As April 15 approaches, there's a lot of talk about curbing IRS abuses. A measure addressing the issue passed overwhelmingly in the House last session. The Senate is next. This reform effort is due. It ought to include a measure exempting attorneys from the Internal Revenue Code 6050I, Form 8300 "cash reporting" requirement, which today guts the sacred attorney-client privilege. But even more, Congress needs to put a stop to daily highway robbery committed by the Treasury and Justice Departments, who wrongfully deprive innocent Americans of their property through the currently over-broad asset forfeiture laws.
Where We Stand
Like the American public and numerous members of both parties in Congress, NACDL has long called for reform of the nation's much-abused asset forfeiture laws. We frequently represent the victims of these laws -- individuals, religious organizations, businesses, financial institutions, unions, and multinational corporations alike. We see first-hand how these laws sanction unfair seizures of private property, and turn the presumption of innocence on its head. We know that the wrongful deprivation of property endured by Americans because of these laws engenders a crisis in confidence in the institutions of law enforcement, and the rule of law itself. And thus, we have been at the vanguard in calling for legislative reform.For many years now, our members have volunteered to travel to Washington at their own expense -- to meet with congresspersons, provide testimony to committees, and otherwise work patiently and in good faith with Congress. We have engaged in exhaustive discussions with the Justice Department to reach a reasonable compromise regarding reform.
We do this with no personal stake in the issue, financial or otherwise. Our only motivation is our abiding interest in justice, and our moral outrage at injustice.
Government Stance:
Conflicts of Interest, Obstructionism
NACDL's dedicated volunteerism stands in marked contrast to the conduct of Justice and Treasury. Led by Justice, they have deployed their bands of full-time, tax-dollar paid lobbyists to "work" Congress non-stop. They have sought to thwart modest legislative efforts at reform. They have also pushed for unreasonable expansions of their current forfeiture powers, to unfairly seize more private property with less restraint. The Department even persists in denying that current laws are abused.House Judiciary Committee Chairman Henry Hyde (R-Il) has written an excellent book about the need for reform. In it, he discusses why the law enforcement lobby has been especially tenacious about maintaining and expanding government powers to unfairly deprive people of their property. Agencies within Justice and Treasury, (DEA, FBI, Customs, IRS, BATF, etc.) have a direct financial stake in their seizures, a conflict of interest that prevents them from protecting the property rights of the people they are supposed to serve. They actually keep the property they seize from the people -- as a sort of perverse, off-budget self-appropriation.
People's Lobby
Thankfully, democracy lives. The American public and the media have not been fooled. They've kept up the pressure for reform.This Congress, we had realistically high hopes for reform. Chairman Hyde was joined by his Democratic counterpart on the Judiciary Committee, and a fellow long-time champion of reform, John Conyers (D-MI). As original co-sponsors of their bill, H.R. 1835, they were joined by many members of both parties. A hearing was held and the momentum behind the measure grew even stronger. The measure drew members of both parties like honey draws bees.
Bullies Don't Quit
But . . . then Justice threatened a veto; yet, it said it would "compromise" on a bill, if only Hyde and Conyers would pull down H.R. 1835 and give the Department "a few things." They took the DOJ negotiators at their word, trusting them to negotiate in good faith.The "few things" turned out to be a watering down of the original bill's reform provisions and the addition of 54 new pages of radical forfeiture expansion provisions that would shock any court of justice even passingly familiar with the law! This DOJ "compromise" bill was introduced as H.R. 1965 and moved through committee without a hearing or any other type of public scrutiny.
Legislative Process?
Perhaps Hyde and Conyers understood this Department-drafted "compromise" to be a necessary part of a complex process. They pleaded with their colleagues -- who had less than 48 hours to "study" the voluminous new bill -- to trust them, and the process, and vote the bill out of committee. They intimated that this was the only way to continue what they hoped was progress in their negotiations with the Department. The significant concerns articulated by many members of the Committee would be resolved through future negotiations.Because of their credibility as forfeiture law reformers, Hyde and Conyers were able to secure the trust of their colleagues and get the DOJ-written bill voted out of committee without amendment. Clearly, committee members sought to give their leaders a fair chance to reach a reasonable compromise with Justice.
H.R. 1965 was promptly opposed by numerous diverse and influential groups. The highly-regarded Cato Institute, publisher of Hyde's book on the need for reform, screamed foul, and called upon him to return to his original bill, H.R. 1835. The same call was made in a resolution by the Illinois State Bar Association Board of Governors, Hyde's bar. NACDL issued the same plea. H.R. 1965 has also been opposed, and H.R. 1835 supported, by groups as diverse as the ABA, Americans for Tax Reform, and the Institute for Justice. Newspaper editorials from Albany to Las Vegas have called for the rejection of H.R. 1965 and the revival of H.R. 1835.
In fact, the DOJ's Phony Forfeiture Bill, H.R. 1965, is supported by no one but the very agencies deriving direct financial benefit from the bill's extreme expansions of their forfeiture power to unfairly take Americans' property.
Patient Played for Patsy
Hyde and Conyers displayed trust and courage in attempting to work with Justice. But before further talks could be had, Justice broke its word to the Committee and breached good faith negotiations. They showed their promised "support" for the "compromise" extracted from Hyde and Conyers by lobbying Bill McCollum (R-FL), Chairman of the Crime Subcommittee of Mr. Hyde's Judiciary Committee, for a whole new bill.Justice lobbyists reportedly told McCollum that their latest bill was different from that which they "negotiated" with Hyde and Conyers. The truth is, it contains all of the worst provisions of H.R.1965 (and they are numerous). It goes even further, though, actually calling for abolition of the time-honored right of jury trial in criminal forfeitures. Abolition of such jury trials has been attempted before, by England's King George against the colonials in America. Such oppression was a prime impetus behind the Declaration of Independence and the Revolutionary War.
This latest Justice ploy may well be introduced by McCollum. What is the DOJ's explanation for their double-dealing? It "supports" H.R. 1965, and simultaneously "supports" these other bills which it is drafting and pushing other congresspersons to move!
Such arrogance won't surprise those lawyers who deal with government forfeiture addicts every day in courts across the country. It shows why one must stand up to bullies. This is especially true if one is Congress, and the bullies are overzealous, executive branch agencies with unchecked power to violate Americans' property rights, obsessed with gaining ever more power and fewer restraints.
Showing the patience of Job, Hyde and Conyers valiantly tried to work with Justice. They have been thanked by DOJ playing them for patsies. The Department has shown that it can't be trusted to negotiate reasonable forfeiture legislation in good faith.
High Time to Move H.R. 1835
Now, unmistakably, it is high time for Chairman Hyde, Mr. Conyers, and Congress to take up the DOJ's dare to rein it in. They should return to the original True Reform Bill, H.R. 1835. It still enjoys vastly greater support than does the Phony Forfeiture Bill, H.R. 1965. Indeed, the only co-sponsors (two) of H.R. 1965 appear to be those confused by the switch of bills, who thought they were co-sponsoring the reform bill of the Committee's hearings, H.R. 1835.
Right Thing Also a Winner
The 105th Congress is now well into its second session. Time is fleeting to rein in government forfeiture abuses. While DOJ has been engaging in obstructionism, still more Americans have been victimized by the unreformed laws.The good news is that a prompt return to true reform legislation is not just the right thing to do, but is also a winning strategy. Chairman Hyde recently sheparded a similar piece of much-needed reform legislation into law. His measure to afford victims of wrongful prosecution an opportunity for fee and cost reimbursement overwhelmingly passed the House by a vote of 340-84. (See related article, p. 22). Justice threatened a veto on that measure, too. But Hyde stood up to the threat. He stood up for the American people's right not to be bullied by their own government. Despite some inevitable tinkering in the end, the measure that ultimately emerged from the process remains a meaningful new law to curb Department of Justice abuses.
This success occurred only because Hyde refused to bow to Department demands that he gut his measure, and instead, kept his legislation on course with its principles.
Chairman Hyde, it's time to do it again!