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Defund NPR Bill Violates the 72 Hour Rule, the Constitution, and the Rule of Law

March 17, 2011 - by Donny Shaw

UPDATE: The bill passed the House on Thursday by a 228-192 vote.

Sunlight Foundation reports that the bill to defund NPR that the House is set to pass this afternoon violates the Republicans’ pledge to make all legislation publicly available online at least 72 hours prior to beng voted on. In this case, the bill was only available to the public and Congress for less than 48 hours before the vote. And, of course, it hasn’t had a single committee hearing or mark-up, and it’s being brought to the floor under a closed rule that limits debate to one hour and does not allow amendments.

As Acting Speaker Rep. Ted Poe [R, TX-2] explained in response to a parliamentary inquiry from Rep. Anthony Weiner [D, NY-9], when the Republican formalized the 72 hour pledge in the Rules of the House, they changed it to a three calendar day requirement. That change means that bills could be online for as few as 25 hours before votes without violating the rule. Giving the public time to read bills and contact their representatives before votes is a critical component of functioning democracy. Hopefully the next House session can strengthen the read the bill rule to ensure that the 72 hour requirement can’t be so easily side-stepped for non-emergency legislation.

The 72 hour rule isn’t the only thing that the bill violates, however. As Rep. Justin Amash [R, MI-3] posted on Facebook last night, the bill also violates the Constitution and the Rule of Law. Here’s Amash’s excellent analysis:

The bill was written to target one, and only one, organization: NPR. By no coincidence, the seven incorporation purposes listed in H R 1076 are an exact copy of NPR’s incorporation purposes. The bill covers only preexisting corporations, because the bill’s intent is to continue funding every other public radio producer that performs the exact same function as NPR. (NPR isn’t even the most subsidized of such organizations; Public Radio International, which receives more federal subsidies than NPR, continues to be funded under this bill [click on “Radio Programming”]). Through legislative sleight of hand, H R 1076 attempts to defund NPR without naming NPR.

The bill’s treatment of NPR is arguably unconstitutional and definitely violates the Rule of Law. The bill is arguably unconstitutional because it likely is a bill of attainder. Art. I, Sec. 9, of the Constitution prohibits Congress from passing bills of attainder. The idea behind the bill of attainder ban is that Congress shouldn’t enact laws meant to punish particular persons or entities, because the proper way to punish a wrongdoer is after the accused has been given a chance to defend himself at trial in a court. After the federal government similarly singled out ACORN, a federal court ruled the defunding was an unconstitutional bill of attainder. A federal appellate court reversed, but on grounds specific to the facts of the case.

Whether or not H R 1076 is a bill of attainder, passing such a bill violates the Rule of Law. I mean by this that government should write laws of general applicability, meant to cure some harm or further some purpose to the general public’s benefit. Laws created on a whim to reward or punish a particular person or entity debases our legal system; our laws’ purpose changes from advancing the general welfare to moving favors from one special interest to another.

Btw, if you’re not following Rep. Amash on Facebook, you should change that. He posts explanations for every vote he takes and goes into detail on procedural matters as well as policy. Though Facebook itself is not a suitably open platform, Amash’s use of it is a shining example of how social media can be used t break to barriers between constituents and elected officials.

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  • qbit 03/17/2011 10:17am

    Now we need a bill to defund Public Radio International.

  • JobyOne 03/17/2011 12:28pm

    Then we could all get our news from sources beholden to corporate masters? Do you really trust Rupert Murdoch’s machine to tell you the truth?

    If you do you’re a fool.

  • mattcordeau 03/17/2011 12:42pm

    Agree with JobyOne. Private media always promotes hidden agendas.

  • Comm_reply
    fakk2 03/17/2011 1:41pm

    All media promotes an agenda. If it was all facts/figures and no personal biases at all, then it would be a history book.

  • Comm_reply
    fakk2 03/17/2011 2:00pm

    Well, I guess that’s not exactly true, you can’t trust history books to get it right these days either.

  • fakk2 03/17/2011 1:59pm

    HAHAHA, this is awesome! They should’ve known not to act like their predecessors. That’s a poor excuse for circumventing something that was meant, in spirit if not words, to mean 72 full hours. The sentence “After the federal government similarly singled out ACORN, a federal court ruled the defunding was an unconstitutional bill of attainder”, is correct, although there is 1 large difference b/w this bill and the one about ACORN; the ACORN bill specifically named ACORN. This bill does not do that and if any bill which targets anyone can be a “bill of attainder”, than all bills are unconstitutional unless they’re giving money to someone. And how does this violate a rule of law when it cuts spending from something? Isn’t that in the general public benefit? Although I’d like to see it cut spending to ALL radio corporations, I’ll settle for at least 1.

    And Donny, thanks for informing us about Rep. Amash. I didn’t know ANYONE detailed their actions like that, esp on facebook.

  • Mahlalie 03/17/2011 5:31pm

    How on earth is it unconstitutional to not give a private organization money? That makes no sense whatsoever. I’ll agree that the bill should have been posted online 72 hours before voting and that the bill shouldn’t defund only one entity, but unconstitutional? Hardly. Much like fakk2, I’ll settle for the funding of a single entity being cut, though I’d prefer more.

  • nmeagent 03/17/2011 7:45pm

    It is astonishing to me the degree of doublethink displayed here in suggesting that funding a private organization or set of private organizations with a purpose that does not fall within the enumerated powers of the federal government is somehow constitutional (when that purpose is outside the scope of the Constitution), while simultaneously asserting that a bill to strip some or all of that funding is somehow unconstitutional.

  • Comm_reply
    nmeagent 03/17/2011 7:54pm

    The power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them….To tell deliberate lies while genuinely believing in them, to forget any fact that has become inconvenient, and then, when it becomes necessary again, to draw it back from oblivion for just so long as it is needed, to deny the existence of objective reality and all the while to take account of the reality which one denies…sound familiar?

  • DeborahJBrown 03/18/2011 4:51am

    Sounds like this was a test to how easy it is to find a legal crevice to crawl into… testing a means of circumventing laws. That’s just repulsive, particularly when it’s so soon after.

  • myakus 03/18/2011 6:10am

    Is this guy really complaining that the Republicans are behaving like Democrats?

    Since when is giving tax payer money to a specific corporation mandated by the Constitution? What fantasy! Did NPR bid for a contract for services? How did they attain this privileged position?

  • jenbacon 03/18/2011 9:18am

    The bill is arguably unconstitutional because it likely is a bill of attainder. Art. I, Sec. 9, of the Constitution prohibits Congress from passing bills of attainder. The idea behind the bill of attainder ban is that Congress shouldn’t enact laws meant to punish particular persons or entities

  • Comm_reply
    fakk2 03/18/2011 11:07am

    I think the keywords in the post is “arguably unconstitutional”. A bill of attainder has 2 requirements: 1.) It an entity guilty of a crime, and 2.) It names the entity, in this case NPR.

    This bill does not specify any crime has been commited and does not name a specific entity but applies the defunding to “an organization that is incorporated as of the date of the enactment of this Act for each of the purposes described in subsection ©, or to any successor organization;”.

    Section 1© states 7 organizational purposes that any organization could adopt. Although the name “National Public Radio” is in the title, it doesn’t specify NPR for, as the post above said, other national public radio stations/entities receive federal funding. So if they have any of the purposes in Section 1©, they would lose funding as well.

  • Comm_reply
    jenbacon 03/18/2011 12:50pm

    Yes, it’s not as clear a case as the previous ACORN bill, although since the purposes listed in the bill “are an exact copy of NPR’s incorporation purposes” it would be fairly easy to argue that NPR is the specific target of the bill.

  • Comm_reply
    jenbacon 03/18/2011 12:50pm

    While the bill may not meet the standard of “trial by legislature,” it may well fall within a broader interpretation of intention found in Madison’s Federalist Papers: “Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. … The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.” James Madison, Federalist Number 44, 1788.

  • Comm_reply
    jenbacon 03/18/2011 12:51pm

    My main point was that the question of constitutionality has nothing to do with funding, but rather with the specificity of the target of the bill.

  • Comm_reply
    fakk2 03/18/2011 5:02pm

    I can definitely see how this bill, in context relating to the “specificity of the target of the bill” meets a liberal, although arguable, definition of bill of attainder.

    Madison went on to say though that “Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights…[Americans] have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.”

  • Comm_reply
    fakk2 03/18/2011 5:02pm

    I would think removing federal funds from all national public radio entities would “banish speculations” on who they’re loyal to (government, shareholders, citizens, etc), “give a regular course to society” by making them like every other news entity, and “inspire a general prudence and industry” by removing doubt of why they’re getting funding when others aren’t. Overall, I don’t see how it is bad for America or a full definition of bill of attainder, even in a liberal light.

  • PoliticalJules 03/18/2011 10:25am

    All I can say is DE-FUND NPR, AND DE-FUND IT NOW!

    I do not care how you do it or how many hours you whine about it being online, the fact remains that it needs to be de-funded. Cut the crap, trim the fat and do not stop there. I do not care if it is a socialist mop, or a capitalist scalpel. Our country is in serious trouble folks and this will be one of the most horrific times in history.

  • fakk2 03/18/2011 11:51am

    I’m glad we all can at least agree on how idiotic it is for the Republicans to first say that all bills will be online 72hrs before being brought to the floor, then try to backtrack on that.

  • Spam Comment

  • mshughes 03/19/2011 6:59am

    There is no authority, let alone a need, for gov’t funding to any media organization. The conflicts & corruption gov’t funded media create circumvent the purpose of free press: monitor & report on gov’t activity. This “funding” is a payoff to intentionally hide or misrepresent the truth with the specific purpose to create an ignorant voting populous, thereby increasing the probability that the corrupt hold their power.

    Defund NPR, and any other media that receives gov’t funding!! There is no place for any any gov’t funding of ANY media ..

  • marissa21r 11/03/2011 4:29pm

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