Scholars and political pundits have long bemoaned the partisanship that pervades our politics, and the use of the Constitution to seek policy changes. Now, acrimony seems to have seeped into every part of the political process. Some observers blame the corrupting influence of campaign cash, others point to the rise of the "tea party" movement, still others say it is just the nature of political parties. Whatever the cause, it doesn't have to be this way.
For nearly two decades, The Constitution Project, a bipartisan legal watchdog group that I head, has brought together policymakers and legal practitioners from across the ideological spectrum to develop consensus solutions to some of the toughest constitutional challenges of our time. To recognize others who share our vision, each year we present our Constitutional Champion Award to individuals and organizations who have dedicated themselves to defending our Constitution and the principles it embodies. This year, I am pleased to say that two of our honorees are Senator Patrick Leahy (D-Vt.) and Senator Rand Paul (R-Ky.). Both have worked doggedly to build bipartisan consensus on a number of critical constitutional issues.
For example, both Sen. Leahy and Sen. Paul are sponsors of the Justice Safety Valve Act, which would give federal judges the ability to impose sentences below mandatory minimums in appropriate cases and based upon mitigating factors. Mandatory minimums dictate the least amount of time a federal judge may sentence a convicted criminal for a specific crime regardless of the defendant's involvement, criminal history, mental health, addiction, and other mitigating factors. The proposed legislation would allow federal judges to tailor sentences on a case-by-case basis, returning them to the constitutional duties we expect of them. Such judicial discretion would help reduce the bloated federal prison population, while also ensuring that sentences fairly fit the circumstances of the crime and the offender. They co-sponsored similar legislation in the last Congress.
"Over the last several decades, politicians have added more and more mandatory minimum sentences to our criminal laws because they make for a good 'tough on crime' message. But the truth is they do not make our communities safer and they are breaking the bank," Sen. Leahy said upon introducing the most recent version of the bill in February. Sen. Paul urged Congress to quit tying the hands of federal judges, noting that mandatory minimum sentences disproportionally affect minorities and low-income communities.
Sen. Leahy has long been an advocate for reaching across the aisle to safeguard fairness in the criminal justice system. More than a decade ago, for instance, he worked with then-Senate Judiciary Committee Chair Orrin Hatch (R-Utah) to include provisions in the federal law to ensure the fairer administration of the death penalty by allowing greater access to post-conviction DNA testing, thereby reducing the risk of executing innocent people.
Sen. Leahy and Sen. Paul have also been leaders in protecting against the erosion of constitutional rights and principles in the name of national security. In the aftermath of the terrorist attacks of 9/11, Congress passed several laws, including the Patriot Act, that vastly expanded the search and surveillance powers of domestic law enforcement and foreign intelligence agencies like the National Security Agency and limited the ability of courts to ensure that those powers were not abused. However, most Americans were unaware of the extent of the NSA's massive surveillance apparatus until two years ago, when a series of stories based on classified documents that Edward Snowden leaked to the media spelled it out.
Sen. Leahy teamed up with Rep. James Sensenbrenner (R-Wisc.), one of the original authors of the Patriot Act, to introduce the USA Freedom Act. The legislation was aimed at curbing dragnet collection of millions telephone records by the NSA, provide greater transparency of policies underlying government surveillance programs, and increasing due process and our Fourth Amendment rights by allowing the secret Foreign Intelligence Surveillance Court to appoint a special advocate to represent privacy concerns in certain cases and requiring it to disclose significant decisions relating to Americans' privacy rights. Although a version of the bill passed the House and enjoyed the support of a majority of the Senate, a procedural hurdle kept it from coming up for a vote, and the legislation died in the waning days of the last Congress.
Sen. Paul has also been a vocal critic of NSA spying. He introduced legislation declaring that "the Fourth Amendment to the Constitution shall not be construed to allow any U.S. government agency to search the phone records of Americans without a warrant based on probable cause," and has made it clear that he will vote against any extension of the Patriot Act provisions expiring in June.
On the issue of making certain the constitutional guarantee against unreasonable searches extends into the digital age, Sen. Leahy joined forces with Sen. Mike Lee (R-Utah) on legislation requiring law enforcement agencies to obtain a search warrant based on probable cause before accessing emails or documents stored in the cloud. Their warrant-for-content proposal - which is supported by a broad coalition of more than 70 technology companies, trade associations and privacy groups including TCP - would update the Electronic Communications Privacy Act, a 1986 law that currently allows law enforcement agencies to access , without a warrant, emails that have been stored for more than 180 days and information stored in the cloud. Once the legislation is signed, law enforcement agents would still be able to seek electronic communications as evidence in criminal investigations and prosecutions, but only if they can convince a judge to provide a warrant.
Sen. Paul is an ardent defender of the constitutional principle of separation of powers. Along with Sen Tim Kaine (D-Va.), he has been outspoken in his insistence that the Obama administration seek authorization from Congress in order to carry out military actions against Islamic militants in Syria and Iraq, disputing the assertion that the president as commander-in-chief could act alone. Finally, six months after the airstrikes began, President Obama submitted a request for war authority to Congress, and the Senate is expected to take up the issue in the coming weeks.
Of course, these are but a few of the issues on which these two statesmen have been standing for fairness, liberty and constitutional principles. TCP is proud to recognize them with our 2015 Constitutional Champion Award. In addition, for reasons I have outlined in another column, we will also honor Twitter for their strong defense of the First Amendment and of the public's right-to-know.
Sen. Leahy and Sen. Paul, along with Twitter, will accept the award at TCP's annual gala on April 22 at the offices of Jones Day in Washington, D.C. To find more information on the event, or to purchase tickets, visit TCP's website.
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