I’d put this far above the silly controversy over signing statements. According to House minority whip Roy Blunt, the Democrats made more than one mistake in failing to include a large section of the farm bill Congress sent to the White House. They argued that the omission did not make the bill invalid, and that Congress can choose to send only portions of bills for a presidential signature or veto.

Needless to say, this rather creative view of open government prompted a response from Blunt. He sent a memo to the entire Republican caucus that outlines the dangers of this approach:

What Did They Know, When Did They Know It, and What Did They Do About It?:

Ø It appears the Democrat Leadership was informed by the Office of the Law Revision Counsel and the Committee on Agriculture that the bill sent to and vetoed by the President was erroneous PRIOR to consideration of the veto override.

Ø Despite this knowledge and despite requests from staff from the Republican Leader’s office, the Democrat Leadership proceeded with the veto override of a bill they knew was not the bill passed by both Houses of Congress.

Ø Importantly, there were opportunities to correct the enrollment error consistent with past practice and in a constitutionally sound manner if the Democrat Leadership had not rushed ahead with the veto override. Once they moved forward, however, they foreclosed those opportunities.

Ø When confronted on the House Floor by the Republican Leader, Whip, and Rules Ranking Member, the Majority Leader defended the Leadership’s actions and professed a constitutional theory that so long as both the House and Senate had passed the same language in didn’t matter whether or not the Speaker sent the whole bill passed by the House and Senate or simply parts of it to the President.

The Dangers of the Democrats’ New Theory:

Ø Under the theory espoused by the Majority Leader, the Speaker of the House can simply pick and chose (either overtly or as a result of mistake made by an enrolling clerk) which parts of final bills to send to the President. If she is uncomfortable with a provision that was included as part of a compromise she could in theory exclude it from the bill when she sends it to the President.

Ø Importantly, the Speaker’s decision to omit language if challenged by Members of the House through a question of privilege, can simply be tabled by the majority.

Who Pressured the Enrolling Clerk to Quickly Complete the Enrollment:

Ø In a memo prepared by the House Clerk on May 21, 2008, the Clerk asserts that part of the mistake was a result of a ten-year-old flawed enrolling process, yet she goes on to state that “During a review of this process, Enrolling Division staff expressed a concern in receiving direct calls from Leadership and the Committee to accelerate the enrolling process.” Who pressured the enrolling staff?

The balance of power in American government counts on an open process on legislation between Congress and the executive branch. That requires Congress to provide the President with a complete copy of bills to determine whether to sign or veto them. Any hidden provisions not submitted to the executive should render the entire legislation invalid.

Democrats had Republicans in trouble with their base for their votes on this bill. Instead of just taking their time and letting the GOP twist in the wind, they managed to snatch defeat from the jaws of victory with underhanded and potentially unconstitutional maneuvering.