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I don't see how any law like this would be constitutional without a full amendment. One class of Congress cannot arbitrarily impose restrictions on future class

I don't see how any law like this would be constitutional without a full amendment. One class of Congress cannot arbitrarily impose restrictions on future classes of Congress without an amendment.

EA-3167 3y ago
Perhaps the ones proposing the law realize that, and are simply taking an action they can claim shows "Hey we tried, guys." That would be the sort of blatant cynicism I can imagine in the senate, and unfortunately I suspect it will work on the campaign trail too.
- chrisco255 3y ago
  This is likely to be the real answer.
JumpCrisscross 3y ago
> one class of Congress cannot arbitrarily impose restrictions on future classes of Congress without an amendment Plenty of laws regulate Congress–it isn't sovereign. Laws require the President's sign off. It isn't one Congress binding another. It's the U.S. government restricting the Congress. (Or more accurately, its members.)
- chrisco255 3y ago
  [flagged]
  - JumpCrisscross 3y ago
    > you're proposing a Constitutional change to deny members of Congress a legal right that is available to the broader population Is this a crackpot legal theory about how the last hundred years of precedent are unconstitutional because Redditor No. 9 million said as much? Where in the Constitution does it explicitly bar bribery? Come on.
    - chrisco255 3y ago
      This is not a crackpot theory, this is how the Constitution works. You cannot impose specific restrictions on Congress on personal rights that ordinary members of the public have (trading stocks and other property assets) without a specific clause set out for it in the Constitution. Their private property rights are explicitly protected by the Due Process of the 5th amendment and Equal Protection clause of the 14th amendment (same as you and me): "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.]" They do not lose 5th and 14th amendment protections in their private affairs just because they were elected to Congress. Bribery is illegal for everyone, not just Congress. Trading stocks are not. That being said, you'd be naive to believe that implicit bribery does not occur in U.S. politics. And in practice, it's very difficult to prosecute a bribery case against a member of Congress as it's not permissible to introduce acts of legislation as evidence in court (US v Helstoski, 1979). In US v Brewster (1972), it was found that taking of a bribe was not protected by the Speech and Debate clause since the taking of the bribe was not related to "performance of a legislative function". Even then, though, Brewster was found not guilty despite quite overtly requesting a bribe. [1] https://en.wikipedia.org/wiki/Due_Process_Clause https://en.wikipedia.org/wiki/Due_Process_Clause [2] https://www.law.cornell.edu/supremecourt/text/408/501 https://www.law.cornell.edu/supremecourt/text/408/501 [3] https://caselaw.findlaw.com/court/us-supreme-court/442/477.html https://caselaw.findlaw.com/court/us-supreme-court/442/477.h...
      - epups 3y ago
        Honest question: if we can enforce limitations on a person's liberty, freedom and so on when they drive a car, why couldn't we do the same when they hold public office?
        diracs_stache 3y ago
        Seriously, a cop can pull you over and your fourth amendment protections are dead, must help that driving is considered a privilege and not a right by states
metiscus 3y ago
"It is a crime punishible by xyz to hold any of the following offices and while owning any of the following classes of asset. A newly elected xyz shall have XXX days to divest themselves of any of the prohibited securities after the election is certified." Something like that seems constitutional to me, although I am not a constitutional scholar.
- chrisco255 3y ago
  No, that is nowhere close to Constitutional unless you get a 2/3 supermajority of both chambers and 3/4 of state legislatures to agree to it.
gottorf 3y ago
The idea that Congress cannot bind a future Congress doesn't mean that Congress can't make laws that regulate itself. It just means that a later Congress can vote to repeal whatever laws that an earlier Congress had voted to enact.
- JumpCrisscross 3y ago
  > just means that a later Congress can vote to repeal whatever laws that an earlier Congress had voted to enact Laws aren't passed by the Congress alone. OP is confusing the law with e.g. the principle that says the 118th Congress can't adopt a House rule with two clauses: (1) All Democrats must tape a weenie to their head, and (2) This rule may only be changed by unanimous consent. When it comes to laws, they can't bind the Congress (collectively) but they can bind its members individually. For example, the 118th Congress can't pass a law compelling the 119th Congress to pass something else. This doesn't arise out of any law, but is a natural result of, quoting Cicero: "when you repeal the law itself, you at the same time repeal the prohibitory clause, which guards against such repeal" [1]. [1] https://ij.org/cje-post/state-con-law-case-of-the-week-can-one-legislature-bind-the-next/ https://ij.org/cje-post/state-con-law-case-of-the-week-can-o...
tacticalturtle 3y ago
Sure they can. Here’s an example where Congress banned itself and future classes from engaging in insider trading (which was previously legal): https://en.m.wikipedia.org/wiki/STOCK_Act https://en.m.wikipedia.org/wiki/STOCK_Act
- chrisco255 3y ago
  It's still very much practiced as seen during COVID-19 and Nancy Pelosi's exceptional portfolio performance and timing. It is also unenforceable. The 2012 Congress cannot regulate the legal activity of members of Congress without an amendment, unless the law broadly applies to the general population.
  - hiatus 3y ago
    How was Congress exempted from insider trading laws yet powerless to enact laws that restrict their own conduct?
  - tacticalturtle 3y ago
    If it’s unenforceable and unconstitutional, then why was the FBI able to obtain a search warrant for Richard Burr’s phone? https://en.m.wikipedia.org/wiki/2020_congressional_insider_trading_scandal https://en.m.wikipedia.org/wiki/2020_congressional_insider_t... Clearly both a judge and the FBI understood that they could act in this law. I don’t understand why you are so adamant on this point about regulating Congress. Multiple people in this thread have posted examples refuting this.
porantz 3y ago
[dead]
DANmode 3y ago
Which part of the Constitution has an issue with this?
- dragonwriter 3y ago
  For the federal government doesn’t work that way Constitutionally: the question is “what part of the Constitution authorizes it?” (Arguably the answer is “the interstate commerce clause”, but its important to ask the right question.)
  - chrisco255 3y ago
    The interstate commerce clause is about commerce between states, it's not about imposing legal restrictions on future classes of Congress. There is a reason why the Constitution requires 2/3 supermajorities from both chambers and 3/4 of state legislatures. Any legal restrictions targeting members of Congress (that aren't broadly applicable to everyone in the U.S.) have to go through the constitution.
    - LocalH 3y ago
      Tell that to Wickard v. Filburn. Stock trading by Congress definitely affects interstate commerce as much as an individual farmer growing wheat that is not for interstate trade, or even a thousand such farmers.
dragonwriter 3y ago
> One class of Congress cannot arbitrarily impose restrictions on future classes of Congress without an amendment. No such rule exists. The closest is that an act of Congress can’t limit Congress ability to exercise its Constitutional powers in the future (e.g., a past Congress could not limit a future Congress’ ability to set its own rules), but there is nothing that prevents a Congress from passing laws which regulate the behavior of future members of Congress, as individuals, so long as it is otherwise authorized by the Constitution (i.e., like any other law it must exercise a Constitutional grant of power; here, probably, the interstate commerce clause) and does not violate any of the express immunities of members of Congress (e.g., the Speech and Debate clause), which a blanket regulation like this does not.
- chrisco255 3y ago
  Of course it does. The whole institution of Congress and everything from its apportionment to its salaries are determined by the Constitution. Regulating the behavior of Congress in a way is a constitutional change. Sorry, no, the interstate commerce clause has absolutely nothing to do with the legislature regulating future generations of Congress.
  - bern4444 3y ago
    > The whole institution of Congress and everything from its apportionment to its salaries are determined by the Constitution. Congress decides how much to pay themselves in Salary. They can pass bills to raise or lower it. They could also decide to pass a bill to change how the members of congress are picked, or to expand the congress, or shrink it. The constitution quite literally be amended and changed. In a way, this is the ultimate strength of our system of government. We (the government being represented by the people) choose the limits and rules to impose on ourselves - we are not subject to an arbitrarily picked ruler and assume full responsibility for what we allow in society.
    - chrisco255 3y ago
      They are granted the privilege to decide Congressional salaries by the Compensation Clause of the Constitution. They are not granted to impose targeted legislation against elected members of legislative bodies. Also by the 27th amendment any increase must take effect in the following election. > They could also decide to pass a bill to change how the members of congress are picked, or to expand the congress, or shrink it. No, they cannot. That requires an amendment, not a bill, and amendments have to be ratified by 3/4 of all state legislatures. > The constitution quite literally be amended and changed. In a way, this is the ultimate strength of our system of government. We (the government being represented by the people) choose the limits and rules to impose on ourselves - we are not subject to an arbitrarily picked ruler and assume full responsibility for what we allow in society. The strength of our system of govt in part derives from the fact that it is not trivial to change the Constitution. It requires supermajorities (2/3) in both chambers of Congress and 3/4 of all state legislatures to ratify any change. This is A Good Thing, because simple majorities are fleeting and temporary and allowing chaotic changes to the Bill of Rights, for example, would be devastating to the idea of liberty. Too often in history, democracies have failed because they buckled to the whims of simple majorities, or granted themselves or an executive branch too much power. Our system is the oldest continuous democracy in the world in part because of those supermajority requirements.

I don't see how any law like this would be constitutional without a full amendment. One class of Congress cannot arbitrarily impose restrictions on future classes of Congress without an amendment.

EA-3167 3y ago

Perhaps the ones proposing the law realize that, and are simply taking an action they can claim shows "Hey we tried, guys." That would be the sort of blatant cynicism I can imagine in the senate, and unfortunately I suspect it will work on the campaign trail too.

chrisco255 3y ago
This is likely to be the real answer.

JumpCrisscross 3y ago

> one class of Congress cannot arbitrarily impose restrictions on future classes of Congress without an amendment Plenty of laws regulate Congress–it isn't sovereign. Laws require the President's sign off. It isn't one Congress binding another. It's the U.S. government restricting the Congress. (Or more accurately, its members.)

chrisco255 3y ago
[flagged]
- JumpCrisscross 3y ago
  > you're proposing a Constitutional change to deny members of Congress a legal right that is available to the broader population Is this a crackpot legal theory about how the last hundred years of precedent are unconstitutional because Redditor No. 9 million said as much? Where in the Constitution does it explicitly bar bribery? Come on.
  - chrisco255 3y ago
    This is not a crackpot theory, this is how the Constitution works. You cannot impose specific restrictions on Congress on personal rights that ordinary members of the public have (trading stocks and other property assets) without a specific clause set out for it in the Constitution. Their private property rights are explicitly protected by the Due Process of the 5th amendment and Equal Protection clause of the 14th amendment (same as you and me): "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.]" They do not lose 5th and 14th amendment protections in their private affairs just because they were elected to Congress. Bribery is illegal for everyone, not just Congress. Trading stocks are not. That being said, you'd be naive to believe that implicit bribery does not occur in U.S. politics. And in practice, it's very difficult to prosecute a bribery case against a member of Congress as it's not permissible to introduce acts of legislation as evidence in court (US v Helstoski, 1979). In US v Brewster (1972), it was found that taking of a bribe was not protected by the Speech and Debate clause since the taking of the bribe was not related to "performance of a legislative function". Even then, though, Brewster was found not guilty despite quite overtly requesting a bribe. [1] https://en.wikipedia.org/wiki/Due_Process_Clause https://en.wikipedia.org/wiki/Due_Process_Clause [2] https://www.law.cornell.edu/supremecourt/text/408/501 https://www.law.cornell.edu/supremecourt/text/408/501 [3] https://caselaw.findlaw.com/court/us-supreme-court/442/477.html https://caselaw.findlaw.com/court/us-supreme-court/442/477.h...
    - epups 3y ago
      Honest question: if we can enforce limitations on a person's liberty, freedom and so on when they drive a car, why couldn't we do the same when they hold public office?
      - diracs_stache 3y ago
        Seriously, a cop can pull you over and your fourth amendment protections are dead, must help that driving is considered a privilege and not a right by states

metiscus 3y ago

"It is a crime punishible by xyz to hold any of the following offices and while owning any of the following classes of asset. A newly elected xyz shall have XXX days to divest themselves of any of the prohibited securities after the election is certified." Something like that seems constitutional to me, although I am not a constitutional scholar.

chrisco255 3y ago
No, that is nowhere close to Constitutional unless you get a 2/3 supermajority of both chambers and 3/4 of state legislatures to agree to it.

gottorf 3y ago

The idea that Congress cannot bind a future Congress doesn't mean that Congress can't make laws that regulate itself. It just means that a later Congress can vote to repeal whatever laws that an earlier Congress had voted to enact.

JumpCrisscross 3y ago
> just means that a later Congress can vote to repeal whatever laws that an earlier Congress had voted to enact Laws aren't passed by the Congress alone. OP is confusing the law with e.g. the principle that says the 118th Congress can't adopt a House rule with two clauses: (1) All Democrats must tape a weenie to their head, and (2) This rule may only be changed by unanimous consent. When it comes to laws, they can't bind the Congress (collectively) but they can bind its members individually. For example, the 118th Congress can't pass a law compelling the 119th Congress to pass something else. This doesn't arise out of any law, but is a natural result of, quoting Cicero: "when you repeal the law itself, you at the same time repeal the prohibitory clause, which guards against such repeal" [1]. [1] https://ij.org/cje-post/state-con-law-case-of-the-week-can-one-legislature-bind-the-next/ https://ij.org/cje-post/state-con-law-case-of-the-week-can-o...

tacticalturtle 3y ago

Sure they can. Here’s an example where Congress banned itself and future classes from engaging in insider trading (which was previously legal): https://en.m.wikipedia.org/wiki/STOCK_Act https://en.m.wikipedia.org/wiki/STOCK_Act

chrisco255 3y ago
It's still very much practiced as seen during COVID-19 and Nancy Pelosi's exceptional portfolio performance and timing. It is also unenforceable. The 2012 Congress cannot regulate the legal activity of members of Congress without an amendment, unless the law broadly applies to the general population.
- hiatus 3y ago
  How was Congress exempted from insider trading laws yet powerless to enact laws that restrict their own conduct?
- tacticalturtle 3y ago
  If it’s unenforceable and unconstitutional, then why was the FBI able to obtain a search warrant for Richard Burr’s phone? https://en.m.wikipedia.org/wiki/2020_congressional_insider_trading_scandal https://en.m.wikipedia.org/wiki/2020_congressional_insider_t... Clearly both a judge and the FBI understood that they could act in this law. I don’t understand why you are so adamant on this point about regulating Congress. Multiple people in this thread have posted examples refuting this.

porantz 3y ago

[dead]

DANmode 3y ago

Which part of the Constitution has an issue with this?

dragonwriter 3y ago
For the federal government doesn’t work that way Constitutionally: the question is “what part of the Constitution authorizes it?” (Arguably the answer is “the interstate commerce clause”, but its important to ask the right question.)
- chrisco255 3y ago
  The interstate commerce clause is about commerce between states, it's not about imposing legal restrictions on future classes of Congress. There is a reason why the Constitution requires 2/3 supermajorities from both chambers and 3/4 of state legislatures. Any legal restrictions targeting members of Congress (that aren't broadly applicable to everyone in the U.S.) have to go through the constitution.
  - LocalH 3y ago
    Tell that to Wickard v. Filburn. Stock trading by Congress definitely affects interstate commerce as much as an individual farmer growing wheat that is not for interstate trade, or even a thousand such farmers.

dragonwriter 3y ago

> One class of Congress cannot arbitrarily impose restrictions on future classes of Congress without an amendment. No such rule exists. The closest is that an act of Congress can’t limit Congress ability to exercise its Constitutional powers in the future (e.g., a past Congress could not limit a future Congress’ ability to set its own rules), but there is nothing that prevents a Congress from passing laws which regulate the behavior of future members of Congress, as individuals, so long as it is otherwise authorized by the Constitution (i.e., like any other law it must exercise a Constitutional grant of power; here, probably, the interstate commerce clause) and does not violate any of the express immunities of members of Congress (e.g., the Speech and Debate clause), which a blanket regulation like this does not.

chrisco255 3y ago
Of course it does. The whole institution of Congress and everything from its apportionment to its salaries are determined by the Constitution. Regulating the behavior of Congress in a way is a constitutional change. Sorry, no, the interstate commerce clause has absolutely nothing to do with the legislature regulating future generations of Congress.
- bern4444 3y ago
  > The whole institution of Congress and everything from its apportionment to its salaries are determined by the Constitution. Congress decides how much to pay themselves in Salary. They can pass bills to raise or lower it. They could also decide to pass a bill to change how the members of congress are picked, or to expand the congress, or shrink it. The constitution quite literally be amended and changed. In a way, this is the ultimate strength of our system of government. We (the government being represented by the people) choose the limits and rules to impose on ourselves - we are not subject to an arbitrarily picked ruler and assume full responsibility for what we allow in society.
  - chrisco255 3y ago
    They are granted the privilege to decide Congressional salaries by the Compensation Clause of the Constitution. They are not granted to impose targeted legislation against elected members of legislative bodies. Also by the 27th amendment any increase must take effect in the following election. > They could also decide to pass a bill to change how the members of congress are picked, or to expand the congress, or shrink it. No, they cannot. That requires an amendment, not a bill, and amendments have to be ratified by 3/4 of all state legislatures. > The constitution quite literally be amended and changed. In a way, this is the ultimate strength of our system of government. We (the government being represented by the people) choose the limits and rules to impose on ourselves - we are not subject to an arbitrarily picked ruler and assume full responsibility for what we allow in society. The strength of our system of govt in part derives from the fact that it is not trivial to change the Constitution. It requires supermajorities (2/3) in both chambers of Congress and 3/4 of all state legislatures to ratify any change. This is A Good Thing, because simple majorities are fleeting and temporary and allowing chaotic changes to the Bill of Rights, for example, would be devastating to the idea of liberty. Too often in history, democracies have failed because they buckled to the whims of simple majorities, or granted themselves or an executive branch too much power. Our system is the oldest continuous democracy in the world in part because of those supermajority requirements.