Heh. The staff in the office of the Secretary of the Senate is sending us a message. The one I hinted at earlier.
Did you see it in their schedule today? It's not just that this sounds funny:
Motion to concur in the House amendments to the Senate amendment to the House amendment to the Senate amendment to HR2847, the legislative vehicle for the HIRE Act.
It's this part:
(This vote is essentially on passage of the bill.)
What's the message?
The Senate will finalize already did finalize the HIRE Act today by voting on a motion to concur in... all that stuff. What does that mean? It means that agreement to the motion deems H.R. 2847 passed.
Why? Well, it's right in the note. The vote is essentially on passage of the bill. But it's not actually on the bill. It's a vote on a procedural motion, not the bill. The motion is to concur in the latest House amendments, and doing so deems the same text passed. H.R. 2847 will not be pending on the floor, there will only be a procedural motion, not a bill.
This is entirely routine, but if arguments like those made by Michael McConnell -- saying that only a vote directly on the bill can comply with constitutional bicameralism requirements -- are true, then this would be an invalid procedure.
But it's not and never has been in the thousands upon thousands of times both houses have used procedure like this.
Now, there's a second layer to their complaint -- or there would be, if they'd make it coherently -- which is that today's motion in the Senate differs in that its primary purpose is clearly the consideration of matters relating directly to H.R. 2847, whereas the House will deem its vote on some differently numbered bill to also signal its agreement to H.R. 3590. But the constitutional prerogative for each house to determine its own rules of procedure provides pretty broad coverage that should be well-understood by now to include virtually any procedure which includes a vote being taken, recorded in the Journal, on text that is identical, and which is prospective in nature, such that Members have the opportunity to make informed decisions about what each vote means before they cast it. Such a procedure complies with the basic constitutional requirements of Art. I, Sec. 7, and Supreme Court precedent reaching back over 100 years is pretty much determinative regarding how deeply the third branch is willing to look into the pedigree of enrolled bills once their passage is attested to.
McConnell makes a second argument, too, but that depends on the false paradox similar to the one we've already debunked. He says if the House passes both the Senate bill and the reconciliation bill amending it at once, then the two houses haven't passed the same text of the Senate bill, since the House amended it. But of course, the Senate won't have passed the reconciliation bill at that point, which means the Senate bill won't have been amended yet.
And just for fun, I'll note that McConnell perpetuates another common error, claiming that the Senate parliamentarian said reconciliation couldn't be used to address pending legislation. That's not so. It's reported that he advised that it couldn't be used for this current reconciliation bill because of the nature of the language used to issue this year's reconciliation instructions, but not that reconciliation could never be used to amend pending legislation. That possibility still exists under the plain language of the Budget Act.
Yeah. That's some sly message from the Secretary of the Senate's office there, isn't it? Why bother with the note that "This vote is essentially on passage of the bill."? Is it passage of the bill, or isn't it? Well, no, not really. It's the passage of a motion, the effect of which is to record the Senate's agreement to the current House language of H.R. 2847, thus satisfying the bicameralism requirement of the Constitution... even though the Senate, as Republicans would describe it now, did not vote on the bill!
Shocking! And yet... so routine.
Yet this is essentially the exact same maneuver that Mark Levin called "one hundred times worse than Watergate," and Crazy Michele Bachmann (R-MN-06) implied was "treason" and an "impeachable" offense.
Special Note: I'm reminded by a comment from Glenn In NYC, who noted that passage of a bill by unanimous consent of a bill earlier passed in the other house would also not technically fit McConnell's peculiar description of bicameralism, that someone else made a similar point yesterday. Yesterday's diary by DraftChickenHawks made a similar point, in noting that the adoption of conference reports in both houses, though to date a fully acceptable practice, also violates McConnell's peculiar definition, since in that case neither house ends up voting on the bill, instead considering only the conference committee's report which incorporates the bill by reference, and contains language amending it. But since the end result is that both houses end up approving identical text of a working agreement, no one protests. Until now, I guess.