Congressional bipartisanship that makes sense, Part 1 of 2

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Is Congress capable of broad bipartisanship that would benefit the economy and the nation? Amazing as it might seem these days, the House of Representatives recently showed that constructive bipartisanship is possible.

Consider the Private Property Rights Protection Act (H.R. 1433).

Jim Sensenbrenner is a conservative Republican member of the U.S. House of Representatives from Wisconsin. Meanwhile, Maxine Waters is a liberal Democrat in the House from California. It’s hard to imagine two elected officials that so consistently oppose each other on the issues. That is, except one, and it happens to be an issue that goes to the bedrock of this nation and the fundamental role of government.

Speaking on the House floor in late February, Sensenbrenner declared, “This is a Sensenbrenner-Waters bill. You will never see another Sensenbrenner-Waters bill. And that is probably one of the best reasons to vote in favor of it.”

A bit later, Waters came to the microphone, adding, “Mr. Sensenbrenner is correct. This will be the only time that we will probably come together around an issue. But we’ve been together on this one for a long time.”

The Private Property Rights Protection Act is meant to be a counter or a remedy to the outrageous and deeply flawed 2005 U.S. Supreme Court decision in the Kelo v. City of New London case.

First, it must be understood that the Fifth Amendment to the U.S. Constitution declares that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” The phrase “public use” is straightforward, making clear that government can only use the power of eminent domain for a governmental use, such as bridges, roads, highways, or some kind of government-specific building or facility.

But in the Kelo case, a 5-to-4 court majority chose to ignore what the Constitution actually says, and decided to redefine “public use” to mean “public purpose.” In turn, the majority allowed politicians to effectively define “public purpose” according to their own whims. With this decision, government was given the green light to take property from one private owner and hand it over to another private entity.

As Sensenbrenner put it, “In this decision, the court held 5-4 that ‘economic development’ can be a ‘public use’ under the Fifth Amendment’s Takings Clause, justifying the government’s taking of private property and giving it to a private business for use in the interest of creating a more lucrative tax base. As a result of this ruling, the federal government’s power of eminent domain has become almost limitless, providing citizens with few means to protect their property.”

Those most vulnerable, of course, have the least amount of political power or influence, namely, individual homeowners and small businesses. Over the decades, minority communities have been victims of eminent domain abuses. Waters pointed out, “Economic development condemnations have all too often been used by powerful interest groups to acquire land at the expense of the poor and the politically weak… Few protested the Kelo ruling more ardently than the National Association for the Advancement of Colored People, that is, the NAACP.” Waters highlighted the NAACP point that “the burden of eminent domain has and will continue to fall disproportionately on racial and ethnic minorities, the elderly and economically disadvantaged.”

Interestingly, the Kelo decision created a tremendous backlash in the states. And according to the Castle Coalition, a group focused on battling eminent domain abuses, 44 states since Kelo have passed laws beefing up protections against eminent domain abuse to varying degrees.

This past November, voters in Mississippi approved a constitutional amendment seeking to stop the taking of private property for private development. For good measure, in November this year, Virginia voters will have their say on a proposed constitutional amendment that would restrict takings of private property for only public uses.

But on top of these state actions, the federal government needs to engage as well. Sensenbrenner observed, “Although several states have independently passed legislation to limit their power to eminent domain, and the Supreme Courts of Illinois, Michigan, and Ohio have barred the practice under their state constitutions, these laws exist on a varying degree. The Private Property Rights Restoration Act will provide American citizens in every state with the means to protect their private property from exceedingly unsubstantiated claims of eminent domain.”

H.R. 1433 would stop the federal government from using its eminent domain powers for economic development, and prohibit states and localities from doing so if they receive federal economic development dollars. Similarly, the legislation would prohibit governments from using eminent domain against religious or nonprofits organizations due to their tax-exempt status.

It was refreshing to see the Private Property Rights Restoration Act pass the House by an overwhelming voice vote. Now, it’s up to the Senate, where similar legislation has died in the past.

Among government’s primary duties is to protect private property, not steal it. For good measure, strong property rights are essential to economic development. No one should be opposed to this legislation. Kudos to Democrats and Republicans in the U.S. House of Representatives for this rare and positive bipartisan action.

Raymond J. Keating is the chief economist for the Small Business & Entrepreneurship Council. His new book is “Chuck” vs. the Business World: Business Tips on TV.