Greg Sargent is burning up the wires with this:
The problem in question has been noted before, but it’s gotten lost in the noise: Senate aides say they are unsure how to pass a reconciliation fix to the Senate bill before it’s signed into law, as some House Democrats want.
“How do you fix a bill that hasn’t been passed yet?” one senior Senate aide asks me, stressing that reconciliation is different than the amendment process, which obviously does allow for bills to be fixed before passage. “That’s the fundamental problem.”
“This is a whole bill that would amend another bill that hasn’t become law,” the aide adds. “How do we do reconciliation before the House passes the Senate bill?”
I'm guessing that this involves some new and different twist on this question. Otherwise it seems to me that the parliamentarians wouldn't be spending so much time on it.
If it's just a straight-up question of whether it creates some kind of legal paradox to pass a reconciliation bill full of amendments to HR 3590 (widely referred to as "the Senate bill") before passing HR 3590 itself, then I think the answer is pretty clearly no, it does not.
On that narrow question, I see events unfolding generally as follows:
- The Congress passes the reconciliation bill, and the bill enters the enrollment process, but is not sent to the White House for signature -- meaning it does not yet become effective law.
- The House agrees to the Senate version of HR 3590, and HR 3590 enters the enrollment process as well. At this stage we simply have two bills, neither of which is effective law. Although the purpose of the reconciliation bill is to amend HR 3590, the amendments are not effective until signed by the President, just as HR 3590 is not effective until signed (or until they have been on the President's desk for 10 days).
- Next, HR 3590 is the first to emerge from the enrollment process (which can be ordered at the discretion of the Congressional leadership), and it is sent to the White House for signature. At that point, HR 3590 is effective law, but the reconciliation bill with the amendments in it is not yet law.
- Finally, the reconciliation bill is sent to the White House for signature. Only after the President's signature is affixed (or 10 days elapses without his signature), the reconciliation bill and its amendments become effective law -- after the enactment of HR 3590, just as it should be.
I imagine there could be a problem specifically related to reconciliation and its somewhat arcane rules that could be causing a more complicated problem. Or there could be some difficulty in how to draft legislative language in the reconciliation bill, in that it's supposed to be changing provisions of law that haven't yet been codified. But even that might be fixed simply if, for instance, the amendments are drafted so that they apply "notwithstanding any other provision of law " -- a common drafting shortcut. Or again, perhaps the problem lies somewhere between these two possibilities, with the uncertainty arising from the question of whether or not the fixes proposed for the reconciliation bill can properly withstand specific Budget Act points of order if they don't address existing law.
Right now I can't say for sure what the specific problem is, but I've asked, and I'm hoping we'll hear more about it from the Senate leadership soon.