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Not So Fast On Food Safety Bill

Jim Prevor’s Perishable Pundit, December 1, 2010

After we wrote a piece in the Pundit titled, Produce Associations Withdraw Support of Food Safety Bill After Amendment Is added To Exempt Small Farms And Local Growers, we tried to nudge the political debate and wrote a piece for The Weekly Standard, titled, Food Safety Bill Will Not Make Food Safer, Will Increase Food Costs and Budget Deficit.

Despite the unified opposition of the produce industry, the bill passed, and by an overwhelming 73 to 25 margin.

Now it turns out that it may have been unconstitutional. The bill included tax increases that must originate in the House.

John Stanton, writing in Roll Call, a Capitol Hill newspaper, has the story, which is titled, House May Block Food Safety Bill Over Senate Error:

A food safety bill that has burned up precious days of the Senate’s lame-duck session appears headed back to the chamber because Democrats violated a constitutional provision requiring that tax provisions originate in the House.

By pre-empting the House’s tax-writing authority, Senate Democrats appear to have touched off a power struggle with members of their own party in the House. The Senate passed the bill Tuesday, sending it to the House, but House Democrats are expected to use a procedure known as “blue slipping” to block the bill, according to House and Senate GOP aides.

The debacle could prove to be a major embarrassment for Senate Democrats, who sought Tuesday to make the relatively unknown bill a major political issue by sending out numerous news releases trumpeting its passage.

Section 107 of the bill includes a set of fees that are classified as revenue raisers, which are technically taxes under the Constitution. According to a House GOP leadership aide, that section has ruffled the feathers of Ways and Means Committee Democrats, who are expected to use the blue slip process to block completion of the bill.

“We understand there is a blue-slip problem, and we expect the House to assert its rights under the Constitution to be the place where revenue bills begin,” the GOP aide said.

The blue slip could lead to one of two likely outcomes. Senate Majority Leader Harry Reid (D-Nev.) could simply drop the issue and let the next session of Congress start from scratch, a strategy that would allow him time in the lame-duck session to tackle other last-minute priorities, such as the expiring 2001 and 2003 tax cuts, a long-term continuing resolution, an immigration bill and a repeal of the military’s ban on openly gay service members.

Or he could try to force the issue in the Senate after the House passes a new version of the bill. But in order to do that and still tackle the other issues, he would need a unanimous consent agreement to limit debate.

According to Senate GOP aides, a unanimous consent agreement is all but certain to be a nonstarter because the bill’s chief opponent, Sen. Tom Coburn (R-Okla.), will not agree to such a deal….

Under normal circumstances, this wouldn’t be a big deal. The Senate would just vote again, but time is running out. The Senate runs — if it is running at all — on the basis of unanimous consent. It will be very hard to deal with such a small bill in the remaining time left in this lame-duck session.

The new composition of the House of Representatives means it is unlikely to just agree to this massive transfer of power to the government. In our Pundit piece, we closed this way:

We would argue that giving such power and discretion to the government is bound to lead to political decisions down the road, and that we would be better off starting with a blank piece of paper in the new Congress. In fact, maybe we have bigger problems to deal with and could just put the whole issue aside until we right the economy, end the deficit, kill the terrorists and stop the nukes in Korea and Iran.

Sometimes politics is persuasion and sometimes it is just luck. We may have gotten lucky this time.

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