Congress looks for ways around Supreme Court


Lawmakers are trying to get around Supreme Court decisions they dislike or simply go over the nine justices’ heads by rewriting the Constitution. (Dennis Brack/Bloomberg)
Reporter February 13, 2012

Only a few hundred yards of grass and concrete separate the steps of the U.S. Capitol from those of the Supreme Court, but lately the gulf between the two has seemed much wider.

A steady flow of anti-court rhetoric has flowed forth from Congress in recent weeks, as lawmakers look to get around decisions they dislike or simply go over the justices’ heads by rewriting the Constitution.

Two years after the court drastically altered the landscape of campaign finance rules with its Citizens United v. Federal Election Commission decision, some legislators are still trying to write new disclosure laws that comport with the ruling. Separately, a handful of senators are seeking to draw more attention to their proposed constitutional amendment explicitly allowing Congress to regulate campaign funding.

Another 2010 decision, Skilling v. United States , is also still reverberating in the Capitol. With the ruling having gutted an oft-used tool for prosecuting federal corruption cases, the House and Senate split last week on whether new anti-bribery language should be included in the STOCK Act, which seeks to ban insider trading by members.

It is common for justices to irritate some percentage of their counterparts across the East Front Plaza, but the stakes may be higher now as the court prepares to hear oral arguments next month on the constitutionality of President Obama’s health-care law. However that ruling comes down, one side or the other will surely be incensed and immediately look for ways to get around it.

A common theme for congressional critics of the court is that the nine justices don’t live in the real world, particularly when it comes to modern politics.

“I’m not sure they grasped the practical effects of the decision they were rendering,” Sen. Michael F. Bennet (D-Colo.), a co-sponsor of the constitutional amendment on campaign finance, suggested last week.

Sen. Tom Udall (D-N.M.), the amendment’s lead author, complained: “None of the Supreme Court justices have run for office in this system. I don’t think they understand.”

Their amendment says that “Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections,” including the ability to place limits on campaign donations and expenditures, while states would have the same authority to regulate the funding of state elections.

“This is saying to the court: ‘We are going to regulate and legislate on campaign finance. We are taking it back,’ ” Udall said.

The bar for constitutional amendments is high. If Udall’s measure achieves the unlikely feat of two-thirds support in the House and Senate, it still would have to clear three-fourths of state legislatures. Yet even an unsuccessful amendment can help draw attention to an issue.

“I don’t expect the efforts to bear fruit, but I do think they serve other purposes,” said Rick Hasen, an election law expert at the University of California Irvine School of Law.

More modestly, a group of Democrats last week unveiled a new version of a bill, the DISCLOSE Act, which would require immediate disclosure of campaign spending by corporations and unions as well as “super PACs” — the controversial spawn of the Citizens United decision.

The Senate Rules and Administration Committee also plans to hold hearings on super PACs. “We’re now living in a world created by the Citizens United decision, and it’s a disaster for our democracy,” Sen. Charles E. Schumer (D-N.Y.), the panel’s chairman, said recently.

Unlike the 5 to 4 Citizens United decision, the court’s ruling in the Skilling case was unanimous. That might explain why lawmakers have been less overtly critical of the latter ruling, which found that prosecutors were going too far in using the overly vague “honest services” statute to pursue corruption cases.

New language designed to tighten the law, authored by Sens. Patrick J. Leahy (D-Vt.) and John Cornyn (R-Tex.), was attached to the STOCK Act in the Senate last week. (Their amendment also sought to clarify the laws surrounding illegal gratuities in response to another unanimous Supreme Court decision, the 1999 United States v. Sun-Diamond Growers of California case.)

“It was responsive and addressed the concerns of the Supreme Court,” Cornyn said, calling the new version “much more narrow and much more specific” than the language the court struck down.

But House Republican leaders declined to add the amendment to the version of the bill passed by their chamber last week. And some observers think Leahy and Cornyn’s language remains too vague and wouldn’t survive court scrutiny.

“They’re trying to remedy that, but it’s definitely an open question whether they succeeded,” said McGuireWoods partner C. Simon Davidson, who specializes in government ethics and corruption cases. “It’s hotly debated among interest groups on both sides.”

Of course, there’s one clear way Congress can alter the Supreme Court’s path in the long run. Hasen noted that the Citizens United decision came as a direct result of the fact that Justice Samuel A. Alito Jr. replaced Justice Sandra Day O’Connor.

“The best way that the Senate can influence Citizens United,” Hasen said, “is through the confirmation process for Supreme Court justices.”

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