The fastest and most successful reaction by Congress to a U.S. Supreme Court decision last term was not a legislative response to the very controversial Citizens United campaign finance ruling. And it wasn’t an attempt to salvage a widely supported animal-crush video ban. No, the winner was: “foreign-cubed” securities class actions.
Politics may be the art of compromise, but it is also the mastery of opportunity. Less than 24 hours after the justices on June 24 ruled against extraterritorial application of federal securities laws, language partially negating the decision was slipped into the Wall Street Reform and Consumer Protection Act — the massive financial reform package.
Rarely does a Supreme Court term end without some decision triggering a legislative response from Congress, and not always the most predictable one. A study by political scientist Danette Brickman of St. Bonaventure University identified 539 bills introduced between January 1989 and December 2000 in reaction to 142 Supreme Court decisions rendered during that same period. They range from a high of 109 during the 101st Congress (1989-1991) to a low of 72 during the 103d Congress (1993-1995). Some Court decisions generated one or two bills while others led to the introduction of many pieces of legislation.
The Wall Street Reform act’s language addressing Morrison v. National Australia Bank is the only congressional effort thus far, among several targeting last term decisions, to make it to President Barack Obama’s desk.
Justice Antonin Scalia, writing for the unanimous Court in the National Australia Bank case, held that foreign shareholders cannot use U.S. courts to bring securities fraud lawsuits against a foreign company listed on a foreign exchange for conduct occurring outside the United States.
The legislative fix was intended to reverse a huge setback for the U.S. Securities and Exchange Commission in the foreign-cubed decision. It provides a clear statement of what the Court said had been missing for more than half a century — authority for the SEC to pursue enforcement actions involving foreign conduct having some substantial effect within the United States.
The Wall Street Reform act, however, does not open the door to private foreign-cubed securities actions, but it does direct the SEC to study the propriety of allowing them.
“We tried to get a complete fix,” said Thomas Dubbs, senior partner at New York’s Labaton Sucharow and counsel to the Morrison plaintiffs. “But [Congress] kicked it to the SEC for a study.”
Dubbs added there is also some debate as to whether the new act really “fixes” the SEC’s problem. A July 20 memorandum by New York’s Wachtell, Lipton, Rosen & Katz contends a “drafting error” makes ineffective the provision giving the SEC extraterritorial authority, he said.
Besides the National Australia Bank ruling, the Court’s 2009-10 term spurred lawmakers to propose bills reversing or mitigating the impacts of three other decisions.
The justices in Citizens United v. FEC struck down a ban on the use of general treasury funds by corporations and unions making independent expenditures in federal elections. The response by congressional Democrats has been the widely publicized Disclose Act, which would impose tough new public disclosure and reporting requirements on corporations, unions and special interest groups making those expenditures.
The House passed the bill in late June by a vote of 219-206, with only two Republicans supporting it. Last week, the bill derailed in the Senate when Democrats failed to garner 60 votes to defeat a Republican filibuster.
Despite that setback, Fred Wertheimer, president of Democracy 21, which supports the legislation, said he was “very encouraged” that 57 senators had voted to bring the bill to a final vote. “No one should be deluded into thinking this battle is over,” he said, but he conceded it is too late to enact a law affecting this year’s congressional elections.
“We’re going all out for [the bill],” he said. “It will come back for a vote in September. We’re going to try to persuade at least one if not more Senate Republicans to put their concerns on the table and negotiate an agreement. We are prepared to see changes in this bill.”
Supporters of a ban on animal-crush videos also experienced halfway success in their effort to address the Supreme Court’s ruling in U.S. v. Stevens. In Stevens, the justices in April struck down as overbroad the federal law criminalizing the production or sale of depictions of animal cruelty. The law was designed to target depictions that appealed to a specific sexual fetish — the crushing of small animals by women wearing high heels.
The House on July 26 approved the Prevention of Interstate Commerce in Animal Crush Videos Act of 2010, by a vote of 416-3. Reps. Elton Gallegly (R-Calif.) and Gary Peters (D-Mich.) are co-authors of the bill. Sens. Jon Kyl (R-Ariz.), Jeff Merkley (D-Ore.) and Richard Burr (R-N.C.) are leading a bipartisan push for Senate action.
On July 29, Gallegly said he believed the legislation is written narrowly to address the First Amendment concerns raised by the justices in the Stevens decision. But he, like Wertheimer and supporters of the Disclose Act, is worried that time is running out for final action in the current Congress.
And barely out of the starting gate is a trio of bills introduced shortly after the Supreme Court’s decision in Monsanto Co. v. Geerston Seed Farms — its first venture into the world of genetically modified crops, here Monsanto’s Roundup Ready Alfalfa.
In that case, the justices found that a district court improperly enjoined an agency of the U.S. Department of Agriculture from deregulating the alfalfa before an environmental impact statement was completed as required by the National Environmental Policy Act.
Although the justices’ decision did not get into the raging debate over genetically engineered seeds and crops, Rep. Dennis Kucinich (D-Ohio) used the decision to push legislation that would add regulatory framework to genetically altered organisms.
“The Supreme Court ruled that, when it comes to genetically modified organisms, we as consumers have to wait until the damage is done and obvious, before we can act to protect health and the environment, even if that damage could be irreversible,” Kucinich said in June. “Haven’t we learned from the catastrophe in the Gulf of the dangers of technological arrogance, of proceeding ahead with technologies without worrying about the consequences?”
Marcia Coyle can be contacted at firstname.lastname@example.org.