An Oopsie On The Republican ACORN Jihad

The Congressional Research Service took a look at the anti-ACORN rider the House passed last week, and pretty much agreed that the bill is an unconstitutional "bill of attainder":

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.

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 guess is that Republicans don't care about the constitutionality of the statute, and that they'll just keep putting the same kind of language into every appropriations bill. That way they can say that they voted to "defund ACORN," and if it comes out their bills are all unconstitutional, they can claim that Democrats are "protecting" the organization from their good-faith efforts to defend the taxpayers from corruption, or something. I don't expect "bill of attainder" to become a household word anytime soon on the right.

The problem for Republicans is that they actually submitted language on the initial anti-ACORN statute that was entirely broad, to circumvent the constitutionality issue, and in the process opened up the Congress to deny funding to any company accused of fraud - namely practically every defense contractor in America. Alan Grayson has been taking the lead on this - C&L had him over for a live chat yesterday.

The bill, H.R. 3221, defunds every organization that has ever filed a fraudulent report with any Federal or State regulatory agency. As it turns out, this includes all 10 of the 10 largest Government contractors. To which I say, hooray. Finally, we take the fraud out of government contracting. Too bad that it was inadvertent.

Hopefully he can get somewhere with that.