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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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