April 30, 2009
Could Congress Moot NAMUDNO By Passing the Proactive Bailout Amendment Now?
Here's an admittedly crazy thought.
When Congress was considering amendments to the Voting Rights Act in 2006, there were a number of proposals by academics to fix the Act. In my testimony before the Senate Judiciary Committee, I noted four possible fixes to help preserve the measure's constitutionality, including updating the coverage formula, proactive bailout, a shorter time period for renewal, and being more careful about reversing Georgia v. Ashcroft.
In terms of proactive bailout, I pointed to Mike McDonald's excellent contribution to The Future of the Voting Rights Act book discussing such a proposal. I then pushed proactive bailout publicly, offering a specific draft amendment (followed up by others' suggestions for improvement)and a Roll Call oped. In the strange bedfellows department, Rep. Westmoreland offered my amendment, which went down to defeat. When it was defeated, I wrote (on July 13, 2006): "I will now just worry that Justice Kennedy, the likely swing voter when VRA reauthorization ends up back before the Supreme Court, will look at the defeat of the bailout amendment as evidence that Congress has not taken seriously its admonition in the new federalism cases and his voicing of concern over the use of raced based remedies in a series of cases culminating with LULAC. I very much hope to be proven wrong about the Supreme Court." (Westmoreland, in contrast, was happy his amendment failed, for the same reason as I was upset.)
This is some longwinded history to my current point. If Congress passed the bailout amendment now, it could moot the case before the Supreme Court, and forestall damage potentially beyond section 5 that an opinion striking down section 5 could cause.
If Democrats and the civil rights community got behind this, it is hard to believe that a measure that alleviates the burdens of the VRA would be filibustered by Republicans in the Senate.
Am I crazy?