AMENDMENT NO. 2 OFFERED BY MR. NADLER
Mr. NADLER. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 2 printed in House Report 109-266 offered by Mr. Nadler:
Page 2, line 8, strike ``(a) In General.--''.
Page 2, strike line 16 and all that follows through line 17 on page 3.
Page 4, beginning in line 1, strike ``to enforce any provision of this Act'' and insert ``to obtain appropriate injunctive or declaratory relief,''.
Page 4, beginning in line 6, strike ``Any'' and all that follows through line 16.
Page 4, line 17, strike ``(c)'' and insert ``(b)''.
The Acting CHAIRMAN. Pursuant to House Resolution 527, the gentleman from New York (Mr. Nadler) and the gentleman from Wisconsin (Mr. Sensenbrenner) each will control 5 minutes.
The Chair recognizes the gentleman from New York.
Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, my amendment is very straightforward and, in my opinion, will better protect the rights of property owners than the way the bill is designed.
Under the bill, if the government takes your property for a prohibited purpose, you could sue, and if you win your lawyers get paid and your town gets bankrupted. You get no damages, and if you think the town will bulldoze the new downtown and rebuild your house, you are fooling yourself.
Instead, you should have the right, and my amendment grants you the right, to go to court and stop the government in the first place dead in its tracks. Americans do not want to bankrupt their towns; they want to keep their homes.
Keep in mind the economic threat the penalties of this bill would pose to every single State and local government in the country.
Any property owner under this bill could sue for 7 years after the conclusion of the condemnation proceeding, or at any time in the future if a public facility is later used for a private purpose.
This is an open-ended and catastrophic threat. No financial institution would underwrite a bond or extend any financing to a city or State because the risk is too great. No private company would take a public contract because the city could lose 2 years' funding in the future. If the current city administration does not want to use eminent domain for any improper purpose or, for that matter, any proper purpose, it will still have trouble floating bonds because maybe its successor 10 years from now will use eminent domain improperly, they will lose 2 years of all the Federal revenue, and they will not be able to repay the bonds. Therefore, the bond counsel now will instruct the people not to lend to the city. No bank would do business with a public contractor for the same reason.
This is absurd. We should protect our homes. The way to do that is to establish in this bill, as it does, a substantive right not to have eminent domain used against your home or property for the prohibited purposes, and then give you the right to enforce that by an injunction, with attorneys' fees paid in advance, that stops it. You do not need the ability of someone in the future to go to court and punish the city which does not even get the property owner help.
So my amendment would say no penalty for the State or city later, that is unnecessary, because we are granting you the right to get an injunction, a permanent injunction to stop the taking in the first place. That is the proper protection.
Mr. Chairman, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman this is a gutting amendment. It is a gutting amendment because it removes the constitutional hook that this Congress and the Federal Government have to prevent the abuses that have been sanctioned by Kelo, and that is the Federal funds that have been used for economic development.
The amendment strikes out all the penalty in the bill that would prevent the government officials from abusing eminent domain. No penalty, no tap on the wrist. We say you should not do it; but if you go ahead and do it, then you are not going to be penalized. Without these penalties in the bill, the government could take private property from one person and simply give it to a wealthy corporation. Because this amendment guts the entire bill, it ought to be opposed.
Under this legislation, there is a clear connection between the Federal funds that would be denied and the abuse that Congress is intending to prevent. The policy is that States and localities that abuse their eminent domain power by using economic development as a rationale for a taking should not be trusted with Federal economic development funds that could contribute to similarly abusive land grabs.
There is an entirely appropriate connection in the base bill between the Federal policy of protecting private property rights from eminent domain abuse and making sure that the Federal Government does not subsidize eminent domain abusers. The amendment should be defeated for these reasons.
Mr. Chairman, I reserve the balance of my time.
Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, this is not a gutting amendment. The constitutional basis for granting the injunction against the taking is the fact that the State is accepting Federal funds. The bill, on lines 12 through 15 on page 2, says clearly: ``if that State or political subdivision receives Federal economic development funds during any fiscal year in which it does so.'' That is the constitutional basis for saying, you cannot do certain kinds of takings as this bill prohibits and, if you do, you can establish penalties or injunctive relief.
All I am saying is, we are using the Federal jurisdictional hook that the chairman mentioned and instead of penalizing later, which does not help the homeowner who has lost his home, you say you can stop it now, get an injunction for stopping it now, because the State has agreed not to use its power in this way as a condition of taking Federal funds. There is well-established constitutional law that we can condition Federal funds on that.
That being the case, you can go into Federal or State court and get an injunction if you do my amendment. With the injunction, you do not have the taking, you do not have to worry about punishing anybody 10 years later, because there is no taking in the first place. It is a much better protection for the property owner. We prohibit the taking. The court says you cannot do it. There is no constitutional problem with that.
It does not gut the bill because it says you do not have to punish what cannot have occurred. It cannot have occurred because the bill would now say you may not do it; and if you may not do it, the court will prohibit you from doing it, because we are establishing the right to go into court in advance and get an injunction against it.
So total protection of the property owner against the improper taking. You do not have to worry about fouling up the State or city's ability to float bonds or the State or city finances later; you do not punish all the citizens of the city because the mayor is paying off some campaign contributor with a private taking, just prohibit the mayor from doing so in the first place and enforce that by letting the property owner get an injunction, period.
Mr. Chairman, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Chairman, I yield 1 minute to the gentlewoman from California (Ms. Waters).
Ms. WATERS. Mr. Chairman, I respectfully offer this statement against the amendment offered by the gentleman from New York. Essentially, this amendment eliminates the teeth of this bill: the denial of Federal funds for 2 fiscal years to those States and cities that have violated this act. The denial of Federal economic development funds should serve as a real deterrent for those States and cities that want to exercise eminent domain for development, that is, the taking of private property for private use. Without this provision, this bill will not be taken seriously, and the eminent domain abuses that many in this country are complaining about will continue.
I just waved before my colleagues a list of over 125 cases of the taking of private land for private use, or attempts to do that; and I think the bill that we have before us today will stop this kind of abuse of eminent domain.
Mr. NADLER. Mr. Chairman, I yield myself the remaining time.
Mr. Chairman, the fact is, this does not gut the bill, as the gentlewoman from California said. It takes out the penalty, but you do not need the penalty because you establish the right of the court and the duty of the court to stop it in the first place. There will be no private taking for the prohibited use because you give the rights to the landowner to get an injunction against it in the first place. It is a much better protection than worrying about punishing the city later. You do not have to punish the city because you protect against it in advance, 100 percent.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself the balance of the time.
Mr. Chairman, we do not know if the gentleman from New York's approach is constitutional. That has not been tried before, and it would be a case of first impression in the courts.
We know that the provision of denying Federal funds in the base bill is constitutional, because it was done by this Congress 20 years ago where we denied States transportation funds that did not raise the drinking age to 21. So the constitutional precedent was set 20 years ago in the transportation area. The base bill does that. The gentleman's amendment does not. That is why it ought to be rejected.
The Acting CHAIRMAN (Mr. Simpson). The question is on the amendment offered by the gentleman from New York (Mr. Nadler).
The question was taken; and the Acting Chairman announced that the noes appeared to have it.
Mr. SENSENBRENNER. Mr. Chairman, I demand a recorded vote.
The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further proceedings on the amendment offered by the gentleman from New York will be postponed.