Congress, Kelo, and the Congressional Research Office

I had the chance to spend some of today speaking to a North Carolina legislative committee about the Kelo case and how it might impact NC law.  It's still amazing to me that the press has spun the story in such a fashion that many people don't have a full appreciation for the facts and circumstances.  New London, CT  had lost population to the point that it was down to the level of 1920.  It had lost federal jobs (1500).  It had followed processes, etc.  On the other hand, a small number of property owners didn't want to lose long-time housing (understandable).  My own sense (and experience) is that local governments don't use eminent domain without a lot of soul-searching. 

As some readers may be aware, the United States House of Representatives voted in November (HR 4128) to prohibit state and local activities of the following sort:

Section 2(a)  "No State or political subdivision of a State shall exercise its power of eminent domain, or allow the exercise of such power by any person or entity to which such power has been delegated, over property to be used for economic development or over property that is subsequently used for economic development, if that State received Federal economic development funds during any fiscla year in which it does so."

Section 2(b) "A violation of subsection (a) by a State or political subdivision shall render such State or political subdivision ineligible for any Federal economic development funds for a period of 2 fiscal years following a final judgment on the merits by a court of competent jurisdiction that such subsection has been violated."

Section 8 of the bill defines economic development as:  "taking private property, without the consent of the owner, and conveying or leasing such property from one private person or entity to another private person or entity for commercial enterprise carried on for profit, or to increase tax revenue, tax base, employment, or general economic health."

The bill provides a private right of action, and requires the state or local government "to show by clear and convincing evidence that the taking is not for economic development."

All this of course raises fascinating questions about federalism among other things.  The latest wrinkle, however, is the way that analysis of the bill has been tucked away from public view.  US Law Week reported in late December that a Congressional Research Office analysis had been circulating to legislators widely but on a much more limited basis to members of the public (that is, those of us whom Congress is supposedly trying to protect).  Readers may be aware that the important studies by the Congressional Research Office have in the last several years (read.. during the current administration) been tucked away from public view most of the time (again, though we pay for this important work).

Happily some very good folks in various non-profit groups and libraries have made it a point to post selected Congressional Research Office reports on their websites (though members of Congress who used to do this have had that opportunity limited).  Happily, too, the report on the federal "Kelo" legislation is available through one such group:  www.opencrs.com  Take a look at this important analysis.

If you're so inclined, send a note of thanks to the folks at the Center for Democracy & Technology who have made it a point to make Congressional Research Reports available "for the People" (that's us).  The opencrs.com site also lists others who are making similar efforts to keep ideas and analysis free.  Thanks to the National Council for Science and the Environment, the Federation of American Scientists, Thurgood Marshall Law Library at the University of Maryland School of Law, and the National Memorial Institute for the Prevention of Terrorism.

and use the spending power to threaten local and state governments with loss of federal funds for economic development and transportation if said governments did not sharply