Poll: Should Lawmakers Be Penalized For Passing Patently Unconstitutional Legislation?

April 4, 2013 -

Two years ago, the US Supreme Court ruled that trying to regulate the sale of video games based on violent content was an unconstitutional violation of our First Amendment rights. To add to that, each year the Federal Trade Commission does a secret shopper survey showing that the video games industry self regulates far better than any other entertainment industry it studies.

Despite this, lawmakers continue to introduce legislation that attempts to regulate the sale of violent games. With a US Supreme Court ruling in favor of the video games industry's First Amendment rights, one would think that lawmakers would think twice about attempting such legislation. Yet, lawmakers in New Jersey and other states have not been paying attention.

Perhaps it is time that the sting of having legislation struck down in court as unconstitutional should shift from the tax payer to the lawmaker. What do you think should be the penalty for  passing patently unconstitutional legislation? Please vote in the poll and share your thoughts here too.

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- GamePolitics Correspondent E. Zachary Knight

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Re: Poll: Should Lawmakers Be Penalized For Passing Patently ...

At the very least  it would be nice to force them to be a LOT more careful when introducing legislation.

Re: Poll: Should Lawmakers Be Penalized For Passing Patently ...

The City Council in Bisbee, Arizona recently voted to allow Civil Unions to take place in their city. They are now issuing certificates for any gay couple that wants to be joined.  Despite the fact that I am highly in favor of this move, I also consider it to be an illegal act and am amazingly impressed by the depth of Civil Disobedience this act signifies.  

I don't think any of these people should be thrown in jail over this issue.  

We're all thinking of this from the perspective of trying to deal with lawmakers who illegally pursue laws restricting things we enjoy but something like this would have highly unintended consequences IMO.   

Re: Poll: Should Lawmakers Be Penalized For Passing Patently ...

*nod* whenever this idea comes up people tend to picture it in terms of getting back at people and laws they do not like, but often forget how often things they do like get struck down or how many people in office take risks that they do agree with.

It is the same problem as people talking about how we should reduce freedoms like due process or limits on police power, they picture the increased power being used to go after people they do not like and assume that  it will not be used on people they do.

Re: Poll: Should Lawmakers Be Penalized For Passing Patently ...

Like others posted, you could have multiple requirements to run afoul of that law. On top of that, one of the power that the US citizens grant their government is the one to reshape the Constitution if it is found to be faulty in some way.

Re: Poll: Should Lawmakers Be Penalized For Passing Patently ...

As much as the vindictive side of me likes the idea, I think this "solution" is worse than the problem.  Who decides what is "obviously" unconstitutional as opposed to inadvertently?  Who's to say this wouldn't become one more way to pressure and silence congresspeople who don't fall in line?  It would have a chilling effect (so to speak ;) on lawmakers' willingness to put laws forward, which kind of defeats the purpose of having them.  The solution here is to do a better job of unelecting the lawmakers who are chronically doing a poor job (I admit this is not an easy solution to achieve), not to point a gun at their head, whose trigger is ambiguous and could easily be abused.

Re: Poll: Should Lawmakers Be Penalized For Passing Patently ...

This.  It looks like a good idea until you try to enforce it.

Re: Poll: Should Lawmakers Be Penalized For Passing Patently ...

Well, an easy way to keep the system from punishing an "accidentally" unconstitutional bill is to only target repeat offenses, not firsts. In order to be eligible for penalty, lawmakers must pass a bill that has the same function as one which has already been deemed unconstitutional.

This would let a few through - Brown vs. EMA might still have happened for example - but it would still target a LOT of bills. There were and in fact still are states trying to pass that law, which is unambiguously doomed in every incarnation.

And for other examples, Michigan's current governor has had four pieces of pet legislation that were overturned by courts for being unconstitutional that were simply passed again - not to mention one which wasn't passed again but has simply been enforced anyway. And several southern states are well known for passing the same bills over and over trying to "pretty much" ban abortion and other things they can't actually ban, which get overturned one after another only to be passed again in various permutations.

And it's done intentionally very, very often. Politicians have proven they're pretty much immune to action if they defy a court, and the process of killing a law is long enough that many of them have already done what they intended long before they're defeated. And when new laws are passed to do the same thing, the process starts over, giving them an extra set of downs, so to speak, to accomplish what they're trying to do.

Perhaps conditions would be needed so, in narrow cases, certain kinds of first-pass legislation could be targeted in cases where, for example, a state legislature directly defies the Constitution. For example, North Carolina is very close to passing a piece of legislature to declare the First Amendment in abeyance within North Carolina.

It's an extreme example, but state legislatures declaring federal law or court decisions invalid within their state is very common and completely illegal.

Re: Poll: Should Lawmakers Be Penalized For Passing Patently ...

I would say that a successful court challenge would be one factor. Another would be if there is a legal precedent prior to filing the legislation. For example, filing video game regulation after the Supreme Court ruled against such legislation. Then a hearing to determine if the lawmaker knew, or should have known, that what they proposed was unconstitutional, or subject to a constitutional challenge.

We could figure out some kind of "four factor" test that would help in the process.

As for a chilling effect, I would say that would be a good thing. Lawmakers introduce tons of new laws and regulation each year. Each with their own flaws and problems. If such a regulation in place would result in them focusing on fewer more tightly written and reviewed legislation, we would be far better off for it.

Re: Poll: Should Lawmakers Be Penalized For Passing Patently ...

I was going to say ,the definite intended effect would be law makers being a LOT more careful about the bills they introduce and likely cut back on so called feel good legislation.

Re: Poll: Should Lawmakers Be Penalized For Passing Patently ...

If the politicians do not really fear popular reprisal, and being voted out is obviously not enough, then why would they pass laws to help the average folk instead of the rich power mongers?

At this point they have no incentive to even review the bills their lobbies hand to them.


"For every complex problem there is an answer that is clear, simple and wrong." -H.L.Mencken

Re: Poll: Should Lawmakers Be Penalized For Passing Patently ...

On one hand, I do think that a lot of politicians are either ignorant or tone deaf when it comes to certain issues.  I remember seeing a Michael Moore documentary many years ago where he interviewed I think Sen. John Conyers, where Conyers pretty much admitted they don't have time to even read a lot of the legislation that comes across their desks and simply rubber-stamp it.  That, or as Kathleen Sibelius admitted in a past GP article, they just pass it and prefer to let the courts figure out if it's constitutional or not.

On the other hand, I don't think these politicians are entirely stupid.  And I think they propose these laws just so they can look as if they're "doing something," even though they know full well what the courts may have already ruled and will likely be struck down.

Either way, it would be a good way of finally being able to hold them accountable rather than just wait around and vote them out of office.  Most people's memories are too short for that sort of thing, and a lot of politicians know that, which is why they work overtime around election season to prop up their images.  Penalizng them for proposing bad laws would be a great way to end that practice and hold their feet to the fire.

Re: Poll: Should Lawmakers Be Penalized For Passing Patently ...

Like Macknzie said, laws like this have a habit of getting challenged and struck down by the courts. 

If we were to put up penalties for unconstitutional bills, I only really see it as another reason for congress to be afraid to put up a bill for a vote. Right now they're already worried about losing support from lobbying groups, electorate and potential sway in their party. Adding some form of penalty will just be more of a reason for them to sit on their thumbs doing nothing. 


Re: Poll: Should Lawmakers Be Penalized For Passing Patently ...

That is the part that worries me.

While it would be nice if they stated within the constitution, the reality is that constitutional interpretation is not as predictable as us armchair judges think it is... and even when it should be, interpretation changes over time.

I think I would rather have politicians willing to test the boundaries of change and have a good mechanism for preventing them from going to far then some type of chilling effect where weak politicians live in fear of judicial politics being used against them.


Re: Poll: Should Lawmakers be penalized for passing patently ...

To be a lawmaker and not know the law is gross incompetence.  Then to see what unconstitutional legislation cost another state that passed it, and to ignore the risk, is unforgivable.

Re: Poll: Should Lawmakers be penalized for passing patently ...

That's the thing that always got my goat. If you do something that's against the rules and/or regulations at where ever you work you get fired, but somehow we can't 'fire' an elected official who's going out and making glaringly obvious unconstitutional legislation without getting a mass of signatures and hoping enough people vote against him?

Why not make it similar to another law we've already got on the books, the 3 strikes law. Make it so that during each elected term you're bound by a law which states if you make 3 glaringly obviously unconstitutional pieces of legislation (as determined by an impartial court) you're terminated and the state (or local county, whatever the case may be) holds an election for your replacement.

Granted it's not pretty right now just coming out of my skull, but it's at least a start.

Re: Poll: Should Lawmakers be penalized for passing patently ...

Problem is too many voters want those kinds of politicians.

Re: Poll: Should Lawmakers be penalized for passing patently ...

For elected officials, the remedy is to not elect them in the future. Where there may be an extreme problem, the courts exist as a countermajoritarian institution to correct any excesses of the elected branches. Overall, the system works pretty well (witness all court decisions about violent games). And even when it occasionally fails, those issues tend to be corrected over time. Why muck around with a system that overall tends to work pretty well?

Re: Poll: Should Lawmakers be penalized for passing patently ...

What greevar said, whomever spends the most money gets elected a vast majority of the time (91%, I think)

There's also gerrymandering, where they keep themselves in power.


Re: Poll: Should Lawmakers be penalized for passing patently ...

I agree that that is the way it is currently done and under a perfect system, it would be sufficient. However, under current election climates, it is not the best way to weed out bad eggs.

In Oklahoma, the majority of voters have a simple voting system in their minds. They vote the incumbent first. If there is no incumbent, they vote their party of choice, which more often then not is Republican. Even if the Incumbent is an incompetent buffoon, such as the guy who proposed legislation to ban the use of human fetus in food production because he read it on the internet, it is rare to get them voted out.

Additionally, because of decades of near slanderous mud slinging during elections, trying to bring up a poor job record, even one that was commonly reported on outside elections, gets you labeled as a mud-slinger and your reputation takes a dive in the elections. This makes it very hard to kick out a poor politician. 

Personally, I am a fan of the idea that if a law is challenged in court and eventually struck down for any reason, the court costs should come out of the lawmakers' pockets. Spread it out evenly so that every lawmaker feels the sting. This will ensure that each lawmaker is watching for trouble makers and works to block clearly bad bills.

Re: Poll: Should Lawmakers be penalized for passing patently ...

Because it doesn't work. Voting for a representative is pointless because the people with tons of money are the ones that really get to vote. Secondly, voting for government representatives is a stupid idea on its face. It turns what should be a search for a qualified and reliable applicant into a petty high school popularity contest. Nobody votes for the guy that will do the job right, they vote for the guy that tells them what they want to hear and panders to their sense of righteousness. When they do get elected, there is rampant corruption and backroom deals. Special interests get special attention and every agency in the government has a revolving door of former corporate executives working in the agencies intended to regulate the industries they came from.

Yeah, it works pretty well if you ignore the corruption, poor hiring processes, favor trading, corporate infiltration, and lip service.


"Paste superficially profound, but utterly meaningless quotation here."

Re: Poll: Should Lawmakers be penalized for passing patently ...

While it has its problems, representative system have worked better then any other system humans have come up with so far. 

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