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Would Defunding ACORN Be an Unconstitutional Bill of Attainder?

A colleague asked me this, and a Google search suggests others have been asking the same question as well. Here's a short summary:

1. The Constitutions bans both the federal and state legislatures from enacting "bills of attainder."

2. This is understood as barring "a legislative act which inflicts punishment without a judicial trial." ("If the punishment be less than death, the act [was historically] termed a bill of pains and penalties," but "[w]ithin the meaning of the Constitution, bills of attainder include bills of pains and penalties.") So if Congress says, "We conclude that Eugene Volokh is guilty of treason, and we order him to be executed," that would be a classic bill of attainder.

3. According to the Court, permanent exclusion of named people -- or even a class of people, such as Communist Party members or people who had given help to the Confederacy -- from government office may constitute "punishment" and be treated as an unconstitutional Bill of Attainder. See U.S. v. Lovett (1946), U.S. v. Brown (1965), and Cummings v. Missouri (1866).

4. This may apply to punishment of corporations and other entities, and not just of individuals, at least according to Consolidated Edison Co. v. Pataki (2d Cir. 2002); I think that has to be right, but the issue is not clearly settled.

5. At the same time, even legislation that singles out individuals is not a Bill of Attainder if "the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes." See Nixon v. Administrator of General Services (1977); SeaRiver Maritime Financial Holdings Inc. v. Mineta (9th Cir. 2002) (upholding the legislative exclusion of "any vessel that spilled more than one million gallons of oil into the marine environment after March 22, 1989" -- a class that includes only the Exxon Valdez -- from Prince William Sound, because it has the legitimate nonpunitive purpose of "reduc[ing] the environmental risk to the Sound" by excluding "a vessel with a history of substantial spillage, and encourag[ing] SeaRiver and other tank vessel owners to take greater steps to avoid a similar spill in any marine environment").

But the trouble, of course, is that most laws, including punitive ones, also further nonpunitive legislative purposes. The hypothetical Eugene Volokh Execution Act of 2009 would further nonpunitive legislative purposes of preventing future bad acts by me (as well as punishing me for all my manifold past sins). Likewise, the permanent exclusion of certain people from federal employment, struck down in Lovett and Brown, was likely aimed at preventing bad behavior by the named employees (Lovett) and Communist employees (Brown).

So would defunding ACORN be an unconstitutional bill of attainder? My rereading of the precedents leads me to confidently and unambiguously say, "I don't know." The distinction between "punishment" and actions that "reasonably can be said to further nonpunitive legislative purposes" strikes me as generally elusive and perhaps even illusory, and especially so here. But I thought I'd lay out the basic questions and precedents, and see what the rest of you think.

Related Posts (on one page):

  1. Congressional Research Service on Whether the "Defund ACORN Act" Is an Unconstitutional Bill of Attainder:
  2. Would Defunding ACORN Be an Unconstitutional Bill of Attainder?
ShelbyC:
einhverfr mentioned it in the previous thread as well.
9.15.2009 4:58pm
Melancton Smith:
I don't know why Federal prosecutors are not charging ACORN executives under RICO. With fraud in multiple states, they seem to me to be an ongoing criminal enterprise.

I want to see some perp walking.
9.15.2009 4:59pm
Mark N. (www):
I think it would've been better as a matter of principle and policy for Congress to have avoided the issue by looking for a non-organization-specific principle to apply. Presumably if funding ACORN is objectionable, it's due to some general reasons that organizations of a particular kind, which include ACORN but may not be limited to them, shouldn't be funded in particular circumstances. So find those reasons and apply them!
9.15.2009 5:03pm
Ilya Somin:
I'm not sure that merely denying an organization government funds counts as "punishment."
9.15.2009 5:04pm
Mark N. (www):

I'm not sure that merely denying an organization government funds counts as "punishment."

Would an Exclusion of Eugene Volokh From Ever Receiving A Government Grant Act of 2009 therefore pass muster?
9.15.2009 5:10pm
einhverfr (mail) (www):
Mark N:

I think it would've been better as a matter of principle and policy for Congress to have avoided the issue by looking for a non-organization-specific principle to apply. Presumably if funding ACORN is objectionable, it's due to some general reasons that organizations of a particular kind, which include ACORN but may not be limited to them, shouldn't be funded in particular circumstances. So find those reasons and apply them!


Sen. Johanns' other proposed amendment would have done this. I wasn't able to see whether it passed though.
9.15.2009 5:11pm
George Weiss (mail) (www):
who do i talk to about pushing the Eugene Volokh execution act of 2009?
9.15.2009 5:12pm
ShelbyC:

Would an Exclusion of Eugene Volokh From Ever Receiving A Government Grant Act of 2009 therefore pass muster?


Does it make a difference that only the organization, and not the individuals behind the organization, are excluded?
9.15.2009 5:16pm
einhverfr (mail) (www):
Illya Somin

I'm not sure that merely denying an organization government funds counts as "punishment."


I think it is worth looking at the scope and bredth of the amendment. Presumably the "Libertarian Exclusion Act of 2009" which would forbid government grants to any Libertarians would be Constitutional. Similarly, I would think the "Illya Somin Grant Exclusion Act of 2009" would be certainly questionable.

However, this amendment goes well beyond this, saying that the funds shall neither be used to directly nor indirectly fund ACORN. If on the other hand, we passed a law which said "No education funds may directly or indirectly fund Eugene Volokh's career" then I think that would be clearly over the line since UCLA would arguably be ineligible for any funds as long as EV was on staff.

The breadth of this exclusion suggests to my mind it WOULD be over the line.
9.15.2009 5:21pm
Eugene Volokh (www):
Lovett makes clear that exclusion from government employment qualifies as punishment. Consolidated Edison says that groups are protected as well as individuals.

It's possible that Lovett and other similar cases would be limited to permanent disqualification -- which Lovett does stress -- as opposed to disqualification in one particular funding cycle. It's also possible that it would be limited to exclusion from employment and not exclusion from grants and other contracts. But both strike me as being on balance difficult distinctions to justify.
9.15.2009 5:21pm
Mark N. (www):
ShelbyC: In my opinion it'd be plausible to make such a distinction, but Eugene's point #4 and the general trend towards strong corporate personhood would seem to exclude the possibility.

An organizational version of the analogy, though, might be: could Congress pass a bill that excluded one specific university from receiving National Science Foundation grants?
9.15.2009 5:23pm
Cato The Elder (mail) (www):
Remember that "punitive tax" bill that was seriously taken up by the House designed to wrest the "excessive" compensation from the team who had winded down the AIG Financial Group? I think I remember reading then, from respected sources, that the bill of attainder argument was clearly lacking; in my eyes, that planned action was far more egregious than what we are discussing here.
9.15.2009 5:23pm
sk (mail):
"So would defunding ACORN be an unconstitutional bill of attainder"

I also don't understand the issue. It is perfectly reasonable to not fund an organization (my organization, the Organization for the Advancement of Myself, membership of one, doesn't get any money). I am assuming that the issue exists because ACORN got funds, and are being 'defunded' of funds already allocated (but not actually delivered)? Or being asked to return money previously granted?


Or is there the belief that choosing not to fund an organization is conceptually (legally, constitutionally) different from specifically naming an organization to not be funded?

If so, I find it to be logically suspect (not to say legally suspect: legal arguments are not logical arguments-they're just emotive arguments dressed in logical clothing).

Sk
9.15.2009 5:23pm
einhverfr (mail) (www):
Mark N:


An organizational version of the analogy, though, might be: could Congress pass a bill that excluded one specific university from receiving National Science Foundation grants?


Depends on why. If it is because they don't do scientific research then sure. If it is because they are accused of fraud but never tried, I don't think that would work.
9.15.2009 5:25pm
Oren:
einhverfr, I owe you an apology for the flippant dismissal in the last thread. I surely didn't take your assertion as seriously as it merits!
9.15.2009 5:36pm
J. Aldridge:
For it to be a true bill of attainder there would have to be a bill authorizing capital punishment to be inflicted for it to be a bill of attainder. Anything less than capital punishment is called a bill of pains and penalties, something the Constitution is silent on.
9.15.2009 5:36pm
PatHMV (mail) (www):
Doesn't Congress sometimes specifically direct the executive branch to enter into contracts with particular companies? If so, why couldn't Congress also generally prohibit contracts from going to certain companies?
9.15.2009 5:37pm
einhverfr (mail) (www):
What seems troubling to me again is the emphasis on indirect funding. This flows from GOP concerns that ACORN's complex structure allows it to evade public scrutiny. But the result then is that it denies funding arguably to anyone associated with ACORN in any way. It even arguably sounds like anyone who DONATES to the organization would be barred from grants.
9.15.2009 5:38pm
Mark N. (www):

Doesn't Congress sometimes specifically direct the executive branch to enter into contracts with particular companies? If so, why couldn't Congress also generally prohibit contracts from going to certain companies?

Well, because the Constitution doesn't prohibit the "reward" version of a bill of attainder. The Eugene Volokh Execution Act (or even Small Fine Act) is unconstitutional, but the Eugene Volokh Commendation With Large Monetary Prize Act is constitutional.
9.15.2009 5:43pm
Oren:

For it to be a true bill of attainder there would have to be a bill authorizing capital punishment to be inflicted for it to be a bill of attainder.

Except for all that precedent cited, sure.
9.15.2009 5:49pm
pmorem (mail):
einhverfr wrote:

If it is because they are accused of fraud but never tried, I don't think that would work.


There have been guilty pleas by ACORN employees relating to fraud. I seem to recall one state subsidiary pleading guilty, but I can't find any link to justify that recollection.
9.15.2009 5:51pm
sk (mail):
"Well, because the Constitution doesn't prohibit the "reward" version of a bill of attainder."

Ah..

So what Congress has to do is pass a 100% tax rate on all grants to all organizations, then 'reward' every organization save ACORN with an exemption...

Sk
9.15.2009 5:52pm
David Hecht (mail):
Congress does this all the time: it's part of their legislative function.

You can pick up any appropriations bill of the last few decades (the Defense appropriations bill is always a good one), and you'll find any number of provisions tucked away in there that take the general form, "Notwithstanding any other law, none of the funds appropriated under this Act shall be used for the following purpose..." The so-called Boland Amendments famously did this regarding aid to the Nicaraguan Contras during the 1980s, but there's zillions of other examples, mostly not so high-visibility or controversial.

To suggest that a perfectly proper exercise of Congress' "power of the purse" could be a bill of attainder is to argue that anyone who receives Federal funding has an implied claim in perpetuity on the Federal purse. As anyone can plainly see, this is a nonsense.
9.15.2009 5:52pm
J. Aldridge:
Except for all that precedent cited, sure.

I'm just saying what a "bills of attainder" means, not what some wacky court might had said it means once with other courts following suit.
9.15.2009 5:57pm
Cato The Elder (mail) (www):
Aldridge, J., dissenting. As always ;)
9.15.2009 6:02pm
J. Aldridge:
If a court says pigs have wings I'll be dissenting while the rest of you revise your anatomy books :-)
9.15.2009 6:05pm
Splunge:
I'm with David Hecht. This is a sillyness. Congress directs funding to and away from individuals and institutions all the bloody time, for reasons political, personally picayune, or indeed punitive. There's a reason for all the Congressional asskissery by lobbyists in Washington.

And the idea that exclusion from government grants is some kind of punishment -- that ACORN has some kind of "right" to my tax money, in any manner even distantly approaching the right of an individual to his liberty or Professor Volt to his life -- is nauseating.
9.15.2009 6:08pm
Oren:

If a court says pigs have wings I'll be dissenting while the rest of you revise your anatomy books :-)

Statements about objective reality and statement interpreting the meaning of words are not of the same Kind.
9.15.2009 6:10pm
J. Aldridge:
Statements about objective reality and statement interpreting the meaning of words are not of the same Kind.

Interpreting the meaning of words while rejecting their long held meaning is far from objective reality.
9.15.2009 6:16pm
FWB (mail):
Funding ACORN was an unconstitutional act as it does not meet any of the THREE very specific expenditures allowed by the Constitution: the debts, common Defence and general Welfare of the United States, not states, not people, not organizations but ONLY the political body, the United States.

Tiocfaidh ar la!
9.15.2009 6:26pm
Bruce Hayden (mail):
I would agree with the posters who are concentrating on Congress' spending power. Restricting spending going to some group has to be Constitutional, else we would find ourselves in the position that such groups had some perpetual right to the public purse.

The problem I see though is that if they do ban money going to ACORN (unlikely given the partisan makeup of Congress, but still hypothetically), all they would have to do is change their name, or more likely, just change the organization(s), with the same people still doing the same things to get around it.
9.15.2009 6:29pm
Oren:


Interpreting the meaning of words while rejecting their long held meaning is far from objective reality.


Indeed, since interpreting the meaning of words is, in general, not related to objective reality.
9.15.2009 6:33pm
John Jenkins (mail):
What I find odd is that J. Aldridge felt it necessary to repeat information found in the body of the original post. See point #2.

How long does a meaning have to be extant before it is a "long held" meaning?

The inclusion of bills of pains and penalties within the constitution's prohibition of bills of attainder goes back to Cummings v. Missouri, 71 U.S. 277, 323 (1867) ("A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties."); See also Fletcher v. Peck, 10 U.S. 87, 138 (1810) ("A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.").

Does 200 years count as long-held?
9.15.2009 6:36pm
J. Aldridge:
Indeed, since interpreting the meaning of words is, in general, not related to objective reality.

So events that lead to the choice of words should be discarded for the subjective fantasies of men?
9.15.2009 6:42pm
Curt Fischer:

To suggest that a perfectly proper exercise of Congress' "power of the purse" could be a bill of attainder is to argue that anyone who receives Federal funding has an implied claim in perpetuity on the Federal purse.


This argument might overlook some nuance having to do with appropriations vs. authorizations. But notwithstanding that it seems pretty valid. I'm with splunge and Mr. Hecht on this.
9.15.2009 6:48pm
Steve:
I do not agree that banning specific entities from receiving appropriated funds is something that Congress "does all the time." Yes, Congress says all the time that funds shall not be expended for a particular PURPOSE, but that's not the same.

Imagine if Congress passes a defense appropriations bill that includes the language: "No funds appropriated by this bill may be disbursed to Boeing." Personally, it seems dubious to me that such language would amount to "punishing Boeing without a trial," given that Boeing hardly has a right to a trial before a contract is awarded to one of its competitors. But regardless, this just doesn't strike me as something that Congress does all the time, or very often at all.
9.15.2009 6:48pm
Eugene Volokh (www):
Mark N. writes, "Well, because the Constitution doesn't prohibit the 'reward' version of a bill of attainder. The Eugene Volokh Execution Act (or even Small Fine Act) is unconstitutional, but the Eugene Volokh Commendation With Large Monetary Prize Act is constitutional." I would think it's more than merely constitutional.
9.15.2009 6:48pm
J. Aldridge:
What I find odd is that J. Aldridge felt it necessary to repeat information found in the body of the original post. See point #2.


Except you won't find me confusing a bill of attainder with a "bill of pains and penalties." The reason for the bill of attainder is because Congress has the power to declare the punishment of Treason.
9.15.2009 6:54pm
zuch (mail) (www):
Before they worry about ACORN and what it may or may not have done inappropriately, let me now when the likes of KBR, Blackwater, Custer Battles anonanon are cut off from the federal teat for repeated fraud, waste and mismanagement (even while getting no-bid contracts). And they don't even have to be named; there's current provisions in the law forbidding companies that have engaged in fraud and other misbehaviour from getting contracts....

Cheers,
9.15.2009 6:57pm
Eugene Volokh (www):
Mr. Aldridge: I don't know who you are, and I take it that neither do most of our readers. We do, however, know that Justice Marshall was a pretty smart and knowledgeable fellow. Now, to be sure, he might well have been wrong, when he wrote in Fletcher v. Peck (1810), that "A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both." Perhaps he wasn't accurately capturing the meaning of "bill of attainder" in American legal language as of 1787. But do you suppose that, rather than expecting us to just take your word on it, you might actually come up with a reasoned argument that acknowledges the exponents of the contrary views, and explains why they're mistaken?

To be sure, that wouldn't tell us what bill of attainder means under modern American law. In a case such as this one, the actual meaning under modern law is probably more significant than the original meaning.

But even if you're arguing about the original meaning, do you suppose that you might actually produce evidence for your arguments -- and rebuttal to the counterarguments -- rather than just giving us one-liners that implicitly ask us to accept things simply on your august say-so?
9.15.2009 7:00pm
Steve:
Before they worry about ACORN and what it may or may not have done inappropriately, let me now when the likes of KBR, Blackwater, Custer Battles anonanon are cut off from the federal teat for repeated fraud, waste and mismanagement (even while getting no-bid contracts).

Well, that's a good example. I think the corporate entity known as Blackwater has, in fact, been cut off by the State Department. The difference is that this was done through the State Department's standard contracting process, as opposed to Congress passing a law that says Blackwater has done all these controversial things, so the Executive Branch may no longer give them any money. I think such a bill would be analyzed under the exact same framework that we're discussing for ACORN.
9.15.2009 7:08pm
John Jenkins (mail):
J. Aldridge: That's nonsense. Congress has the power to declare the penalty for ANY federal crime (e.g., such as those arising in the military), so the distinction doesn't work. In any event, the use of "attainder" referred to in the punishment of treason refers to the attainder worked by a proper conviction (e.g., the forfeiture of life and property) and serves as a limit on the scope of the punishment permitted for Treason, and not to bills of attainder. Cf. the definitions of "attainder" and "attainder, bill of" in your copy of Black's.

The Constitution permits Congress to enact a statute punishing treason, and to set the punishment therefor, subject to certain limits. See 18 U.S.C. § 2381. That is entirely separate from the prohibition on bills of attainder. You have yet to respond to why your devotion to the pre-1810 use of "Bill of Attainder" should be privileged over that 200 year old meaning in American law.
9.15.2009 7:17pm
Guest14:
I'm just saying what a "bills of attainder" means, not what some wacky court might had said it means once with other courts following suit.
We're all very fortunate to have the only person in the entire world who knows what the Constitution really means commenting on this blog. I've noticed that you're frequently the only person in recorded history to take the correct view of a Constitutional question.
9.15.2009 7:18pm
gullyborg (mail) (www):
This is simple - just pass a law stating that to be eligible for any federal funds, any association of community organizers for reform must allow ROTC programs...
9.15.2009 7:21pm
Anon21:
I think the problem that all those who are pointing out that ACORN has no entitlement to federal funds are missing is that it probably was not specifically allocated any federal funds in the first place--rather, it got them out of block grants or programs administered by states or executive agencies. And thus, trying to exclude them from coming by funds in the same manner in the future constitutes a legislative punishment--singling out this one group among all others which, even if it fulfills all the usual requirements for obtaining such funds, is not allowed to have them.

On this view, arguing that the proposed law or amendment would constitute a forbidden bill of attainder would not, ipso facto, endorse the proposition that any group is entitled to federal funds having once received them. Rather, it would merely reaffirm that Congress is not empowered to impose special penalties on the basis of the identity of a named individual or group.
9.15.2009 7:26pm
Repeal 16-17 (mail):
Does J. Aldridge believe that the Congress has the authority to pass legislation sentencing a group of people to life imprisonment, because the Constitution failed to separately ban bills of pains and penalties?
9.15.2009 7:31pm
J. Aldridge:
Does J. Aldridge believe that the Congress has the authority to pass legislation sentencing a group of people to life imprisonment, because the Constitution failed to separately ban bills of pains and penalties?

No more than they do in passing parking laws for the street you live on or regulating how strictly you can ground your daughter.
9.15.2009 7:39pm
The Cabbage (mail):
Community organizers such as ACORN remain entirely free to épater les bourgeois [support the political careers of those who would tax the middle class]; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with a Bill of Attainder.
9.15.2009 7:40pm
Cornellian (mail):
Does punishment for purposes of the attainder clause have the same meaning as punishment for purposes of the ex post facto clause?
9.15.2009 7:42pm
zuch (mail) (www):
Melancton Smith:
I don't know why Federal prosecutors are not charging ACORN executives under RICO. With fraud in multiple states, they seem to me to be an ongoing criminal enterprise.
It's nice to simply assert "fraud!" by these people, but prosecutors labour under the restriction that they may not bring indictments without evidence of such.

Cheers,
9.15.2009 7:43pm
Repeal 16-17 (mail):
No more than they do in passing parking laws for the street you live on or regulating how strictly you can ground your daughter.


Do you consider such laws to be bills of pains and penalties?
9.15.2009 7:45pm
Repeal 16-17 (mail):
Does punishment for purposes of the attainder clause have the same meaning as punishment for purposes of the ex post facto clause?


The Ex Post Facto clauses has been limited to criminal laws. I believe the Bill of Attainder clauses have been read more broadly.
9.15.2009 7:48pm
Seamus (mail):
If this is a bill of attainder, then I would think that so is 4 U.S.C. § 3108:


An individual employed by the Pinkerton Detective Agency, or similar organization, may not be employed by the Government of the United States or the government of the District of Columbia.


(The force of the prohibition was, I understand, undermined a few years back, when a government agency wanted to award a contract to a company that was a lineal descendant of the Pinkerton Detective Agency referred to in the statute, and the agency asked the Comptroller General if it would be legal to do so. The CG issued an opinion saying that what Congress really wanted to outlaw was contracting with the Pinkerton Detective Agency that used to shoot strikebreakers back in the 19th century, and that since the Pinkertons had totally cleaned up their act and were no longer that kind of bad actor, it was OK to contract with them.)
9.15.2009 8:13pm
Seamus (mail):
That's *5* U.S.C. § 3108.
9.15.2009 8:14pm
einhverfr (mail) (www):
I hereby introduce the John Aldridge Detainment Act of 2009....
9.15.2009 8:20pm
J. Aldridge:
Do you consider such laws to be bills of pains and penalties?

I consider that usurpation. Also, the constitution speaks only of a "bill (singular) of attainder" and not "bills (plural) of attainder." There are different kinds of attainder's. I think if bill of pains and penalties was included that would have been clearly indicated.
9.15.2009 8:23pm
Eli Rabett (www):
There are all sorts of funding exclusion rules for organizations/people who are found to have violated laws and regulations and conditions of grants and contracts. There are also procedures for imposing those exclusions.
9.15.2009 8:28pm
David M. Nieporent (www):
Except you won't find me confusing a bill of attainder with a "bill of pains and penalties." The reason for the bill of attainder is because Congress has the power to declare the punishment of Treason.
Congress also has the power to provide for the punishment of counterfeiting the securities and current coin of the U.S. According to your confused reading of the constitution, Congress can declare J. Aldridge guilty of counterfeiting and sentence him to life in prison.
9.15.2009 8:33pm
J. Aldridge:
Congress also has the power to provide for the punishment of counterfeiting the securities and current coin of the U.S. According to your confused reading of the constitution, Congress can declare J. Aldridge guilty of counterfeiting and sentence him to life in prison.

Yawn. Never heard of the Writ of Habeas Corpus?
9.15.2009 8:40pm
Repeal 16-17 (mail):
Yawn. Never heard of the Writ of Habeas Corpus?


On what basis would you get Habeas Corpus if the government can detain you via a bill of pains and penalties?
9.15.2009 9:17pm
Brian G (mail) (www):
I didn't know ACORN had a COnstitutional right to tax dollars and taking it from them is punishment. It would be a sad day if the answer to your question above is yes.
9.15.2009 9:59pm
ohwilleke:
It isn't obvious to me that Bill of Attainder protections apply to entities as well as natural persons.

Defunding prospectively is also different from defunding retroactively. Ex post facto might very well apply to a retroactive defunding, even if Bill of Attainder does not.

Certainly, there is no duty of the federal government to fund anyone. But, directing others not to fund a private entity raises freedom of association concerns.
9.15.2009 10:00pm
einhverfr (mail) (www):
J. Aldridge:


Congress also has the power to provide for the punishment of counterfeiting the securities and current coin of the U.S. According to your confused reading of the constitution, Congress can declare J. Aldridge guilty of counterfeiting and sentence him to life in prison.


Yawn. Never heard of the Writ of Habeas Corpus?


Yeah. But it doesn't help you because Congress would have already found you guilty.
9.15.2009 10:09pm
einhverfr (mail) (www):
Brian G:

I didn't know ACORN had a COnstitutional right to tax dollars and taking it from them is punishment. It would be a sad day if the answer to your question above is yes.


Wrong issue. I do think that ACORN has every right to apply for any grant, whether federal, state, or local for which they qualify. I also think that absent a conviction or pending indictment they shouldn't be subject to arbitrary or capricious disqualification for such grants.

The wording of the amendment does not specify how indirect the funding of ACORN has to be to be prohibited. Presumably this might then not only ban state and local governments receiving federal funds from funding ACORN, but might also ban funds from organizations associated with but not members of ACORN. For example, if I have The Great Norse Historical Society and provide rental space to ACORN at a reduced nonprofit rate, does a grant to my organization qualify as indirectly funding ACORN?
9.15.2009 10:14pm
Frank Snyder (mail):
The government maintains a list of entities not entitled to get government money for various reasons. The Excluded Parties List is here:

https://www.epls.gov/

Suspension and debarment can be imposed before an investigation is concluded and before there is any determination of wrongdoing.

Of course, this is done by the Executive Branch, not the legislature, but I'm not sure why the distinction between the President instructing people not to give federal money to some organizations is significantly different from Congress doing so.
9.15.2009 11:41pm
J. Aldridge:
Yeah. But it doesn't help you because Congress would have already found you guilty.

The judicial power is not vested with Congress, it is a separate branch. Making a law and finding someone guilty is two different things.
9.16.2009 12:01am
jukeboxgrad (mail):
zuch:

It's nice to simply assert "fraud!" by these people, but prosecutors labour under the restriction that they may not bring indictments without evidence of such.


It's very easy to find examples of people accusing ACORN of fraud. What's not so easy to find is actual proof of actual fraud by ACORN.

On 7/23/09, Darrell Issa (R), Ranking Member of the House Committee on Oversight and Government Reform, issued a report (pdf) called "Is ACORN Intentionally Structured As a Criminal Enterprise?" The first sentence of the report is this:

The Association of Community Organizations for Reform Now (ACORN) has repeatedly and deliberately engaged in systemic fraud.


And he makes this claim (p. 4):

nearly 70 ACORN employees have been convicted in 12 states for voter registration fraud


Even though the report contains 88 pages and 436 footnotes, it does not document that claim. In the report, I can find proof of about a dozen convictions, all of temporary ex-workers (example). And these are not cases of ACORN committing fraud. They are cases of fraud being committed against ACORN. These workers created phony forms to get ACORN to pay them for work ACORN needed done that didn't actually get done. Also, these are cases of registration fraud, not voting fraud. As far as I can tell, ACORN's work has led to this many fraudulent votes: zero.

In yesterday's WSJ, there is an editorial ("ACORN Engages in Fraud") repeating the same claim:

some 70 Acorn employees in 12 states have been convicted of voter registration fraud


The editorial mentions Issa's report, but it does not indicate that it got this claim from Issa's report, and it does not indicate that Issa's report fails to substantiate the claim.

Recently Fox quoted Sen. Mike Johanns (R-Neb) saying this:

More than 30 ACORN officials have been convicted of fraud


Oddly, 70 became 30, and temporary workers became "officials." "Fraud" is a good word for describing temporary workers as "officials." As far as I can tell, this many ACORN "officials" have been convicted of fraud: zero.

And speaking of irresponsible accusations, let's remember that McCain said this:

ACORN … is now on the verge of maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy.


What a surprise that the same crowd that gave us 'death panels' is now making bogus claims about ACORN.

This is helpful to know: "As required by law in most states, ACORN must submit all registration forms collected by its workers, including those flagged by ACORN as incomplete or suspicious." Given that ACORN has registered many thousands of new voters, it's not surprising that some of its temporary workers got into trouble. And whether the number is a dozen or 30 or 70, the size of this group compares favorably with the number of prominent Republicans who have been convicted of crimes in recent years. So maybe the GOP would do well to learn from ACORN.

ACORN's real crime is getting lots of poor people to the polls. And this is indeed threatening to the "fabric" of the GOP.
9.16.2009 12:13am
Frank Snyder (mail):
Just to clarify, submitting false registration information is a federal crime even if no unqualified voter actually votes. This is from 42 USC sec. 1973gg-10:

A person . . . who in any election for Federal office . . . knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by . . . the procurement or submission of voter registration applications that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held . . . shall be fined in accordance with Title 18 . . or imprisoned not more than 5 years, or both.


If ACORN's employees, acting as agents in the course of their duties for ACORN, knowingly submitted false registrations, that seems to be enough for a conviction. It's the same as if employees of a federal contractor turn in false time sheets to get paid for work not done.

My understanding is that ACORN is also being prosecuted under state laws that prohibit paying canvassers on a per-registation basis -- presumably because it increases the likelihood of false registrations.

If ACORN's only crime was to get lots of poor people to the polls, it was awfully sporting of the Democrat-controlled Senate to pull their funding just to help out the GOP . . . .
9.16.2009 1:30am
First Timer (mail):
I always wondered how what are essentially bills of attainder are applied to terrorist groups- for example Al Qaeda was not judicially found responsible for various attacks, yet it is illegal to be a member/fund them.
9.16.2009 1:38am
Frater Plotter:
As I recall, several years ago the International Lesbian and Gay Association (ILGA), a consortium of GLBT groups, received some sort of official recognition from the United Nations.

Jesse Helms objected, and found a reasonable-sounding basis for his objection: one of the member groups of ILGA was the North American Man-Boy Love Association (NAMBLA), which in that day was an actual organization with members rather than merely a mail-drop at an FBI office. And there was, at least in theory, some chance that UN money might be channeled to ILGA and hence to NAMBLA, where it would be used to advocate for the rights of men and boys to make love with each other ... or something to that effect.

So Helms drafted legislation, and Congress passed it, which forbade the United States from paying its UN dues so long as there was any chance that they might be routed to an organization that advocates the repeal of age-of-consent laws or the "legalization of pedophilia". (Never mind that pedophilia is a mental condition; the crime is statutory rape.)

This took effect. Of course, the effect was predictable: ILGA expelled NAMBLA, pretending never to have known what its member was up to. (Ahem.) And so ILGA retained its status with the UN, and Jesse Helms found some other reason that the United States should refuse to pay its UN dues, but strangely yet keep its seat on the Security Council.

The gist: The law in question is an example of one which was clearly tailored to expel the political influence of one particular organization (NAMBLA) but did so under quite thorough cover of preventing the advocacy with public funds of a political position that most people find thoroughly revolting.
9.16.2009 2:08am
PatHMV (mail) (www):
J Aldridge... so how does a bill of pains and penalties work? The legislature imposes a punishment on you, by name. Where do the courts come in? Do they get to decide whether you really did what the legislature formally declared you guilty of? Do they have the option of refusing to recognize the legislative determination of guilt and refuse to enforce the penalty?
9.16.2009 2:16am
jukeboxgrad (mail):
frank:

submitting false registration information is a federal crime even if no unqualified voter actually votes


I know. I didn't say anything contrary to that. It's just that it's hard to picture how ACORN is "destroying the fabric of democracy" without casting fraudulent votes. McCain's remark (and similar remarks) creates the impression that ACORN is creating lots of fraudulent votes. Trouble is, this has not been demonstrated. But to the birther/teabagger/creationist crowd, facts don't matter much.

My understanding is that ACORN is also being prosecuted under state laws that prohibit paying canvassers on a per-registation basis


Let us know if you can find an instance of such a conviction.

If ACORN's only crime was to get lots of poor people to the polls, it was awfully sporting of the Democrat-controlled Senate to pull their funding just to help out the GOP


I don't think "sporting" is quite the right word. I think 'cowardly' and 'ignorant' would be better words. As I have said many times, it would be good if we had a two-party system. Especially in the House of Lords.
9.16.2009 2:22am
Oren:


My understanding is that ACORN is also being prosecuted under state laws that prohibit paying canvassers on a per-registation basis

Let us know if you can find an instance of such a conviction.

CNN.


Mitchell said ACORN threatened to close the office if he and his team didn't meet their quota to register 13 to 20 voters a day. So, without consulting their supervisors, he said, they came up with a plan.


Yes, I know, a "quota" is not exactly the same as "paying per card". It's pretty close though, and the net effect is almost identical.
9.16.2009 2:39am
jukeboxgrad (mail):
It's pretty close though, and the net effect is almost identical.


I'm familiar with that case, because it's the most famous case. But as far as I can tell, it's not an example of what was mentioned. Frank said this:

ACORN is also being prosecuted under state laws that prohibit paying canvassers on a per-registation basis


I asked if there have been any such convictions, i.e., convictions of ACORN officials for breaking "state laws that prohibit paying canvassers on a per-registation basis."

In the King County case, ACORN officials were not prosecuted. The targets of the prosecution were temporary workers. And I see no indication that the issue was "state laws that prohibit paying canvassers on a per-registation basis." Yes, the workers claimed they were under pressure to produce, in the form of a quota. But I see no indication that prosecutors interpreted this as a violation of "state laws that prohibit paying canvassers on a per-registation basis" (and I see no indication that WA even has such a law). Because such a violation would be on the part of the supervisory officials doing the "paying." But no such officials were prosecuted.

The charge was not "paying canvassers on a per-registation basis." The charge was "providing false information on a voter-registration form."

As I mentioned before, ACORN was a victim of this fraud, not a committer of the fraud. The prosecutor said this:

The defendants ... cheated their employers to get paid for work they did not actually perform


ACORN was blamed for "lax oversight," and agreed to "pay the county $25,000 as reimbursement for the costs of investigating the scheme … ACORN also has formally agreed to tighten supervision of its registration efforts, subject to fines for failure to live up to its promises … Officials from ACORN's national office assisted in the investigation, prosecutors said."

I don't see a conviction of an ACORN official, and I don't see anyone accused or convicted of violating a law against "paying canvassers on a per-registation basis."

Another article explaining essentially the same facts is here.
9.16.2009 5:23am
jukeboxgrad (mail):
I think Frank is thinking of an entirely different case, in NV. In that case, criminal charges have been filed against ACORN itself, and the charge is for using "a corporate mandated quote [sic] system."

ACORN disputes the charges. A preliminary hearing is scheduled for 9/29. "At the end of the September preliminary hearing, Justice of the Peace William Jansen will decide whether there is enough evidence to send to District Court the felony case against the Association of Community Organizers for Reform Now, ACORN, and two defendants, Christopher Edwards and Amy Busefink. Edwards is the group's former Las Vegas field director. Busefink was the regional director for voter registration."

So Frank is correct in pointing out that there is such a prosecution, and I am correct in pointing out that there has not been a conviction. The number of ACORN-related accusations, investigations and prosecutions greatly exceeds the number of ACORN-related convictions.
9.16.2009 5:45am
PaulS (mail):
In Maryland the states Attorney is saying that making the recording was illegal. It seems she is considering charging those who made the recording - there will be no charges/investigation of Acorn
9.16.2009 7:25am
jukeboxgrad (mail):
Interesting, I didn't know. The official statement is here.
9.16.2009 8:36am
ShelbyC:

In Maryland the states Attorney is saying that making the recording was illegal. It seems she is considering charging those who made the recording - there will be no charges/investigation of Acorn


Huh. Usually those laws are only enforced against people who record cops.
9.16.2009 9:36am
Moonage Webdream (mail) (www):
I really can't see how not giving someone something they never had would be considered punitive. Grants are temporary things, none are permanent. Although they had asked, I doubt they had received any money from the current FY process. The Transportation funding process is still in progress.

Now, if they had gone in and yanked out funding of existing program revenue, that's a different story. But, they didn't.

Organizations are excluded all the time in budget process. Therefore, only because ACORN were excluded after the fact, due to unusual circumstances.

This would not have been necessary if various bills hadn't specifically INCLUDED ACORN and affiliates.

Now, the question I would have is if singling out an organization for exclusion is punitive, wouldn't singling out one organization specifically to be funded be likewise punitive to other similar organizations?
9.16.2009 9:56am
ShelbyC:

Now, the question I would have is if singling out an organization for exclusion is punitive, wouldn't singling out one organization specifically to be funded be likewise punitive to other similar organizations?


What appears to me to be problematic, and I'm making assumptions on a minimal understanding of the facts here, so I could be wrong, is that Congress seems to be setting up a framework (or several frameworks) by which organizations can qualify for federal funds, and then excluding an organization by name from that framework.
9.16.2009 11:06am
einhverfr (mail) (www):
J. Aldridge:


The judicial power is not vested with Congress, it is a separate branch. Making a law and finding someone guilty is two different things.


And that is why we have the Bill of Attainder clause and interpret it to include bills of pains and penalties :-)

I am glad we are now on the same page.
9.16.2009 1:19pm
einhverfr (mail) (www):
Oren: Apology accepted :-)

Everyone:

The thing about this is that a different amendment was ALSO provided by the same Senator which would have required any organization with a conviction or pending indictment for voter fraud to be excluded from grants. It seems to me that this avoids all the Constitutional issues at stake here even though it is somewhat equivalent in effect. I don't know whether it passed though.

I oppose the ACORN amendment because I don't think it is Congress's duty to declare guilt and mete punishment. However, Congress can declare punishments and preventative measures which properly accompany or follow from judicial proceedings. The other amendment may well have prevented ACORN and many subsidiaries from receiving grants, but it would have done so in a proper way.
9.16.2009 1:32pm
J. Aldridge:
ACORN’s bedrock assumption remains the ultra-Left’s familiar anti-capitalist redistributionism. “We are the majority, forged from all the minorities,” reads the group’s “People’s Platform,” whose prose Orwell would have derided as pure commissar-speak. “We will continue our fight . . . until we have shared the wealth, until we have won our freedom . . . . We have nothing to show for the work of our hand, the tax of our labor”—claptrap that not only falsifies the relative comfort of the poor in America but that also is a classic example of chutzpah, given ACORN’s origins in a movement that undermined the work ethic of the poor. But never mind—ACORN claims that it “stands virtually alone in its dedication to organizing the poor and powerless.” It organizes them to push for ever more government control of the economy, as if it had learned no lessons about the free-market magic that made American cities unexampled engines of job creation for more than a century, proliferating opportunity and catapulting millions out of misery. Source.
9.16.2009 1:33pm
Tritium (mail):
Isn't a Bill of Attainder a Bill which exercises a power not vested in the legislature? Which was most commonly used to legislate judgement by parliament, which in effect removed a persons natural rights as a consequence of attainment.

I believe it's purpose in the Constitution was to keep the vested powers seperated, and prevent their delegation by congress to any other body of men, or consolidation of them. i.e. IRS have attained the power to lay and collect taxes, and punish non-compliance. Stating the requirements of exercising powers have been met, evidence of guilt have been met, etc. etc.

Merely establishing a persons guilt by law rather than evidence would be ex post facto, and would have been repetitive. But a Bill that states a person has attaind the age of 35 in order that he may be elected President would be a different thing altogether.
9.16.2009 2:54pm
J. Aldridge:
My last words on this subject:

There is no case for a bill of attainder because no bill passed Congress declaring ACORN guilty or convicted of any kind of crime. You guys want to just focus on the defunding while ignoring there never was a bill of attainder for the conviction of some crime.

P.S. No one ever heard of a bill of attainder that ever demanded less than capital punishment in England. If pains and penalties was sought then a bill for pains and penalties was written. A bill of attainder was never negotiated down for lessor punishment. It was voted on as written, and if called for less than capital punishment it never was a bill of attainder in the first place.
9.16.2009 4:14pm
Milhouse (www):

In Maryland the states Attorney is saying that making the recording was illegal. It seems she is considering charging those who made the recording - there will be no charges/investigation of Acorn

I wonder how much ACORN contributed to her election.
9.16.2009 4:54pm
PatHMV (mail) (www):
jukeboxgrad... Yes, because innocent victims of crimes committed by others routinely pay the prosecutor $25,000 for the costs of investigating the criminals who harmed them.
9.16.2009 5:19pm
jukeboxgrad (mail):
Yes, because innocent victims of crimes committed by others routinely pay the prosecutor $25,000 for the costs of investigating the criminals who harmed them.


I guess you missed the part where I said ACORN was blamed for "lax oversight." That's why they agreed to pay the costs: because they contributed to the problem. Trouble is, "lax oversight" is not the same thing as being convicted of a crime. So feel free to explain why Sen. Johanns said "more than 30 ACORN officials have been convicted of fraud," and how that statement itself is anything other than a form of fraud.

And let us know if you ever locate facts to support Issa's claim ("some 70 Acorn employees in 12 states have been convicted of voter registration fraud").

Maybe your point is that fraudulently accusing someone of fraud isn't fraud. IOKIYAR.
9.16.2009 6:57pm
PatHMV (mail) (www):
You also described ACORN as "a victim of this fraud." Not accurate. Victims do not pay for the costs of investigation and prosecution. You pay for the costs of prosecution so that the DA will decline to bother charging the organization as a whole.

Is "officials" the best term to use? I don't know. Legally, it's a fairly vague term. Is it "fraudulent" to use that word instead of "employees"? I don't think so.
9.16.2009 8:54pm
jukeboxgrad (mail):
You also described ACORN as "a victim of this fraud." Not accurate.


You should explain that to the prosecutor. It was him, not me, who said this:

The defendants ... cheated their employers to get paid for work they did not actually perform


A party that has been "cheated" is indeed a "victim."

You can choose to stick with a strict binary view of things, or you can realize that I can be a victim of fraud while also having been lax about preventing the fraud.

Is "officials" the best term to use? I don't know. Legally, it's a fairly vague term. Is it "fraudulent" to use that word instead of "employees"? I don't think so.


I don't think it's fair to describe low-level temporary employees as "officials." That word usually implies a position of responsibility. He could have said "workers" or "employees." He inflated their importance by calling them "officials."
9.16.2009 9:22pm
GatoRat:
If Congress defunding ACORN is a bill of attainder, wouldn't Congress defunding the F-22, and therefore Lockheed Martin, also be a bill of attainder?

By this logic, once Congress funds anything, reducing that funding in any way, shape or form becomes a bill of attainder UNLESS the target of those dollars stated that the reduction and/or cancellation of funds wasn't punishment (and even then, what does the recipient know?)
9.17.2009 3:48pm
Dave R. (mail):
Good Lord, how far do you carry that? If defunding ACORN is even arguably an unconstitutional bill of attainder, does Congress even have a right not to continue funding them when their money runs out? Would Congress have had to direct them to halt operation of government-funded activities without actually defunding them?

It seems that if the bill of attainder prohibition disallows defunding ACORN, we've admitted a positive claim of right or ownership on government funding or employment. Correct me if I'm wrong.
9.17.2009 3:50pm
Scott W Somerville (mail):
The primary "nonpunitive legislative purpose" is "getting reelected." We're already poised for a "wave election" in 2010, and that was before every Democrat with ACORN (or SEIU) ties had to brace him/herself for video ads that start with a unforgettable footage of James O'Keefe in a chinchilla fur and Hannah Giles in a good deal less and end with a subtitle that reads "Why does Rep. Democrat support tax fraud, child rape, and sexual slavery?"
9.17.2009 5:19pm
JohnMHInWestminsterCO:
I remember Congress banning the Federal Government from purchasing equipment from Toshiba after their Korean subsidiary sold critical "dual use" technology to the Russians.

I see a distinction between "you have a job but Congress orders that you not be paid" and "the Congress orders that you not be *given* any more money".

Congress can't order that you not be paid for work you have already done, or essentially fire you from a job. But I think it can refuse to authorize future funds for future work.

I think it would pass muster for Congress to make a named university inelligible for being awarded future grants.

That is especially true because each new Congress is not bound by that limit. By definition, it is only a one year exclusion.
9.18.2009 9:58pm
Another guy named Dan (mail):
Jukeboxgrad: The issue is that ACORN seems to have structured itself to be vulnerable to precisely this same sort of fraud on several occasion in several different locations. It strains credibility to assume that there were no controls that could have been put in place by the national organization to prevent this apparently obvious method of gaming their system from being carried out.

The same report you mentioned also comments on a report by auditors hired by ACORN itself indicating that the organization as a whole has lax controls over many aspects of its operation, including the financial relationships between its tax exempt and politically active subsidiary organizations.
9.19.2009 5:30pm
jukeboxgrad (mail):
dan:

It strains credibility to assume that there were no controls that could have been put in place by the national organization to prevent this apparently obvious method of gaming their system from being carried out.


It strains credibility to assume that any massive effort to register many thousands of voters is going to be perfect. What is your basis for asserting that the problems at ACORN are disproportionate to their size?

And you seemingly fail to realize that ACORN had nothing to gain by producing bad registrations. They end up being checked and rejected. This was a case of temporary workers padding their pay by defrauding ACORN. ACORN had no incentive to allow this.

And what is your basis for asserting that the benefit of registering many new voters does not outweigh the problem of some bad registrations (especially since there is no proof they ever led to fraudulent votes)? That is, unless one thinks that getting more poor people to vote is a bad idea. Why does the GOP hate democracy?

a report by auditors hired by ACORN itself indicating that the organization as a whole has lax controls over many aspects of its operation


Really? What "report by auditors" made that exact claim? Where is the proof to support this claim you're making?

And speaking of "lax controls," do you realize the Bush maladministration lost track of literally hundreds of tons of cash (link, pdf)? Probably not, because this was hardly reported in the US. That darn liberal media. And given the way the GOP glossed over this problem, it's hard to take them seriously when they make complaints about allegedly "lax controls."
9.19.2009 9:01pm
Justin McAffee (mail) (www):
Calder vs. Bull

Bills of Attainder and Ex Post Facto laws only violate the constitution in criminal matters. For this to apply, one must have to be convicted of a crime without a trial, and punished by having a right taken away by an act of congress.

Congressional appropriations are not any one's right, and deciding what to do with them is clearly under the authority intended for congress.

To be a bill of attainder, it has to be clear that Congress is either assuming your guilt of an existing law, or making past conduct illegal, and then convicting and sentencing you for it by depriving you of your rights.

In Calder vs. Bull, a couple is deprived of a property right, by the act of the legislature, wherein the outcome of a trial was overturned. Yet the Court ruled that the legislature was acting within it's authority to change the civil law. Even if the effect was to deprive someone of their property, the Court ruled that the legislature did not target a person or group with legislation that in effect makes the target guilty of a crime, thus requiring the property deprivation.
9.20.2009 5:31am

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