Just so you would know about something I don't like: A last-minute loophole.
DESPITE news coverage of the lobbying reform law passed in September, one change to Senate rules has gone unnoticed, one that makes it easier for last-minute proposals to be inserted into legislation behind closed doors.
Because the House and Senate must pass identical language before a bill can become law, members of the two chambers often meet in “conference” to negotiate a compromise, which Congress then votes on. These compromise bills typically are approved, especially when they concern must-pass legislation.
The Senate has long recognized the temptation by conferees to insert unrelated items into the compromise bill. So the rules included a strong deterrent to this practice: A single senator could object that the conferees had included an irrelevant provision, and if the presiding officer sustained the objection, it would kill the entire bill. Conference committees added irrelevant provisions only when it was clear that no one would object.
With this new law, the Senate can vote to waive objections; if 60 senators agree, irrelevant provisions stay in. A vote can waive objections to all extraneous items at once, so members can add multiple and far-reaching extraneous provisions.
For a conferencing senator, there is now little downside to including an unrelated provision, even if it has been subject to no hearings, debate or study. If another senator objects and the provision falls short of 60 votes, the material comes out. The compromise is not put at risk, as it was under the old rule.
No longer can a dissident senator prevent members from inserting irrelevant material in conference. Now, the threat carries force only if that senator can garner 41 votes; if the size of the Senate minority, now at 49, edges downward, its ability to police conference reports will edge downward as well. Last-minute, partisan additions may become ever more common in must-pass legislation.
Buried in a law intended to promote transparent government is a tool for those who wish to push bills through Congress, and a new problem for those who rely on the Senate to slow or halt problematic legislation.
Whether one appreciates or regrets this may depend on whether one’s party is in the majority or minority.