The Pathetic Political Payroll Tax Extension

I wrote earlier about the Payroll Tax Holiday extension and my problems with it in Delusional and Dysfunctional in D.C.

It never should have been enacted to begin with because it substantially undermines the Social Security program.  You have to be delusional to take $120 billion of revenue away from a program that is already heading toward substantial financial problems.

I also pointed out the practical flaws in the Senate's 2-month extension in Business As Usual in D.C., Unusual For Everyone Else.  The bottom line was that the Senate passed a bill that was totally unworkable and impractical in the real world.

Speaker Boehner and the House Republicans initially resisted joining in this disaster of a bill but ultimately caved to unrelenting political pressure and passed the Senate bill.  At least, that is the story that has been told.  More on that later.

Boehner made two errors in my opinion.  First, he should have never allowed the Senate to adjourn and go home.  This placed on all of the pressure on the House.  The House was left in the position of either passing the Senate bill or being held solely responsible for the payroll tax extension expiring. You might ask how this could have been prevented?

Article 1, Section 5 of the U.S Constitution states,

Neither House, during the Session of Congress, shall without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

In other words, the House could have blocked the Senate adjournment and forced them to stay in Washington so that both Houses would have to be accountable.

I am sure that this provision of the Constitution is largely ignored but it should not have been in this case.  The House should have objected to the adjournment of the Senate.  This is a mistake they should never make again.

Second, the House should have been specific that it was an either/or decision on the payroll tax extension.  They should have made clear to the Senate that it was either going to be a 2 month or 12 month extension, period.  The Senate would have to decide.  By voting for 2 months they were effectively closing the door on the full year extension by their choice.  There are simply too many other issues that need to be addressed in Washington than to keep revisiting the same issue over and over.  This should have been stated to the Senate when the bill was sent over from the House.  Setting expectations are everything in Washington.

This is all water over the dam at this point so it matters very little.

However, what I now find most interesting about the Payroll Tax Holiday Extension is that it appears to me to have been passed in a manner that raises questions about its constitutionality.  This is very troubling because it appears that the Republicans were complicit in this circumvention of our rule of law along with Democrats.  They chose political expediency over the rule of law.

The original House version of the Payroll Tax extension bill (12 months) was rejected by the Senate.  The Senate passed a 2 month version and sent it to the House, adjourned, and basically told the House to take it or leave it.  It is from this point that House lost the PR battle and caved on December 23.  The Senate bill was passed by unanimous consent in the House thereby supposedly allowing the bill to be fast-tracked to the President for signature into law.  This would be possible because the House agreed totally with the Senate version without any changes or amendments.  Therefore, it did not have to go to Conference Committee or the Senate for another vote.  If this is what happened I would have no problem with the process.

The reality is that the House bill that was passed was not identical to the Senate bill.  The practical flaws that I wrote about in the Senate bill were addressed in the House bill through a fairly substantial change in how the FICA wage base will be applied to high wage earners.  This Wall Street Journal article discusses this change.

My question is how could this law proceed to President Obama's desk for signature when the Senate never voted on this bill?

This is a discussion of the Constitutional Topic: How a Bill Becomes a Law from the USConstiution.net web site.

Once a bill leaves the House and the Senate, it must be checked. If anything in the two versions of the bill differ, in any way (even in something as minor as punctuation), the bill must be reconciled. (emphasis added) The house in which the bill originated is given a copy of the bill with its differences. For example, if the House originated a bill, then sent it along to the Senate for consideration, and the Senate made changes, the bill is sent back to the House. If the changes are minor, they might be accepted by the originating house with no debate. If changes are of a more substantial nature, however, a conference is called for.

This seems to make it clear that when the House made the change in the bill it must be returned to the Senate for a vote with no debate (if considered a minor change) or a full conference should have been called immediately.  Neither was done.

How was this constitutional?  How could both the Republicans and Democrats in Congress have subverted the Constitution in this way?  Are political considerations now controlling everything that is done in Washington?

Perhaps there is some arcane rule I am not aware of in all of this.  However, I am having trouble finding  it. Can someone set me straight if I am off base?


UPDATE as of 12/29:

After further research I have determined that the Senate did pass the House Bill by unanimous consent shortly after the House did.  However, this was done even though the Senate was in adjournment.  I am still trying to figure out how the Senate can pass something while it is in adjournment! There could not have been one or two Senators present to approve the motion of unanimous consent. One was clearly Senator Harry Reid as shown in the Congressional Record for December 23, 2011 as follows:

 H.R. 3765. An act to extend the payroll tax holiday, unemployment compensation, Medicare physician payment, provide for the consideration of the Keystone XL pipeline, and for other purposes. 

 Under the authority of the order of the Senate of January 5, 2011, the enrolled bills were signed on today, December 23, 2011, during the adjournment of the Senate, by the Acting president pro tempore (Mr. REID).

Therefore, our legislators might have followed proper form in this process but this clearly is a travesty of the first order.  It is both discouraging and sad that this is the way the public's business is taken care of.