Action in the Senate and House this Thursday, September 17, 2009, "Constitution Day," starkly highlighted the longstanding casual disregard for self-governance, and the disrespect for one of the most fundamental prohibitions of our Constitution, that many of our federal legislators exhibit, including Party leaders like Harry Reid who direct floor action and ought to know better.

First, the (Very) Good:

Mr. REID. […] I think it is important to say to everyone that we are now in a mode of doing some legislation. I appreciate very much the cooperation of all Senators, Democrats and Republicans. We are now in the mode of, when a bill comes up, people can offer amendments. For a number of years, that simply was not the case. When there are circumstances and a decision is made not to allow amendments, I understand, after people are in the habit of being able to offer amendments, how concerned they become. We will approach that whenever it comes about, if there is a decision made to so-called fill the tree and not allow amendments.

In the way we are working, we are taking some tough votes. Democrats are offering some difficult amendments, Republicans are offering some difficult amendments. But that is OK. We are working through these bills. We could have been voting on cloture on the Transportation appropriations bill. We could have been invoking cloture on that bill this morning. It simply has not been necessary.

We have some nominations we are still working our way through. One Republican Senator has held up a nomination for quite some time. He came to me yesterday and said: You can go ahead and put that one through.

I am satisfied and confident this is the way the Senate should operate.

We have the health care bill on the horizon. If we are able to get 60 votes to proceed to it, it is going to take everyone’s cooperation and patience to work through the amendments that will be necessary to go forward on that bill. I am hopeful and confident we can work through that bill. If not, we will have to go to reconciliation, which I hope we don’t have to do, but if we have to, we have to do that.

Anyway, I feel good about what we have been able to accomplish this week. I repeat, it sets a pattern of how we should be legislating.

Behind me is Senator Specter. He came to me a number of times last year and said: Are there going to be amendments allowed? And I said yes. He said he would vote to move forward on the bill. I think there were other people who felt the same way, but they just were not as vocal as Senator Specter.

I appreciate the good work, including that of my colleague, the senior Senator from Kentucky, who is one of the people who has stressed how important it is to have amendments. I recognize he cannot control his Senators all the time, nor can I. In spite of that, we have been able to work through legislation.

I want to get the appropriations bills done, as does Senator McConnell. He and I have been members of the Appropriations Committee during our entire tenure in the Senate. It is important that we work through these bills. As of today, we will have completed five of them. We are going to do our utmost to do the conference reports before the first of October. We may have to–not may–we will have to have a short-term CR, and by the end of that short-term CR, hopefully we can complete all the appropriations bills.

English translation for Reid’s first couple of semi-coded paragraphs in this floor statement: "Circumstances" means Party politics (too-often dictated by the White House) and the desire of Senators to avoid the accountability of casting a vote, yea or nay, on the public record. "Filling the tree" because "a decision is made" is the Majority Leader’s practice (under both Parties) of providing cover for his Party members by blocking what Reid openly admits here are (considered to be politically) "tough votes" from ever needing to be taken by the Senate. Filling the tree and allowing only a pre-selected, very limited group of amendments to receive floor debate and votes, via secretly-negotiated unanimous-consent agreements between the Party leaders, prevents the legislative and democratic process of full and fair floor debate from taking place in the Senate. It’s a way of controlling political fallout, at the expense of genuine legislating and a full hearing and debate on germane amendments any Senator wishes to offer.

For whatever reason, at least on these mostly-unnoticed, under-reported appropriations bills, Harry Reid is obliquely announcing here that the Senate has returned to being an actual legislature until further notice, after years of Party manipulation of floor proceedings. Reid states he will not abuse the process, or thwart the democratic will of the Senate, by blocking politically-sensitive amendments with negotiated deals to limit amendments on these spending bills (or with early cloture votes), and has instead opened the floor equally to all Senators to offer improvements to the bills.

And, better yet, even on an unquestionably controversial, politically-potent topic – the upcoming floor debate on health insurance reform – Harry Reid is stating that he is prepared for an open, democratic debate on the Senate floor, without a rigged game of pre-arranged 60-vote margins for passage, or severely-limited amendments. [Though the content of the consolidated bill brought to the floor of course remains hugely significant, and very much under his control.]

All germane health reform ideas would therefore be eligible for debate on the floor, and Senators will be expected to vote them up or down, or to filibuster and block filibusters, as each is considered in turn. Only after that process is given its full measure of floor time, will the possibility of reconciliation be considered, Reid indicates. So the process of reconciliation would be necessary only if some Democratic Senators betray their own Party platform, and refuse even to end debate on key amendments, or the bill itself, so as to allow their colleagues to cast their simple-majority votes – yea or nay – on particular provisions. Meaning the specious, unproven public claims that "we don’t have the votes" will finally be put to the test, in the open, on the public record, on the Senate floor.

Hear, Hear. If Reid keeps to his word, and allows the necessary time for that healthy floor debate on the Senate health care bill, the nation will see the Senate work its will – out in the open, in the democratic, fair method, as designed, of one Senator, one vote, without interference by top-down Party dictates. This is essentially the Senate acting as adults – as legislators, not just political Party pitchmen – and though it pleases the Republican minority by giving them more of a voice, it will also helpfully expose Democratic pretenders, while reducing the need for Reid to enforce Party-line conformity in an effort to reach labor-intensive, off-floor deals that try to pre-determine outcomes. So far, so good.

Now, the Bad:

Mr. REID. Mr. President, I understand that there is a bill at the desk. I ask for its first reading.

The PRESIDING OFFICER. The clerk will report.

A bill (S. 1687) to prohibit the Federal Government from awarding contracts, grants, or other agreements, or providing other Federal funds to or engaging in activities that promote the Association of Community Organizations for Reform Now.

Mr. REID. I ask for a second reading but object to my own request.

The PRESIDING OFFICER. Objection is heard. The bill will be read for the second time the next legislative day.

That was Harry Reid, also Thursday, putting through its paces a brand new (not yet printed) standalone bill, never considered in committee, in preparation for bringing it to the floor, possibly next week. The reason for this, I’m guessing, is because the ACORN-punishing Johanns amendment that the Senate passed Monday on the T-HUD appropriations bill – and again on Thursday (85-11, including Reid and Byrd) on the Interior appropriations bill – wouldn’t survive, or would complicate, conferences with the House, and Reid wants to speed through a substitute standalone bill, and/or maybe add it as an amendment to the same (student loan) bill the House likewise just amended to punish ACORN.

Which brings me to unConstitutional Bills of Attainder and Thursday’s Constitution Day House action, as described by the impressive, Constitution-respecting Rep. Jerry Nadler of New York, whose floor statement was highlighted yesterday by The Public Record:

Mr. NADLER of New York. A little while ago, the House passed an amendment to the bill that we were considering that says no contract for Federal funds may ever go to ACORN, a named organization, or to any individual organization affiliated with ACORN.

Unfortunately, this was done on the spur of the moment and nobody had the opportunity to point out that this is a flat violation of the Constitution, constituting a bill of attainder. The Constitution says Congress shall pass no bill of attainder.

The Supreme Court has ruled a bill of attainder is a legislative act that, no matter what their form, applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment, and then without a judicial trial. That’s exactly what this amendment does.

It may be that ACORN is guilty of various infractions, and if so, it ought to be investigated, maybe sanctioned, whatever, by the appropriate administrative agency or maybe by the judiciary. Congress must not be in the business of punishing individual organizations or people without trial.

That’s what this amendment did. It is flatly prohibited by the Constitution. And once confidence in this institution is sapped, when we ignore the Constitution, we ignore constitutional principles, that whatever one may think of the subject matter or the organization here, the Constitution and the ban on bills of attainder is there for the protection of the liberties of all of us.

It’s unfortunate that we passed this, and I certainly hope it is removed in the conference committee.

http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2009_record&page=H9704&position=all

Here’s that House language, as passed 345-75 [Nadler asked for time before the vote from Democratic Bill Manager George Miller – who seemed to both oppose and support Issa’s Motion to Recommit – but Miller refused to yield]:

The Clerk read as follows:

Mr. Issa moves to recommit the bill H.R. 3221 to the Committee on Education and Labor with instructions to report the same back to the House forthwith, with the following amendment:

Add at the end the following new title (and conform the table of contents accordingly):

TITLE VI–DEFUND ACORN ACT

SECTION 601. SHORT TITLE.

This title may be cited as the "Defund ACORN Act".

SEC. 602. PROHIBITIONS ON FEDERAL FUNDS AND OTHER ACTIVITIES WITH RESPECT TO CERTAIN INDICTED ORGANIZATIONS.

(a) Prohibitions.–With respect to any covered organization, the following prohibitions apply:
(1) No Federal contract, grant, cooperative agreement, or any other form of agreement (including a memorandum of understanding) may be awarded to or entered into with the organization.
(2) No Federal funds in any other form may be provided to the organization.
(3) No Federal employee or contractor may promote in any way (including recommending to a person or referring to a person for any purpose) the organization.

(b) Covered Organization.–In this section, the term "covered organization" means any of the following:
(1) Any organization that has been indicted for a violation under any Federal or State law governing the financing of a campaign for election for public office or any law governing the administration of an election for public office, including a law relating to voter registration.
(2) Any organization that had its State corporate charter terminated due to its failure to comply with Federal or State lobbying disclosure requirements.
(3) Any organization that has filed a fraudulent form with any Federal or State regulatory agency.
(4) Any organization that–
(A) employs any applicable individual, in a permanent or temporary capacity;
(B) has under contract or retains any applicable individual; or
(C) has any applicable individual acting on the organization’s behalf or with the express or apparent authority of the organization.

(c) Additional Definitions.–In this section:
(1) The term "organization" includes the Association of Community Organizations for Reform Now (in this subsection referred to as "ACORN") and any ACORN-related affiliate.
(2) The term "ACORN-related affiliate" means any of the following:
(A) Any State chapter of ACORN registered with the Secretary of State’s office in that State.
(B) Any organization that shares directors, employees, or independent contractors with ACORN.
(C) Any organization that has a financial stake in ACORN.
(D) Any organization whose finances, whether federally funded, donor-funded, or raised through organizational goods and services, are shared or controlled by ACORN.
(3) The term "applicable individual" means an individual who has been indicted for a violation under Federal or State law relating to an election for Federal or State office.

(d) Revision of Federal Acquisition Regulation.–The Federal Acquisition Regulation shall be revised to carry out the provisions of this title relating to contracts.

Compare to the first Johanns amendment [SA 2355], as passed, 83-7, by the Senate Monday:

The amendment (No. 2355), as modified, is as follows:

(Purpose: Prohibiting use of funds to fund the Association of Community Organizations for Reform Now (ACORN))

After section 414, insert the following:

Sec. 4__. None of the funds made available under this Act may be distributed to the Association of Community Organizations for Reform Now (ACORN) or its subsidiaries.

And to the second Johanns amendment [SA 2394], as passed, 85-11, by the Senate Thursday:

The amendment is as follows:

(Purpose: Prohibiting use of funds to fund the Association of Community Organizations for Reform Now (ACORN))

On page 240, between lines 13 and 14, insert the following:

PROHIBITION ON USE OF FUNDS

Sec. 4__. None of the funds made available under this Act may be distributed to the Association of Community Organizations for Reform Now (ACORN) or its subsidiaries.

The legislative punishment without judicial process aspect of these pieces of legislation is the selective forbidding of any ACORN application for federal grant funds from even being considered (though ACORN has not been tried in federal court, nor been convicted of breaking the law). [In other words, this isn’t just about ending some purported requirement that federal grants be awarded to ACORN, by interfering in the customary course of awarding or denying federal grants, as some have mistakenly portrayed it.] Issa obviously drafted the House language more cleverly than Johanns did the Senate language, so as to pretend to be including a broader category of organizations than just the ACORN organization. But Issa’s floor remarks (and his amendment’s short title) make clear his intent.

So on Constitution Day, no less, we have an overwhelming majority of federal legislators, facilitated by their Party leaders, heedlessly voting – even setting aside the legislation’s evident lack of merit – to pass barely-debated legislation that future (costly) litigation may well determine to be, as Rep. Nadler wisely warns but proponents can’t be bothered to hear, an unConstitutional Bill of Attainder – one of the most-despised vehicles used to deny due process by the British Parliament, and a power the authors of our Constitution made doubly sure to forbid to their new nation’s federal legislature.

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