Making sausage or how the monsanto provision ended up becoming law

At the outset, I want to be very clear: I don't like the Monsanto provision in the Continuing Resolution (CR) to fund the government and wish it hadn't been included in the CR or that the proposed amendment stripping it from the CR at least been given a vote.

However, the point of this post is not to discuss the merits (or lack thereof) of the provision. Its to explain, based on the knowledge of the legislative process I've gained over three decades of work on or around Capitol Hill, how it ended up becoming law. There are a lot of DUers who feel very strongly about legislative issues but who don't appear to have a particularly clear understanding of the legislative process as it works in reality. That's not surprising -- its a byzantine, often irrational process. And I'm not defending it. But some people might benefit from or appreciate an explanation of how it works.

In the case of the "monsanto" provision, a good place to start the story is in June 2012 when the House Agriculture Committee started work on an appropriations bill to fund the Dept. of Agriculture and various related programs for the fiscal year ending 2013 (September 30, 2013). On June 4, the chairman of the committee (Rep. Kingston) released a "discussion draft" of that bill that was going to be taken up by the relevant subcommittee in a "mark up" the next day. The "monsanto" provision was included in a section of "miscellaneous" provisions and numbered Section 733. Although groups opposed to the provision immediately took note of Section 733 and raised alarms about it online (and, presumably, directly with House offices), the bill as drafted (i.e., with the Monsanto provision included) was approved by a voice vote on June 5.

The bill (still with section 733 included) then moved to consideration by the full committee and two weeks after being approved by the subcommittee, it was approved by the full committee with only one dissenting vote. Although groups opposed to the monsanto provision continued to voice objections, I have been unable to find any record that any member of the committee proposed an amendment to have it stripped from the bill before it was reported out of committee. After being approved by the full committee, the bill's next stop would be the House floor. However, at that point, the bill stalled out and the 112th Congress ended without a funding bill for the Dept of Agriculture for 2013 having been voted on by the House. Congress also failed to enact separate appropriations bills for various other departments before the end of 2012.

Knowing that, with the election upcoming, getting appropriations bills enacted was going to be difficult, in September 2012, just the beginning of the new fiscal year (and just before adjourning to give members the opportunity to campaign in October), the House and the Senate passed a fairly simple 12 page "Joint Resolution" that kept all departments of the government funded at essentially the same level as in FY 2012 through the first half of FY 2013.

When the 113th Congress convened in January 2013, there were essentially three months to pass spending bills for all of the departments of government to cover the rest of FY 2013. As has become a standard practice in recent years, it was decided that it would be impossible to pass separate appropriations bills for each department within the time frame available (ie. before the end of March when the joint resolution ran out.) So, at the beginning of March 2013, the House took up a comprehensive "continuing resolution" that would fund all of the departments of government until the end of September. Unlike the 12-page single spaced joint resolution passed in September 2012, this was a more ambitious 270 page (double spaced) bill that funded not only previously authorized programs but also new programs. The legislation passed the House on March 6 pursuant to a "rule" that limited the amount of debate -- again standard practice in the House. The vote was 267-151 with 53 Democrats voting for the bill and 137 voting against. (Democratic opposition generally reflected disapproval of the fact that House bill would have essentially codified the sequester cuts for the remainder of the year). The Monsanto provision was not in the House bill.

At this point, action shifted to the Senate where the Democrats have the majority. Obviously, Senate Democrats were not just going to rubber stamp the House passed bill that had been opposed by a majority of House Democrats. So after receiving the House passed bill on March 7, Sen. Mikulski submitted, as a "substitute" for that bill, a new bill that was 573 double spaced pages (300 pages longer than the House bill). My understanding (not confirmed but it make sense) is that this bill was fashioned essentially by taking previous versions of the unenacted appropriations bills for the various departments of government and stitching them together as one comprehensive bill. The source of the Agriculture appropriations piece of this new bill apparently was the bill that had been approved on a nearly unanimous, bipartisan basis by the House Agriculture Committee in June 2012...and that included the monsanto language.

Time was beginning to run short. With a 573 page bill to consider, it was necessary, as is often the case, for the majority and minority leaders in the Senate to reach a "time agreement" that would control the time for debating the bill and the number of amendments that could be introduced and debated.

Between March 13 and March 20, over 100 amendments were submitted to leadership for consideration, including one by Senator Tester with six Democratic co-sponsors, that was introduced on March 13 and that would have stripped out the monstanto language. (The other co-sponsors were Leahy, Gillibrand, Johnson, Boxer, Begich, and Blumenthal). The groups trying opposed to the monsanto provision swing into action, trying to really support for their position. T this point, if they are doing their jobs, every Senate office -- at least every Democratic Senate office -- should be aware of the monsanto provision and its history. Nonetheless, it does not appear that the opposition of these groups is able to carry the day.

The time agreement to move the CR to cloture and a floor vote limited the number of amendments that could be offered to fewer than 20 out of the more than 100 submitted and the Tester amendment was one of those that didn't make the cut. I don't claim to know why a particular amendment was or was not accepted. It could reflect any number of factors. Keep in mind that the entire process of keeping the Senate running (even as badly as it runs) depends a great deal on "unanimous consent" agreements. So there is a built-in tendency, once the number of amendments that can be considered is settled upon, to allow each side some amount of leeway in the amendments that they choose to offer. If you think you can only get a certain of number of amendments passed, you are unlikely to pick a controversial amendment. The exception is if you are trying to make political point, which would be why the repubs, who didn't expect to get their amendments passed through the Senate's Democratic majority, picked symbolic amendments like one to repeal Obamacare (a perennial favorite). On the other hand, Reid picked amendments that had a high chance of succeeding. In the end, essentially all of the amendments that were put to a vote were repub amendments and they all lost. The amendments offered by Democrats were adopted, either by unanimous consent or voice vote. (There may be an exception or two, but I don't have time to double check).

So, at this point the bill,with 300 pages of new stuff, a great deal of which is necessary to fund government programs that wouldn't have been funded under the House-passed version, is put to a vote in March 20 in the middle of the afternoon. It passes by a veto proof margin of 73-26 with every Democrat except Tester (and Lautenberg who is sick and did not vote at all) voting yes. Among those voting yes are the six Democrats who co-sponsored Tester's amendment but didn't even get a vote on the amendment.

The Senate-passed version then goes back over to the House, where it is voted on and approved at around 10 am on March 21 by a veto proof margin of 318-109. Whereas only 57 Democrats supported the bill when it was first considered by the House on March 6, this time, the much longer version (that includes the monsanto language along with another three hundred pages of revisions, additions, etc). is supported by 115 of the 197 Democrats voting.

Having passed both chambers of Congress by veto-proof margins with the support of a majority of Democratic members, the bill goes to the President on March 22, who signs it on March 26.

And that's pretty much how it happened. There is a reason that the legislative process is frequently referred to as "sausage making" -- not something you want to watch too closely.