I have been working the phones and emails since the Senate passed S. 510 last week with over-whelming bi-partisan support (or what accounts for that in this political environment) to try and figure out how the Senate could have included a potential revenue provision in Section 107 in S. 510 that is arguably a bit unconstitutional, at least according to some.

Infamous Section 107 would have had some charges for import inspections and re-inspections for those companies caught causing an outbreak. Whether that provision did or did not violate the “origination” clause of the Constitution at this point is beside the point; once the House leadership said it did it sent the Senate a “Blue Slip.” All now agree that Section 107 will need to be stripped out of S. 510.

In addition, there may well be an issue in the House over the Senate’s insertion of the Tester/Hagen Amendment that would exclude certain smaller farms and facilities from most of the provisions of S. 510.

The question is how, and if food safety legislation that passed the House (H.B. 2749) in July 2009 will become law before years end?

The one thing that is clear is that there seems to be no clear path out of the Food Safety Woods created by the Senate. Some argue that the Senate needs to re-vote (with Senator Coburn then in the way) and then send it to the House for a vote or a Conference. Some argue that the House can simply vote on the Senate version. However, given that the House has sent the Senate a few hundred Bills in the last few years that have been largely ignored, I am not too sure that the House will be all that interested in helping out the Senate. Some argue that the House will insert S. 510 (or a version of it) in a House revenue Bill and send that back to the Senate to vote on (with Senator Coburn then still in the way). Confused? Me too.

On top of all of the above is the burning desire of the Senate Republicans to hold hostage (no, they are not terrorists) any legislation to continue the Bush tax cuts that were set to expire January 1, 2011. Despite income concentration in the top 1% moving from less that 10% to nearly 25%, the Republicans insist that Millionaires (like me given the largess of the food companies poisoning my clients) need a marginal tax rate of 36% not 39% – really? But, I digress.

Leadership can be a pain. Sometimes in requires making painful decisions or listening to stupid ideas. But, once you choose to get elected to lead, you cannot sit on a log and watch nothing happen. President Obama, Speaker Pelosi and Majority Leader Reid, it is time to get out of the Food Safety Woods. It is time to lead.

Or, as I said to the Seattle Times – “Lawyer Bill Marler blasts Democrats over food-safety legislation”