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The Defund ACORN Act is Constitutional
August 13, 2010 6:12 PM   Subscribe

The Wall Street Journal is reporting that the U.S. Court of Appeals for the Second Circuit held that the Defund ACORN Act of 2009 is not a Bill of Attainder (pdf).

The court ruled that the evidence is insufficient to show that the defunding constituted 'punishment' under any of the rubrics of historical definitions of punishment, functional considerations, or demonstrated Congressional intent. David Kopel of the libertarian legal blog The Volokh Conspiracy offers explanation and comment, following up Eugene Volokh's previous post on the District Court injunction.

The case has been remanded to the Eastern District of New York for consideration of ACORN's (weaker) due process and First Amendment claims.

Previously: [1] [2]
posted by thesmophoron (106 comments total) 11 users marked this as a favorite

 
Thus paving the way for the "Denial of Social Security, Medicare and Welfare Benefits To Any US Persons Objectively Found With Excess Melanin In Their Epidermis Act of 2013".
posted by Azazel Fel at 6:28 PM on August 13, 2010 [15 favorites]


So what lawyer MeFite who is also a human is going to translate this for me?
posted by cmoj at 6:28 PM on August 13, 2010 [1 favorite]


I'm trying really hard to parse this, too – as I have no clue whatsoever what's going on here. Wikipedia says this:

A bill of attainder is an act of the legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial.

So apparently the court is ruling that the ACORN act wasn't unfairly punishing ACORN without a trial.

Someone else will be along to explain this better in a few, I'm sure. Meantime, I'm going to keep trying to solve the interesting puzzle.
posted by koeselitz at 6:33 PM on August 13, 2010


So what lawyer MeFite who is also a human is going to translate this for me?

IANAL, but a Bill of Attainder was something that the British Parliament used in the 18th century. It simply declared that so-and-so was found guilty of a crime, and that they would be punished in a certain way. The constitution convention decided that Congress would not have this power.

There were some shenanigans in Congress about a year ago surrounding ACORN, a highly decentralized community-outreach program. This is too complex to summarize, but Congress eventually decided that ACORN could not receive any federal funding, i.e. they couldn't apply for federal grants which are the bread and butter of many nonprofits, essentially sealing the death of the organization. ACORN saw the act that did this as a Bill of Attainder. The court ruled that it wasn't on the grounds that denying federal funding isn't a "punishment" per se.
posted by Electrius at 6:33 PM on August 13, 2010 [5 favorites]


So maybe thesmophoron, who says he or she is a lawyer, could explain why this is important and why we should care?
posted by yhbc at 6:36 PM on August 13, 2010


"This is too complex to summarize"

Some random person made up a video lying about how a community outreach group was spending government money on prostitutes. Without even minimal effort to find out whether this was a lie, Congress passed an act to their remove funding.

Shorter version - Fox News owns Congress.
posted by y6y6y6 at 6:41 PM on August 13, 2010 [44 favorites]



So what lawyer MeFite who is also a human is going to translate this for me?


Let's say you run a non-profit charity organization. I decide to create fake evidence that you are involved in child prostitution. A mob like mentality pervades congress and they withdraw funding for your organization (killing it) with no investigation to see if you actually did anything wrong. Congress did nothing legally wrong.

/not a lawyer.
posted by furiousxgeorge at 6:42 PM on August 13, 2010 [5 favorites]


Not a lawyer, but it would seem to be a good idea not to rely 100% on US government as your funding source. They can now yank it at any time if someone fabricates evidence against you.

Essentially, defunding a non-profit is not the same as finding them guilty and punishing them. According to the courts.
posted by SirOmega at 6:50 PM on August 13, 2010 [3 favorites]


The full court didn't rule; a three judge panel did and ACORN's representatives have the right to ask the full court to reconsider. I image they will. So the post of sort of inaccurate.

Of course, so is the WSJ article:
Lawmakers barred funding to Acorn last year amid questions about of its use of federal funds and secretly recorded videos in which Acorn employees allegedly offered advice on how to set up brothels and evade taxes to filmmakers posing as a pimp and a prostitute.
Zombie lies hurt brain.
posted by XQUZYPHYR at 6:51 PM on August 13, 2010 [3 favorites]


It's not a bill of attainder because it does not impose a legal sanction such as fine, confiscation, or imprisonment. Any punitive measure which would be imposed by the court cannot be imposed on a specific individual or group by way of legislation. This was a revocation of funds previously granted. Congress giveth, and congress taketh away. They do have the legal right to do that. But they may only taketh away without due process and recompense what they giveth.
posted by clarknova at 6:51 PM on August 13, 2010 [4 favorites]


Some random person made up a video lying about how a community outreach group was spending government money on prostitutes. Without even minimal effort to find out whether this was a lie, Congress passed an act to their remove funding.

There's also the whole Obama/ACORN link, the voter fraud scandal, etc etc. There's a lot more going on here than the YouTube video, although that was certainly a catalyst. I stand by my previous statement that the matter is beyond the scope of this thread.
posted by Electrius at 6:54 PM on August 13, 2010 [1 favorite]


Alternate wording: Three-judge panel demands more slander and mob mentality.
posted by Pope Guilty at 6:55 PM on August 13, 2010


Of course they all know the upshot is to disenfranchise voters. Only the forces of facisim benefit here, and it is, without doubt, a crime against Democracy. In some fantasy Nuremberg scenario the Defund Acorn Act would be used as circumstantial evidence to demonstrate a larger pattern of apartheid and class conspiracy. But that's another post.
posted by clarknova at 6:56 PM on August 13, 2010 [1 favorite]


There's also the whole (meaningless) Obama/ACORN link, the (phony) voter fraud scandal.

The fact that they got away with this is insane. Can you just imagine if liberals went after faith based funding by creating fake evidence that a bunch of innocent ministers were engaged in child prostitution?
posted by furiousxgeorge at 6:59 PM on August 13, 2010 [9 favorites]


Thus paving the way for the "Denial of Social Security, Medicare and Welfare Benefits To Any US Persons Objectively Found With Excess Melanin In Their Epidermis Act of 2013".

I think that's overreacting a little bit. At least, I hope it is. I don't think that it is anywhere written that ACORN and related groups have a right to federal funding. They get federal funding, but is it some sort of law that they must/should? OTOH, it is law that people get social security payments, etc. (assuming they meet the usual requirements).

Or am I totally misunderstanding this?
posted by It's Never Lurgi at 7:01 PM on August 13, 2010


Folks, the Volokh link explains it pretty clearly and succinctly. There's apparently a three-part test for a bill of attainder in Yankee jurisprudence, apparently:
Whether something is a Bill of Attainder depends on a three-part test: (1) “specification of the affected persons,” (2) “punishment,” and (3) “lack of a judicial trial.”
The law fails tests 1 and 3 but not test 2: removal of Federal funding does not constitute punishment qua punishment.

So letter of the law, yes. Spirit of the law, and honor, and good government, and fair dealing, and democracy, and just general not-being-a-fucking-shithead, on the other hand...
posted by kipmanley at 7:02 PM on August 13, 2010 [5 favorites]


The full court didn't rule; a three judge panel did and ACORN's representatives have the right to ask the full court to reconsider. I imagine they will.

Courts routinely deny requests for rehearing en banc (i.e., a rehearing before the full Court of Appeals). Normally courts grant a rehearing when the three judge panel couldn't come to a clear decision or when a string of similar cases decided by different panels have lead to divergent precedents. In this case there was a unanimous opinion and the court relied heavily on Supreme Court precedent. I would be somewhat surprised by an en banc rehearing.

By the by, the Constitutional definition of bills of attainder is much broader than the common law English definition. From the opinion "The scope of the Bill of Attainder Clause, however, has been interpreted as wider than the historical definition of a "bill of attainder."..."[T]he Bill of Attainder Clause broadly . . . prohibit[s] bills of pains and penalties as well as bills of attainder."...the Bill of Attainder Clause provides “protections for individual persons and private groups"...the Constitution's prohibition against bills of attainder "was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply — trial by legislature."
posted by jedicus at 7:02 PM on August 13, 2010 [3 favorites]


There's also the whole Obama/ACORN link,

You mean how most ACORN workers voted for Obama? Are we supposed to find that shady?

the voter fraud scandal

You mean the made-up voter fraud scandal that existed solely in the imaginations of right-wing cranks?

There's a lot more going on here than the YouTube video

And it's all the same kind of hokum and nonsense as the video.


Here's the full story: every four years, the GOP finds some kind of horrible scapegoat to scare voters with. This scapegoat, for the duration of the campaign, becomes an all-powerful monster who is behind everything wrong with America. In 2004 it was George Soros; in 2008 it was ACORN. As part of the effort to demonize ACORN for the crime of registering poors and blacks to vote, Republican operatives made a fake video which appeared (upon the most cursory examination) to show ACORN employees giving advice to a pimp about how to get away with child prostitution. Meanwhile, the right-wing blogosphere and punditry took the fact that ACORN reported some obviously falsified voter registration forms turned into them by their employees, as they are required to do by law. ACORN was saying to the FEC "Hey, these are obviously fake, but we are legally required to turn these into you". (This requirement came about in the late 90's after a Republican-run voter registration outfit was caught helping people register to vote and throwing away the registrations marked as Democratic.) Congress freaked out over the video and promptly voted to deny ACORN any further funding, and this panel of judges would like us to believe that that is not a bill of attainder. That's the story.
posted by Pope Guilty at 7:02 PM on August 13, 2010 [32 favorites]


I would think that Goldberg v.Kelly, which kind of went directly through the Second Circuit, would have something to say about whether discontinuance of government funding counts as "punishment" insofar as due process being required, which is the reason for bils of attainter to be unconstitutional anyway. I haven't read through this stuff, though.
posted by Navelgazer at 7:05 PM on August 13, 2010


voter fraud scandal

There was never any voter fraud. That is, no one went to the polls and cast fraudulent votes (at least there is no evidence at the filing charges threshold).

However, there was voter registration fraud. That is, ACORN workers filled out voter registration forms with names like "Mickey Mouse" and turned them in to ACORN HQ. What disingenuous conservative pundits say is that ACORN committed fraud by turning in the registration forms. However, under Nevada (one place where this happened) law, ACORN HQ was required to turn in those forms once they were filled out, no matter how obviously fraudulent they were. The ACORN office in Las Vegas even went as far as to flag the obviously fraudulent ones before sending them to the Clark County Election department. If they would have disposed of these fraudulent registration forms, they would have been in more trouble.

Had anyone showed up at the polling place and said, "Hi, my name is Mickey Mouse and I'm here to vote," would have easily got a challenge from the precinct watchers (one Dem and one Rep) that are on duty at every voting station.

The other charge is that ACORN offered incentives to its workers to turn in X many forms per week for a bonus. This is illegal in NV and they got charged and are being punished for it (they claim innocence, and not that it matters, but the two people charged in LV are actually two white people who worked for ACORN).
posted by SirOmega at 7:20 PM on August 13, 2010 [7 favorites]


I would also note that ACORN is not a monolithic group but is instead a network of organizations with different policies. Misconduct at one ACORN agency does not imply a network-wide policy.
posted by Pope Guilty at 7:23 PM on August 13, 2010 [2 favorites]


The full court didn't rule; a three judge panel did.... ACORN's representatives have the right to ask the full court to reconsider.

The judges behind this decision are empowered to rule for the Court of Appeals; it is accurate to say that the court ruled. 28 U.S.C. § 46(c). Decisions en banc (i.e., what you would consider to be rulings by "the full court") are the exception rather than the rule, are disfavored, and rarely occur. Fed. R. App. Proc. 35(a).
posted by thesmophoron at 7:29 PM on August 13, 2010


I would also note that ACORN is not a monolithic group but is instead a network of organizations with different policies. Misconduct at one ACORN agency does not imply a network-wide policy.

I've heard righty bloggers blame the economic meltdown on ACORN (They encouraged blacks and poors to lie on mortgage applications! Thats why we're in this mess!).

I'm continually amazed that ACORN is seen (and truly believed by many) to be some kind of COBRA or SPECTERE organization, complete with a command-center under a volcano equipped with anti-superhero defense mechanisms such as the trap-door-shark tank and robot goon generator. The only way to defeat ACORN is to kill their leader, Dr. Islam Sharpton McEvilman, who's only vulnerable moment is when he fights the champion of the martial arts tournament held on their secret island fortress in the South Pacific. The island has a giant laser, unrelated to the annual tournament.
posted by Azazel Fel at 7:36 PM on August 13, 2010 [11 favorites]


Look, what Congress did to ACORN was utterly stupid, but calling it a Bill of Attainder is a really big stretch. Congress funds and defunds all kinds of stuff every day for all kinds of reasons. Some lawmaker decides that a program or project is wasteful or wrongheaded or poorly run or in the wrong district and whips up the votes to cut the funding.

You can and should make the case that this decision was a bad one, but making that kind of funding decision is pretty squarely within Congress's authority.
posted by straight at 8:02 PM on August 13, 2010 [7 favorites]


Let's use words and concepts for what they really mean. If I used to give you money and I quit doing it, I am not prosecuting, persecuting, or punishing you. Even if I quit because of some abysmally sucky stupid evil reason, I am still doing none of the above. Failure to understand this when it comes to the government shows you have gotten so used to the idea of the government tit that you can't think of funding a cause privately.

I also hate so-called "law cases" where someone decides to stretch some legal point in an obvious reach of judicial activism, regardless of whether I think the end is desirable. It makes (literally) for bad precedents. For example, I don't like smoking and wouldn't care if all the tobacco companies went out of business, but when they started going through contortions about liability to make these companies liable for what their legal product which is both subsidized and taxed to hell and gone did to willing users who pretty much knew it was dangerous to use (yes, even back when - my Dad's 77 and he knew from the time he picked them up at age 11 and put them down in his 30s that they were bad for you), they screwed up the meaning of liability.

All we need is for someone to start throwing this around. It's a bill of attainder because we don't fund you. Puh-lease.
posted by randomkeystrike at 8:15 PM on August 13, 2010 [5 favorites]


So letter of the law, yes. Spirit of the law, and honor, and good government, and fair dealing, and democracy, and just general not-being-a-fucking-shithead, on the other hand...

The procedural justice (due process) part of it is still before the court. From the decision, lns. 6 & 25:
In its complaint, the plaintiffs argued that the appropriations laws violated the First Amendment, the Due Process Clause, and the Bill of Attainder Clause.
...
the District Court again declined to reach the plaintiffs’ First Amendment and due process claims in light of its determination that the challenged laws were bills of attainder.
So this ruling does not say that the government had the right to do what they did - it still could be a violation of due process and/or the First Amendment. No court has dealt with that yet. All this says is that it's not a Bill of Attainder, which (I gather from Volokh and wikipedia) is a pretty rare and unused clause in the first place. Mainly it was used to punish things like regicide, fighting on the wrong side of a civil war, etc, generally by head-chopping.

I'll let someone more informed speak to the odds of success with regards to ACORN's other grounds.

This sucks, I'd love to see ACORN win their claim - but I think this is a reasonable outcome. I would LOVE to see a similar bill passed against Blackwater/Xe or Halliburton.
posted by Lemurrhea at 8:22 PM on August 13, 2010 [1 favorite]


So if the Congress passed a law saying: randomkeystrike is not eligible to receive social security, just like that, with your name in it, that wouldn't be punishment?

It's not the not giving them money per se, it's making a special rule just for them.
posted by Wood at 8:31 PM on August 13, 2010 [4 favorites]


IANAL, but the fraudulent accusations against ACORN constitute an issue distinct from whether or not this particular Act was an unconstitutional Bill of Attainder. A Bill of Attainder could just as easily be based on truthful accusations or no substantive accusations whatsoever.

The main problem here is that defunding in and of itself does not constitute "punishment" as required by the test laid out on Page 13, lines 21 through 26.

Comparisons to Goldberg v. Kelly don't work here. That case was about procedural due process, not Bills of Attainder or even punishment. The procedural due process claim is still open.
posted by Sticherbeast at 8:36 PM on August 13, 2010 [2 favorites]


randomkeystrike: “I also hate so-called "law cases" where someone decides to stretch some legal point in an obvious reach of judicial activism...”

There is no such thing as "judicial activism," and I get the feeling every time somebody uses it that they have no idea what the constitution actually says.
posted by koeselitz at 8:37 PM on August 13, 2010 [4 favorites]


It's a bill of attainder because we don't fund you. Puh-lease.

As I sort of hinted at in my comment at the beginning of this thread, it really is possible for de-funding to be a form of oppression. If Congress were to pass a law the result of which ended up (purely accidentally, of course) denying Federal benefits to a great majority of black and latino US Citizens, it would very much be an act of collective punishment, even if not explicitly stated to be so.

Impossible, you say? Imagine a law which denied Federal benefits to US Citizens who fail mandatory IQ tests (written by white psychologists), or who fail mandatory English vocabulary tests (you get the picture). This particular question is not at issue in the ACORN case, but it's at least related.

I guess we all should prepare for the inevitable defenses of the "IQ Test and Federal Benefits Act of 2014" when people on Metafilter come out in droves saying things like "GRAR GRAR IF BLACK PEOPLE WANT MONEY THEY SHOULD LEARN TO BE SMARTER" and "GRAR GRAR MONEY ISN'T A RIGHT ANYWAY THERES NO RIGHT TO WELFARE IN THE CONSTITUTION GRAR", wholly missing the point of why we have Civil Society and why it's worth fighting for.
posted by Azazel Fel at 8:48 PM on August 13, 2010 [3 favorites]


It's a bill of attainder because we don't fund you. Puh-lease.

The broader point is a good one, but I think it's worth making a distinction between (a) choosing not to fund an organization as part of the usual lawmaking process and (b) a specific act of congress targeting not just a class of organizations but one organization.

The court may have made the right decision here, but since we're talking about (b) here and not (a), I don't think it's the stretch you seem to think it is to have the system deliberate and rule on the issue of whether this constituted a bill of attainder.
posted by weston at 8:53 PM on August 13, 2010 [1 favorite]


So if the Congress passed a law saying: randomkeystrike is not eligible to receive social security, just like that, with your name in it, that wouldn't be punishment?

It's not the not giving them money per se, it's making a special rule just for them.


Here's a rational way to think about this. It's not so much correct (in that I don't think this was Congress' thinking), but it's one reason this type of situation is acceptable.

Suppose contractor A is terrible. They do work for a bunch of departments and they're consistently over budget and schedule, with shoddy as hell products. Worse than normal by far. Bad safety practices, union-busting, the standard crap.

Congress knows this. There's an expose or something. What can they do?

Well, they can trust each individual procurement officer to reject the bid by A, hoping that the officer knows of A's problems (and cares). That's not really a good idea, obviously. Or, they can order the departments not to accept the bids. Problem solved. It's a reasonable exercise of their power.

Now, they probably have to exercise that power fairly, as in with due process. So a capricious use of it could be challenged. But if randomkeystrike had a history of defrauding social security, they probably could be banned from receiving it.
posted by Lemurrhea at 8:56 PM on August 13, 2010 [2 favorites]


The de-funding absolutely is punishment. The only reason they cut ACORN's funding was because of that ridiculous, falsified video by those two idiot prudes. There was no real public outcry against ACORN, there was manufactured outcry by FOX. It's pretty damn obvious.
posted by spiderskull at 8:58 PM on August 13, 2010 [1 favorite]


> The fact that they got away with this is insane. Can you just imagine if liberals went after
> faith based funding by creating fake evidence that a bunch of innocent ministers were
> engaged in child prostitution?
> posted by furiousxgeorge at 9:59 PM on August 13 [+] [!]

Why limit yourself to just-imagining? Go for it!
posted by jfuller at 9:00 PM on August 13, 2010


The IQ Test and Federal Benefits Act of 2014 would get torn to shreds by the Supreme Court, and rightly so, but not on the basis of it being a Bill of Attainder. For one, there are non-punitive arguments to deny benefits to those with low IQs - they're a drain on society, we want to encourage them to emigrate, they can't be trusted with money, blah blah blah. These are bad arguments, to make a massive understatement, but they are not punitive.
posted by Sticherbeast at 9:03 PM on August 13, 2010 [4 favorites]


As I sort of hinted at in my comment at the beginning of this thread, it really is possible for de-funding to be a form of oppression. If Congress were to pass a law the result of which ended up (purely accidentally, of course) denying Federal benefits to a great majority of black and latino US Citizens, it would very much be an act of collective punishment, even if not explicitly stated to be so.

Impossible, you say? Imagine a law which denied Federal benefits to US Citizens who fail mandatory IQ tests (written by white psychologists), or who fail mandatory English vocabulary tests (you get the picture). This particular question is not at issue in the ACORN case, but it's at least related.


Tonight, on "Eye on Springfield": just miles from your doorstep, hundreds of men are given weapons and trained to kill. The government calls it the "army", but a more alarmist name would be the killbot factory.

I guess we all should prepare for the inevitable defenses of the "IQ Test and Federal Benefits Act of 2014" when people on Metafilter come out in droves saying things like "GRAR GRAR IF BLACK PEOPLE WANT MONEY THEY SHOULD LEARN TO BE SMARTER" and "GRAR GRAR MONEY ISN'T A RIGHT ANYWAY THERES NO RIGHT TO WELFARE IN THE CONSTITUTION GRAR", wholly missing the point of why we have Civil Society and why it's worth fighting for.

It's easy to put words in people's mouths, that's why it's fun!

Lemurrhea has it right. The government has certain powers, and can use those powers legally, assuming they follow due process and do not violate constitutional or statutory rights. The government collects taxes, that does not mean that you can point to some individual case of tax-collecting and say "Oh noes! They're taking money, they're gonna take all the money of the poor white people," and expect to be taken seriously. You can say, "That tax violates due process," or something, but the sheer fact that the government is acting with an enumerated power does not make it some slippery slope where the government is going to go to some bizarre extreme.
posted by Snyder at 9:20 PM on August 13, 2010 [1 favorite]


"...there are non-punitive arguments to deny benefits to those with low IQs African Americans - they're a drain on society, we want to encourage them to emigrate, they can't be trusted with money, blah blah blah. These are bad arguments, to make a massive understatement, but they are not punitive."

Are you sure? Sounds awfully punitive to me. (Actually it sounds like something from Stormfront. Not that you would agree with it, of course). And if they could argue before the USSC that people with low IQ's (as determined by overwhelmingly white psychologists) don't fall under a suspect classification, and that discriminating against them (for the reasons you outline above and others) doesn't fall under strict scrutiny, then it could very well pass judicial review -- with the wholly unintended *snort* side effect being that a great majority of America's racial and financial underclass are now cut loose from Federal benefits.

My point being: de-funding can be an instrument of oppression.
posted by Azazel Fel at 9:26 PM on August 13, 2010


Also, Overwhelmingly White Psychologists is the name of my new crabcore band.
posted by Azazel Fel at 9:28 PM on August 13, 2010 [1 favorite]


Yeah. I'm also finding it difficult to believe that this isn't a bill of attainder.

Read the bill, and tell me it isn't explicit punishment. Weirdly enough, the bill's quite short and to the point, which if anything should have helped ACORN's case.

Here's the beef of it:
SECTION 1. SHORT TITLE.

This Act may be cited as the `Defund ACORN Act'.

SEC. 2. PROHIBITIONS ON FEDERAL FUNDS AND OTHER ACTIVITIES WITH RESPECT TO CERTAIN INDICTED ORGANIZATIONS.

(a) Prohibitions- With respect to any covered organization, the following prohibitions apply:
(1) No Federal contract, grant, cooperative agreement, or any other form of agreement (including a memorandum of understanding) may be awarded to or entered into with the organization.
(2) No Federal funds in any other form may be provided to the organization.
(3) No Federal employee or contractor may promote in any way (including recommending to a person or referring to a person for any purpose) the organization.
posted by schmod at 9:28 PM on August 13, 2010 [3 favorites]


And, shit. I'm a government contractor, which means I'm in direct violation of Clause 3 of Sec. 2 for posting that just now.
posted by schmod at 9:30 PM on August 13, 2010 [1 favorite]


This is what I remember about a bill of attainder.

http://www.youtube.com/watch?v=ZL04Wut2yko
posted by wv kay in ga at 9:42 PM on August 13, 2010



posted by wv kay in ga at 9:54 PM on August 13, 2010 [1 favorite]


Had anyone showed up at the polling place and said, "Hi, my name is Mickey Mouse and I'm here to vote," would have easily got a challenge from the precinct watchers (one Dem and one Rep) that are on duty at every voting station.

Part of the reason I volunteered to act as a legal observer in 2008 was the hopes of finally meeting Mickey Mouse. Sadly, he never showed. Though my Republican counterpart at the polls looked eerily like Danny DeVito. I should have demanded to see a photo ID.
posted by joe lisboa at 9:55 PM on August 13, 2010


Just let ACORN die already and let the bastards wring their hands with malicious glee. The Democrats really need to learn how to squeeze some balls.

Let's say...defense contractors.
posted by Xoebe at 10:01 PM on August 13, 2010


I think a lot of people are conflating two different conceptions of 'punishment' / 'punitive'.

The punishment that Bills of Attainder (seems to) prevent is punishment as an end in and of itself. That's where you have bills saying "Lord Hoppitamoppita is a traitor, his land shall become the property of His Majesty and he shall be executed." All it is, is punishment.

What some people are saying is that they did this for improper motives, intending to cause harm, or intending to cause some other effect but with an effect that causes harm. That doesn't seem to be enough. Volokh lays it out pretty clearly:
(1) whether the challenged statute falls within the historical meaning of legislative punishment (historical test of punishment);

(2) whether the statute, “viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes” (functional test of punishment); and

(3) whether the legislative record “evinces a [legislative] intent to punish” (motivational test of punishment).
3 is clear here. 1 & 2 are problematic.
But as I said above, historically, legislative punishment is very different. And it really only focuses on an individual, not a corporation (because for all peoples' talk, there are rights of individuals that corporations do not have). So 1 seems to fail.

And then 2 is the big question. Are there other plausible reasons? Here, yes, the government refusing to deal with a shady group (whether or not that's true or fair is a question of due process, not this case).

For Azazel Fel's example above...well yeah. It's not punitive. It hurts those with low IQs, it hurts them terribly, and it's probably due to malice. But it's not a Bill of Attainder.

More generally, I think few of the people who are saying this is a reasonable ruling (definitely not me) would argue against "defunding can be an instrument of oppression". Of course it can. An example that's come up, up here in Canada, is that since you have the right to counsel, the government has the duty to fund 24-hour legal aid. Defunding that would be unconstitutional. All I'm saying is that it wouldn't be a bill of Attainder.

That's what Sticherbeast is saying: The IQ Test and Federal Benefits Act of 2014 would get torn to shreds by the Supreme Court, and rightly so, but not on the basis of it being a Bill of Attainder.

That's what Snyder is saying: assuming they follow due process and do not violate constitutional or statutory rights. [Snyder has of course not said that it would be such a violation, but my point only requires the possibility being open]

I have absolutely no idea whether this is a violation of Due Process. Same goes for the IQ bill. It should be found contrary to something, at least.
posted by Lemurrhea at 10:07 PM on August 13, 2010 [5 favorites]


So everyone who thinks a bill of attainder can be directed at an organization like ACORN also thinks Citizens United was correctly decided, right?
posted by planet at 10:09 PM on August 13, 2010 [1 favorite]


Procedurally, with respect to the whole IQ as a stand-in for race, you'll have hordes of experts in cognitive studies/psych saying that IQ tests have cultural bias, that they inappropriately deem blacks lower than they should, and so on. Also, I expect, there's some form of law (ADA, maybe? No idea.) that prevents discrimination against the mentally challenged [sincere apologies if I'm using a term that causes offense. I've been reading a lot of disability law recently, and every article uses a different goddamn term and I don't know what the current proper usage is anymore], so right off the bat this would violate that.

And I should go to bed. It's 2 in the morning and I meant to work tomorrow. Blech.

posted by Lemurrhea at 10:13 PM on August 13, 2010


Read the bill, and tell me it isn't explicit punishment.

This is not punishment. Congress, like it or not, has the right to fund or defund any program they wish. It cannot be a punishment because ACORN does not have a property interest in the continuing application of federal funds to it. The fact that it singles out one organization is not the point. Would you support a bill singling out Blackwater and saying they can not get any funding from the government?

I thought so.

For it to be a punishment, it must take away something which ACORN had a property interest in. For example, a fine would be a punishment, because ACORN would have to pay out of funds it already owned.

Listen, we can all agree that what happened is bullshit and bad. But that in itself does not make what happened a bill of attainder.

Often we wish that legal concepts extended farther than they do because they would create some preferred outcome. This is not the way the law works. The law works by application of laws and case law, regardless of whether or not a preferred outcome occurs.
posted by Ironmouth at 10:17 PM on August 13, 2010 [5 favorites]


So everyone who thinks a bill of attainder can be directed at an organization like ACORN also thinks Citizens United was correctly decided, right?

No. Please do not engage in straw man arguments. The problem here is that the legal concept of a bill of attainder does not extend to circumstances where a property interest is not violated.
posted by Ironmouth at 10:19 PM on August 13, 2010 [3 favorites]


No. Please do not engage in straw man arguments. The problem here is that the legal concept of a bill of attainder does not extend to circumstances where a property interest is not violated.
That's obviously wrong, since a bill of attainder might violate a liberty interest. But in any event, how is it a straw man to point out that people's conviction that constitutional rights should apply to organizations appears to vary depending on whether a left wing or right wing organization is being discussed?
posted by planet at 10:26 PM on August 13, 2010 [2 favorites]


For it to be a punishment, it must take away something which ACORN had a property interest in.

Only if you buy into the right-wing idea that the only real rights are property rights, and that all other rights derive from them. Are you really going to argue that the Lock Ironmouth Up and Throw Away the Key Act or the Forcibly Convert Ironmouth to Zoroastrianism Act would not be unconstitutional bills of attainder because they don't affect your property interests directly?
posted by enn at 10:27 PM on August 13, 2010 [5 favorites]


planet: I don't understand your question. Nobody at all here is arguing that the proscription against bills of attainder shouldn't apply to ACORN. I suspect everyone would agree that a bill saying "We the Congress find ACORN and associated entities ('ACORN et al.') guilty of voter registration fraud, and hereby levy a fine of $1,000,000 upon ACORN et al. proportionate to the number of voter registrations each entity submitted in calendar year 2008 to the FEC." would be unconstitutional as a bill of attainder. So the question of whether ACORN gets that right is not at issue. What's at issue is whether merely excluding an entity from Congressional funding is, to begin with, a bill of attainder.
posted by thesmophoron at 10:31 PM on August 13, 2010 [1 favorite]


Nobody at all here is arguing that the proscription against bills of attainder shouldn't apply to ACORN.
Yes, exactly. Isn't that interesting? I think it is.
posted by planet at 10:34 PM on August 13, 2010


I am a pinko lefty type myself (and ardent defender of ACORN) but I am also a lawyer, and Ironmouth (and others, above) are technically and legally in the right here. I disagree with the outcome as much as Ironmouth (and most of you, from the sounds of it) but we are barking up the wrong tree here for reasons already eloquently stated.

I wish it were not so, but it is. Part of the push for genuine reform involves educating yourself about the realities of the status quo (in the case, established case law), however dismal or depressing they may be.
posted by joe lisboa at 10:34 PM on August 13, 2010 [1 favorite]


You know what I think? I think people don't always read all of the comments in a thread before they post. That's what I think.
posted by goatdog at 10:34 PM on August 13, 2010 [2 favorites]


I don't see how you can possibly support this decision unless you think United States v. Brown was incorrectly decided. The parallels seem pretty strong to me.
posted by enn at 10:35 PM on August 13, 2010 [1 favorite]


planet: Ah, I read your point the reverse of the way you meant it then. Well, I think the cases are easily distinguishable along numerous lines.

For one thing, equating money with speech strikes some people as counterintuitive.

Secondly, strictly speaking, corporations can't speak.

Thirdly, when corporations spend money on things that don't directly impact their bottom line, it's not the corporations' money spent, but the shareholders -- who were, no doubt, not consulted on the issue.

Fourth, the prohibition of Bills of Attainder is an explicit limit on government's power to do a specific thing, whereas the First Amendment presupposes an undefined "freedom of speech" that the government may not infringe; so while there's some wiggle room on the First Amendment issue depending on what you interpret "freedom of speech" to mean, the only point up for argument in this case is what constitutes attainder.
posted by thesmophoron at 10:39 PM on August 13, 2010 [1 favorite]


And the question obviously isn't whether ACORN has a right to funding — it's whether ACORN has a right to equal treatment under the law in applying for funding from federal grantmaking agencies. Sure, Congress can pull funding from earmarks or other funding made directly by acts of Congress in the past, but that's not what it did; it decreed ACORN ineligible for all federal funding, including funding disbursed by the executive branch, and forbade federal employees from referring anyone to the organization. This isn't the same thing as cancelling an order for an aircraft carrier or something.
posted by enn at 10:41 PM on August 13, 2010 [1 favorite]


Well, I think the cases are easily distinguishable along numerous lines.
Oh, of course.
posted by planet at 10:42 PM on August 13, 2010


enn: My understanding is that ACORN stipulated to poor financial management, and an equal protection argument in this context would only have to survive review for a rational basis. In any case, ACORN didn't bring an equal protection claim; it brought bill of attainder, due process, and first amendment claims. The first was denied by the Second Circuit today. The others will be addressed on remand.
posted by thesmophoron at 10:45 PM on August 13, 2010


My point is that it shouldn't have to bring a separate equal protection claim; a law that violates equal protection by singling out a single individual or organization should be considered a bill of attainder, meeting the "punishment" test by virtue of that equal protection violation.
posted by enn at 10:53 PM on August 13, 2010


That's wrong-headed for countless reasons.
posted by thesmophoron at 10:54 PM on August 13, 2010


Since the law refers to the organization by name, can't they just change their name? Maybe to Copying Herbivorous European Socialists by Transforming our National Undergarments into Terrorists, or Walruses Are Likely Not Ugly Today?
posted by miyabo at 10:56 PM on August 13, 2010


Well, OK then.

Maybe you can explain how this case differs from Brown above. Surely one has even less of a right to hold union office than one does to be considered for an SBA loan.
posted by enn at 10:57 PM on August 13, 2010


Probably Imitating Nervous Eggheads by Completely Obfuscating Neutral Etymology?
posted by miyabo at 11:03 PM on August 13, 2010


Maybe you can explain how this case differs from Brown above. Surely one has even less of a right to hold union office than one does to be considered for an SBA loan.
It's complicated! If you think ACORN was wrongly decided, it's identical to Brown, and the court just fucked up and should be put out to pasture. But if you agree with ACORN, it's easily distinguishable along numerous lines.

I guess, uh, choose your own adventure.
posted by planet at 11:05 PM on August 13, 2010 [1 favorite]


Would you support a bill singling out Blackwater and saying they can not get any funding from the government?

I thought so.


Oh, cause someone else had an answer for me:

No. Please do not engage in straw man arguments.

Huh. Have you two met? You missed each other by, like, two minutes.
posted by XQUZYPHYR at 11:05 PM on August 13, 2010


Actually, the closer parallel still would be United States v. Lovett, which held that a law prohibiting named individuals from receiving any salaries or fees from the federal government was a bill of attainder:
(a) It is not a mere appropriation measure over which Congress has complete control. P. 328 U. S. 313.

(b) Its purpose was not merely to cut off the employees' compensation through regular disbursing channels, but permanently to bar them from government service, except as jurors or soldiers -- because of what Congress thought of their political beliefs. P. 328 U. S. 313.
Unless you want to make a distinction such as planet alluded to above between laws aimed at individuals and laws aimed at groups, that sounds near-identical to this case.
posted by enn at 11:15 PM on August 13, 2010 [1 favorite]


How is the Blackwater example a straw man?
posted by planet at 11:16 PM on August 13, 2010


enn: RTFA
posted by thesmophoron at 11:20 PM on August 13, 2010 [1 favorite]


My point is that it shouldn't have to bring a separate equal protection claim; a law that violates equal protection by singling out a single individual or organization should be considered a bill of attainder, meeting the "punishment" test by virtue of that equal protection violation.

Perhaps, but it isn't - consider the Presidential Recordings and Materials Preservation Act, about which Nixon made the same claim (and lost). By virtue of both equal protection and bills of attainder being addressed in the constitution, the rules governing them are necessarily on the same legal plane, and conflict with the former cannot be construed as equivalent to the latter, since it would render art. 1 sec. 9 superfluous.

IANAL, but RTFO which addresses many of these questions.
posted by anigbrowl at 11:40 PM on August 13, 2010


In fact, the Defund ACORN Act does apply to Backwater/Xe since they'll be covered under (b)(3), good luck applying the act, but still. Btw, ACORN is only mentioned in (c)(1) and (c)(2) in a manor that seems totally irrelevant.
posted by jeffburdges at 11:48 PM on August 13, 2010


I read the opinion. It mentions Lovett and then unconvincingly argues that ACORN can withstand the loss of funds more easily than the individuals in Lovett, making an argument similar to planet's: "We note, further, that '[t]here may well be actions that would be considered punitive if taken against an individual, but not if taken against a corporation.'" That seems like pretty thin grounds to ignore so close a precedent to me. The downplaying of the punitive intent in the legislative history is also not particularly convincing.
posted by enn at 11:56 PM on August 13, 2010


enn: the prohibition on bills of attainder is in Article I for a reason.
posted by thesmophoron at 12:27 AM on August 14, 2010


How is the Blackwater example a straw man?

How is it not? I was just told I'm a hypocrite becuase I support a piece of legislation that doesn't exist. That's the definition of a straw man, and also in that particular example, a lie. I'm annoyed that in a scolding comment about how this is all about the cold hard legal reality we're all then accused of a hypothetical.
posted by XQUZYPHYR at 1:02 AM on August 14, 2010


XQUZYPHYR: I think you need to tone it down a bit. You've been fighty and sarcastic throughout the entire conversation. A straw man is not the same as a hypothetical. A straw man is when you mischaracterize your opponent's position such that it's easier to refute. Since that doesn't bear much resemblance to what Ironmouth said, people's confusion is understandable. Now if we could kindly stop calling other MeFites liars, I think the conversation could be a bit more productive.

The point being made that those up in arms about the ACORN story might not be up in arms if it were Blackwater being defunded instead. If that's true, then the disagreement is a substantive one, not a structural one; in which case, the blame lay with Congress for their choice of defundee, rather than with the court for holding it not to be a bill of attainder.

enn: to clarify my point earlier, the attainder clause's inclusion in Article I makes clear that it is meant to be a structural limitation on Congress, to prevent it from usurping the judiciary's role. As the opinion linked above points out, a significant difference between this case and Lovett is that, in Lovett, Congress held trials and made an explicit finding of guilt. The fact that you find this distinction "not particularly convincing" puzzles me. It is objectively a very strong argument.
posted by thesmophoron at 1:14 AM on August 14, 2010


Speaking of Blackwater: Can't Stop, Won't Stop
Blackwater (rebranded as Xe in an effort to escape the negative publicity associated with their former name), recently received a $100 million contract from the CIA to secure its bases in Afghanistan. The State Department also awarded them $120 million to provide security for new diplomatic buildings, including consulates outside Kabul, giving the firm a total of $220 million in new contracts in Afghanistan. This seems remarkable, given the extremely negative image Blackwater has throughout the world. That people even know about a private security company is a bad sign in itself. Not surprisingly, CIA Director Leon Panetta had to go on the offensive to defend the contracts.
Former Blackwater workers face new slaying indictment
posted by homunculus at 1:31 AM on August 14, 2010


Fine, I'm not honestly interested in picking a fight and that seriously wasn't my intention. I have no desire to nitpick this either since it's a complete derail but how saying "I thought so" to a question to which the answer I'd give is the opposite of what he "thought" doesn't fall under the purview of "mischaracterizing your opponent's position" escapes me. I've been incredibly sick of the numerous forms of "sensible liberal" contrarianism as of late, and adding that seemingly condescending accusation to yet another "well who cares about fixing this, let's explain how it's LEGAL to fuck people over" debate set me off.

MY point, to clarify before I abandon this, is that once again it's a fucking stupid argument to begin with. Anyone can see that this bill was specifically designed to target a specific organization. The targeting of which was based on a horrific campaign based on party bias and racism. Jumping in to defend it's legal reasoning is a grave injustice to what the bigger issue is here. I probably should have avoided the thread in the first place, since the fact that debating the law instead of wondering how to correct injustice just makes me sad.
posted by XQUZYPHYR at 1:35 AM on August 14, 2010 [2 favorites]


I'd given ... the opposite of what he "thought" [was the answer]

Link? I don't see you mentioning Blackwater at all.
posted by thesmophoron at 2:07 AM on August 14, 2010


XQUZYPHYR, if next year the courts rule that Congress violated ACORN's due process rights, then what? Will you still maintain that defending the legal reasoning is an injustice?

There's no question that the law is imperfect. It fails to provide justice in a lot of situations. But, like it or not, what you define as "Justice" is not a universal truth.1 The system is set up to give reasonably clear guidelines as to what's acceptable, both on outcomes and how to reach them. At minimum, we need to require judges to follow precedent pretty closely, or else you'll never know if what you're doing is just or not.2 Such is life.

1:At least if you accept any of the gender/race/disability/etc-based critiques of the 19th-century Rationalist tradition.
2: And the minute that's true, we're all boned, because then there's no such thing as a frivolous lawsuit, and the rich could just sue you into bankruptcy in what you would call unjust situations

posted by Lemurrhea at 4:47 AM on August 14, 2010 [1 favorite]


For some reason I was under the impression that bills of attainder were historically used against organizations or groups as well as individuals.

Either way, I can't really call myself a big ACORN supporter, but the act at discussion is an enormous steaming turd resting atop the concept of fairness and justice. The media-assisted hit job on ACORN was also a steaming turd.

It would be nice if Congress weren't so namby pamby as to be unable to stuff their turd back in their collective rectum given the new facts that came to light after passage of the bill. Either that or if someone would figure out a way to force the fucking government to apply the act to all organizations falling afoul of its provisions.

Even if it's not a complete clusterfuck as written, it certainly is as applied.
posted by wierdo at 5:03 AM on August 14, 2010


There's also the whole Obama/ACORN link, the voter fraud scandal, etc etc. There's a lot more going on here than the YouTube video, although that was certainly a catalyst.

Belatedly, you're right, there is a lot more going on here. These scandals are manufactured -- for instance, there is no meaningful Obama/ACORN link, and the voter scandal, as others have pointed out above, was actually a few employees defrauding both ACORN and the US government; they were caught and punished, with the help of ACORN.

So what else is going on? Well, ACORN was an organization that work primarily on poverty issues. They registered voters in poorer neighborhoods -- who tend to vote for Democrats. They also provided low-income housing, which became a convenient -- if easily disproved -- scapegoat for the housing bubble bursting. So they were caught in a perfect storm of blame, in that there were two narratives, both lies, that dovetailed directly atop them. The first is that Obama somehow stole the election (and that ACORN had a hand in that), and the second is that poor people are responsible for the recession. Not true.

That's the longer story. That's the "more going on here." I know it takes a little longer to type, but when you simply state the lie, rather than the facts, it sounds as though you are supporting the lie. It sounds as though there is evidence for the lie, and that the defunding of ACORN was justified, rather than a crass political act. And ACORN deserves better, but also we on MetaFilter deserve better, because this is not the place to continue the thoroughly debunked whisper conspiracy against ACORN -- certainly not the place to just toss out the accusations, along with some hand-waving about how it's too much to get into the details.
posted by Astro Zombie at 7:55 AM on August 14, 2010 [7 favorites]


If I hire a plumber to fix my bathtub and I think he did a bad job, it's not punishment for me to refuse to hire him to fix my toilet, even if I'm completely mistaken in my opinion that he did a bad job.

Congress was wrong in their opinion about ACORN, but it's not punishment for them to say, "This organization is not doing the job we funded it to do and so it should not be given any more funding."
posted by straight at 10:14 AM on August 14, 2010


Wood: It's not the not giving them money per se, it's making a special rule just for them.

No, it isn't, at least not entirely. As stated above, there's a three-prong test:

-specification of the affected persons
-punishment
-lack of a judicial trial

So if the Congress passed a law saying: randomkeystrike is not eligible to receive social security, just like that, with your name in it, that wouldn't be punishment?

The two situations are not remotely comparable. Social Security is an entitlement, a public retirement insurance scheme, set up where you recieve payments after making tax payments specifically so that you make collect later on. Public funding of non-profits is not a right or entitlement, and whom to fund and for how long is at the whim of Congress.
posted by spaltavian at 11:44 AM on August 14, 2010 [2 favorites]


And in this case their whim was to find a way to punish ACORN for supporting the crime of child prostitution for which they had not been tried.
posted by furiousxgeorge at 12:02 PM on August 14, 2010


Only if you buy into the right-wing idea that the only real rights are property rights, and that all other rights derive from them. Are you really going to argue that the Lock Ironmouth Up and Throw Away the Key Act or the Forcibly Convert Ironmouth to Zoroastrianism Act would not be unconstitutional bills of attainder because they don't affect your property interests directly?

Of course they would be bills of attainder. They violate my first amendment and liberty rights, respectively. But what ACORN is arguing they were deprived of money they were entitled to. Hence, here, a property right is the focus of the case.

The problem is that for a statute to violate one's constitutional rights, one must have a right to the thing which is taken away. No organization has a right to appropriated funds of the government.

The Social Security example is inapt. Goldberg v. Kelly found that people have a propety right in such payments.

But a person or organization does not have a right to Congress continuing to vote it grant funds.

As for ACORN having constitutional rights, of course it does. Just like GM, it is organized as a corporate body. Its a non-profit and has no shares, but as a corporation, it has a legal existence as a person. That's what gives it the capacity to be sued.

And the personhood of all corporations is a good thing. If defective brakes cause you injury, you can sue the company. If there were no corporate personhood, you would have to ascertain the names and addresses of every shareholder, serve them individually, and then sue them individually. It cannot be done.

This is the way the law is set up. It has rules of decision like this so that there is predictability. It is indeed unfortunate that this all faced ACORN, a good organization. But the law is not designed to produce a preferred result. It is designed to provide a result which is predictable and just within the rules it sets out.
posted by Ironmouth at 12:37 PM on August 14, 2010 [1 favorite]


It was money they would have received, for sure, absent the non-existent crime they were accused of and never tried for. Removing it was a punishment for that crime.

If a Republican decided to fund a non-profit organization with the stated goal of giving free money to Republicans that wouldn't be okay just because, hey, congress had a whim. The underlying reality is corruption, as it is punishment with ACORN.
posted by furiousxgeorge at 1:25 PM on August 14, 2010


The whim of Congress was a politically-driven, media-hungry, idiotic discontinuation of federal funding that they had no right to. Everything about it sucks, but it's not a punishment. The prohibition on Bills of Attainder is to prevent Congress from bypassing the courts in criminal and civil matters; not to invent entitlements that Congress and the Constitution never intended.
posted by spaltavian at 1:30 PM on August 14, 2010


furiousxgeorge with the stated goal of giving free money to Republicans that wouldn't be okay just because, hey, congress had a whim. The underlying reality is corruption, as it is punishment with ACORN.

I think you know very well that wouldn't be okay for a whole host of reasons that have nothing whatsoever to do with this case. I never said Congress was free to do whatever they want regardless of the laws and Constitution, but they have the right to remove federal funding that they provided to a non-profit orgnaization. It's not a punishment, which remove rights, it's a lame and sad political sideshow. Bad policy is not automatically unconstitutional policy.
posted by spaltavian at 1:34 PM on August 14, 2010



I think you know very well that wouldn't be okay for a whole host of reasons that have nothing whatsoever to do with this case.


I don't know that, I'm not a lawyer, explain to me how granting money could possibly be a reward for some political action when taking it could never be a punishment.
posted by furiousxgeorge at 2:35 PM on August 14, 2010


straight wrote: "Congress was wrong in their opinion about ACORN, but it's not punishment for them to say, "This organization is not doing the job we funded it to do and so it should not be given any more funding.""

I don't know, but strongly suspect that Congress never appropriated money directly to ACORN.
posted by wierdo at 3:59 PM on August 14, 2010


Its a non-profit and has no shares, but as a corporation, it has a legal existence as a person. That's what gives it the capacity to be sued.
And the personhood of all corporations is a good thing. If defective brakes cause you injury, you can sue the company. If there were no corporate personhood, you would have to ascertain the names and addresses of every shareholder, serve them individually, and then sue them individually.


Unless a law were passed saying corporations obviously aren't people, but could still be sued. We don't have to have some bizarre equivalence that can then be gamed in crazy ways* just because we want people to be able to sue corporations. (Which is increasingly out of the price range of normal people, anyway. If we're serious about that, then something really has to be done about the price of taking legal action. It doesn't have to cost you your life savings to sue someone if we just want to limit spurious lawsuits, dammit.)

(*Crazy way #1: giving purely virtual entities "free speech rights." What does that even mean?)
posted by JHarris at 6:38 PM on August 14, 2010


Belatedly, you're right, there is a lot more going on here. These scandals are manufactured -

Well, yes, the scandals are manufactured. I was only trying to not inject my personal point of view into the comment, but to explain in a neutral way.
posted by Electrius at 9:06 PM on August 14, 2010


That they are manufactured is not a point of view, it's a fact. ;)
posted by furiousxgeorge at 10:19 PM on August 14, 2010 [1 favorite]


Unless a law were passed saying corporations obviously aren't people, but could still be sued

Standing is an Article III constitutional issue. You'd need a constitutional amendment.

More importantly, the corporations as persons doctrines protects ACORN. If corporations were not persons in the eyes of the law ACORN would be unable to even sue. Bodies corporate are not only for profit. They are everything, golf clubs, boys clubs, church groups, soup kitchens, you name it. The purpose of the corporate form is to allow persons to participate in collective activities without risking everything they own by just participating. Imagine sitting on the board of a local boys and girls club when a tragic fire kills one child. Should the liability of every board member extend to losing their homes and all of their worldly possessions? If you say yes, then no one would ever participate in a voluntary association. This is the law. Its been worked out over years of experience to fit us well. You change one thing and it cascades everywhere. There are actual real, good reasons for why these rules exist.
posted by Ironmouth at 12:20 AM on August 15, 2010


furiousxgeorge: I don't know that, I'm not a lawyer, explain to me how granting money could possibly be a reward for some political action when taking it could never be a punishment.

Because you're using "punishment" to mean any bad thing. That's not what it means in a constitutional context. Punishment is deprivation of a right or property that is otherwise their own. ACORN has no right to discretionary federal funds and they are not being declared by Congress to be guilty of anything in a criminal context, or liable for restitution in a civil context. Like I said before, the prohibition on Bills of Attainder is to prevent Congress from bypassing the courts and dispensing their own justice, not to limit their policy options in determining (rightly or wrongly what funds are or are not being spent on the common good.
posted by spaltavian at 8:19 AM on August 15, 2010 [1 favorite]


They perceived a crime by the organization and reaction took an action they knew would destroy the organization without a trial, I'm sorry but that isn't seeing "ANYTHING" as punishment.

It is far from as black and white as your are making it out to be.
posted by furiousxgeorge at 11:10 AM on August 15, 2010 [1 favorite]


They perceived a crime by the organization and reaction took an action they knew would destroy the organization without a trial, I'm sorry but that isn't seeing "ANYTHING" as punishment.

It is far from as black and white as your are making it out to be.


Its totally black and white. Until the money from Congress is in their hands, they lack a right to the money. Otherwise any group could sue if Congress cut off their money.

Look, we all know what was happened was morally wrong. But the law is not designed to right moral wrongs. Its designed to right legal wrongs.

Spending any amount of time working as a litigator tells you that.
posted by Ironmouth at 4:14 PM on August 15, 2010 [1 favorite]


The withholding of appropriations, however, does not constitute a traditional form of punishment that is “considered to be punitive per se.” See Con. Edison, 292 F.3d at 351. Congress’s decision to withhold funds from ACORN and its affiliates constitutes neitherimprisonment, banishment, nor death. The withholding of funds may arguably constitute a punitive confiscation of property at some point, but the plaintiffs do not assert that they have property rights to federal funds that have yet to be disbursed at the agency’s discretion. We note, further, that “[t]here may well be actions that would be considered punitive if taken against an individual, but not if taken against a corporation.” Id. at 354. In comparison to penalties levied against individuals, a temporary disqualification from funds or deprivation of property aimed at a corporation may be more an inconvenience than punishment. While ACORN claims that it will be “drive[n] close to bankruptcy” and may suffer a “corporate death sentence” without federal funds, the Harshbarger Report reveals that ACORN only derives 10% of its funding from federal grants. Thus, we doubt that the direct consequences of the appropriations laws temporarily precluding ACORN from federal funds are “so disproportionately severe” or “so inappropriate”as to constitute punishment per se. See Nixon, 433 U.S. at 472 (“Forbidden legislative punishment is not involved merely because the Act imposes burdensome consequences.”).
Its not punishment. Even prior case law says it isn't so.
posted by Ironmouth at 4:23 PM on August 15, 2010


Yeah, it's just unfortunate that the legislative intent obviously is punishment, yet nothing can be done about it.

So how does one go about getting this act applied to the rest of the similarly situated recipients of federal funds?
posted by wierdo at 4:40 PM on August 15, 2010


Yeah, it's just unfortunate that the legislative intent obviously is punishment, yet nothing can be done about it.

I think that's unfair (not that Congress deserves fairness).

I'm sure some of the Republicans who voted for this wanted to punish ACORN for doing things that may have helped Democrats get elected (or Democratic voters get registered or however you want to look at it). If you could prove that a congressperson actually voted to defund ACORN in retaliation for getting Democrats registered to vote, that might count as unconstitutional punishment.

But I'm sure some of the congresspersons had an intent that was more like "I'm horrified at what ACORN is doing with public money, it has to stop right now! Pull the plug on the funding!" It was a stupid, ignorant, lazy reaction, but it's not punishment. They weren't saying, "You did a bad thing, so here's how we get back at you for it." They were saying, "We don't trust you with our money anymore."

Again, if a plumber damages your home while trying to fix something, it's not punishment to refuse to hire him again. It's not even punishment to force him to pay for the repairs. It would be punishment to sue him for punitive damages, making him pay a punitive fine on top of paying restitution to repair the damage he did.

Simply defunding an organization is several steps short of actually punishing them.
posted by straight at 9:11 AM on August 16, 2010


for doing things that may have helped Democrats get elected (or Democratic voters get registered or however you want to look at it). If you could prove that a congressperson actually voted to defund ACORN in retaliation for getting Democrats registered to vote, that might count as unconstitutional punishment.

Not in the way you say. You may only look at the legislative history. Such a dumbass would have to go on the record saying that for it to be considered in the manner you suggest.
posted by Ironmouth at 9:33 PM on August 16, 2010


straight wrote: "I think that's unfair (not that Congress deserves fairness)."

I disagree. Given the outrage around it and statements of congresspeople at the time in the media, it's a reasonable view to take. Not one that can be supported in court, but a reasonable view nonetheless.

Your plumber analogy isn't on point, by the way. What happened is more like a plumber fucking up a job at my house and the city council banning him from working in my city any more, as opposed to say a licensing board taking away his license.

I ask again, when does this law get applied to the other recipients of federal funds who are under indictment?
posted by wierdo at 8:25 AM on August 17, 2010


Weirdo, it's much more like the plumber screwing up a job he did for the city and the city council passing a resolution forbidding the city manager from hiring that plumber again.

A lot of Democrats voted to defund ACORN. Are you suggesting that they wanted to "punish" ACORN? Why? Much more reasonable to assume they felt it was scandalous to give money to an organization doing what ACORN was wrongly accused of and so voted to cut off the funding. The reasoning was not "I've got to punish ACORN" but "I don't want campaign ads saying I voted to give public money to an organization providing tax advice to prostitutes."

The ads they were afraid of would not have accused them of failing to punish a guilty organization, the ads would have accused them of actively supporting a scandalous organization.
posted by straight at 12:29 PM on August 17, 2010 [1 favorite]


It's more like the plumber not screwing up the job, but some jackass claiming he did and then the city council passing said resolution without bothering to investigate.
posted by wierdo at 4:07 PM on August 18, 2010 [1 favorite]



Its totally black and white. Until the money from Congress is in their hands, they lack a right to the money. Otherwise any group could sue if Congress cut off their money.


Of course they could, if the money was cut off to politically punish them for a crime they didn't commit and were not tried for. Forgive me if that does not sound like a terrible outcome to me. They have a right not to be punished in that manner.
posted by furiousxgeorge at 4:55 PM on August 18, 2010


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