News Intelligence Analysis
Rogue Republican
Dons in Congress
Tear Up the Constitution, Exclude Democrats
and Accept A New Title:
“The Godfathers”
Why the New Medicare
Law, the Energy Bill
and the Omnibus Appropriations Bill
May All Be Unconstitutional
By Katherine Yurica
December 29, 2003
There are over 500 men and women in Congress. They work and serve a venerable institution which was created as an equal branch of the government of the United States of America. Every American should regard Congress with the respect it deserves.
However, something untoward has grown in the 108th Congress: a faction has formed within the majority’s congressional delegation. The faction leaders have, through ignorance, inadvertence or perhaps through pressure from the White House, grown careless in the administration of important legislation. In addition, the Republican faction has unwisely ignored the democratic procedures that must be followed in a democratic assembly. This article respectfully calls the facts to the attention of the American people. While I criticize the faction, I hold the greatest respect for those members—of both parties—who have served and worked honorably.
“I am the government!” Tom Delay, House Majority Leader from Texas (See also)
Every American should find Tom Delay’s remark repugnant and disturbing, particularly since he is the Majority Leader in the House of Representatives and under his leadership a faction consisting of some House Republicans have resorted to arm-twisting, bending the rules, and even to alleged bribery and extortion in order to get their way. “Business is being done behind closed doors—you give me this and I’ll vote for that sort of arrangement,” observed friends of John Dean who work on Capitol Hill.
While Michigan Republican Representative Nick Smith has softened his allegations of bribery, the fact of the matter is that enormous pressure was used against him and other congressmen in attempts to switch their nay votes to votes in favor of the Medicare Bill before the roll call was closed.
Representative Smith told a radio audience (and you can hear his statements here and here) that he was told by a faction member that if he switched his “No” vote against the Medicare Bill to a “Yes” vote, his son would receive a $100,000 donation for his congressional run. When Smith said that he opposed the bill as a matter of conscience, he was told that the proffered money would be used to oppose his son’s run for Congress. Rep. Nick Smith did not change his vote. (Since that time the Democratic National Committee has sent a letter to Attorney General John Ashcroft, requesting that the Justice Department investigate the allegations. At this writing, the Justice Department has announced that it is “still considering the matter.”)
The discussion with Rep. Smith came after Congress voted to defeat the Medicare bill but before the roll call vote was closed. Following the apparent defeat of the bill, the Speaker pro tempore, Doc Hastings, resorted to keeping the vote open, which gave faction members time to target certain congressmen. The aggressive assault on representatives occurred during this period—in the middle of the night to the early hours of the morning. Mr. Bush, we are told, stayed up during the night to make phone calls to wayward congressmen. Let’s understand that House Speaker J. Dennis Hastert with the help of other members of his faction, used the questionable ploy of extending the period of the roll call vote for over three hours to create what can only be described as a “coercive opportunity to intimidate” and to force a vote change upon the exhausted representatives who were not free to leave until the roll call ended and who were for all intents and purposes detained and arrested by the Republican faction leaders.
No Congress in the last 100 years has resorted to such underhandedness. In contrast, according to Charles Babington, the Washington Post’s congressional editor, Speaker of the House Jim Wright was castigated by Republicans in 1987 for extending a roll call vote ten minutes more than the normal fifteen minutes allowed.
Charles Babington says of the Republican faction, “they seem eager to bend Congress to their will, which frequently is synonymous with President Bush's agenda.” Babington names Dennis Hastert of Illinois, Tom DeLay of Texas and House Ways and Means Chairman, Bill Thomas of California as the leaders who “unapologetically seize whatever levers they need to win.”
Factious Republicans Are Excluding Democrats from Participating in the Legislative Process
While Democrats were careful to include the Republican minority party in conference committee meetings when they were in control of Congress, the Republican faction has now resorted to excluding virtually all Democrats, including the Minority leader of the Senate, Tom Daschle, from even attending conference committee meetings. This is a violation of the Constitution, which we’ll look at below. First let’s consider these facts:
The Medicare Bill had only two minority senators appointed to the conference committee (Sen. Max Baucus of Montana and Sen. John Breaux of Louisiana) and zero minority members from the House. The Energy Bill had zero members of the minority party present.
When Democrats attempted to attend the conference meeting on the Medicare Bill chaired by Thomas, he stopped the meeting until they left. Thomas also summoned Capitol police to actually evict or exclude the Democrats from the meeting room. But the police officers refused to evict the Democrats—no doubt because they were aware that such an act was unconstitutional and that the officers could in fact be sued and held personally liable for such a deed.
When the House considered the annual appropriations for government spending for the 2004 fiscal year, not only were the Democrats excluded from the conference committees, but they were also excluded from participating in the debate on the House rules for the spending bills. In addition, the House violated existing laws and combined seven appropriation bills into one gigantic package. According to Tom Daschle, Republicans inserted passages that “had already been rejected by one or both Houses of Congress.”
Senator Robert Byrd called attention to the fact, “Under pressure from the White House, provisions that were approved by both the House and the Senate have been dropped…and controversial provisions that were written as one-year limitations were…mutated into permanent changes in authorization law.” Senator Byrd also pointed out, “There are many provisions within this package that never came before the Senate.” One of the bills, Senator Byrd said, “was never even debated in the Senate, let alone adopted.”
This is fraud and it clearly violates the rules of each House. The Senate rules read:
“Conferees shall not insert in their report matter not committed to them by either House, nor shall they strike from the bill matter agreed to by both Houses. If new matter is inserted in the report, or if matter which was agreed to by both Houses is stricken from the bill, a point of order may be made against the report…”
Senate Rule XXVIII, Section 2.
“Each conference committee between the Senate and the House of Representatives shall be open to the public…”
Senate Rule XXVIII, Section 6.
The question is what can be done about the situation? One half of the American people are presently without representation in Congress, unless the Republican leaders reverse themselves. This is unlikely without millions of Americans voicing their disapproval and demonstrating it by voting the factious Republicans out of office.
In the meantime, it appears the GOP leadership intends to set up a ruling dynasty in Congress and in the White House that merges the two branches of government—rather than separating the two powers. But as John Adams warned:
“If there is one certain truth to be collected from the history of all ages, it is this; that the people’s rights and liberties, and the democratical mixture in a constitution, can never be preserved…without separating the executive from the legislative power. If the executive power, or any considerable part of it, is left in the hands either of an aristocratical or a democratical assembly, it will corrupt the legislature as necessarily as rust corrupts iron, or as arsenic poisons the human body; and when the legislature is corrupted, the people are undone…”
John Adams,
A Defense of the Constitutions of Government
Of the United States of America 1787-1788
The Case for Legal Action
The constitution has built-in safeguards to protect Americans from the factious power grab we are witnessing. The President’s veto power was created in part to protect Americans from bad laws, through haste, inadvertence or design. The creation of two legislative houses was to protect the people from Legislative despotism. And in fact, Alexander Hamilton argued that a Congress comprised of a single House was antithetical to the very purposes of the Constitution. Confronted with a clear onslaught against our Constitution, I suggest that we the people take action. I suggest that the last three major bills are all unconstitutional: the new Medicare law, the Energy Bill still pending in congress, and the Appropriations Bill that Republicans will try to dispense with, the moment they return to Congress in January. Here’s why they are unconstitutional:
There are two passages in the Constitution that prohibit the kind of intimidation House members experienced during the marathon roll call vote on the Medicare Bill.
(1) The first amendment states in part: “Congress shall make no law…abridging the freedom of speech…” Since voting is a form of speech, the amendment includes a prohibition against abridging the right to vote.
The Republican faction’s seizure of the Speaker’s power to lengthen the period of time for the roll call vote amounted to an illegal and improper conversion of a House rule for the private use and benefit of the White House. But to the faction’s members, it was merely a tool that could be corrupted to create an illegal interference with the members’ free and clear right to vote unmolested and unhindered by anyone. The corrupt use to which the rule was employed violated the first amendment to the Constitution.
(2) The second passage to consider is Article 1, Section 6 of the Constitution. The section begins with a protective warranty that Senators and Representatives “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same.”
The Supreme Court has held that the clause on arrest is limited to only civil arrest since criminal arrest is expressly excluded. (Williamson v. United States, 207 U.S. 425, 446, 1908.) However, a coercive ploy that had the effect of preventing representatives from leaving the House chambers appears to qualify as a civil tort of false imprisonment.
The Constitutional clause protecting senators and representatives from arrest raises this question: May the White House and a faction in Congress combine their power to detain and intimidate representatives to change their votes without violating Section 6 Article 1 of the Constitution? Keep in mind that the formulation of that Constitutional section was to prevent legislators from being intimidated by the executive branch.
If the section can be read broadly, then I believe it prohibits acts of civil detention meant to intimidate members of Congress. The contrary reading is repugnant to our democracy: that is, if the section should be interpreted to mean that the Constitution allows legislators to be arrested or detained by a faction within the legislative body or by the executive branch for the purpose of intimidation--that reading would be repugnant to democratic principles.
The plenary authority of Congress to create its own rules is not in question, what is challenged is whether Congress has chosen a constitutionally permissible means of implementing its power. (INS V. Chadha 462 U.S. 919, 1982.)
It’s clear from the record that the factious members of the majority party excluded minority members from legislative debate and participation on these bills. Charles Babington describes the situation: “Nearly half the electorate—people who chose Democrats to represent them in Congress—are, to an increasing degree, disenfranchised. Their representatives aren’t simply outvoted on the House and Senate floors, they’re not even present when key legislation is discussed and refined.”
The exclusions were accomplished by fiat. Those exclusions are unconstitutional. For if we examine the Constitution, Section 5 of Article I empowers each House to determine the rules of its proceedings and grants each House the right to punish its members for disorderly behavior and to expel a member. However, it requires a two thirds vote to expel.
The point is: there was neither a motion, nor a debate nor a vote to exclude the minority Democratic members from participation in the legislative process. Failure of the House to follow its own democratically established rules and procedures disqualifies the legitimacy of the resulting legislation.
Article I, Section 6 lays out the famous “Speech or Debate” clause of the Constitution. So important was the existence of a free and open legislative branch of government that our founding fathers created a proscriptive and protective warranty for speeches and debates (which has been extended by the Supreme Court to include committee reports, resolutions, and even the act of voting).
Legislators cannot be sued for statements they make in debate or in speeches in either House, including their vote, their committee reports, and resolutions. The reason for the protection was “to prevent intimidation [of legislators] by the executive and accountability before a possibly hostile Judiciary.” (Powell v. McCormack 395 U.S. 486) If a minority member’s speech against a particular legislation is protected by the Constitution from lawsuits and harassment, it follows that the minority member’s right to participate in the legislative process also cannot be abridged because he made the opposing speech.
If one should couple the warranty clause with the first amendment, which states in part: “Congress shall make no law…abridging the freedom of speech…or the right of the people peaceably to assemble…” it’s likely that most of us would draw the conclusion that the Constitution prohibits a factious majority in Congress from selecting a group of legislators on the basis of their political party affiliation and or because of their opposition to proposed legislation, and on that basis exclude those members from further participation in the legislative process.
It also follows that any limitation on debate and legislative participation must be applied uniformly and fairly, that is, if the majority party is granted ten minutes to speak per speaker, the minority party must also have ten minutes to speak per speaker. If the majority party is granted a proportional number of seats on a committee, then the minority should also be granted their proportional number of seats. Ordinarily that is exactly what happens in Congress.
However, a House rule that excludes representatives from the minority party from participating in an essential part of the legislative process simply because they do not agree with the majority’s agenda or a particular piece of legislation has to be found unconstitutional.
The alienation is only exacerbated when one party controls both branches of government and the legislative branch becomes a rubber stamp for the executive branch. A rule that disrupts the balance of powers built into the Constitution is objectionable on its face. Dissent is essential to the very heart and soul of a democracy.
Any laws passed by Congress while Congress imposes its anti-minority restrictions should be set aside as violations of the Constitution.
Lastly, If the Constitution Protects Representatives from Suits, then How Could the Courts Hear the Case?
This no doubt will be an important part of the Republican faction’s defense. Pat Robertson, a religious reactionary and a factious Republican, has argued the Supreme Court does not have the power to review and determine whether an act of Congress is constitutional or not. His position is to increase the power of the executive branch of government. One can only now, after years of observation, catch a real glimpse of the kind of government Pat Robertson has been advocating for more than twenty years and which he intends to impose upon America through the help of the Republican faction he endorses.
Notwithstanding Robertson’s objections, the Supreme Court has laid down guidelines explaining its rules of review. Most of the cases examine whether the Court can rule on what is called “Political Questions.”
Starting with a more recent case, INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court gives an important overview of the Court’s actions, going back in time to 1803 and Marbury v. Madison, and to 1819 to McCulloch v. Maryland for the proposition: “Courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority.”
The Court in Chadha also refers the reader to a case that occurred in 1892, where a bill signed by the Speaker of the House and by the President of the Senate and presented to the President of the United States and delivered by the latter to the Secretary of State as an act passed by Congress. The Supreme Court said the 1892 case resolved any question that an act “does not become a law of the United States if it had not in fact been passed by Congress.”
Another fascinating Supreme Court case occurred in 1969: Powell v. McCormack, 395 U.S. 486. A duly elected congressman was “excluded” from attending meetings or to take his seat in the House by a resolution of the House. The Clerk, Sergeant at Arms, and Doorkeeper of the House threatened to refuse to perform the services Powell was entitled to: the Sergeant at Arms refused to pay Powell’s salary and the Doorkeeper threatened to deny Powell admission to the House chamber. The Supreme Court sustained Powell’s suit against the employees of the House.
The Court also made a distinction between “exclusion” from the House and “expulsion.” As a means of punishment, expulsion requires a two thirds vote (Article 1 § 5), whereas exclusion requires only a majority vote. The Court ruled that the terms were not interchangeable. The House apparently attempted to go around its own rules in punishing a member before he was seated for an alleged mishandling of public funds committed prior to his election. Congress had historically established a limitation on its power: it did not punish a member for acts done prior to a member’s election. The court held: “Although the House manifested an intent to exclude Powell, its action should be tested by whatever standards may govern an expulsion.”
All these cases show that the U. S. Courts will and do review cases involving Congress when Constitutional violations are present. Therefore, I conclude the new Medicare law, the Energy Bill still pending in congress, and the Appropriations Bill still pending are all unconstitutional.
On Evil
More than twenty years ago, the psychiatrist Scott Peck defined evil “as the exercise of political power—that is, the imposition of one’s will upon others by overt or covert coercion…” The question is, what must we do to stop the triumph of evil in our country?
Alexander Hamilton wrote in 1774, “The only distinction between freedom and slavery consists in this: In the former state a man is governed by the laws to which he has given his consent, either in person, or by his representative: In the latter, he is governed by the will of another…It is easy to discern which of these two states is preferable.”
We have already seen that Americans are being denied their right to representation in Congress. Therefore the bills that are being passed are without the consent of at least half of the American electorate. Congress is being dramatically changed by a faction in Washington. We cannot sit idly by.
The U. S. Courts have jurisdiction over the issues raised in this article. The American people and their excluded representatives should file an injunction against the faction controlling Congress to halt the illegal takeover and seek declaratory relief from the courts. As Edmund Burke said, “All that is necessary for the triumph of evil is that good men do nothing.”
Perhaps the best way to end this story is to paraphrase what has happened through the eyes of Lewis Carroll’s Alice in Wonderland:
Three Republican House Dons Made an Announcement
“Rule Forty-two. All persons more than a mile high to leave the House and Senate Chambers.”
Everybody looked at the Democrats.
“I’m not a mile high,” said Nancy Pelosi.
“I’m not a mile high either,” said Tom Daschle.
“You are too,” said Lord of the House, Hastert.
“Nearly two miles high,” added Lord of the Whip, Delay.
“You are exactly 2.1573 miles high each!” said Exchequer Thomas angrily.
“In fact,” said Lord of the Senate, Frist, “You are also diseased.”
“Well, I sha’n’t go, at any rate,” said Nancy firmly.
“Nor I,” said Tom.
“It’s the oldest rule in the book,” said Lord Delay smugly.
“Then it ought to be Number One!” said Nancy.
Katherine Yurica was educated at East Los Angeles College, U.S.C. and the USC school of law. She worked as a consultant for Los Angeles County and as a news correspondent for Christianity Today plus as a freelance investigative reporter. She is the author of three books. She is also the publisher of the Yurica Report.
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