By Jeffrey Young - 02/22/06 12:00 AM EST
The House and Senate need not pass the same bill for a version of the legislation to become law, according to Republican leaders.
But that is not how the top brass viewed things three years ago, when both chambers authorized $221,000 to revise and publish a new edition of “How Our Laws Are Made,” a House parliamentarian’s report on the legislative process that originated in 1953.
“A bill cannot become a law of the land until it has been approved in identical form by both Houses of Congress,” the parliamentarian wrote in a report that is available on the Library of Congress website.
A central premise of bicameral lawmaking — that both houses must agree to the same legislation — was called into question earlier this month when the president endorsed a Senate-passed spending-cut package that differed slightly from the legislation approved by the House. Congressional aides blamed the discrepancy on a staff-level clerical error.
Citing an 1892 Supreme Court decision, Republicans in Congress and the administration have said they are content to rely on the courts rather than attempting a legislative fix.
Typically, a correction could be drafted, passed by both chambers and endorsed by the president. But the highly controversial spending cuts were contained in a filibuster-proof budget reconciliation bill. A correction measure might be subject to a Senate filibuster.
Even before the latest mishap was revealed, the spending-cut package — $39 billion over five years — had taken a tortuous path to passage. The journey was littered with dime-thin votes in the House and Senate, including a 51-50 vote in the Senate that required Vice President Cheney to break a tie.
Some Democrats argue the spending solecism is just the latest in a string of procedural abuses by an arrogant majority drunk with power.
“Once again, Republican leaders have burned the book on how our laws are made,” House Minority Leader Nancy Pelosi (D-Calif.) said last week.
Former House Majority Leader Dick Armey (R-Texas) faulted both parties in the House for failing to dispose of the typo controversy but said that further action is, in fact, necessary.
“I would consider the minority to be … very delinquent in collegiality. This is a clerical error,” Armey said “It’s a matter of consideration for the hard work of the people on the staff” not to make political hay out of clerks’ mistakes, he said.
Armey emphasized, however, that the refusal of Democrats to agree to a swift resolution of the discrepancy did not absolve the majority of its responsibility to revisit the bill.
“I don’t think the process of enrolling the bill speaks to the language of the bill,” Armey said. “I think there’s got to be some reconciliation of that bill.”
Republicans say their actions will withstand legal scrutiny. The basis for this assertion appears to be the case of Field v. Clark, an 1892 Supreme Court ruling.
The plaintiffs argued that a trade-tariffs bill was not law because the respective journals of the House and Senate did not contain explicit proof that the chambers had passed exactly the same bill in 1890 and that a provision was missing from the enrolled bill signed by President Benjamin Harrison.
The plaintiffs argued that the signatures of the Speaker of the House and the president of the Senate are not adequate to establish that the chambers had acted as those officers attested.
GOP leadership sources have pointed to the certification of the budget bill by House Speaker Dennis Hastert (R-Ill.) and Senate President Pro Tempore Ted Stevens (R-Alaska) as proof of authenticity.
In Field v. Clark, however, the case is different from the budget-reconciliation situation in some important respects. The key distinction is that Hastert and Stevens certified the enrolled bill even though they apparently knew of the discrepancy between chambers.
The plaintiffs in the 1892 case did not specifically argue that the House and Senate had passed different versions of the tariffs bill, only that the certification of the two officers did not qualify as proof of congressional passage. The court agreed with that principle, but not with the plaintiff’s argument about the tariff bill, which was upheld.
“There is no authority in the presiding officers of the House of Representatives and the Senate to attest by their signatures, not in the president to approve, nor in the secretary of State to receive and cause to be published, as a legislative act, any bill not passed by Congress,” Justice John Harlan wrote.
Nevertheless, today’s Republican leadership could find comfort in the Supreme Court decision. “When a bill, thus attested, receives [the president’s] approval, and is deposited into the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable,” Harlan wrote in the majority opinion.
Moreover, the court is notably deferential to the authority of the legislative branch to monitor its own activities.
At least one lawsuit already has been filed seeking to declare the budget-reconciliation bill was not enacted when the president signed in on Feb. 8.
There has been little indication that there will be further action in either chamber.
“For now, the Senate has completed its action,” said Eric Ueland, chief of staff to Senate Majority Leader Bill Frist (R-Tenn).