Here's the report, published Tuesday. An excerpt from the Summary:
The two main criteria which the courts would likely look to in order to determine whether legislation is a bill of attainder are (1) whether “specific” individuals or entities are affected by the statute, and (2) whether the legislation inflicts a “punishment” on those individuals. Under the instant bills, the fact that ACORN and its affiliates are named in the legislation for differential treatment would appear to meet a per se criteria for specificity.
The U.S. Supreme Court has also identified three types of legislation which would fulfill the “punishment” prong of the test: (1) where the burden is such as has “traditionally” been found to be punitive; (2) where the type and severity of burdens imposed are the “functional equivalent” of punishment because they cannot reasonably be said to further “non-punitive legislative purposes;” and (3) where the legislative record evinces a “congressional intent to punish.” The withholding of federal contracts or grants does not appear to be a “traditional” punishment, nor does the legislative record so far appear to clearly evince an intent to punish. The question of whether the instant legislation serves as the functional equivalent of a punishment, however, is more difficult to ascertain.
While the regulatory purpose of ensuring that federal funds are properly spent is a legitimate one, it is not clear that imposing a permanent government-wide ban on contracting with or providing grants to ACORN fits that purpose, at least when the ban is applied to ACORN and its affiliates jointly and severally. In theory, under the House bill, the behavior of a single employee from a single affiliate could affect not only ACORN but all of its 361 affiliates. Thus, there may be issues raised by characterizing this legislation as purely regulatory in nature. While the Supreme Court has noted that the courts will generally defer to Congress as to the regulatory purpose of a statute absent clear proof of punitive intent, there appear to be potential issues raised with attempting to find a rational non-punitive regulatory purpose for this legislation. Thus, it appears that a court may have a sufficient basis to overcome the presumption of constitutionality, and find that it violates the prohibition against bills of attainder.
My much more tentative thoughts on the subject are here.
Related Posts (on one page):
- Congressional Research Service on Whether the "Defund ACORN Act" Is an Unconstitutional Bill of Attainder:
- Would Defunding ACORN Be an Unconstitutional Bill of Attainder?
ACORN is overdue for some kind of investigation and perhaps defunding with the number of cases being pursued on voter fraud (as well as convictions), embezzlement and other issues. The attention focused on them now is no doubt a matter of timing and manner of disclosure rather than when or how long such activities have occurred. The murky connections between the housing unit and political arm, where funds have been used as opposed as to why they were granted...it appears defunding is about the only way to prevent further illegal use of taxpayer dollars while investigations proceed.
Yes, innocent until proven guilty, but if this were Exxon what do you think would be happening? Maybe that doesn't make it right, but if taxpayer money is being used illegally the only current damage control handle to pull appears to be defunding further ops pending a legit review (one that excludes Andy Stern, for example).
In the Rockwell case, the problem was confined largely to one unit and several contracts. There was no evidence of an endemic problem or culture that supported the illegal acts. ACORN is in a slightly different position...heh.
I spent most of 1985/6 at different units of Rockwell doing reviews, so I know a bit about that situation, and that is all I will say about it.
By that logic, we can deny Medicaid/Medicare to minorities because the program isn't enumerated in the Constitution.
If you want to argue that there's no authorization for funding ACORN or whomever else in the Constitution, fine, I understand that argument. But how does funding ACORN violate the 9th and 10th Amendments?
Jonathon Adler wrote on this blog that the proposed AIG tax would probably not be viewed by the federal courts as a Bill of Attainder.
I'm sure there are some defining characteristics for ACORN that will permit Congress to stop their funding, and only their funding, without naming them. Either that, or Congress can establish an ACORN tax of 100% of their federal funding.
Not so great for national defense in the short term, maybe, but think of the money we'd save down the line by holding all future contractors to the fire!
The first discussion (between Oren and me) was over a Senate amendment. The Defund ACORN Act (H. R. 3571) seems to be less of an issue than the original Senate amendment proposed.
The House bill is clear and general, and by no means limited to ACORN. I cannot see how it would be a bill of attainder.
On the other hand, the Senate amendment prohibits use of certain funds to directly or indirectly fund ACORN by name and made no other provisions. I think that would be on the other side of the line.
I think everyone would agree that Congress does not have to fund ACORN, from the beginning. There is no right to federal funding for any group.
It follows, I think, that if Congress can choose not to fund the group at all, then Congress can choose to stop funding the group, otherwise any such funding would be perpetual. I doubt that a court will look behind Congress's decision not to fund any group (as opposed to the imposition of a fine or some kind of forfeiture of property). Consequently, I don't think that a court would find that Congress's decision merely not to fund any group with treasury funds has a punitive purpose.
[As an aside, why DOES Congress fund ACORN? Should the government really be funding political groups of any kind?]
The Senate amendment to an appropriations bill said that none of the funding could be used to directly or indirectly fund ACORN. This seems to attach conditions that none of the money could be used by any state or local government in any grant that could go to ACORN. Read broadly, the amendment might have prohibited any grants using any of this money to anyone who provides services (such as facilities for rent) to ACORN. Even a narrow reading however would be far beyond any direct federal funding. This strikes me as fundamentally punative.
The House bill is far narrower, banning direct federal grants, promotion, and certain types of agreements to the covered organizations.
The House bill is good. The initial Senate amendment that Oren brought up was IMO over the line (and if not it was a lot closer to it).
The first was approved and strikes me as bill of attainder-like. The second has not been approved and strikes me as entirely reasonable.
The HR 3571 version is more or less broadly similar to the second amendment.
I assume there'd be no compensation for this person if they were then later acquitted or otherwise cleared of the charges?
.....
Already some think it will also apply to other contractors, given their history of illegal campaign donations as well as other contractor fraud, which necessarily requires filing a "fraudulent form with any Federal or State regulatory agency." That list must be endless.
Members of Congress may have read the bill but certainly didn't comprehend the implications. But I'm sure it made them feel good to vote yes for a bill that won't be enacted. Or maybe they are leaving the dirty work up to the courts.
The House bill is good.
Do you believe the Defund ACORN Act (quoted in part above), is sufficiently narrowly drawn that it wouldn't apply to any other government contractor?
What Congress cannot do is pass a law that says "Andrew Hyman may not receive directly or indirectly any federal funds."
As a layman, I was under the impression that the Constitution limited Congress' ability to tax me for the purpose of the common defense or the general welfare.
Since visiting here I've discovered that Congress' power to tax is the same as Genghis Khan's. As long as it calls it a tax, they can tax anything for any purpose whatsoever. I've even learned they can use their power to tax to regulate activity that would be unconstitutional for them to regulate directly. Which is why, based on previous precedent, it's perfectly legal for the federal government to force me to buy a commercial product under health care reform and tax me if I don't.
Now I'm learning that defunding an organization that has announced it engages in partisan political activities (in case you missed it, Ms. Lewis, ACORN's spokeswoman, has said it has become a target of the right because it supports progressive causes such as Obama's health care initiative) is an unconstitutional bill of attainder.
So, the Constitution gives advocacy groups a greater right to my money than I have.
This is just wonderful.
I don't think anyone would argue that a bill like you propose would be a bill of attainder. If Congress passed a Partisan Organizations Defunding Act, prohibiting any organization that engages in partisan political activities from receiving, directly or indirectly, any government funds, that would surely not be a bill of attainder. But Congress didn't do that.
Lots of companies have been taken off the list for committing some bad act or another. The Defense Department can certainly blacklist bad actors if it chooses to. The reason this particular case is an issue is because we're talking about an Act of Congress.
I don't know what cabinet department ACORN gets their funding from, but if that department had decided "no more money for ACORN, they're bad people," there's no bill of attainder problem. Decisions like that get made all the time.
Of course, the primary purpose of the Defund ACORN Act is not to defund ACORN, but to force Democratic lawmakers to cast a tough vote. That's why it's being handled this way.
Not a very tough vote--it passed 345-75 2 days after it was introduced.
Cheers,
For those that care about gummint money continuing to go to corrupt businesses or organisations, here's a candidate list. Let's get cracking ... unless the animosity towards ACORN is politically motivated and not an honest effort to cut down on corruption and waste....
Cheers,
I repeat again, there was no bill seeking to find ACORN guilty of anything and calling for punishment because of a legislative conviction. Without there is no bill of attainder argument.
It's sad not funny. ACORN has long been targeted by voter suppressionist and other lobbyists like the "Employment Policy Institute", "Laborfacts.com" aka Rick Berman. The theft of billions from the government is one of those IOKIYAR matters.
You won't be able to convince J. Aldridge. He and P.A. Madison are convinced that the founding generation were boobs who did not know what the Constitution meant. Only Aldridge and Madison in the entirety of U.S. history know the truth.
I think you mistate the case there. It's you who have no ideal what the constitution means because you only see it through select, tainted court holdings.
P.S. P.A. Madison has you a little nervous or uncomfortable does he?
It might be worthwhile for the majority party to go after a couple of selected bad actors -- Xe/Blackwater comes to mind, or the contractor (KBR/Halliburton) accused of manslaughter with respect to the numerous electrocution deaths of American servicemen -- in much the way Republicans targeted ACORN. Not only would it score some political points -- forcing Republicans to cast some tough votes -- but also prevent some ugly companies from getting public dollars, correcting wrongs magnitudes worse than anything involving ACORN.
I doubt many Democrats would be pained by a vote against the likes of Blackwater or KBR/Halliburton. Add the democratic votes to the votes of Republicans who wouldn't want to be tied to electrocutions-for-profit or indiscriminate shooting at civilians and gun-smuggling, and a lopsided vote seems likely. Would there be any downside to excommunicating them?
If it's such an easy vote to cast...where is the "De-fund Blackwater/Xe" bill? Or do you think that the party in control of both houses of Congress (now filibuster proof thanks to political chicanery in Massachusetts) has no power to propose its own bills?
If it is the latter, what are the chances that it will survive confernence?
Cheers,
I was speaking about two slightly different aspects of this.
First, I was speaking about how the courts have apparently construed the Constitution over the years to confer a greater property interest to those receiving federal tax dollars in that money than it does to those paying those taxes in retaining it.
I recall the controversy when it was discovered that some artists producing works like "piss Christ" or "elephant dung Virgin Mary" were receiving NEA grants for their work. When people began to wonder if this was the sort of thing the NEA should be funding, the "arts community" got in front of the situation by screaming censorship.
Apparently, if they had screamed "bill of attainder" they'd have been on solid legal ground. And I am beginning to suspect that withdrawing their federal grant would probably have been construed by the courts as censorship as well.
Second, I was speaking about how little reason their is to have faith in the federal government regulating anything.
ACORN's website says it is a non-profit, non-partisan organization. I was under the impression that this was so it could receive certain types of federal grants. Certainly, federal tax dollars can't be used for partisan political purposes, can they?
But then ACORN's own official spokeswoman has shattered that facade by defending her organization, in this incident that sparked the defunding, as having been targeted by the right wing because ACORN promotes progressive causes such as Barack Obama's health care reform.
It seems to me we shouldn't really need a "Partisan Organization DeFunding Act" because the federal government shouldn't be in the business of funding them in the first place. In fact, don't we have a few laws against federal money being used for these purposes?
Apparently, a partisan organization can slip by the regulators and get their money by putting the right words on their website or grant application. Which are taken at face value. Then they can go on TV and spout off about what everyone knows to be the truth, which is quite the opposite.
If they can do that and get the money in the first place, I doubt they'll have much trouble evading the cooperative watchdogs tasked with defunding partisan organizations.
Seriously, wouldn't it be proper to suspend the funding to this officially non-partisan but now self-admittedly very partisan organization in order to investigate whether any money was used improperly and any fraud was involved in getting the money?
Obviously not.
As to who committed voter fraud, embezzlement, etc. oabviously individuals did those acts. That there is a pattern certainly of voter fraud associated with ACORN personnel in more than a dozen states calls into question the culture of the company.
As I noted with Rockwell, the government had no problem punishing the whole company for the actions of maybe a dozen indviduals. Ditto Arthur Andersen. So if you imply ACORN should be excused as an organization due to the acts of individuals, you call into question any action taken against any corporation. Which actually is not a half-bad idea. The Enron scheme should not have led to the demise of AA, not even close.
As to the murkiness of where money has gone and whether it is for the purposes it was intended, an article appeared today in WaPo, about Sen. Grassley's investigation. See http://hotair.com/archives/2009/09/25
Now, Ms. Lewis, CEO, pretty much says at the end of the article that she cleaned up all the problems (sic) with how funding has been channeled and documented. Er, if there were no problems then what was there to clean up, Bertha?
Ms. Lewis' attitude and explanations about the BigGovernment tapes, you will recall, has migrated from denial to "a local problem" to "thank you for pointing this out" to "we are suing" and starting a funding appeal to fend off "right-wing dirty trick attacks". For such an honest woman with deep insight and control of the organization, er, I find the evolution of her position interesting.
Cheers,
Actually it would apply to ANY government contractor who ever submitted a padded invoice.
Of course, I am all for cleaning house.
You want to play lawyer with me and pretend the indictments and convictions for voter fraud, involving multiple individuals in multiple states "are not in evidence", do have fun.
You are playing with yourself and lost the arguement, IMO.
And the second part, about where the money went and political activities funded by ACORN?
Also, was it KBR who electrocuted those employees? Can you "progress" with me?
Or does it depend on whose ox is being gored, that old subjective reasoning that excuses murder in support of la revolucion but punishes people who kill revolucionaires, such as Pinochet?
He is so far as I know, the only dictator in modern times, let's say the last 110 years, who seized power, built democratic institutions and resigned, turning over power to an elected civilian government.
A real embarassment to the Mugabes of the world, so naturally the left hates the man. Blows their promises and actual performance to hell. They promise, he did it.
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