Genesee Valley Chapter — With Bills Of Attainder, Conservatives Went Too Far

With Bills Of Attainder, Conservatives Went Too Far

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on January 6, 2010. Have you ever wished Congress simply would pass a law punishing an obviously guilty person or group and save the expense and delay of a trial? Conservative pundits had their wish fulfilled in September when Congress cut off all appropriations to the Association of Community Organizations Now or ACORN. A federal district court, however, has told the pundits and Congress what it did was a bill of attainder in violation of the Constitution. ACORN v. U.S., 09-cv-4888 (NG) (S.D.N.Y. 2009). ACORN happens to be the nation’s largest community organization of low- and moderate-income families. It has more than 500,000 members spread throughout more than 1,000 chapters in 75 U.S. cities and employs a wide-ranging progressive agenda. Conservatives criticized ACORN back in 2008 when it supposedly registered thousands of fictitious voters. Just before Christmas, the non-partisan Congressional Research Service reported that nobody who was so registered in fact attempted to vote at the polls. Conservatives amped up their pressure in September when hidden-camera videos captured ACORN employees giving misinformation about housing and tax preparation to a fake prostitute and her pimp. Charges of fraud, corruption and employee wrongdoing flew through the mainstream media and the halls of Congress. Congresspersons of both parties succumbed to the pressure and inserted a provision in the temporary budget, and later in the permanent budget, for the fiscal year beginning Oct. 1, 2010, barring ACORN, by name, from receiving federal grants or participating in federal programs at any time. The bar also applied to funds awaiting disbursement for services rendered pursuant to contracts entered into in previous fiscal years. Congress took the action in spite of the Constitution’s statement in Article I, Section 9, that “[n]o Bill of Attainder or ex post facto law shall be passed.” A bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual” without the protections of a trial in court. Nixon v. Adm’r of General Services, 433 U.S. 425, 468 (1977). The prohibition reflects the framers’ belief that Congress is not as well suited as politically-independent judges to rule on the blameworthiness of specific persons. Not all laws singling out persons or groups are bills of attainder. If the law imposes a burden limited in type and severity, and can reasonably be said to further non-punitive purposes, it will survive a challenge. Congress could, therefore, exclude the Exxon Valdez from Prince William Sound to protect the sound’s environment from “a vessel with a history of substantial spillage.” Doing so also would encourage the vessel’s owner, and other tank vessel owners, “to take greater steps to avoid a similar spill in any marine environment.” SeaRiver Maritime Financial Holdings Inc. v. Mineta, 309 F.3d 662 (Ninth Cir. 2002). What did the district court say about what Congress did to ACORN? It determined the bar on receiving money earned on existing government jobs and bidding on future jobs to be legislative punishment. The government argued the bar on bidding is not punitive because any contracts let were discretionary in nature. The court said the deprivation was in the opportunity to bid and receive income. The government claimed the bar was necessary to protect the Treasury from ACORN’s misspending funds, but the court dismissed that nonpunitive purpose. Congress did not investigate ACORN to determine whether it was misspending federal dollars. The executive branch already has a process for investigating alleged contractor misconduct and suspending or debarring contractors found to have misspent money. Congress did not have to insert a special provision in the budget targeting ACORN by name. The court turned to the Congressional Record and found many statements manifesting punitive intent. Not surprisingly, all of them were uttered by Republicans. Rep. Darrell Issa, R. Calif., was the most strident, arguing “taxpayers should not have to continue subsidizing a criminal enterprise that helped Barack Obama get elected President.” The court issued a preliminary injunction. ACORN demonstrated that it would suffer irreparable harm if it could not renew existing contracts and bid on new ones. Furthermore, the constitutional violation involving the separation of powers was significant. So, it is back to the wishing well for conservatives. Maybe this time around Congress will resist their pressure. Being unpopular among conservatives does not make one eligible for a bill of attainder or other punishment.