes on the heels of the revelation that the all-important Affordable Care Act was passed without a severability clause, meaning that the entire legislation could be thrown out in court if any one part of it is found unconstitutional.

Posted by: Kiweagle on December 2, 2010 at 9:28 AM | PERMALINK

I second Praedor.

And @ Kiweagle

Well, since the whole legislation is interwoven, if something like individual mandates were to be found unconstitutional (god knows on the Roberts SC it probably will) then the remainder can't work as designed anyway.

Posted by: BluePotSmokesBetter on December 2, 2010 at 9:35 AM | PERMALINK

At this point, if I were Harry Reid, I would get as much done in the Senate as I could before the scheduled break.

Then I would try to bring the food safety bill up for a vote, asking unanimous consent, pointing out that it already passed through the chamber once with on a 73-25 vote and then announce that if unanimous consent was not provided then the Senate would remain in session while the required period of debate was carried out in order to bring it to a vote again.

Posted by: tanstaafl on December 2, 2010 at 9:39 AM | PERMALINK

The dems also forgot to put a severability clause in the ACA. Given these two slip ups and the lack of negotiating savvy in the WH, I believe we can say with some confidence that the dems have totally forgotten how to govern in the last 30 years.

Posted by: CDW on December 2, 2010 at 11:52 AM | PERMALINK

There may be a legal precedent for collecting fees that include administrative costs within the Clinical Laboratory Improvement Act (late 1980s), which allows the government to collect fees for inspecting laboratories in order to make they are operating safely. Legal eagles to the barricades.

Posted by: max on December 2, 2010 at 12:11 PM | PERMALINK
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