Did last night’s tax vote count? Probably not.

Harry Reid / The Washington Post

One funny thing about the Senate's vote last night to extend the Bush tax cuts for income under $250,000: it was a vote of the Senate. Usually, taxing and spending bills originate in the House because of the "origination clause" in Article I of the Constitution, which states that "All Bills for raising Revenue shall originate in the House of Representatives."

Republicans think the bill's Senate origins mean it cannot become law. Indeed, Senate Republican leader Mitch McConnell stated this was why he didn't filibuster it, telling reporters, "The only reason we won’t block [the bill] today is that we know it doesn’t pass constitutional muster and won’t become law." But as TPM's Brian Beutler first reported yesterday, Senate Democrats thought they had a way around this problem. They suggested that the bill could pass under a deal with McConnell whereby if the House passes a bill to extend all the Bush tax cuts, the Senate would automatically amend that bill so that it's identical to the bill passed last night.

But from the looks of things, such a deal isn't in place. Yesterday, Senate Majority Leader Harry Reid requested unanimous consent for such a switcheroo:

that when the Senate receives a companion bill from the House providing for the extension of tax cuts…it be in order for the majority leader to proceed to its immediate consideration…and insert the text of S. 3412 [the Senate tax bill] as passed by the Senate in lieu thereof

In plain English, that's the deal that Senate Democrats were saying was possible yesterday. How did McConnell respond? Well, he objected to that provision, and Reid relented and moved forward without the switch-out provision. George Washington University's Sarah Binder, an expert on Congressional procedure, tells me that you'd need a unanimous consent request like the one Reid attempted for such a deal to work. That Reid already failed to get one once doesn't bode well for future attempts.

Of course, the Senate leadership could always refuse to pass anything but the tax bill they passed and hope that the House relents and passes an identical limited extension. But that would entail making a credible threat to let all the cuts expire should the House not fold. It's not clear that Democrats are willing to make that kind of commitment.

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