Lamar Smith

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I would like to submit the following letter from four members of the U.S. Commission on Civil Rights who are opposed to H.R. 1913: United States Commission on Civil Rights, Washington, DC, April 29, 2009. Re: H.R. 1913 Hon. Nancy Pelosi, Speaker, House of Representatives, Washington, DC. Hon. Steny H. Hoyer, Majority Leader, House of Representatives, Washington, DC. Hon. James E. Clyburn, Majority Whip, House of Representatives, Washington, DC. Hon. John Boehner, Minority Leader, House of Representatives, Washington, DC. Hon. Eric Cantor, Minority Whip, House of Representatives, Washington, DC. Dear Madam Speaker and Messrs. Boehner, Cantor, Clyburn and Hoyer: We write today to urge you to vote against the proposed Local Law Enforcement Hate Crimes Prevention Act (H.R. 1913) (``LLEHCPA''). Although time does not permit this issue to be presented for formal Commission action, we believe it is important for us to write as individual members to communicate our serious concerns with this legislation. We believe that LLEHCPA will do little good and a great deal of harm. Its most important effect will be to allow federal authorities to re-prosecute a broad category of defendants who have already been acquitted by state juries-- as in the Rodney King and Crown Heights cases more than a decade ago. Due to the exception for prosecutions by ``dual sovereigns,'' such double prosecutions are technically not violations of the Double Jeopardy Clause of the U.S. Constitution. But they are very much a violation of the spirit that drove the framers of the Bill of Rights, who never dreamed that federal criminal jurisdiction would be expanded to the point where an astonishing proportion of crimes are now both state and federal offenses. We regard the broad federalization of crime as a menace to civil liberties. There is no better place to draw the line on that process than with a bill that purports to protect civil rights. While the title of LLEHCPA suggests that it will apply only to ``hate crimes,'' the actual criminal prohibitions contained in it do not require that the defendant be inspired by hatred or ill will in order to convict. It is sufficient if he acts ``because of someone's actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability. Consider: Rapists are seldom indifferent to the gender of their victims. They are virtually always chosen ``because of their gender. A robber might well steal only from women or the disabled because, in general, they are less able to defend themselves. Literally, they are chosen ``because of their gender or disability. While Senator Edward Kennedy has written that it was not his intention to cover all rape with LLEHCPA, some DOJ officials have declined to disclaim such coverage. Moreover, both the objective meaning of the language and considerable legal scholarship would certainly include such coverage. If all rape and many other crimes that do not rise to the level of a ``hate crime'' in the minds of ordinary Americans are covered by LLEHCPA, then prosecutors will have ``two bites at the apple'' for a very large number of crimes. DOJ officials have argued that LLEHCPA is needed because state procedures sometimes make it difficult to obtain convictions. They have cited a Texas case from over a decade ago involving an attack on a black man by three white hoodlums. Texas law required the three defendants to be tried separately. By prosecuting them under federal law, however, they could have been tried together. As a result, admissions made by one could be introduced into evidence at the trial of all three without falling foul of the hearsay rule. Such an argument should send up red flags. It is just an end-run around state procedures designed to ensure a fair trial. The citizens of Texas evidently thought that separate trials were necessary to ensure that innocent men and women are not punished. No one was claiming that Texas applies this rule only when the victim is black or female or gay. And surely no one is arguing that Texans are soft on crime. Why interfere with their judgment? We are unimpressed with the arguments in favor of LLEHCPA and would be happy to discuss the matter further with you if you so desire. Please do not hesitate to contact any of us with your questions or comments. The Chairman's Counsel and Special Assistant, Dominique Ludvigson, is also available to further direct your inquiries at dludvigson@usccr.gov or at (202) 376-7626. Sincerely, Gerald A. Reynolds, Chairman. Gail L. Heriot, Commissioner. Todd Gaziano, Commissioner. Peter N. Kirsanow, Commissioner.

Mr. SMITH of Texas. Mr. Speaker, I yield the balance of my time to the gentleman from Indiana (Mr. Pence), who is also chairman of the Republican Conference. (Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. SMITH of Texas. Mr. Speaker, I yield myself 2 minutes. Mr. Speaker, under this legislation, criminals who kill certain people will be punished more harshly than people who kill a police officer, a member of the military, a child, or a senior citizen. Is a murder motivated by hatred for something other than the victim's membership in a particular group any less devastating or tragic? All crime victims should have equal worth in the eyes of the law. Ordinarily, criminal law does not concern itself with motive, why a person acted, but rather with intent, whether the perpetrator intended or knew that they would cause harm. If someone intends to harm a person, no motive makes them more or less culpable for their conduct. This legislation will force law enforcement officials and prosecutors to gather evidence about the offender's thoughts and words regardless of the criminality of their actions. When the government starts to punish thoughts, this is a dangerous road to travel. And where does it end? With thought police? Mr. Speaker, we cannot legislate away hate, nor should we criminalize a person's thoughts, no matter how much we might disagree with them. I urge my colleagues to oppose this bill. I reserve the balance of my time.

Mr. SMITH of Texas. Mr. Speaker, I would like to reserve my time.

Mr. SMITH of Texas. Mr. Speaker, I yield 4 minutes to the gentleman from Iowa (Mr. King), a member of the Judiciary Committee and the ranking member of the Immigration Subcommittee.

Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman from Pennsylvania (Mr. Pitts), who is also the chairman of the Values Action Team.

Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman from Ohio (Mr. Jordan), who is a member of the Judiciary Committee and who is also deputy ranking member of the Administrative Law Subcommittee.

Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman from Missouri (Mr. Akin).

Mr. SMITH of Texas. I yield the gentleman an additional minute.

Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman from Texas (Mr. Gohmert), former judge, and now the ranking member of the Crime Subcommittee.

Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman from Utah (Mr. Chaffetz), who is a member of the Judiciary Committee and the deputy ranking member of the Court Subcommittee.

Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman from Texas (Mr. Poe), a former judge and now the deputy ranking member of the Crime Subcommittee.

Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to the gentleman from California (Mr. McClintock).

Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman from Virginia (Mr. Forbes), a member of the Judiciary Committee and a former ranking member of the Crime Subcommittee.

Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman from Virginia (Mr. Goodlatte), who is the vice ranking member of the Judiciary Committee.

Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman from Wisconsin (Mr. Sensenbrenner), a former chairman of the Judiciary Committee and now the ranking member of the Constitution Subcommittee.

Mr. SMITH of Texas

Mr. SMITH of Texas. Madam Speaker, in a recent Investors Business Daily op-ed, radio host Larry Elder wondered how the media's reporting would be different if a Republican were President. Of a potential Republican President, Elder wrote, ``Imagine if his Secretary of Treasury had not paid taxes, he granted two dozen waivers to his no-lobbyists-in-government rule and he had promised bipartisanship but only got three across-the-aisle votes for his 'stimulus' package. Or if he tripled the projected annual deficit and intended, within a short period, to double the national debt.'' Elder's point is clear. The national media's double standard has meant a free pass for President Obama and the Democrats' budget. The American people should insist on fair news coverage without regard to political party.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, H.R. 1256 directs the Secretary of HHS to promulgate an interim final rule that is identical to the FDA's 1996 rule, which legal experts from across the political spectrum have stated would violate the First Amendment. While these experts' views should carry great weight, even more persuasive is the fact that the U.S. Supreme Court also has weighed in on various provisions of the rule, finding them unconstitutional. In Lorillard Tobacco Co. v. Reilly, the U.S. Supreme Court struck down a Massachusetts statute that was similar in many ways to the FDA's proposed rule. The statute banned outdoor ads within 1,000 feet of schools, parks and playgrounds and also restricted point-of-sale advertising for tobacco products. The Court held that this regulation ran afoul of the test established in the Central Hudson case, which defines the protection afforded commercial speech under the First Amendment, as it was not sufficiently narrowly tailored, and would have disparate impacts from community to community. The Court then noted that since the Massachusetts statute was based on the FDA's rule, the FDA rule would have similar constitutional problems. As Justice Sandra Day O'Connor wrote for the Court, ``the uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring.'' Additionally, the proposed rule in H.R. 1256 would require ads to use only black text on a white background. The U.S. Supreme Court found a similar provision unconstitutional in Zauderer v. Office of Disciplinary Counsel. In that case, dealing with advertising for legal services, the Court held that the use of colors and illustrations in ads is entitled to the same First Amendment protections given verbal commercial speech. Justice Byron White, in his opinion for the Court, wrote that pictures and illustrations in ads cannot be banned ``simply on the strength of the general argument that the visual content of advertisements may, under some circumstances, be deceptive or manipulative.'' So there are numerous speech restrictions in this legislation that raise serious First Amendment concerns. This will create a swarm of lawsuits that will only divert us from trying to develop more effective approaches to tobacco use in the United States. To include speech restrictions that a broad range of legal experts have stated are almost certain to be unconstitutional fatally taints this bill. I know the bill is well-intentioned but I hope my colleagues will support the alternative offered by the gentleman from Indiana, Mr. Buyer.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, H.R. 1575 should not be on the floor today. In the rush to respond to the bonuses paid to AIG executives, some in the majority have, once again, let expediency override common sense. The Judiciary Committee has held no hearings, heard no expert witnesses, and provided no reasoned evaluation of this bill during the normal legislative process. Instead, the bill went directly to full committee markup within hours of its introduction. After markup, it was substantially rewritten behind closed doors. Now it has been rewritten in the dark, once again, and has been sent prematurely to the floor. In the last few weeks, Congress has learned the hard way about the unintended consequences of rushing to legislate without adequate expert testimony or debate. The results this time could be more costly than any of us would want. President Obama, Secretary Geithner, leading financial institutions, and even the Washington Post, have already sounded the alarm. Congress' haste to rewrite contracts, claiming that payments under the contracts were ``fraudulent conveyances,'' as this bill attempts to do, could scare banks and other institutions away from the government's financial rescue programs. Keenly aware of this, President Obama has urged us to act intelligently, not out of anger, but to pass this bill would be to do the opposite of what President Obama has said that he wants. Early last week, Secretary Geithner finally announced a toxic assets relief program, relying heavily on private participation. The markets responded by rallying strongly for the first time in months. Why would we scare private institutions away now just when we need them the most? Bonuses like AIG's may seem unwise and unfair, but to companies receiving them and courts reviewing them, are they really fraudulent? Our efforts to void legal contracts make the prospect of working with the government look like a walk through a minefield. Remember, it was the current administration that urged congressional Democrats to protect AIG's right to pay these bonuses through the stimulus bill. Congressional Democrats willingly complied. House Democrats passed a bill without even reading it and without any House Republican even supporting it. Then President Obama signed it. How could bonuses that Congress and the President specifically ratified suddenly be fraudulent? If they were not fraudulent, how can this be anything other than an unconstitutional taking of contractual rights? What is more, this bill is unnecessary. We have already passed tax legislation to recoup the AIG bonuses. Besides, a great majority of the key AIG bonus recipients have returned their bonuses. In the end, New York Attorney General Cuomo expects to force the return of all bonuses that went to domestic recipients. He apparently is not as confident about his ability to recoup payments overseas. I am confident, however, that if Mr. Cuomo needs additional authority to recoup overseas payments, the New York legislature is competent to pass legislation through regular order to give him just that authority. Meanwhile, we cannot say with any confidence that this bill will permit us to recoup anything beyond what Attorney General Cuomo has already recovered or may be able to recover. This bill, accordingly, may be utterly useless. The AIG bonuses may have been unwise, but what was fraudulent about them when Congress and the President specifically ratified them? The retribution this bill threatens rests on anger, not on sound policy. It will undoubtedly undermine the Federal Government's ability to recruit bank rescue participants, so this bill will hinder a successful economic recovery rather than contribute to it. Finally, the House just passed H.R. 1586. We do not need to take follow-up action, and we certainly do not need to take it in haste or to overreact. We should not compromise on our duty to the American people by rushing out this hasty, ill-considered and unnecessary bill. I fully expect there will be bipartisan opposition to this legislation. Mr. Speaker, I reserve the balance of my time.

Mr. SMITH of Texas. Mr. Speaker, I yield myself the balance of my time. Mr. Speaker, I would like to close by reiterating that this bill is misguided and should be opposed for many reasons. The AIG bonuses were unwise, but what was fraudulent about them? How can bonuses Congress and the President specifically ratify through the stimulus bill be fraudulent? Bonus retribution rests on anger, not sound policy. It will undermine the Federal Government's ability to recruit bank rescue participants. President Obama has urged us not to act out of anger, and Secretary Geithner has finally just announced a toxic assets relief program relying heavily on private participation. The markets responded to Secretary Geithner by rallying strongly. Why would we scare the private institutions away now? State fraudulent conveyance law is already working. New York Attorney General Andrew Cuomo has used New York State law tools to force at least 15 of the top AIG bonus recipients to return their bonuses. He has recouped at least $50 million. He expects to recoup all bonuses paid to U.S. recipients, and he and other State authorities may recoup bonuses that went overseas. H.R. 1575 puts executive compensation decisions into a multitude of district judges' different hands. H.R. 1575 cannot constrain executive compensation. It just leaves it to over 1,000 district judges to arbitrarily determine whether compensation exceeds a reasonably equivalent value for services. The House just passed H.R. 1586. We don't need to take a follow-up action. Just 2 weeks ago, the House passed H.R. 1586 to go after the AIG bonuses under the Tax Code. H.R. 1575 is redundant and poses some of the same risk. So why does that make sense? H.R. 1575 is not only unwise, it is unnecessary. It is not only unnecessary, it is the product of a ransacking of regular order. And not only that, it will hamper our economic recovery. Mr. Speaker, I just want to say to my colleagues that Republican leader John Boehner, Whip Eric Cantor, and Conference Chairman Mike Pence are all going to vote ``no'' on this legislation. I strongly urge a bipartisan ``no'' vote on H.R. 1575. I yield back the balance of my time.

Mr. SMITH of Texas. Mr. Speaker, on that I demand the yeas and nays.

Mr. SMITH of Texas. Mr. Speaker, I will be the remaining speaker on this side. I will reserve the balance on my side.

Mr. SMITH of Texas. I yield myself such time as I may consume. Mr. Speaker, I would like to address in a little bit more detail some of the defects in this bill. Many of us believe that the AIG bonuses were unwise, but what was fraudulent about them? Urged on by the White House and by the Department of the Treasury, a provision to protect AIG's right to pay the AIG bonuses was sneaked into the stimulus bill, which was subsequently signed by President Obama. How can bonuses that Congress and the President specifically ratified be fraudulent? If they were not fraudulent, how can this bill do anything but threaten an unconstitutional taking of contractual rights? Bonus retribution rests on anger, not on sound policy. It will undermine the Federal Government's ability to recruit bank rescue participants. President Obama, Secretary Geithner and others have all recognized the obvious, that the more we rewrite the contracts of companies participating in the rescue programs, the more the companies will run the other way from our programs. Secretary Geithner has finally announced the program that was supposed to help the meltdown at the very outset, the toxic assets relief plan. The markets responded strongly and positively to that announcement just last week. So how can we take this action that will only scare participants and that program away precisely when we need them to succeed? H.R. 1575 will put executive compensation decisions into a multitude of district judges' different hands. The bill cannot fairly or reliably restrain these 1,000-plus judges as they assess in districts across the country what they think is ``reasonably equivalent value for services.'' The bill is, thus, a prescription for arbitrary results. What is more, in the cases in which the judges find that reasonable compensation was not exceeded, we will recover not one dime of these bonuses. So what is the point? Mr. Speaker, this bill is the product of hurried decision-making, the trampling of regular order and insufficient vetting. In fact, this bill was rewritten twice behind closed doors before we arrived here today, and it still is riddled with all of the flaws that I have discussed. Mr. Speaker, the answer is therefore clear. We certainly should not pass this bill today. I reserve the balance of my time.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I thank my colleague from Indiana for yielding me time. Mr. Speaker, H.R. 1256 directs the Secretary of HHS to promulgate an interim final rule that is identical to the FDA's 1996 rule, which legal experts from across the political spectrum have stated would violate the first amendment. While these experts' views should carry great weight, even more persuasive is the fact that the U.S. Supreme Court also has weighed in on various provisions of the rule, finding them unconstitutional. In Lorillard Tobacco v. Reilly, the U.S. Supreme Court struck down a Massachusetts statute that was similar in many ways to the FDA's proposed rule. The statute banned outdoor ads within 1,000 feet of schools, parks and playgrounds and also restricted point-of-sale advertising for tobacco products. The Court held that this regulation ran afoul of the test established in the Central Hudson case, which defines the protection afforded commercial speech under the first amendment, as it was not sufficiently narrowly tailored and would have disparate impacts from community to community. The Court then noted that since the Massachusetts statute was based on the FDA's rule, the FDA rule would have similar constitutional problems. As Justice Sandra Day O'Connor wrote for the court, ``The uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring.'' Additionally, the proposed rule in H.R. 1256 would require ads to use only black text on a white background. The U.S. Supreme Court found a similar provision unconstitutional in Zauderer v. Office of Disciplinary Counsel. In that case, dealing with advertising for legal services, the Court held that the use of colors and illustrations in ads is entitled to the same first amendment protections given verbal commercial speech. Justice Byron White, in his opinion for the Court, wrote that pictures and illustrations in ads cannot be banned ``simply on the strength of the general argument that the visual content of advertisements may, under some circumstances, be deceptive or manipulative.'' So there are numerous speech restrictions in this legislation that raise serious first amendment concerns. This will create a swarm of lawsuits that will only divert us from trying to develop more effective approaches to tobacco use in the United States. To include speech restrictions that a broad range of legal experts have stated are almost certain to be unconstitutional fatally taints this bill. I know the bill is well-intentioned, but I hope my colleagues will support the alternative offered by the gentleman from Indiana (Mr. Buyer).

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, FBI Director Mueller in his recent testimony before the Senate Judiciary Committee urged Congress to renew what he called exceptional intelligence-gathering tools. Earlier this month, I introduced legislation to do just that. The Safe and Secure America Act extends for 10 years the sunset on two expiring PATRIOT Act provisions: Roving wiretaps, and Foreign Intelligence Surveillance Act business records. Director Mueller reports that obtaining business records ``has been exceptionally helpful in our national security investigations.'' And the roving wiretap authority means that agents are no longer required to obtain a separate warrant for each phone, cell phone, or device a suspect uses. I hope Director Mueller and the administration will ensure that these critical national security tools are reauthorized and kept in place.