Why Grayson's Use of Legislative History is Brilliant

>> Sunday, October 4, 2009

Dday has a post up about the rising liberal lion Alan Grayson and his myriad efforts to protect the American people. As Grayson rockets to legislative stardom i wanted to take a minute to explore just how good he is at his job. The technical thing i have been most impressed with is his use of legislative history and understanding of the legal system in fighting fraud and abuse by government contractors. His use of legislative history is brilliant.

For a a quick refresher,,

When the House of Representatives went after federal funding for the community-organizing group ACORN last week, the bill as written also affected "any organization" that had been involved in a wide range of fraudulent activity and other bad behavior.

On Friday, Rep. Alan Grayson (D-Fla.) inserted into the "legislative history" language spelling out that including all fraudulent organizations was, in fact, the intent of the Congress.

Meanwhile, he has been asking citizens to suggest specific companies which would be targeted by the anti-fraud language and provide evidence for the claim. The list has grown several pages long. The names of those organizations will be submitted into the congressional record next week.

"The purpose of this bill is to cleanse federal contracting and grant-making, completely and permanently. The purpose is to put an end to the invidious practice of rewarding those who steal taxpayer money by giving them more taxpayer money," writes Grayson. "The bill imposes, and is intended to impose, a corporate death penalty on contractors who fall within the scope of its prohibitions."

Careful readers may note that Grayson didnt actually change the text of the bill. Thats the first clever move. If he had actually suggested that it be explicitly spelled out that Boeing etc were part of the bill it would most likely have hindered the bills passage. Republicans would not stand for regulating actual fraud in the military industrial complex. Actually most Democrats would run away from that too. The point is that he left the broad text alone. He simply bolstered the broad "any" language by making it clear for the courts who have to enforce the law that congress really meant any. Why does this matter? Grayson's language prevents courts from reading out Acorn, Boeng, Xe, or anybody else who commits fraud which they might have done without the language.

An example,

The primary intention is not merely to penalize such organization, since other laws perform that function. Rather, the intention is to protect the Government and the taxpayers from losses in the future, and to deter misconduct on the part of federal fund recipients. The intention of deterrence, in particular, requires that these prohibitions be construed broadly, and enforced strictly.

When a judge considers the statute they may take several different approaches. One of these is a textualist approach where upon reading the statute they would find that it does target "any organization." If they strictly adhere to textualist approach they really shouldnt get beyond that. A court giving that a plain meaning could not reasonably find that Boeing is differentiated from Acorn. However, many judges may be tempted to say that congress could not have meant "any" organization and that this would be an absurd result and that the statute should be read to have exceptions. One tool used to determine whether congress really meant "any" is--legislative history.

When a judge looks for the intent of congress to determine whether they really meant "any" organization they will find Grayson's language that is very strong and very clear that they did mean any to include every one perpetrating fraud. I mean his language makes it clear that if you file false reports you get the world dropped on you.

Regarding such prohibitions, Congress intends to substitute a "per se" rule in place of any rule requiring a balancing of factors, or exercise of discretion or judgment, to the full extent permitted for Congress by the U.S. Constitution. "Permanent" means lasting for the entire time that the organization remains in existence. If a principal, or principals, of a covered organization form(s) or attempt(s) to form a new organization, then that new organization may be deemed, through administrative action, to be a covered organization. "Principal" means an officer, a director, or an owner of at least five percent of the shares of a covered organization.

This really cuts out any chance a judge would have to exercise discretion. Grayson wrote it out. No discretion, no balance of factors like courts love to do. One strike and your out.

The other ting that is rather clever about this is that it should alleviate any issues with the bill being a bill of attainder. Bills of attainder are those passed to target specific people or organizations and are unconstitutional. By making it clear that congress meant to get everybody Grayson cleans that up and uses the canon against constitutional conflict to his benefit. Courts are supposed to believe that congress does not intend to pass unconstitutional legislation so if there is a constitutional interpretation it should be used. Grayson provides one. No chance of getting the bill thrown out.

I cant say whether Grayson himself wrote this, he does have a J.D. from Harvard. He is certainly capable. Whether he wrote it or not i have to applaud just how strong he made the legislative history and how smart he was in deploying this tactic. Some judges may blow it all off entirely but if they want to be honest they need to pay attention to it.


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