House Threatens Blue Slip in the Face of the Senate

The pending immigration bill is a veritable petri dish for a flourishing culture of procedural politics. Procedural ploys are proliferating and mutating like bacteria on steroids as partisans of the competing House and Senate bills employ a dazzling array of creative tactics to advance their causes.

On the House side, with the Speaker's blessing, subcommittees are swarming the Southwest with field hearings aimed at touting the need for tighter border security, while underscoring perceived defects in the Senate approach. Meanwhile, the Senate Judiciary and Armed Services committees countered with their own field hearings in Philadelphia and Miami to highlight the economic need for and contributions of immigrants. Complementing these efforts, President Bush paid a surprise visit to a doughnut shop in Virginia to showcase the ingenuity and patriotism of its immigrant owners.

The central purpose of these dueling road shows is to shape public opinion and build momentum for the final round of legislative negotiations on Capitol Hill. This means gaining the upper hand in framing the issues and terms of public debate through the skillful use of language. The House side seems to have won the early rounds in framing (aka spinning) by popularizing such terms as "amnesty," "Reid-Kennedy bill," "terrorist loophole" and "unconstitutional revenue increases."

The latter term represents an early and major procedural ploy by the House to slow the momentum behind the Senate immigration bill passed in late May. It seems someone found a revenue-related provision in the Senate bill requiring illegal immigrants to pay back taxes as one of the conditions for obtaining documentation and eventual citizenship. However, under the Constitution's Origination Clause, "All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills." The origin of the Origination Clause traces back to the British House of Commons of the 1670s.

If the Senate, either intentionally or inadvertently, originates a revenue-raising bill, any Member of the House has the option of calling up a "blue-slip resolution" (named after the color of paper it is printed on after passage) to send the measure back to the Senate. The resolution gets immediate consideration as a matter of constitutional privilege, is debatable for an hour and is not subject to amendment (though it may be tabled or referred to committee).

In simplified form, a blue-slip resolution typically reads as follows: "Resolved, That the Senate bill S. 123, in the opinion of this House, contravenes the first clause of the seventh section of the first article of the Constitution of the United States and is an infringement of the privileges of this House and that such bill be respectfully returned to the Senate with a message communicating this resolution."

After the revenue provision in the Senate immigration bill was discovered, Ways and Means Chairman Bill Thomas (R-Calif.) vowed he would "blue slip" the bill (yes, it's a verb, too) back to the Senate rather than agree to a conference committee. To counter this threat, Senate Majority Leader Bill Frist (R-Tenn.) said he would move to substitute the Senate's immigration language for a House-passed revenue bill (alternative minimum tax relief) now pending in the Senate.

This in turn caused Senate Minority Leader Harry Reid (D-Nev.) to balk because he did not want to open the immigration bill to possible tax cuts. Besides, Reid argued, the Frist switch was unnecessary because the revenue provision in the Senate bill did not violate the Origination Clause — it neither amended the Internal Revenue Code nor in any way constituted a new tax for revenue purposes. It simply required immigrants wishing to qualify for citizenship to pay taxes they already owed under existing law.

On June 5, in a surprise move, Reid attempted to call up the House immigration bill by unanimous consent, substitute the Senate-passed language and request a conference with the House. Senate Majority Whip Mitch McConnell (R-Ky.) objected. McConnell then attempted to call up the House-passed alternative minimum tax bill and substitute the Senate immigration language, but Reid objected. Only when Frist promised that he would resist any attempts to attach tax cuts to immigration did Reid agree to using the alternative minimum tax vehicle to go to conference on immigration.

There are some House precedents to support Reid's original contention. Hinds' Precedents cite an 1871 instance in which the House adopted a resolution in response to a dispute with the Senate over the Origination Clause. The resolution defined revenue-raising measures as "all bills directly affecting the revenue, whether such bills be for the imposition, reduction, or repeal of taxes." Clearly, the House was confining itself there to bills that change existing tax law in one way or another.

In more recent times, however, the House has adhered to a broader interpretation of "raising revenue" as being any bill that is "revenue affecting," regardless of whether it directly reduces or raises revenues. And, as Deschler's Precedents make clear, because these questions involve "an interpretation of the Constitution rather than House rules, they are decided by the House rather than the Chair." Traditionally the House has upheld the Ways and Means Committee by adopting blue-slip resolutions on voice votes. A review of the 29 blue-slip revenue resolutions considered over the past 20 years reveals that every one of them was adopted by voice vote.

Had Reid succeeded in forcing the issue with the House, Thomas clearly held the winning hand. But then, Senate Minority Leaders aren't always expected to promote procedural fixes that make the Majority Leader's job any easier.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.