The defenders of Association of Community Organizations (ACORN) are desperate and they have called upon their friends in Congress to deploy a last ditch effort to preserve the millions of your tax dollars given to ACORN every year. Big Government web site broke the ACORN scandal showing video of two journalists posing as a prostitute and pimp requesting help to hide assets from the IRS in Baltimore, New York City and Washington, DC. The Congress responded by passing legislation to stop federal monies from going to ACORN and, in response, liberal Members of Congress have called upon the research arm of Congress to declare that this attempt to defund ACORN as being unconstitutional.
Senator Mike Johanns (R-NE) and Representative Darrell Issa (R-CA) have both passed separate Amendments in the House and the Senate to defund the ACORN with overwhelming bipartisan support in the wake of the scandal. The left responded by requesting a report from the Congressional Research Service (CRS), claiming that legislation defunding ACORN may be unconstitutional as a Bill of Attainder. The goal of the left is to use this constitutional argument to stall legislation before it reaches President Obama's desk. Hans Von Spakovsky of The Heritage Foundation has written a response to the CRS report titled "Defunding ACORN: Necessary and Proper, and Certainly Constitutional" where he argues that defunding ACORN "certainly is not a bill of attainder."
A Bill of Attainder is set forth in Article 1, Sec. 9, Clause 3 of the Constitution and states "No bill of attainder or ex post facto Law shall be passed" by Congress. Both CRS and von Spakovsky agree that the Supreme Court applies a two pronged test to determine if legislation is a bill of attainder:
- Whether specific individuals are affected by the statute; and,
- Whether the legislation inflicts a punishment on those individuals.
CRS's claim that the above test is met and that defunding ACORN is unconstitutional is based on a faulty legal reasoning according to von Spakovsky.
In assessing the first point, the CRS report places a great deal of emphasis on the fact that Section 602(c) of th Act applies the funds prohibition to all of ACORN's affiliates, characterizing this as "joint and several liability," and questions applying such a prohibition based on the "hypothetical" possible behavior of just one employee.
Von Spakovsky argues that there is nothing unusual for corporations to suffer legal consequences because of the behavior of an individual. I would further argue that one should not look at federal monies as an entitlement. Congress should not be forced to dole out federal tax dollars out of a fear of being sued and it seems clear to this lawyer that organizations have no property interest in federal funding. Barring an institution from receiving federal funds seems to me to be purely political question that should never be entertained by the Courts.
Von Spakovsky further argues that the CRS argument that there is no rational basis for the defunding of ACORN is not factually correct.
The CRS also ignores the comprehensive report issued by Darrel Issa (R-CA), Ranking Member of the Committee on Oversight and Government Reform. This report found that "structurally and operationally, ACORN hides behind a paper wall of nonprofit corporate protections to conceal a criminal conspiracy on the part of its directors, to launder federal money."
According to Hans von Spakovsky, defunding ACORN is not a "bill of attainder," yet you will hear the voices on the left hiding behind the CRS report to justify efforts to stall the idea that ACORN should not get one more dollar of federal funds. Congressman Barney Frank (D-MA) and John Conyers (D-MI) requested a the report and two days later the left was falling all over themselves to declare the effort unconstitutional. The Huffington Post, received a leaked copy (CRS reports are not publicly posted and given to the general public) and made the absurd claim that the effort to defund ACORN "is likely to be ruled unconstitutional." As usual, the Huffington Post's "reporter" Ryan Grim, misleads with a headline "GOP FAIL," yet fails to note the vote on the Issa Amendment was 345-75 (with 172 Democrats voting for the Amendment and 75 voting against) and the vote on the Johanns Amendment on September 14th to block funds from the Transportation, Housing and Urban Development, and Related Agencies Appropriations Bill (THUD) was 83-7 (50 Democrats voted for the Amendment and only 7 voted against). Seems like strong bipartisan support for the idea to me.
Clearly, the left wing is intent on fighting this and you will most likely see the Congressional allies of ACORN slow down legislation claiming that this legislation needs more study and is unconstitutional as drafted. Von Spakovsky concluded that "organizations such as ACORN have no vested property or contractual right to receive federal contracts or grants and Congress has complete constitutional discretion to decide who shall (or shall not) receive congressional appropriations." In short, defunding ACORN is constitutional and claims to the contrary are a ruse to block, slow down and thwart the efforts of Congress to weed out waste in the federal budget.