H.R. 347: The Strange History of the Bill with the Confusingly Euphemistic Title
The Federal Restricted Buildings and Grounds Improvement Act.*
One of the few liberal media sources to cover the bill called it the anti-Occupy bill, but internal Occupy-related media seem to be
largely ignoring it. The Tea Party is outraged by it, but nobody else thinks
it’s aimed at the Tea Party. The Senate passed it unanimously and Obama signed
it, but the few constitutional experts to review it are adamant that it’s
unconstitutionally vague. Even the House, over two votes, could only muster
three votes against it. And what is the bit in the title about “Grounds
Improvement”? Is that some kind of sick
joke?
The
bill in question carries the official title of The Federal Restricted Buildings
and Grounds Improvement Act of 2011. It passed 399 to 3 in the House in 2011,
was amended and then passed unanimously by the Senate in 2012, then the amended
version passed the House 388 to 3 in 2012. President Obama signed it on March
8, 2012. The “Grounds Improvement”
riddle is solved by reading the introduction, or by more careful explication in
the blog post from the Partnership for Civil Justice Fund
“H.R. 347: Get the Truth on the New ‘Protest Law’”. As the introduction to the bill itself
explains, it is an act …To correct and simplify the drafting of
section 1752 (relating to restricted buildings or grounds) of title 18, United
States Code. So it’s not the grounds
being “improved”, it’s the original law, which was enacted in 1971 and then
substantially amended in 2006.
What
many of the more hysterical postings about the passage of H.R. 347 fail to note
is that the dangerously vague and overreaching language they are objecting to
was present at least from 2006. But there was one noticeable “improvement” that
is a new departure. Despite blog posts to the contrary, the act does NOT make
infringements that were previously misdemeanors now felonies and it does NOT
add new scope to the powers of either the Secret Service or the Department of
Homeland Security. These constitutional failings and likely infringements of
First Amendment rights were already present in the 2006 rewrite to the federal
code. What the act does empower, potentially, is the easier prosecution of a
defendant who has committed one of the proscribed acts.
The
most significant change was to remove the words “willfully and” before
“knowingly” in the description of the crimes in the 2006 act. What this means
is, if the law itself or this change to the law is not struck down as
unconstitutional, that a protester, for example, does not need to be proven to
have known that their alleged trespass was illegal. As the Partnership for Civil Justice Fund
explains, “As amended, a conviction arguably only requires proof that a person
‘knowingly entered’ a certain area. This is an effort to lower the bar for
prosecutors who would, arguably, no longer have to prove that a person knew his
conduct was unlawful.” Or, as the Senate bill sponsor Sen. Richard Blumenthal
(D-CT) said, it will “improve the law enforcement tools available to the
Secret Service in its attempts to protect the President, the Vice President,
and others on a day-to-day basis by closing loopholes in the current federal
law.”
Loopholes? Tools? An interesting spin.
This law
has not really been tested for constitutionality yet, whether we are talking
about the new “improved” version where you don’t even need to know the action
was forbidden by the law, or the original law itself. Those commenters who
realize that H.R. 347 is an amendment to a law that was already a “bad law” in
the words of the Partnership for Civil Justice Fund point to its vagueness and
potential for abuse. A self-described Constitutional scholar associated with
the Tea Party, KrisAnne Hall, although she does not mention that the language
she is concerned about was part of the 2006 law and not newly introduced in
H.R.347, does make a very important first amendment point in this article
quoted extensively by the Gainesville Tea Party
The protected right of the people peaceably to assemble is
something that has fundamental and historical foundations. Our founders
established a clear “no trespassing sign” in our first amendment to keep the
government away from this fundamental right. “Congress shall make no law abridging…the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.” Legislation in the Congress seems to
be treading on the grounds of this constitutionally restricted territory.
…
The right to orderly conduct government is NOT a
Constitutionally protected right. However we DO have the right to free speech
and the right to peaceably assemble. Our
Constitution establishes the fundamental principle rights to speech and
assembly are held by the people and the government must protect these rights,
not limit them.
But
again, this language was pre-existing in the U. S. Code. And although several
constitutional scholars agree that it is but one of several flaws in the
existing law, it needs to be tested before one can assert absolutely that it is
against First Amendment rights.
And perhaps it will be very soon. When the 2006 law was
written, the country was under a Republican administration. There had been no
credit crisis, no austerity push (indeed, Federal spending was at an
unprecedented high, mainly due to the war in Iraq) and there was no Tea Party.
When the 2011 amendment, H.R. 347, was first proposed in 2011, it may have been
directed at the Tea Party. But more likely it was in anticipation of both major
parties’ upcoming national conventions, of a flood of Republican presedential
contenders under Secret Service protection, and also in remembrance of highly
volatile protests at G8, G20, NATO and other world “summit” meetings. It
certainly could not have been the “anti-Occupy” bill, because OWS had not
happened yet.
But it may be Occupy that tests it, for the next NSSE or
“National Special Security Event” (this is one circumstance that can invoke the
law, and includes all of the above as well as one recent Super Bowl) is the
NATO Summit meeting in May in Chicago.
And Occupy movements and affinity groups around the country and the world are
even now planning an overwhelming and highly committed protest presence at this
event, in most cases quite unaware of the constitutional challenge potentially hanging
over their actions.
*This article was originally written for print publication in a small Occupy newsletter but for complex reasons was never published there. I have changed it slightly to embed the links.
