> Two bills on this matter — the TRUST in Congress Act and the PELOSI Act — have failed to move the needle this year, and it’s unclear if or when the Ban Stock Trading for Government Officials Act will be debated and voted on.
If it's truly a democracy I'd expect otherwise given the polling on this issue:
> Public support for a ban on stock trading among members of Congress is almost unanimous — with 86% in favor nationwide, according to a new survey by the University of Maryland’s Program for Public Consultation.
> The pretense of this nation being a functional democratic republic has long been abandoned. We have merely the simulacrum of it now.
The institutions of democracy in this country are challenged, but I'd say we are a long way from being a mere "simulacrum" of a functional democratic republic. I am confident that the populace and the institutions will rise up to the challenges.
Popular policies or leaders aren't necessarily good, and vice versa. As an example, the president of El Salvador is wildly popular, with 80-90% approval ratings in polls; but critics also accuse him of being an authoritarian whose rule may well end up leaving El Salvador in a backslide into autocracy.
Yes, that's the issue. People generally like the people they elect, just not all the others. In a representative house, that's probably the way it should be, more or less.
A democracy doesn't mean that the representatives you elect must always and only follow the will of the constituency: "Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion."
Of course, when it comes to this particular matter of insider trading, it would seem particularly self-serving for Congress to not pass such a law with such popular support. But I want to point out that there is no broad agreement that in a "true democracy", the will of the majority is always reflected in policy.
If you're going to go down that route, democracy is a sham in that there's little to no incentive for an elected official at a high level to represent their constitutients since they do better by representing their donors/lobbyists/political partners and paying lip service right before election times. Accusing their opposition of "being terrible, so you have to vote me" work wonders too, if they're able to convince people that false dichotomies are real.
I don't see how any law like this would be constitutional without a full amendment. One class of Congress cannot arbitrarily impose restrictions on future classes of Congress without an amendment.
Perhaps the ones proposing the law realize that, and are simply taking an action they can claim shows "Hey we tried, guys." That would be the sort of blatant cynicism I can imagine in the senate, and unfortunately I suspect it will work on the campaign trail too.
> one class of Congress cannot arbitrarily impose restrictions on future classes of Congress without an amendment
Plenty of laws regulate Congress–it isn't sovereign.
Laws require the President's sign off. It isn't one Congress binding another. It's the U.S. government restricting the Congress. (Or more accurately, its members.)
> you're proposing a Constitutional change to deny members of Congress a legal right that is available to the broader population
Is this a crackpot legal theory about how the last hundred years of precedent are unconstitutional because Redditor No. 9 million said as much? Where in the Constitution does it explicitly bar bribery? Come on.
This is not a crackpot theory, this is how the Constitution works.
You cannot impose specific restrictions on Congress on personal rights that ordinary members of the public have (trading stocks and other property assets) without a specific clause set out for it in the Constitution. Their private property rights are explicitly protected by the Due Process of the 5th amendment and Equal Protection clause of the 14th amendment (same as you and me):
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.]"
They do not lose 5th and 14th amendment protections in their private affairs just because they were elected to Congress. Bribery is illegal for everyone, not just Congress. Trading stocks are not.
That being said, you'd be naive to believe that implicit bribery does not occur in U.S. politics. And in practice, it's very difficult to prosecute a bribery case against a member of Congress as it's not permissible to introduce acts of legislation as evidence in court (US v Helstoski, 1979). In US v Brewster (1972), it was found that taking of a bribe was not protected by the Speech and Debate clause since the taking of the bribe was not related to "performance of a legislative function". Even then, though, Brewster was found not guilty despite quite overtly requesting a bribe.
Honest question: if we can enforce limitations on a person's liberty, freedom and so on when they drive a car, why couldn't we do the same when they hold public office?
Seriously, a cop can pull you over and your fourth amendment protections are dead, must help that driving is considered a privilege and not a right by states
> Their private property rights are explicitly protected by the Due Process of the 5th amendment and Equal Protection clause of the 14th amendment (same as you and me)
You’re implying legal restrictions on executives trading their own stock are illegal. That is nonsense. This entire legal theory is totally fringe and unprecedented, to say nothing of internally inconsistent.
"It is a crime punishible by xyz to hold any of the following offices and while owning any of the following classes of asset. A newly elected xyz shall have XXX days to divest themselves of any of the prohibited securities after the election is certified."
Something like that seems constitutional to me, although I am not a constitutional scholar.
The idea that Congress cannot bind a future Congress doesn't mean that Congress can't make laws that regulate itself. It just means that a later Congress can vote to repeal whatever laws that an earlier Congress had voted to enact.
> just means that a later Congress can vote to repeal whatever laws that an earlier Congress had voted to enact
Laws aren't passed by the Congress alone. OP is confusing the law with e.g. the principle that says the 118th Congress can't adopt a House rule with two clauses:
(1) All Democrats must tape a weenie to their head, and
(2) This rule may only be changed by unanimous consent.
When it comes to laws, they can't bind the Congress (collectively) but they can bind its members individually. For example, the 118th Congress can't pass a law compelling the 119th Congress to pass something else. This doesn't arise out of any law, but is a natural result of, quoting Cicero: "when you repeal the law itself, you at the same time repeal the prohibitory clause, which guards against such repeal" [1].
It's still very much practiced as seen during COVID-19 and Nancy Pelosi's exceptional portfolio performance and timing. It is also unenforceable. The 2012 Congress cannot regulate the legal activity of members of Congress without an amendment, unless the law broadly applies to the general population.
The interstate commerce clause is about commerce between states, it's not about imposing legal restrictions on future classes of Congress. There is a reason why the Constitution requires 2/3 supermajorities from both chambers and 3/4 of state legislatures. Any legal restrictions targeting members of Congress (that aren't broadly applicable to everyone in the U.S.) have to go through the constitution.
Tell that to Wickard v. Filburn. Stock trading by Congress definitely affects interstate commerce as much as an individual farmer growing wheat that is not for interstate trade, or even a thousand such farmers.
> One class of Congress cannot arbitrarily impose restrictions on future classes of Congress without an amendment.
No such rule exists. The closest is that an act of Congress can’t limit Congress ability to exercise its Constitutional powers in the future (e.g., a past Congress could not limit a future Congress’ ability to set its own rules), but there is nothing that prevents a Congress from passing laws which regulate the behavior of future members of Congress, as individuals, so long as it is otherwise authorized by the Constitution (i.e., like any other law it must exercise a Constitutional grant of power; here, probably, the interstate commerce clause) and does not violate any of the express immunities of members of Congress (e.g., the Speech and Debate clause), which a blanket regulation like this does not.
Of course it does. The whole institution of Congress and everything from its apportionment to its salaries are determined by the Constitution.
Regulating the behavior of Congress in a way is a constitutional change. Sorry, no, the interstate commerce clause has absolutely nothing to do with the legislature regulating future generations of Congress.
> The whole institution of Congress and everything from its apportionment to its salaries are determined by the Constitution.
Congress decides how much to pay themselves in Salary. They can pass bills to raise or lower it. They could also decide to pass a bill to change how the members of congress are picked, or to expand the congress, or shrink it.
The constitution quite literally be amended and changed. In a way, this is the ultimate strength of our system of government. We (the government being represented by the people) choose the limits and rules to impose on ourselves - we are not subject to an arbitrarily picked ruler and assume full responsibility for what we allow in society.
They are granted the privilege to decide Congressional salaries by the Compensation Clause of the Constitution. They are not granted to impose targeted legislation against elected members of legislative bodies. Also by the 27th amendment any increase must take effect in the following election.
> They could also decide to pass a bill to change how the members of congress are picked, or to expand the congress, or shrink it.
No, they cannot. That requires an amendment, not a bill, and amendments have to be ratified by 3/4 of all state legislatures.
> The constitution quite literally be amended and changed. In a way, this is the ultimate strength of our system of government. We (the government being represented by the people) choose the limits and rules to impose on ourselves - we are not subject to an arbitrarily picked ruler and assume full responsibility for what we allow in society.
The strength of our system of govt in part derives from the fact that it is not trivial to change the Constitution. It requires supermajorities (2/3) in both chambers of Congress and 3/4 of all state legislatures to ratify any change. This is A Good Thing, because simple majorities are fleeting and temporary and allowing chaotic changes to the Bill of Rights, for example, would be devastating to the idea of liberty. Too often in history, democracies have failed because they buckled to the whims of simple majorities, or granted themselves or an executive branch too much power. Our system is the oldest continuous democracy in the world in part because of those supermajority requirements.
How can you seem to know so much but be so boldfaced wrong? Your inability to know basic civics on some of your claims makes the rest quite suspect. Here’s an example of congress passing a law deciding on its number of members, no amendment needed:
https://history.house.gov/Historical-Highlights/1901-1950/Th...
> They are not granted to impose targeted legislation against elected members of legislative bodies
They don't have to be granted power for every possible description of a law, only for any description and not prohibited any of the others. And while it may not be obvious to you on its face, its pretty well established that regulating securities trading in general falls within interstate commerce power, so as long as there isn’t some provision prohibiting legislation that applies to conduct of members of Congress (and there isn’t), that’s that.
> > They could also decide to pass a bill to change how the members of congress are picked, or to expand the congress, or shrink it.
> No, they cannot
Yes, they can.
Setting the size: the only thing the Constitution does is set an upper bound, which the current legislatively-fixed size is well below, allowing it to be altered in either direction without hitting a Constitutional limit, abd requiring eachbstate to have at least one member. Art I, § 2, ¶ 3, in relevant part: “The number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative.”
Changing how members are picked: this is given to the state legislatures in the absence of Congressional action, with Congress given overriding authority except as to the location of elections for the Senate [0]. Art I, § 4, ¶ 1 (emphasis added) “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”
[0] this is a legacy of when Senators were chosen by the state legislature, since setting the place would mean Congress was relocating the statr legislature for that one function, but was not explicitly altered when direct election of Senators was established by the 17th Amendnent.
Note that as to 'how members of Congress are picked,' Article 1 Section 4 is limited by Article 1 Section 2:
"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."
This essentially says that the laws that the state sets for itself for choosing the most numerous branch of its own legislature end up covering the federal representatives as well. So this means that if a state wants to expand the franchise, it covers the most numerous state legislative branch as well as the federal representatives to the House.
Congressional control over voting and representation is also limited by the 14th, 19th, and 26th.
Sure, there are Constitutional bounds to the rules Congress can set for how members are chosen, but it is not true that any change to how members are chosen requires a Constitutional Amendment.
At-large districts used to be something states could, and did, choose to use for electing representatives to Congress (an effective way of giving the statewide majority full control of the Congressional delegation.) Now it's not. Was there a Constitutional Amendment? Nope. Just an Act of Congress.
Absolutely - just wanted to make it clear that Congress did not have an unfettered ability to change how members are elected and by whom, beyond location.
> The whole institution of Congress and everything from its apportionment to its salaries are determined by the Constitution.
Except that they aren’t. Apportionment is in part…but salary is not (although there are some rules as to when changes can take effect). The rules are not. Elections are not.
> Regulating the behavior of Congress in a way is a constitutional change.
Regulating the personal behavior of members of Congress is not “regulating future generations of Congress” in any way that is restricted by the Constitution or requires Constitutional change. You are just inventing rules out of thin air–apparently riffing on (without understanding) the maxim that the Congress can’t bind future Congresses–that have no basis in the Constitution or, really, anything else.
> Sorry, no, the interstate commerce clause has absolutely nothing to do with the legislature regulating future generations of Congress.
The interstate commerce clause has absolutely everything to do with regulating securities trading.
> Except that they aren’t. Apportionment is in part…but salary is not
Yes, it is:
Article I, Section 6, Clause 1:
"The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States."
That gives them the authority to set forth legislation for their own salaries. The 27th amendment ratified in 1992 held that any change in salary would not take effect until the following Class was elected.
> Regulating the personal behavior of members of Congress is not “regulating future generations of Congress” in any way that is restricted by the Constitution or requires Constitutional change. You are just inventing rules out of thin air–apparently riffing on (without understanding) the maxim that the Congress can’t bind future Congresses–that have no basis in the Constitution or, really, anything else.
No, the private property rights of Congress are protected by all of the same property rights clauses that protect you and me, including Due Process and Equal Protection. You cannot arbitrarily deny property rights to Congress that are broadly accessible to the general public.
> The interstate commerce clause has absolutely everything to do with regulating securities trading.
We can debate securities law another time, but no, the interstate commerce clause does not allow you to restrict elected members of the legislature from all the same rights as private individuals enjoy, including the right to own and sell stocks.
> No, the private property rights of Congress are protected by all of the same property rights clauses that protect you and me, including Due Process and Equal Protection.
The Due Process Clause of the 5th Amendment (but not that of the 14th) does limit Congress, the Equal Protection Clause (of the 14th, there is only one of those) does not, it only limits the States.
In any case, those provisions don't prevent Congress from passing laws which regulate your or my participation in securities trading, either with rules that treat us the same as everyone else, or with rules that provide targeted limits based on institutional relationships (targeted restrictions need to not be on grounds that are specifically prohibited, and need to have sufficient relationship to a legitimate government purpose, but you haven't presented an Constitutiinally-grounded argument against either.)
Both amendments, especially with regards to the concept of due process and equal protection as it is mentioned in both amendments, have been held to apply to both state and federal government under the legal principle of incorporation, by the Supreme Court (1).
However, property rights in particular are so-called natural rights recognized by numerous clauses of the Constitution as well as the Federalist Papers and the Declaration, in addition to centuries prior as part of Common Law. There is literally centuries of precedent protecting property rights, which include intangible propery rights, as stock certificates fall under.
The right to enjoy all the same rights and privileges as all other citizens is part of Due Process clause of the 5th amendment, in addition to the Due process clause of the 14th amendment.
"No person shall be deprived of life, liberty or property without due process of law"
In the case of stock certificates, the Contracts Clause is also relevant:
"No state shall . . . pass any law impairing the Obligation of Contracts"
Again, recognizing contractual negotiation as a right to be protected.
Article 2, Section 4, Clause 1 also states: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
Furthermore, there is no enumerated power for Congress to impose legal restrictions on members of Congress itself.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
That may sound tautological, but by the Supremacy clause the Constitution is the highest law in the land, and it decides the powers and restrictions that the three branches enjoy. If Congress could constitutionally pass arbitrary bills to restrict the privileges or rights of members of Congress, without going through the full process of amending the Constitution, the Constitution would seize to have Supremacy in determining the qualifications and restrictions for members of Congress. That is to say, equal protection applies to Congress in all cases except as provisioned in the Constitution.
Indeed. It doesn't appear to be such a huge burden to ask Federal elected officials, who are all paid a substantial salary and have great benefits, to put their assets in a blind trust, like in that old Onion joke[0].
Thanks for pointing that out -- I missed that originally. It seems heavy-handed. Either blind trusts are actually blind (that is, real independence on the part of the trustee, not just a facade) or they aren't. If it's the latter, then that should be the part that needs dealing with. But I have a hard time believing that this is a real problem; trust law is extremely well established.
In the end, what we want to do is align the personal incentives of our elected representatives with the incentives of society as a whole. That includes the ability for elected officials to (indirectly and passively) participate in the stock market, just like how millions of Americans do with their 401ks and IRAs. The problem is the rampant insider trading, not that congresspeople own stock.
If this bill would make it so that elected officials can only own Treasury notes and real estate, well, it will probably end up inflating the value of those assets instead ;-) but jokes aside, it appears an undue burden.
Even if they don't own war machinery stocks themselves in many states they need war to keep running the war industries and employment up as without high employment numbers it's hard to get reelected.
I presume they'll just receive the money from their lobbyists in those industries but it's definitely better than having that AND their own stock "great investments".
I don't get that app wall, but rather than posting a comment which doesn't add value, you can always get a non-walled link, which would help other people to not run into the same issue as you.
If you don't want to click the link below, I'll summarize, there is almost nothing of value in the post.
> The new bill would bar Washington officials from owning or trading stocks, even in blind trusts.
Unless you're going to ban congresspersons to hae wealth-- where is the money going to go and what distorting effects will that have -- and will it be superior to the problems of (say) having a blind trust that just holds market indices?
Take greenhouse gas emissions for example: if we had acted more aggressively in the past, we might have mitigated a lot of the climate change we're seeing today. But it would have impacted the stock market, and every senator/congressperson would have lost money personally by backing those initiatives. So, today, now we have record temperatures as the norm, ie, we're not shocked when every third Tuesday we see a record temperature and extreme weather event
If they do this, we will lose the smartest members of congress. Hear me out via an example:
Consider Nancy Pelosi, who made $20M via trading in 2020. To have predicted the market would crash during otherwise good times and then rise during otherwise hard times, you would have had to be an economic genius. If we had banned our senators from trading, Pelosi would probably choose trading over guiding our nation, essentially employing her 200+ IQ to making money instead of making our nation great.
I say that instead of banning congress from trading, we should give them more power the better they are at trading, as doing so would ensure that the smartest congress members have their decisions more fairly weighted.
In your own profile you mention that you are a stock trader. Do you not see the potential confusion between cause and effect you are making here? When you control the laws of an entire country, it should be trivial to multiply your wealth by investing in areas and industries that you intend to effect with legislation.
This seems like a troll post, but I will bite in the spirit of hn and consider it very serious. The brain drain idea is a fallacy. These aren't doctors who will flee to private practices away from Medicare spot where they can earn more money. These are elected public representatives of the people. More power translates to more corruption and tyranny, and I'd be 100% opposed. Our government would be approaching near complete erosion of trust and values if we further empowered these people to become elected privateers. That may be silly to say given how low trust and value are at the present time, but this notion of empowering them to earn more money feels like it would be a defining catalyst moment in future history books to where it all went wrong for the American Republic.
There are high IQ people who decide against being a doctor because its a lot easier to make $350k programming than working 60hr/week as a doctor (also no educational debt).
Same thing here. If you want high IQ people to do things, then you need to compensate them in some fashion.
This is a much better idea than the STOCK Act. It’s much less risky to separation of powers to have a bright line rule banning stock trading than to have prosecutions of members of the legislative branch by the machinery of the executive branch involving nebulous insider trading allegations.
Nothing less than the guillotine will satisfy me. We need to drain the swamp and start over, with that being the clear an present consequence for such behavior.
I wonder what the unintended consequences of this would be. If congressmen make less from trading stocks, where will they instead make money, or what will they do instead of make money?
Full disclosure: I think that the idea of ‘insider trading’ is incoherent. In every trade, both parties believe that they are getting more than they are giving. In every stock trade the seller thinks that he is selling something for more than it is worth to him, and the buyer thinks that he is buying it for less than it is worth to him.
> where will they instead make money, or what will they do instead of make money?
Think tanks and defence analyst appearing on cable news seem like something they are already heavily involved in. Not to say speaker fees. Or lobbyists for foreign governments. They have endless streams of incoming money once they are elected to office for the rest of their life. Same goes for Fed officials like Federal Reserve. Ben Bernanke now works for Citadel. Go figure!
I've always felt that we should 5x-10x the salaries (Singapore style) of federal elected officials and cabinet secretaries but require them to divest their entire portfolio within 30 days of taking office and only hold securities issued by the US government, states, and localities.
Sounds nice on first order. Are there any unintended consequences? Personally I don't think you can kill corruption you can only balance it against itself.
Im sure there are but not really aware of what they are. The one that I can think of is putting some downward pressure on asset prices when the market knows that a lot of wealthy people have to sell off assets somewhat quickly.
What I've always kinda thought is that each congress person gets a large amount of budget to spend on staff. ~order of 10 million per congressman.
This would allow for the establishment of in house knowledge groups/ staffers, particularly with regards to policy, rather than having to rely on lobbiests. It would also reduce the churn from congressional staffer to industry lobbyist.
Or at least that's my thought. The us gov spends a ridiculous amount of money, spending more in the organization meant to monitor and control that spend. If you even have a half a percentage gain in efficiency would pay for itself.
This is forgetting the ability of congresspeople to be more responsive to constituents.
Ask professional loophole writers to write a law inhibiting their own wealth.
Even more jaded, they will propose it to large media fanfare, but then delay the actual vote for months while they all voice their support for it.
Then they will allow any Senator to vote FOR this if they need a local boost in their approval numbers. But obviously they will carefully make sure that the bill fails by a few key votes.
83 comments
[ 4.7 ms ] story [ 154 ms ] thread> Two bills on this matter — the TRUST in Congress Act and the PELOSI Act — have failed to move the needle this year, and it’s unclear if or when the Ban Stock Trading for Government Officials Act will be debated and voted on.
> Public support for a ban on stock trading among members of Congress is almost unanimous — with 86% in favor nationwide, according to a new survey by the University of Maryland’s Program for Public Consultation.
The pretense of this nation being a functional democratic republic has long been abandoned. We have merely the simulacrum of it now.
The institutions of democracy in this country are challenged, but I'd say we are a long way from being a mere "simulacrum" of a functional democratic republic. I am confident that the populace and the institutions will rise up to the challenges.
Popular policies or leaders aren't necessarily good, and vice versa. As an example, the president of El Salvador is wildly popular, with 80-90% approval ratings in polls; but critics also accuse him of being an authoritarian whose rule may well end up leaving El Salvador in a backslide into autocracy.
Of course, when it comes to this particular matter of insider trading, it would seem particularly self-serving for Congress to not pass such a law with such popular support. But I want to point out that there is no broad agreement that in a "true democracy", the will of the majority is always reflected in policy.
Plenty of laws regulate Congress–it isn't sovereign.
Laws require the President's sign off. It isn't one Congress binding another. It's the U.S. government restricting the Congress. (Or more accurately, its members.)
Is this a crackpot legal theory about how the last hundred years of precedent are unconstitutional because Redditor No. 9 million said as much? Where in the Constitution does it explicitly bar bribery? Come on.
You cannot impose specific restrictions on Congress on personal rights that ordinary members of the public have (trading stocks and other property assets) without a specific clause set out for it in the Constitution. Their private property rights are explicitly protected by the Due Process of the 5th amendment and Equal Protection clause of the 14th amendment (same as you and me):
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.]"
They do not lose 5th and 14th amendment protections in their private affairs just because they were elected to Congress. Bribery is illegal for everyone, not just Congress. Trading stocks are not.
That being said, you'd be naive to believe that implicit bribery does not occur in U.S. politics. And in practice, it's very difficult to prosecute a bribery case against a member of Congress as it's not permissible to introduce acts of legislation as evidence in court (US v Helstoski, 1979). In US v Brewster (1972), it was found that taking of a bribe was not protected by the Speech and Debate clause since the taking of the bribe was not related to "performance of a legislative function". Even then, though, Brewster was found not guilty despite quite overtly requesting a bribe.
[1] https://en.wikipedia.org/wiki/Due_Process_Clause [2] https://www.law.cornell.edu/supremecourt/text/408/501 [3] https://caselaw.findlaw.com/court/us-supreme-court/442/477.h...
You’re implying legal restrictions on executives trading their own stock are illegal. That is nonsense. This entire legal theory is totally fringe and unprecedented, to say nothing of internally inconsistent.
Something like that seems constitutional to me, although I am not a constitutional scholar.
Laws aren't passed by the Congress alone. OP is confusing the law with e.g. the principle that says the 118th Congress can't adopt a House rule with two clauses:
(1) All Democrats must tape a weenie to their head, and (2) This rule may only be changed by unanimous consent.
When it comes to laws, they can't bind the Congress (collectively) but they can bind its members individually. For example, the 118th Congress can't pass a law compelling the 119th Congress to pass something else. This doesn't arise out of any law, but is a natural result of, quoting Cicero: "when you repeal the law itself, you at the same time repeal the prohibitory clause, which guards against such repeal" [1].
[1] https://ij.org/cje-post/state-con-law-case-of-the-week-can-o...
https://en.m.wikipedia.org/wiki/STOCK_Act
https://en.m.wikipedia.org/wiki/2020_congressional_insider_t...
Clearly both a judge and the FBI understood that they could act in this law.
I don’t understand why you are so adamant on this point about regulating Congress. Multiple people in this thread have posted examples refuting this.
(Arguably the answer is “the interstate commerce clause”, but its important to ask the right question.)
No such rule exists. The closest is that an act of Congress can’t limit Congress ability to exercise its Constitutional powers in the future (e.g., a past Congress could not limit a future Congress’ ability to set its own rules), but there is nothing that prevents a Congress from passing laws which regulate the behavior of future members of Congress, as individuals, so long as it is otherwise authorized by the Constitution (i.e., like any other law it must exercise a Constitutional grant of power; here, probably, the interstate commerce clause) and does not violate any of the express immunities of members of Congress (e.g., the Speech and Debate clause), which a blanket regulation like this does not.
Regulating the behavior of Congress in a way is a constitutional change. Sorry, no, the interstate commerce clause has absolutely nothing to do with the legislature regulating future generations of Congress.
Congress decides how much to pay themselves in Salary. They can pass bills to raise or lower it. They could also decide to pass a bill to change how the members of congress are picked, or to expand the congress, or shrink it.
The constitution quite literally be amended and changed. In a way, this is the ultimate strength of our system of government. We (the government being represented by the people) choose the limits and rules to impose on ourselves - we are not subject to an arbitrarily picked ruler and assume full responsibility for what we allow in society.
> They could also decide to pass a bill to change how the members of congress are picked, or to expand the congress, or shrink it.
No, they cannot. That requires an amendment, not a bill, and amendments have to be ratified by 3/4 of all state legislatures.
> The constitution quite literally be amended and changed. In a way, this is the ultimate strength of our system of government. We (the government being represented by the people) choose the limits and rules to impose on ourselves - we are not subject to an arbitrarily picked ruler and assume full responsibility for what we allow in society.
The strength of our system of govt in part derives from the fact that it is not trivial to change the Constitution. It requires supermajorities (2/3) in both chambers of Congress and 3/4 of all state legislatures to ratify any change. This is A Good Thing, because simple majorities are fleeting and temporary and allowing chaotic changes to the Bill of Rights, for example, would be devastating to the idea of liberty. Too often in history, democracies have failed because they buckled to the whims of simple majorities, or granted themselves or an executive branch too much power. Our system is the oldest continuous democracy in the world in part because of those supermajority requirements.
They don't have to be granted power for every possible description of a law, only for any description and not prohibited any of the others. And while it may not be obvious to you on its face, its pretty well established that regulating securities trading in general falls within interstate commerce power, so as long as there isn’t some provision prohibiting legislation that applies to conduct of members of Congress (and there isn’t), that’s that.
> > They could also decide to pass a bill to change how the members of congress are picked, or to expand the congress, or shrink it.
> No, they cannot
Yes, they can.
Setting the size: the only thing the Constitution does is set an upper bound, which the current legislatively-fixed size is well below, allowing it to be altered in either direction without hitting a Constitutional limit, abd requiring eachbstate to have at least one member. Art I, § 2, ¶ 3, in relevant part: “The number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative.”
Changing how members are picked: this is given to the state legislatures in the absence of Congressional action, with Congress given overriding authority except as to the location of elections for the Senate [0]. Art I, § 4, ¶ 1 (emphasis added) “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”
[0] this is a legacy of when Senators were chosen by the state legislature, since setting the place would mean Congress was relocating the statr legislature for that one function, but was not explicitly altered when direct election of Senators was established by the 17th Amendnent.
"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."
This essentially says that the laws that the state sets for itself for choosing the most numerous branch of its own legislature end up covering the federal representatives as well. So this means that if a state wants to expand the franchise, it covers the most numerous state legislative branch as well as the federal representatives to the House.
Congressional control over voting and representation is also limited by the 14th, 19th, and 26th.
At-large districts used to be something states could, and did, choose to use for electing representatives to Congress (an effective way of giving the statewide majority full control of the Congressional delegation.) Now it's not. Was there a Constitutional Amendment? Nope. Just an Act of Congress.
"...to be ascertained by Law."
Except that they aren’t. Apportionment is in part…but salary is not (although there are some rules as to when changes can take effect). The rules are not. Elections are not.
> Regulating the behavior of Congress in a way is a constitutional change.
Regulating the personal behavior of members of Congress is not “regulating future generations of Congress” in any way that is restricted by the Constitution or requires Constitutional change. You are just inventing rules out of thin air–apparently riffing on (without understanding) the maxim that the Congress can’t bind future Congresses–that have no basis in the Constitution or, really, anything else.
> Sorry, no, the interstate commerce clause has absolutely nothing to do with the legislature regulating future generations of Congress.
The interstate commerce clause has absolutely everything to do with regulating securities trading.
Yes, it is:
Article I, Section 6, Clause 1:
"The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States."
That gives them the authority to set forth legislation for their own salaries. The 27th amendment ratified in 1992 held that any change in salary would not take effect until the following Class was elected.
> Regulating the personal behavior of members of Congress is not “regulating future generations of Congress” in any way that is restricted by the Constitution or requires Constitutional change. You are just inventing rules out of thin air–apparently riffing on (without understanding) the maxim that the Congress can’t bind future Congresses–that have no basis in the Constitution or, really, anything else.
No, the private property rights of Congress are protected by all of the same property rights clauses that protect you and me, including Due Process and Equal Protection. You cannot arbitrarily deny property rights to Congress that are broadly accessible to the general public.
> The interstate commerce clause has absolutely everything to do with regulating securities trading.
We can debate securities law another time, but no, the interstate commerce clause does not allow you to restrict elected members of the legislature from all the same rights as private individuals enjoy, including the right to own and sell stocks.
The Due Process Clause of the 5th Amendment (but not that of the 14th) does limit Congress, the Equal Protection Clause (of the 14th, there is only one of those) does not, it only limits the States.
In any case, those provisions don't prevent Congress from passing laws which regulate your or my participation in securities trading, either with rules that treat us the same as everyone else, or with rules that provide targeted limits based on institutional relationships (targeted restrictions need to not be on grounds that are specifically prohibited, and need to have sufficient relationship to a legitimate government purpose, but you haven't presented an Constitutiinally-grounded argument against either.)
However, property rights in particular are so-called natural rights recognized by numerous clauses of the Constitution as well as the Federalist Papers and the Declaration, in addition to centuries prior as part of Common Law. There is literally centuries of precedent protecting property rights, which include intangible propery rights, as stock certificates fall under.
The right to enjoy all the same rights and privileges as all other citizens is part of Due Process clause of the 5th amendment, in addition to the Due process clause of the 14th amendment.
"No person shall be deprived of life, liberty or property without due process of law"
In the case of stock certificates, the Contracts Clause is also relevant:
"No state shall . . . pass any law impairing the Obligation of Contracts"
Again, recognizing contractual negotiation as a right to be protected.
Article 2, Section 4, Clause 1 also states: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
Furthermore, there is no enumerated power for Congress to impose legal restrictions on members of Congress itself.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
That may sound tautological, but by the Supremacy clause the Constitution is the highest law in the land, and it decides the powers and restrictions that the three branches enjoy. If Congress could constitutionally pass arbitrary bills to restrict the privileges or rights of members of Congress, without going through the full process of amending the Constitution, the Constitution would seize to have Supremacy in determining the qualifications and restrictions for members of Congress. That is to say, equal protection applies to Congress in all cases except as provisioned in the Constitution.
(1) https://www.law.cornell.edu/wex/incorporation_doctrine (2) https://www.law.cornell.edu/supremecourt/text/347/497 (3)
[0]: https://www.theonion.com/you-people-made-me-give-up-my-peanu...
>The new bill would bar Washington officials from owning or trading stocks, even in blind trusts.
The implication is that blind trusts are just wealth managers with a facade of independence.
In the end, what we want to do is align the personal incentives of our elected representatives with the incentives of society as a whole. That includes the ability for elected officials to (indirectly and passively) participate in the stock market, just like how millions of Americans do with their 401ks and IRAs. The problem is the rampant insider trading, not that congresspeople own stock.
If this bill would make it so that elected officials can only own Treasury notes and real estate, well, it will probably end up inflating the value of those assets instead ;-) but jokes aside, it appears an undue burden.
Appwall? No thanks.
If you don't want to click the link below, I'll summarize, there is almost nothing of value in the post.
https://archive.is/wip/o11Qe
Unless you're going to ban congresspersons to hae wealth-- where is the money going to go and what distorting effects will that have -- and will it be superior to the problems of (say) having a blind trust that just holds market indices?
Energy is 4.5% of the S&P.
Even if they weren't invested directly in Exxon they would not want to be associated with killing an industry and the jobs that go with it.
They could have made money backing green energy just as easily anyway.
https://www.congress.gov/bill/117th-congress/senate-bill/349...
BASED
If you care more about personal wealth than the American people you shouldn't be running for public office.
Consider Nancy Pelosi, who made $20M via trading in 2020. To have predicted the market would crash during otherwise good times and then rise during otherwise hard times, you would have had to be an economic genius. If we had banned our senators from trading, Pelosi would probably choose trading over guiding our nation, essentially employing her 200+ IQ to making money instead of making our nation great.
I say that instead of banning congress from trading, we should give them more power the better they are at trading, as doing so would ensure that the smartest congress members have their decisions more fairly weighted.
Same thing here. If you want high IQ people to do things, then you need to compensate them in some fashion.
Full disclosure: I think that the idea of ‘insider trading’ is incoherent. In every trade, both parties believe that they are getting more than they are giving. In every stock trade the seller thinks that he is selling something for more than it is worth to him, and the buyer thinks that he is buying it for less than it is worth to him.
Think tanks and defence analyst appearing on cable news seem like something they are already heavily involved in. Not to say speaker fees. Or lobbyists for foreign governments. They have endless streams of incoming money once they are elected to office for the rest of their life. Same goes for Fed officials like Federal Reserve. Ben Bernanke now works for Citadel. Go figure!
This would allow for the establishment of in house knowledge groups/ staffers, particularly with regards to policy, rather than having to rely on lobbiests. It would also reduce the churn from congressional staffer to industry lobbyist.
Or at least that's my thought. The us gov spends a ridiculous amount of money, spending more in the organization meant to monitor and control that spend. If you even have a half a percentage gain in efficiency would pay for itself.
This is forgetting the ability of congresspeople to be more responsive to constituents.
Even more jaded, they will propose it to large media fanfare, but then delay the actual vote for months while they all voice their support for it.
Then they will allow any Senator to vote FOR this if they need a local boost in their approval numbers. But obviously they will carefully make sure that the bill fails by a few key votes.