John Oliver recently did a bit on food waste, which alone is worth watching.  In the clip, he talks about how US tax code has a provision for large corporations to be able to take a tax deduction for charitable (food) contributions, but for small business, although a similar provision exists, it isn’t permanent & has to be renewed each year.  This means that the small business owner won’t know until after the annual vote if there is any financial/tax incentive to donate food to food banks.

That alone is a bit of a WTF, but the real meat of the piece is what happened when the House tried to fix it.  Seems that the House passed a bill that would (among other things), make the tax deduction for small business permanent.  When that bill (House 644) got to the Senate, it was renamed, gutted, and essentially replaced with Trade Facilitation and Trade Enforcement Act of 2015, which, as far as I can tell, has nothing to do with amending the tax code to incentivize small businesses to make charitable food contributions.

So, my question is what is the reasoning behind this kind of action & why is it permitted or tolerated (e.g. why does the House not pitch a fit/why doesn’t someone in the Senate just have an ally in the House submit the bill they want/etc)?


Category: Market, Statehouse

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14 Responses to Why is this allowed?

  1. Michael Cain says:

    Ah, takes me back to my time on the state legislative staff…

    There are a variety of reasons for doing it. At the Congressional level, one of the big ones is that revenue bills must start in the House. Hijacking like this allows the Senate to effectively start a revenue bill, by adding revenue provisions to a bill already passed by the House (the Origination Clause says, “but the Senate may propose or concur with Amendments as on other Bills”). Sometimes there are tactical reasons as well, such as forcing a bill into a conference committee and bypassing floor debate. An example that I am known to frequently complain about is that the language that restricted choices for the spent nuclear fuel repository to Yucca Mountain alone was added to a budget reconciliation bill in conference committee, which meant that there could be no floor debate, no filibuster, and the bill could be approved on a voice vote. No one had to publicly vote for a bill that, as the conference committee chair told a reporter after the late night meeting, “screwed Nevada.”

    Colorado’s legislature has rules about bill contents matching titles, so bill drafters (and other staff members) always encourage members to title their bills precisely to avoid hijacking. I recall one where the member disregarded the advice and titled the bill “Regarding Child Welfare”. It was hijacked five or six times as various committees replaced whatever text they received with their own pet interest in the child welfare system. Committee order is important. In Colorado, if the bill spends money, the Appropriations Committee gets the bill last. The Appropriations Committee could hijack the child welfare bill knowing that it wouldn’t go back to the Human Services Committee.

    The old saying about law and sausages is very true…

  2. I’d complain about what you describe, Oscar, but I support the ACA, which as I understand was passed using similar shenanigans. So I don’t have very much standing to complain.

    More your point, I guess one answer is what would things look like if we made it not okay to hijack? Maybe Michael Cain’s example of Colorado is one way to do it to work against such hijacking, although it seems (using only his examples and not anything I personally know about) that such rules mostly change the way bills are hijacked.

    Speaking of charity and food waste, a former girlfriend of mine used to work for a church that provided daily lunches to neighborhood children and somehow got government support for the program. At the end of the day, the church had to throw away all its unused 1/2 pint cartons, usually amounting to throwing away gallons of perfectly good milk, because of some regulation or other. What a waste.

  3. James Hanley says:

    Michael Cain understands legislative process like online a person who’s been involved in it can. His comments are invariably on target.

    To speak more generally than he, but in full agreement, it’s done for legislative convenience. The “proper” process is slow and clunky, with a number of veto points. If you can co-opt another bill already in process you can skip over some of those veto points. It’s done in the manner of an amendment to the bill. Since an amendment can remove some language and add other language, sometimes it goes as far as anending the bill in whole, replacing all the current language with totally new language. Sometimes it’s substantively related, but it doesn’t have to be.

    As to why it’s allowed, within certain limitations the Constitution allows Congress to makes its own rules, and they find these rules more convenient than inconvenient. Especially when, as in the revenue bill case Michael mentioned, it allows them to skirt around the spirit of the Constitutional constraints while following the letter of them.

    • Michael Cain says:

      Thank you for the kind words. Being a member of the permanent legislative staff was eye-opening. Definitely a case of “In theory, theory and practice are the same; in practice, they’re not.”

      The practice is common enough in Colorado that it has its own nickname: strike-below amendments, so-called because the language of the amendment reads “Strike all text below the title and substitute…”. The most common use in Colorado is not hijacking a bill title, but extensively restructuring a bill after the sponsors have consulted with various interest groups.

  4. Oscar Gordon says:

    James, Michael, thanks for the response.

    I can certainly see the utility of Senate amendments & such, but a complete hijacking seems extreme. Could they not at least leave the original purpose of the bill relatively intact?

    Also, this seems like a lot of, “we have rules, we don’t like those rules, so let’s make some other rules that allow us to skirt around those rules that are inconvenient.”

    • Michael Cain says:

      My story — and I know no historians who agree with it — is that some of the rules didn’t work well right from the start, and worked less and less well as time went on. The states had too much power in some areas and not enough in others. Steady shift to urban and industry. Transcontinental size and a serious need for something bigger than a state but smaller than the entire country. And most importantly, the rules about changing the rules set the bar too high.

      So more and more of the rules got reinterpreted, or bypassed with other rules that as James said met the letter but not the spirit, or were just ignored. So now we’re just trying to muddle along, as there’s not a chance in hell of getting three-quarters of the states to agree on a replacement for the Constitution, or even a major modification.

    • Jhanley says:

      Oscar,

      Could they not at least leave the original purpose of the bill relatively intact?

      Politics is who gets what, when, and how. Your House bill doesn’t matter to me, here in the Senate, and it may not have had a chance anyway, so I’m going to use it to my benefit.

      To be fair, sometimes the bill co-opted is just a different version of some other bill that’s already passed. Say the Senate has passed a bill regulating driverless cars and sent it to the House, and the House has sent a somewhat different bill regulating driverless cars and sent it to the Senate, and then the House has also passed the original Senate bill. The original House bill is still sitting there in the Senate, of no use to man or beast, except perhaps as a bill to be hijacked for another purpose.

      Also, this seems like a lot of, “we have rules, we don’t like those rules, so let’s make some other rules that allow us to skirt around those rules that are inconvenient.”

      To reiterate: Politics is who gets what, when, and how.

      • oscar.gordon says:

        I swear politics is also “Let’s make this all needlessly complicated so normal humans can’t easily grok it without a considerable investment in time”.

        Or perhaps that’s just law/lawyers…

        • Michael Cain says:

          After my time on the legislative staff, I worked up an analogy for technical people to try to explain why things are the way they are…

          Think of the Colorado state statutes as a pile of the worse sort of spaghetti code. Huge numbers of global variables, riddled with GOTOs, one process, no memory management, bizarre interrupt handlers, the whole deal. Millions of lines of it. Once each year, for 120 days, 100 amateurs show up, each with a list of functionality to be added, removed, or modified. Each of the amateurs must convince majorities of the others that the functionality needs to be changed, which may require compromises. Every one of them has the authority to propose changes to the others’ changes. There’s a small group of professional programmers working furiously to keep track of all the evolving mass and to write the actual implementation of the final changes, using an inherently ambiguous language. It’s incredibly difficult to get agreement to pull out whole chunks of the existing cruft-covered code and replace it. There’s no testbed, only visual code inspection. The process has been going on for more than a hundred years.

          How do you “manage” that sort of process? The best of the amateurs build a complex set of rules to try to control everyone’s behavior so that the pros can keep track of what’s going on. You try to make the ambiguous language more precise by using certain phrases to mean exactly the same thing everywhere. Within the group of pros, experts arise who understand some piece of the pile reasonably well.

          From the outside, it looks insane. From the inside, not quite so much.

        • oscar.gordon says:

          “From the outside, it looks insane. From the inside, not quite so much.”

          Oh, certainly, insane people always think they are perfectly sane.

          Actually, that does explain so much…

        • Michael Cain says:

          On the Joint Budget Committee staff, we used to remark from time to time, “At many jobs, people say ‘You don’t have to be insane to work here, but it helps.’ At the JBC we just say, ‘You have to be insane to work here.'”

  5. Kirk says:

    Related: a local trailer park prohibits food banks from delivering, threatens residents with eviction if they accept food.

    http://www.bradenton.com/2015/07/18/5900854/palmetto-mobile-home-park-bans.html

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