Did you know that the two trillion (and counting) dollar coronavirus (Covid-19) law started out as a January 24, 2019, revenue bill out of the House of Representatives? (HR 748, 116th Congress, 2019-2020)?
For the record, the 880 page enrolled bill (version passed by both Chambers) was signed by the President on March 27, 2020. [The P.L. number is 116-136.]
So, my question to colleagues was:
Is there a simple way to explain how and why HR 748 (116th Congress, 2019-2020) became the vehicle for the 2020 “CARES” bill – and not S. 3548, the “original” CARES Act?
Yes, there is! (And multiple hat tips to my law-lib listserv colleagues who explained how and why.)
My question arose because I was having a devil of a time finding the legislation’s bill number, and journalists weren’t helping. (You may also have noticed that journalists almost never, ever cite to cases, bills, laws, regulations, etc. by their specific numbers and names. But that is a topic for another blog post.)
For the record, this specific blog post is to edify, not inflame. This Congressional action is primarily for procedural, not political, reasons and happens not infrequently.
So, also for the record:
The $2+ Trillion Coronavirus (Covid-19) bill from Congress, and signed by the President on 3/27/2020, is numbered H.R. 748 (116th Congress) (2019-2010).
When originally introduced in January 2019 as HR 748: “Resolved, That the bill from the House of Representatives (H.R. 748) entitled “An Act to amend the Internal Revenue Code of 1986 to repeal the excise tax on high cost employer-sponsored health coverage.”
On March 25th, 2020, HR 748 was amended:
“AMENDMENT: Strike all after the enacting clause and insert the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the “Coronavirus Aid, Relief, and Economic Security Act” or the “CARES Act”.
Why, you may ask, was a revenue bill from January 2019 used as the vehicle for the March 2020 bill? Here are the reasons, from my excellent colleagues:
“Short answer – it’s a long standing tactic/procedure, take a House passed bill and then the Senate amends by striking the text and inserting their own text. Not sure why HR 748 was chosen. I think they use the procedure because technically the bill was considered, reported, and passed by one House and there are likely some procedural rules that apply. The first time I came across this scenario I thought it was crazy, but in working with many legislative histories, including very old ones, I have seen this a lot. If you really want a reason/explanation there are lots of CRS reports on Congressional procedure or you could look at the House and Senate rules. Bottom line though doesn’t really matter why, it’s the path that this legislation took….”
“You’re right that the choice of HR. 748 was made for procedural reasons. Chief among these is to save time by bypassing the Committee process and rules that require three different “readings” of a bill and time between each reading. The bill used for the CARES Act had already gone through part of the Senate (and House processes), and so using it saved time.
Another reason for why the Senate would choose to craft a substitute amendment to an already House-passed measure instead of just working off the Senate introduced CARES Act (S.3548) is the Constitutional requirement that revenue bills must originate in the House. (Art. I, Section 7, Cl. 1 = “All Bills for raising Revenue shall originate in the House of Representatives.” Now, the CARES Act contains appropriations, and I’m not sure there are revenue provisions, but there are tax provisions in one of the Titles. So the argument could be made that the bill should have originated in the House. The Senate can introduce bills and still conform to this constitutional requirement by taking up an already House-passed measure that is currently sitting on the Senate calendar (as HR. 748 was doing), and then amend it with a substitute amendment (in this case the text of the CARES Act as negotiated), pass it in the Senate and then send it back to the House.
These are the practical/procedural reasons of which I’m aware.
Here are some CRS reports that you might find helpful:
https://fas.org/sgp/crs/misc/RL31399.pdf (see p.12)
https://fas.org/sgp/crs/misc/98-696.pdf (start on p.5 re: selection of measure)”
“… if the bill raises revenue, then it had to originate in the House under the Constitution (but the Senate can still make amendments). Thus, the House passed HR 748 and sent it to the Senate, which then amended the bill by replacing it with the current language, passing it, and sending it back to the House to concur in the amendment.
Since passage depended on a deal being made in the Senate, it was thus more efficient for the Senate to craft the language (in the form of an amendment) and pass the bill (in its final form) first….”
“… Congress will often remove the entire text of legislation and replace it with another. Usually, though, that usually happens in the process of negotiating competing bills in the House and Senate.”
We’re all a little smarter now, yes?