(c) Copyright 2001 by Kenneth R. Conklin, Ph.D. All rights reserved.
Despite the loud announcements that the Akaka bill had died on Tuesday December 12, and three days of mourning that followed, careful research discloses that the Akaka bill was still very much alive. Somebody had secretly inserted the bill "by reference" into the middle of a huge appropriations bill headed for certain passage on the last day of the 106th Congress.
The straightforward, honest way to pass a bill is to bring it to a vote all by itself as a freestanding bill. Another way to pass a bill is to tack its full text onto the end of another bill as an amendment, where everybody is aware that the amendment is there. Sometimes a bill can be passed "by reference," meaning that it is referred to by only its name or its bill-number in a sentence buried in the middle of another bill.
Passing a bill "by reference" can be honorable and acceptable if it is done openly, as a time-saving procedure, with awareness by all the legislators. But in this case the Akaka bill was inserted by reference AND BY STEALTH into the middle of a huge appropriations bill, where it could easily have passed un-noticed on the final day of Congress.
Fortunately, an eagle-eyed staff worker for one of the Republican Senators spotted the inclusion by reference while proof-reading the appropriations bill for the Senator. A concurrent resolution was then hastily enacted, instructing the clerk of the House of Representatives to delete the reference-inclusion of the Akaka bill. Otherwise the Akaka bill would have passed by the most stealthy possible process, and the celebratory shouting from the bill's supporters in Hawai'i would only have been heard in Washington a day too late.
There is little doubt that all this stealth was intentional and dishonorable. The Akaka bill had been declared dead on Tuesday December 12. It was loudly mourned by the Hawai'i Congressional delegation in Washington and by the bill's supporters in Hawai'i on the following three days, with numerous newspaper articles describing its demise. But then the inclusion by reference was discovered by a combination of good luck and diligent attention to detail on Friday December 15. Fortunately the theft of legislative process was prevented.
Notice that on December 14 the Honolulu Advertiser describes the bill as dying on Tuesday December 12 (See http://www.honoluluadvertiser.com/1214localnews13.html): “ Tuesday evening, the Hawai‘i senators’ last hope ended when congressional leaders sealed a deal on the last spending bill for labor, education, and health and human services appropriations. The Native Hawaiian bill was discussed, but it was not included in the spending package.” The same article also says, “A handful of conservative Republican senators raised objections and prevented unanimous passage, and their continued objections blocked the bill from being attached to one of the remaining spending bills expected to pass today and tomorrow.”
The Congressional Record, and the full text of all bills introduced in Congress, can be found on the Library of Congress website, commonly called the “thomas website” (named after Thomas Jefferson, founder of the Library of Congress) at http://thomas.loc.gov
H.R. 4577, the final Omnibus Consolidated Appropriations Act, was Public Law 106-554.
In what follows, remember that the Akaka bill which had passed the House and was on the verge of passing the Senate was H.R. 4904.
From the thomas website, the following is copied:
H.R.4577 Text, PDF
Sponsor: Rep Porter, John Edward (introduced 6/1/2000)
Related Bills: H.RES.515, H.RES.518, S.CON.RES.162, S.2553
Latest Major Action: 12/21/2000 Became Public Law No: 106-554. (H.R. 4577, Consolidated
Appropriations Act 2001, incorporates the provisions of several bills by reference. This includes
H.R. 5656 - Labor HHS Education Appropriations; H.R. 5657 - Legislative Branch Appropriations;
H.R. 5658 - Treasury Appropriations; H.R. 5666 - Miscellaneous Appropriations - except section
123 relating to the enactment of H.R. 4904; H.R. 5660 - Commodity Futures Modernization; H.R.
5661 - Medicare, Medicaid and SCHIP Benefits Improvement and Protection; H.R. 5662 -
Community Renewal Tax Relief and Medical Savings Accounts; H.R. 5663 - New Markets Venture
Capital Program; and H.R. 5667 - Small Business Reauthorization. The text of these bills is printed
in the H.R. 4577 conference report: H. Rept. 106-1033 [text of conference report: CR 12/15/2000
H12100-12439].)
Title: Making appropriations for the Departments of Labor, Health and Human Services, and
Education, and related agencies for the fiscal year ending September 30, 2001, and for other purposes.
---------------------
The consolidated act enacted a number of bills which were pulled in by reference, including a
Miscellaneous Appropriations bill, H.R. 5666. Note that the section of the above bill
summary referring to H.R. 5666 states that the bill was incorporated "except section
123 relating to the enactment of H.R. 4904.”
Apparently, as the Miscellaneous Appropriations bill was being put into its
final form for incorporation into the consolidated bill, H.R. 4904 was tucked into it as section 123.
The conference report that includes H.R. 5666 and the Section 123 that was eventually
deleted, can be obtained by clicking on the thomas web link Consolidated Appropriations Act for FY2001
Conference Report. The report begins at 146 Cong. Rec. H12100; Section 123 appears at H12274
and the Akaka Bill appears beginning on page H12313 in the explanatory remarks of the conference
committee.
The legislation that deleted Section 123 was S. Con. Res.162; there's a link to that in the above
paragraph about H.R. 4577, in the "Related Bills" line.
Here are the Cong. Rec. sections where S. Con. Res. 162 was passed--with a very intriguing remark by Senator Stevens.
CORRECTING THE ENROLLMENT OF H.R. 4577 -- (Senate -
December 15, 2000)
[Page: S11885] GPO's PDF
Mr. STEVENS. Mr. President, I ask unanimous consent that the Senate proceed to
the consideration of S. Con. Res. 162.
The PRESIDING OFFICER. The clerk will report the concurrent resolution by title.
The assistant legislative clerk read as follows:
A concurrent resolution (S. Con. Res. 162) to direct the Clerk of the House of
Representatives to make a correction in the enrollment of H.R. 4577.
There being no objection, the Senate proceeded to consider the concurrent
resolution.
Mr. STEVENS. Mr. President, I ask unanimous consent that the concurrent
resolution be agreed to and the motion to reconsider be laid upon the table, all without
intervening action or debate.
The PRESIDING OFFICER. Without objection, it is so ordered.
The concurrent resolution (S. Con. Res. 162) was agreed to, as follows:
S. Con. Res. 162
Resolved by the Senate (the House of Representatives concurring), That the Clerk
of the House of Representatives, in the enrollment of the bill (H.R. 4577), making
appropriations for the Departments of Labor, Health and Human Services, and
Education, and related agencies for the fiscal year ending September 2001, and for
other purposes, shall make the following correction:
In section 1(a)(4), before the period at the end, insert the following: ``, except that
the text of H.R. 5666, as so enacted, shall not include section 123 (relating to the
enactment of H.R. 4904)''.
Mr. STEVENS. Mr. President, I regret deeply that last concurrent resolution, and at
some time in the future I will explain it.
FURTHER MESSAGE FROM THE SENATE -- (House of Representatives - December
15, 2000)
[Page: H12528] GPO's PDF
A further message from the Senate by Mr. Lundregan, one of its clerks, announced
that the Senate has passed without amendment a bill of the House of the following title:
H.R. 1795. An act to amend the public Health Service Act to establish the National
Institute of Biomedical Imaging and Bioengineering.
[Page: H12529] GPO's PDF
The message also announced that the Senate has passed a concurrent resolution of
the following title in which the concurrence of the House is requested:
S. Con. Res. 162. Concurrent Resolution to direct the Clerk of the House of
Representatives to make a correction in the enrollment of H.R. 4577.
The message also announced that the Senate agrees to the report of the committee
of conference on the disagreeing votes of the two Houses on the amendment of the
Senate to the bill (H.R. 4577) ``An Act making appropriations for the Departments of
Labor, Health and Human Services, and Education, and related agencies for the fiscal
year ending September 30, 2001, and for other purposes.''
CORRECTING ENROLLMENT OF H.R. 4577, DEPARTMENTS OF
LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION,
AND RELATED AGENCIES APPROPRIATIONS ACT, 2001 -- (House
of Representatives - December 15, 2000)
[Page: H12529] GPO's PDF
Mr. McCOLLUM. Mr. Speaker, I ask unanimous consent to take from the
Speaker's table the Senate concurrent resolution (S. Con. Res. 162) to the end that the
concurrent resolution be hereby adopted; and a motion to reconsider be hereby laid on
the table.
The Clerk read the Senate concurrent resolution, as follows:
S. Con. Res. 162
Resolved by the Senate (the House of Representatives concurring), That the Clerk
of the House of Representatives, in the enrollment of the bill (H.R. 4577), making
appropriations for the Departments of Labor, Health and Human Services, and
Education, and related agencies for the fiscal year ending September 2001, and for
other purposes, shall make the following correction:
In section 1(a)(4), before the period at the end, insert the following: ``, except that
the text of H.R. 5666, as so enacted, shall not include section 123 (relating to the
enactment of H.R. 4904)''.
The SPEAKER pro tempore (Mr. PEASE). Is there objection to the request of the
gentleman from Florida?
There was no objection.
The Senate concurrent resolution was concurred in.
A motion to reconsider was laid on the table.
And so the story ends. The Akaka bill was finally dead on December 15, 2000. But like a vampire it is likely to rise again from its coffin when the new Congress gets underway in year 2001. We can only hope that our allies in Congress will be able to detect and defeat whatever new stealth moves the supporters of the Akaka bill dream up.
(c) Copyright 2001 Kenneth R. Conklin. All rights reserved.
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