Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Mike Dunford has a post about the recent actions taken by the U.S. House and Senate to prohibit federal funding of any kind for ACORN, and he raises a question that occurred to me when the votes took place: Why isn't that a bill of attainder?
Perhaps some background is necessary here. A bill of attainder is a legislative act that punishes a particular person, organization or class of people without benefit of trial. As a general rule, a bill that targets a particular person or organization for some negative outcome may be a bill of attainder, which the constitution forbids. But as usual, the devil is in the details.
Dunford cites Rep. Jerrold Nadler of New York, who wrote:
A little while ago, the House passed an amendment to the bill that we were considering that says no contract or federal funds may ever go to ACORN, a named organization, or to any individual or organization affiliated with ACORN. Unfortunately, this was done in the spirit of the moment and nobody had the opportunity to point out that this is a flat violation of the Constitution, constituting a Bill of Attainder. The Constitution says that Congress shall never pass a Bill of Attainder. Bills of Attainder, no matter what their form, apply either to a named individual or to easily ascertainable members of a group, to inflict punishment. That's exactly what this amendment does.
Well, maybe. Eugene Volokh points to some precedents on bills of attainder that suggest that the case is not quite that clear:
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 here's why I think this action might be considered a bill of attainder by a federal court: Because the congressional leadership has pretty much said that this was done to punish ACORN for alleged violations of law.
"Acorn has violated serious federal laws, and today the House voted to ensure that taxpayer dollars would no longer be used to fund this corrupt organization," said Representative Eric Cantor of Virginia, the No. 2 House Republican.
This pretty clearly implicates a bill of attainder. It is not up to the legislature to decide who did and did not break the law; that is up to the courts. And so far, ACORN hasn't actually been tried for anything or found guilty of anything. Without such a conviction, I don't think this bill would stand up in court.
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I think this should be pursued. So many Dems just roll belly up when the GOP gets their panties in a wad. This is a perfect example of it.
ACORN helped bring the Bush/Cheney years to an end and the GOP is well aware of what they will do to their candidates in 2010/2012 so they had to sideline them and they with the help of the sell out Democratic party.
Posted by: Lynn McDaniel | September 21, 2009 9:34 AM
Presumably there's some precedent to answer my question: is withdrawing (and/or denying in future) federal funding really a punishment or is simply the removal of a privilege?
Posted by: Ginger Yellow | September 21, 2009 9:46 AM
Interesting side note: I know for a fact that Glenn Beck supported the bill to defund ACORN, but fought against similar proposed legislation to deprive AiG executives of their post bail-out bonuses. I'm sure if you were to dig a little, you could find plenty of other prominent conservatives who shared his view.
Posted by: Awesome McCool | September 21, 2009 9:48 AM
I'm not sure that Cantor's and similar remarks make it a bill of attainder. Saying that "ok, we don't want to give you federal funding going on" is not the same thing as a punitive response. A related issue is that there's a distinction between taking money away from someone (like with the Exxon Valdez) and deciding not to give someone any more money.
Posted by: Joshua Zelinsky | September 21, 2009 9:53 AM
I would argue that it's not a bill of attainder because no one and no organization has an basic right to receive government funds, so the cancellation of that funding does not harm anyone's basic rights. Conversely, everyone has a basic right not to be fined, jailed, executed, etc., so a "Volokh Execution Act" would clearly be a bill of attainder.
Conceptually, we can posit a beginning "zero point," a point at which one is receiving neither direct benefits nor direct harms from the government. If one is above the zero point, being returned to it is not "attainderish" (imo), whereas if one is at the zero point, being pushed below it is to be attaindered.
What they're doing to ACORN is bad form, but not, I think, a bill of attainder.
Posted by: James Hanley | September 21, 2009 9:55 AM
Thank you for this post. I really didn't know much about bills of attainder, so I had no idea that it might have been an unconstitutional vote.
Posted by: Mara | September 21, 2009 9:58 AM
James, consider a bill that forbids the government from purchasing Dell computers. Dell doesn't have a right to have the government purchase its computers. But does it have the right to similar consideration as other vendors for those purchases? Wouldn't a "defund Dell" bill of that sort reasonably be seen as punitive?
Posted by: Russell | September 21, 2009 10:08 AM
Pity. If we had an only slightly different President, he might point out that Congress had just defunded the entire Administration.
Posted by: D. C. Sessions | September 21, 2009 10:12 AM
Avoiding the constitutional argument, where I'm not qualified to argue anything, I think this is fairly obvious political ploy that could prove more successful to the Democrats than the Republicans if played correctly.
The Democrats appear to be sacrificing ACORN in a manner that allows them to argue they are the party that doesn't tolerate certain types of bad behavior, in this case cronyism which leads to taxpayer funded support of activities counter to the public interest. VP Cheney's reaction when asked about this form of behavior was utter contempt for the questioner and a complete disdain of what the national interest was or what citizens thought of such corruption and blatant cronyism.
The Democrats can now, and I hope it does, argue that when an organization was discovered exhibiting poor behavior, they quickly shut off funding, they acted in a manner that can only be argued as being decisive. They can compare and contrast their quick action to the Bush Administration's far worse behavior in executing single-bid contracts in the Iraq War where far more federal monies were wasted, and their continued practice even after it was proved that billions if not tens of billions of tax-payer funds were wasted.
It reminds me of how quickly the Republicans ostracized Sen. Trent Lott from his leadership position within the Senate Republican caucus. That action went way beyond any form of just punishment for his failed attempts to offer a benign congratulations to Sen. Thurmond; but they sold out their own guy because it allowed the GOP to falsely hold the high ground that they had no tolerance for racial bigotry.
I agree with the point that the Democrats cutting off funding for an entire organization because of the poor behavior of a few very low level operatives is another example of the Democrats cowardice in the face of criticism; it is. However I think their reaction in this case could work in their favor in the long-run; not that their action serves the national interest, but that it does serve their defending the Democratic brand like the GOP did by selling out Lott's leadership position.
Posted by: Michael Heath | September 21, 2009 10:18 AM
If this is the actual legislative language, I see enormous problems ahead. That's way too broad (not to mention it violates the 1st Amendment).
Posted by: kehrsam | September 21, 2009 10:22 AM
I would argue that it's not a bill of attainder because no one and no organization has an basic right to receive government funds...
No, but government has an obligation to allocate public money in a nondiscriminitory manner. (Can Congress pass a law saying that only cities with white-majority populations get Federal aid?)
If the government creates a program intended to fund certain activities, then they cannot arbitrarily say that named organizations can't participate. That's punitive, in both intent and predictable effect, whether or not anyone has a "right" to the money.
If the Congress had passed a law stating that organizations that had done certain things were ineligible for Federal funds, that might have flown; but explicitly naming ONE organization (in direct and obvious response to a controversy involving said organization) makes it clearly a bill of attainder. If this isn't what the Founders meant by "bill of attainder," then what DID they mean?
Posted by: Raging Bee | September 21, 2009 10:22 AM
I wonder too if "equal protection of the laws" might be an issue here, since Congress has not banned further federal contracts to individuals and groups, particularly favored corporations, that have been found guilty of or confessed to corrupt actions [generally, overcharging the fedgov on contracts]. Think, for example, of the companies over the last decade which have been found guilty of one sort of corruption or another, yet still compete, successfully, for federal contracts. Is the application of a standard to ACORN, by Congress, applied not applied to other federal grant applicants or contract applicants a problem for "equal protection?"
Posted by: flatlander100 | September 21, 2009 10:24 AM
I agree with the point that the Democrats cutting off funding for an entire organization because of the poor behavior of a few very low level operatives is another example of the Democrats cowardice in the face of criticism; it is. However I think their reaction in this case could work in their favor in the long-run...
That's what the Democrats in Congress thought when they let the Republicans manipulate them into trashing Clinton for a nonlethal affair. They were wrong then, and they're wrong now. This sort of logic is nothing but wishful thinking, driven by cowardice, and all it does is demoralize our base while doing a large part of the Republicans' dirty work for them.
ACORN has alrealy -- and very promptly -- fired the alleged offenders, with very little hesitation. That should be enough to clear their name, unless and until they're actually TRIED and CONVICTED of specific crimes or abuses. If the Republicans want more, let them make their case and let them do the work. The Democrats won't do anyone any good by giving those lying bigots a free pass on this.
Posted by: Raging Bee | September 21, 2009 10:46 AM
Raging Bee - re Clinton's impeachment - If I were a Representative I would have voted for his impeachment; if I were in the Senate, I would not have voted to remove him from office. Clinton's multi-hour mea culpa in front of a bunch of religious leaders allowed me to forgive him, move on, and argue he was one of America's greatest and most under-rated Presidents. I think liars should be exposed and vociferously condemned, to an extreme until its unacceptable by all demographics engaged in the public square to lie in the public square.
As I stated previously, your argument is a good one and therefore I certainly can't refute it. However I do think you're argument doesn't consider the fact that the Republicans are winning in the public square on these matters; cutting ACORN loose will eventually take the wind out of the GOP's sails and more strategically, allows the Democrats to provide evidence that they clean up their revealed messes in an extreme manner while the GOP gives the Americans the finger when their's are exposed. There is some political hay to be made from that perspective that I think you ignore in your rebuttal.
On most matters I take your position, the Death Panels being a prime recent example; I just think there's some nuance to this case that argues this isn't merely cowardice by the Dems once again.
Posted by: Michael Heath | September 21, 2009 11:22 AM
I see a few problems with this flap about ACORN overall.
First, depending on the language, this legislation and defunding could prove to be very troublesome. As has been mentioned, you have the question of a Bill of Attainder, while open to debate as to whether it constitutes one, I would suggest that the language makes it appear punitive which suggests that it does qualify.
Second, you have the rather broad language and the potential 1st amendment issue. Could other organizations lose funding based on support for ACORN? Could they lose funding for a cooperative effort with ACORN? Could they lose funding if they (or executives) donated time, facilities, or funding to ACORN?
Finally you also have the potential for a 14th amendment, racial argument. ACORN is predominantly minority in services it provides, the potential for an argument to be made that this is racially motivated, regardless of actual motivation, is there.
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Michael Heath,
While I agree with you that the Democrats appear to be distancing themselves from the organization in an attempt to establish a high ground position, I'm not sure in our current state of political "discourse" such a move will be at all successful. The right will hammer ACORN through 2010 and will bring it up again in 2012. The media will follow their normal incompetent nature and give the issue ten times the media attention it deserves and will present the information in such a way that the right wing spin will be able to make it seem as if the 2008 election was somehow impacted by "election fraud," despite the fact that none occurred.
Posted by: dogmeatib | September 21, 2009 11:32 AM
Barring individuals or organizations CONVICTED of misconduct is reasonable and there are established procedures to do so. For example, scientists who have committed research misconduct (fraud or unethical clinical protocols) can be barred from getting NIH funding. However, this is done through an administrative hearing, where the accused can answer the charges. My problem here is that ACORN should have the opportunity to respond to these charges and to dispute (if they can) whether they should be held responsible for the behavior of these employees.
Posted by: JusticeLeague | September 21, 2009 11:35 AM
There was, in fact, a similar bill passed during the FDR Administration that barred paying certain named individuals -- supposedly because they were Communist. It has been years since I read the details, and even if I still had the relevant books, finding the specific information would be difficult, but I believe this WAS ruled a "Bill of Attainder."
Anyone out there remember this and can quote a cite?
Posted by: Prup (aka Jim Benton) | September 21, 2009 12:05 PM
re Clinton's impeachment - If I were a Representative I would have voted for his impeachment; if I were in the Senate, I would not have voted to remove him from office.
In other words, you would have voted to do something you didn't really believe was right, and counted on someone else to take the sensible stand you were unwilling to take; meanwhile letting the GOP distract everyone's attention from their own even more appalling character defects. Remind us again what results that got us?
...cutting ACORN loose will eventually take the wind out of the GOP's sails and more strategically, allows the Democrats to provide evidence that they clean up their revealed messes in an extreme manner while the GOP gives the Americans the finger when their's are exposed.
Bullshit -- that didn't work when we shafted Clinton, and it won't work for us now. Cutting ACORN off after they've done the right thing to purge themselves of the offending employees only punishes them for doing the right thing, and deprives us of a valid response, which is that ACORN is a good organization that the Republicans are trying to punish for helping people they hate.
We should be defending ACORN, and truthfully describing the kind of organization the Republicans are trying to destroy; not actively helping the loony right to frame the whole debate (again).
Giving the lying bullies what they want doesn't "take the wind out of their sails;" it only emboldens them to reach for more. Shouldn't the last sixteen years of Democratic capitulation have taught us this?
Posted by: Raging bee | September 21, 2009 12:21 PM
I have two questions for Eric Cantor:
1. Acorn has violated serious federal laws?
2. Which federal laws could be grouped under the non-serious label?
Posted by: pough | September 21, 2009 12:25 PM
However I do think you're argument doesn't consider the fact that the Republicans are winning in the public square on these matters...
They're winning because the Democrats aren't even trying to put up an effective fight; and in the specific case of ACORN, they're taking the Republicans' side and giving up a fight we could have won, before the first blow is even landed.
Ehey're winning because too many people like you THINK they've won, and won't even think seriously of fighting back.
Posted by: Raging Bee | September 21, 2009 12:31 PM
Re my Clinton impeachment position: You misrepresent my position as knowing I'm doing the wrong thing when voting for impeachment. I viewed this whole process sheerly as a cynical political stunt, just like the Republicans were doing, to promote my political agenda, which is to end lying in the public square. When people lie we do nothing; we should act aggresively to the point of overreacting to lying until it ends, i.e., there will arguably be matryrs - and lets not forget, we're talking about Clinton's lying under oath to a federal court (though I find lying to citizens equally despicable).
This event never "got us anywhere" because the Democrats continue to lack the balls to do the same when they're in power, e.g., aggressively investigate Bush war crimes and the and members of the Executive Branch lying to Congress regarding Iraq and WMDs along with their torturing people.
Raging Bee - I will give little quarter to either party. We both know the GOP's behavior is far worse than the Dems as the examples we've used here show. I'm merely arguing the Dems need to man-up and start playing hardball, which means that there will be blood.
Posted by: Michael Heath | September 21, 2009 12:42 PM
My issue with the whole ACORN business is this; those two spent days wandering D.C., Baltimore, and New York looking for ACORN sites that would go for their plan. That means, of course, that many of the offices they walked into refused to help them (at the least) and may have even threatened to call the police. Of course, only the misbehaving employees were recorded which means the whole "expose" is little more than the cherry picking typical of political fanatics.
That isn't to say that the actions exposed were not shocking. An investigation of practices, a review of contracts, and possible criminal litigation are all call for by what those cameras captured, but to condemn an entire, Union-wide organization because of the actions of 9 people is simply foolish. If one were to make similar approaches to city government staff offices throughout the U.S., one would no doubt find some willing to help pimps and child smugglers for a cut of the profits; should that mean that all metropolitan, civic, and municipal governments should be denied federal monies? I think not.
Posted by: Julian | September 21, 2009 12:44 PM
You misrepresent my position as knowing I'm doing the wrong thing when voting for impeachment.
I'm not misrepresenting anything: if you really believed impeachment was wrong, you would have voted against it in either house. (I suspect that plenty of Reps thought the same way as you did: they knew impeachment was wrong, but expected someone else to take responsibilty for the greater good that they didn't care enough to stand up for.)
I viewed this whole process sheerly as a cynical political stunt, just like the Republicans were doing, to promote my political agenda, which is to end lying in the public square.
That's the problem: you saw it the same way as the Republicans saw it, therefore you would have supported it, and benefitted the Republicans, at the expense of the country, while pretending you were accomplishing something else entirely.
...When people lie we do nothing; we should act aggresively to the point of overreacting to lying until it ends...
Did overreacting to Clinton's lies get us a more honest government? No, they only enabled the worst bunch of liars to pretend they were the party of "values."
The overwhelming majority of politicians tell some sort of lies at one time or another; therefore we have to have a sense of perspective, and go after the most harmful lies, first, last and always. Clinton's lies never came close to that category, and they stopped when he gave that apology speech.
Posted by: Raging Bee | September 21, 2009 1:12 PM
Raging Bee @11:
It all depends what they're discriminating against. Against racial/ethnic groups, no. Against organizations because they have violated laws, yes. Against organizations alleged to have violated laws (the present case), perhaps. Against organizations simply because they're politically unpopular, again perhaps.We have to be careful not to slip into inadvertantly creating a claim that an organization has an on-going claim to federal monies once it has received some. Re: Russell's comment @7. He poses a tough question that I can't satisfactorily answer. But what if the government was buying computers from Dell, then Dell was accused--merely accused--of conspiring to break some laws. Would a bill saying that henceforth we'll not buy computers from Dell be a bill of attainder? I don't think so. But an upfront decision to lock Dell out of the bidding process, with no justification given (at least in Russell's comment, no reason is given)? That seems to me to be a different situation in kind.
Posted by: James Hanley | September 21, 2009 1:15 PM
The case was US v Lovett and the decision was 8-0 that it did constitute a Bill of Attainder.
Posted by: Prup (aka Jim Benton) | September 21, 2009 1:17 PM
We have to be careful not to slip into inadvertantly creating a claim that an organization has an on-going claim to federal monies once it has received some.
Oh please -- like ACORN is too stupid to understand that Federal money has conditions attached to it by statutory and administrative law? See comment #16 for the proper response to this.
Oh, and do you advocate arbitrary defunding actions against ALL recipients of Federal money? Or does only ACORN need to be reminded not to feel entitled? Funny how I only hear this laughable rationale when ACORN gets in trouble.
Against organizations alleged to have violated laws (the present case), perhaps.
Whatever happened to "due process of law?" What about "innocent until proven guilty?" Don't we have COURTS to decide this sort of thing without obvious political or mob influence? If we don't even wait for a proper trial, then what calibre of accusations will it take to trigger a cutoff? One bum in the streets adding the word "ACORN" to his raving monologue? Again, see comment #16.
Against organizations simply because they're politically unpopular, again perhaps.
No, no, and FUCK no. This is precisely the sort of action the entire US Constitution was written to prevent. Again, see comment #16.
Posted by: Raging Bee | September 21, 2009 1:28 PM
Raging Bee wrote,
What an offensive comment. Please point to the place where I advocate defunding ACORN, as opposed to speaking as to whether such funding is allowed. Please show where I target ACORN specifically, in this discussion which I did not initiate, but simply joined. As to your snide question about whether I'm targeting ACORN, or would allow (not "advocate") defunding of other recipients of federal funds, I explicitly, following Russell's example, applied the logic to a contracting firm like Dell. So even before you asked the insulting question the answer was available to you.The only reason I can see for the insinuating tone of your second paragraph is a despicable attempt to smear, rather than to engage in debate.
If you disagree with me that such defunding is constitutionally legitimate, then by all means make your argument. I'm not so certain that I'm not open to debate. But I'm certainly not open to a thinly disguised assault on my character
As to due process of law, I'm all for it, but the Constitution requires that for deprivation of life, liberty and property, not for deprivation of government funding. I don't believe that it's good form to defund ACORN over these allegations, but I don't think due process applies as a constitutional matter to the receipt of government funding.
Posted by: James Hanley | September 21, 2009 2:25 PM
Ed's post is focused narrowly on whether defunding is being done in an appropriate manner. I have no idea. But I do think most people (let's say those who are not 100% partisan) will respond more like this:
http://www.thedailyshow.com/watch/tue-september-15-2009/the-audacity-of-hos
Posted by: Rich | September 21, 2009 2:29 PM
Raging Bee - you keep conflating the duties of the House with the duties of the Senate during the impeachment process. It is in no way contradictory to advocate for impeachment in the House, and based on the results of the Senate process which one doesn't know after the House is through, subsequently argue for a result less than removal from office. Even knowing what we collectively know now, I'd still do the same. Therefore, I see my position in perfect alignment with our Constitutional principles; in fact I'd like to see far more impeachment procedures initiated until Presidents strt taking their oath of office seriously and stop lying. The punishment inflicted on Clinton by the Congress, the courts, the ABA and other legal associations was perfect relative to his lying to the court. The problem remains that we don't see the same aggressiveness out of the Democrats when Republicans do far worse; Bush should have been removed from his position and in federal prison for many of his actions.
Having said that, the Congress in general and the Starr investigations acted in a most reprehensible manner towards the POTUS; so bad they greatly abused their powers of office which was a primary reason I started distancing myself from the GOP during the very-late 90s. But two wrongs do not make a right.
As I stated in first post, I have no idea whether Congress is acting appropriately towards ACORN and therefore will not address that issue. I do make the observation that the Congressional Democrats response on this matter can not be viewed merely as another example of cowardice like we saw from them in the Death Panels, it could also work in their favor politically. I understand you disagree with that since it won't change Republican behavior; but that was never my argument. My argument was who wins in the public square with the people over the long haul, and defending ACORN is not a winning political fight. The middle only sees what a few underlings did and are incapable of noting this should not be used to judge an entire organization. The Right was very successful in softening up the public to pre-judge ACORN even though merely one minor faux pax was observed by low level operatives.
Posted by: Michael Heath | September 21, 2009 2:35 PM
Please show where I target ACORN specifically, in this discussion which I did not initiate, but simply joined.
You used a rationale, in a discussion of ACORN, that has never, to my knowledge, been used in any other public-funding dispute involving any other organization; a rationale that completely contradicts our most basic notions of how a republic should operate. That alone is plenty suspicious, even without the hotheaded defensiveness you build up around one paragraph of my post, with absolutely no reference to the rest of what I said.
Did you really expect that "we can't let 'em get a sense of entitlement" nonsense to be interpreted any other way?
Posted by: Raging Bee | September 21, 2009 2:35 PM
Re: Comment 16. I agree that is the appropriate process. But I don't think it's appropriateness is the question at issue. What's at issue is whether such a process is constitutionally required.
Despite Raging Bee's classless attempt to redirect the issue to some allegedly malevolent motivation on my part, the issue remains very direct:
That is a separate issue from whether it is an appropriate to do so, or whether the organization in question deserves to be so treated. The question to all the questions can be "no." No, it is not appropriate. No, they do not deserve to be so treated. And, no, it is not a bill of attainder.Bills of attainder are about declaring someone guilty of a crime and punishing them without due process, the relevant question, I think, is whether defunding counts as punishment in legal terms. I think there's no question that ACORN did not receive due process. I think it's unclear whether Congress would need to explicitly declare them guilty of a crime or not, which Congress has not done. For my part, I would say that for Congress to act based on the assumption or belief that a crime was committed, or to act "as though" a crime was committed is sufficient, else Congress could punish people without trial willy nilly just by never explicitly declaring what crime they are supposed to have committed.
So that leaves the crucial issue at "is revocation of federal funds 'punishment'"? Certainly in casual and informal debate, yes, ACORN is being punished. But as a matter of law does the loss of something to which one has only a privilege, not a right, a punishment? I think that's the critical question.
I think the answer is no. Punishment is traditionally the loss of life, liberty, or property, none of which is lost here. But I think there are probably reasonable arguments on the other side, which I'd like to hear, if we can get past the "it's not appropriate" and "you're an evil right-winger" arguments.
Posted by: James Hanley | September 21, 2009 2:40 PM
The punishment inflicted on Clinton by the Congress, the courts, the ABA and other legal associations was perfect relative to his lying to the court.
Clinton didn't lie to a court, he lied to a special prosecutor in response to a question said prosecutor had NO RIGHT TO ASK, about a personal matter that was completely outside the scope of his investigation. There's a difference. Since when was lying about one's private life an impeachable offense?
...defending ACORN is not a winning political fight.
How do you know? Have you ever tried it? NPR affiliate WAMU has, and they make a VERY compelling case.
The middle only sees what a few underlings did and are incapable of noting this should not be used to judge an entire organization.
That's why we need to defend ACORN: to show the people a more accurate and complete picture of what's going on.
Posted by: Raging Bee | September 21, 2009 2:46 PM
I think this is fairly obvious political ploy that could prove more successful to the Democrats than the Republicans if played correctly.
...so you're saying the Democrats are going to give the Republicans the win, yes?
The Democrats couldn't play a breakaway on an empty net where everyone else fell down correctly.
Posted by: eNeMeE | September 21, 2009 2:49 PM
Is the elimination of federal funding for an organization based on allegations of misdeeds a violation of the constitutional ban on bills of attainder?
Yes, it most certainly is. If a law is passed mandating the allocation of Federal money to certain organizations for a certain purpose, then those who qualify for that money under that law are, ipso facto, legally entitled to that money, so long as they qualify. Arbitrarily barring a named group from participation (and yes, this decision was arbitrary) is an act of discrimination, whether or not anyone was constitutionally entitled to the money. And the effects of such arbitrary action ARE punitive, whether or not anyone admits it -- not only to the group, but to whoever depends on the money and the programs it funds.
The Constitution itself does not entitle anyone to the money; but the laws that DO entitle whoever to it, must comply with the Constitution in their application and enforcement.
The same goes for -- to take just one other example -- Federal employment: it's not a Constitutional right, but that doesn't mean individuals or groups can be arbitrarily barred from it without good cause and a fair hearing in a competent non-politiziced forum.
Posted by: Raging bee | September 21, 2009 2:57 PM
You used a rationale, in a discussion of ACORN, that has never, to my knowledge, been used in any other public-funding dispute involving any other organization;
I also used that rationale against the hypothetical Dell example. Vis, @24:
But you conveniently leave that out because you're not honest enough to admit that I clearly stated I would apply the principle across the board. The principle could, of course, be wrong, but I would apply it generally, not just to ACORN. I've made that clear in several posts now.Did you really expect that "we can't let 'em get a sense of entitlement" nonsense to be interpreted any other way?
Well, since I never made such an asinine statement, I can't really speak to how I would expect anyone to interpret it. But thank you for the thinly veiled comparison to racist southern demagogues. I'll cherish that forever as indicative of your level of integrity.
And I would note, you still haven't provided an argument as to why the defunding is unconstitutional, as opposed to merely wrong.
Posted by: James Hanley | September 21, 2009 3:00 PM
I withdraw the final paragraph of my post @35. Raging Bee provided an argument while I was writing that.
Posted by: James Hanley | September 21, 2009 3:05 PM
Does that mean declaring group X a "terrorist organisation" is a bill of attainder too? - Curiously DJ
Posted by: DIngoJack | September 21, 2009 3:07 PM
But you conveniently leave that out because you're not honest enough to admit that I clearly stated I would apply the principle across the board.
Nice attempt to change the subject, but you're the one being dishonest here. I wasn't talking about the "bill of attainder" question, I was talking about your statement: "We have to be careful not to slip into inadvertantly creating a claim that an organization has an on-going claim to federal monies once it has received some." This is the prinsiple you have been inconsistent in applying; a principle I've never even seen expressed here until ACORN popped up.
Posted by: Raging Bee | September 21, 2009 3:13 PM
I am rather neutral in this specific instance, I think this is a tempest in a teapot issue even IF the organization had some employees willing to break the law, etc. At the same time I agree that the Democrats are (yet again) being weak, spineless, etc., while they throw ACORN to the wolves, I can also see their reasoning.
IMO, this is a no win issue for the Democrats. The Republicans have made it a major issue for many Americans, most of them couldn't tell you what ACORN does, what they had to do with the election, how they were in any way tied to the Obama campaign or Democrats in general, but, much like "Whitewater" the word has become part of the lexicon of our political spectrum. No matter what the Democrats do, this will not go away for years. We will see the jokes, the false claims, the screaming heads on the right bringing it up, etc.
For the Democrats to fight this one, they would have to have a media and public willing to listen to explanations and counter-arguments as well as opponents willing to allow them to make their points. As we've seen over the last 20 years or more, the odds of any one of these being part of our debate are almost non existent let alone all three. The media looks for sound bites, an explanation isn't a sound bite, they wont bother with it. The people of this country watch and listen to sound bites, most of them wont hear a more detailed explanation. A sizable portion of the remainder wont listen, and the last little group of rational people who do pay attention to the issues and listen to the debate, wont care because this wasn't an issue in the first place. Finally the Republicans wont sit still and allow the Democrats to turn their manufactured non-issue "issue" back into a non-issue. They will do everything they can to make any explanation made by Democrats appear to be "proof" that there is even more going on, that actual criminal activity and intent were involved at the highest levels.
Let's be honest here, these are the people that turned a land deal in which the Clinton's were cheated out of a quarter million dollars into intrigue, abuse of power, and accusations of murder.
As we've seen over the years, it is incredibly difficult to disprove false accusations.
Posted by: dogmeatib | September 21, 2009 3:31 PM
For the Democrats to fight this one, they would have to have a media and public willing to listen to explanations and counter-arguments as well as opponents willing to allow them to make their points.
Well, the people listened enough to put a black urban liberal in the White House (AFTER the GOP already tried to tar ACORN with other false accusations); so the task we're talking about here is far from impossible. If the Republicans can come back from Watergate, and elect an empty hot-dog-wrapper like Bush Jr. TWICE, why can't the Democrats do as well with better material? Since when were Republicans the only people who could create sound-bites?
Let's be honest here, these are the people that turned a land deal in which the Clinton's were cheated out of a quarter million dollars into intrigue, abuse of power, and accusations of murder.
Then, as now, the Republicans got away with it because the Democrats did a totally lame job of pushing back against it -- when they did anything at all, that is.
As we've seen over the years, it is incredibly difficult to disprove false accusations.
So prove a true accusation: Republicans lie. And keep on proving it until THAT meme is firmly implanted in everyone's mind.
Posted by: Raging Bee | September 21, 2009 3:41 PM
@James (#35):
You have made that clear, and for what it's worth I believe you. The problem is, though, that to the best of my knowledge Congress has never done this to a named group before, and (again to the best of my knowledge) has no plans to do so again. They're holding ACORN to a standard that is not applied to anyone else who gets federal money.
Posted by: Mike Dunford | September 21, 2009 3:50 PM
James Hanley #31-I don't know about a bill of attainder, but there are Constitutional issues of due process here. When the government puts out bids for contracts, whether to participate in the Census, supply paper clips or build a bomber, then all who answer the solicitation should be treated equally. If an organisation is barred from doing business with the Government as a result of a criminal conviction or an administrtive proceeding, then they can certinly be excluded, since they had an opportunity to contest those actions.
Here, we have a case where some employees of an organization seem on a videotape to be doing some illegal activities. They haven't been charged, let alone convicted and the role of the organization itself in those activities is unclear.
There is a dangerous precedent here. Will we now select Government contractors based on the party loyalty of the CEO?
Posted by: JusticeLeague | September 21, 2009 3:54 PM
They're holding ACORN to a standard that is not applied to anyone else who gets federal money.
They're not holding ACORN to any standard at all; they're just punishing ACORN without regard to standards, actions, or compliance. That's pretty much how bills of attainder work.
Posted by: Raging Bee | September 21, 2009 3:57 PM
Just because you've never seen this principle before doesn't mean I'm applying it inconsistently. Frankly, I'd never thought about the question before, because I've never seen it raised. I gave my thoughts, then Russell raised another example, one involving a corporation, and I explicitly said I would apply the same rule to the corporation. That meant when asked to consider the broader application, I determined that it ought to be applied consistently.
So for you to say I am applying it inconsistently, in the face of repeated assertions as to why I am not, means you are either too stupid to und
Posted by: James Hanley | September 21, 2009 4:36 PM
Crap, hit the wrong key and somehow posted before I was ready. I was actually in the process of cutting the last paragraph and replacing it with:
So, Raging Bee, I am calling you out as a liar. You are repeating a lie about what I have said. Disagree with me all you want, but quit lying about my argument.
Posted by: James Hanley | September 21, 2009 4:38 PM
On what basis can you claim I am applying it inconsistently when I explicitly say over and over that I would apply it to a corporation as well?
Once again, you're still confusing one of your statements with another. Pretending to be confused about what statement I was referring to is transparently dishonest. It is, in fact, the kind of fudging and spin I've come to expect both from Rove Republicans and their fake-libertarian bum-boys.
Just because you've never seen this principle before doesn't mean I'm applying it inconsistently.
Actually, yes, it does. Expressing a principle you've never expressed before, which bears no resemblance to any other principle you've expressed before, is pretty inconsistent.
Frankly, I'd never thought about the question before, because I've never seen it raised.
Excuse me, but you're the one who raised it. So why did you not raise it before, in relation to any other organization applying for or receiving Federal money?
Posted by: Raging bee | September 21, 2009 4:54 PM
Mike Dunford @41. I don't know of any examples, either. That suggests it's a wholly inappropriate action. But by itself it doesn't suggest it's an unconstitutional bill of attainder. (And it's possible we don't know of any examples just because we're not familiar with them. I have a hard time believing our government's never acted in this shabby manner before, but perhaps this is indeed a brand new twist.)
Justice League @42. I agree with everything you wrote. But it just doesn't quite answer the crucial question of constitutionality.
Much of the discussion here has shaded over into what is more of a due process, or even equal protection, claim, shifting focus away from the attainder issue. I find that argument against the constitutionality of the action more plausible, but let me try to make the argument in support of its constitutionality. Certainly if the government discriminated in funding on the base of race or religion, it would be unconstitutional. I assume the Courts would probably treat it as an equal protection case and apply strict scrutiny. But if the government discriminates on the basis of, "wanting to ensure no appearances of impropriety with federal funds," could that not plausibly be treated with the much lower bar of the rational basis test? I'm not saying it's not problematic, or that it's a simple answer. I'm just saying that's a plausible outcome.
As to the bill of attainder issue, I haven't yet seen a persuasive argument. Raging Bee @34 argues it is, but his argument shifts from bill of attainder to equal protection (the discrimination claim), which means it's not really an argument about a bill of attainder. And his claim about punishment,
relies on an everyday understanding of what it means to be punitive. I don't dispute that everyday understanding. I agree with it. I even admit that the effects are punitive. But that doesn't mean it has that meaning legally. I don't think there's any dispute that everyday and legal meanings of words can differ. From the political perspective, yes, it's punitive. But from the perspective of constitutional law? I'm not convinced.Let's try a thought experiment, and see how we respond if the case is slightly different.
Is that a bill of attainder? Is it an unconstitutional action in some other way? If it is a bill of attainder, why? If it is not, how does it differ from the ACORN case?Posted by: James Hanley | September 21, 2009 5:10 PM
Let's try a thought experiment, and see how we respond if the case is slightly different.
BellusCorp, a company providing paramilitary support services, receives government funding for support operations in Afghanistan. Undercover reporters infiltrate the corporation and get video of BellusCorp employees appearing to provide covering support for narcotics smugglers. Outraged congressmembers attach a rider to legislation banning BellusCorp from receiving anymore government contracts.
First, yes, that's still a bill of attainder, because it affected a named entity, without being required to base their action on any specific actions or events. Yes, the Congress did it because they were pissed about certain alleged illegal actions, but they could have also done the same thing for any other reason, or none at all, if we allow it. (And what if another company was doing the same thing but didn't get named?)
Second, there are other means of redress here. Companies can be debarred from doing business with the Feds (there's a an app for that); contracts can be cancelled or terminated by executive-branch clients; and the Congress could have defunded or held up the WHOLE PROGRAM, then forced the military to take action as a condition for restoring the funding. And of course, the DoJ can make arrests and bring alleged offenders to trial. Then too there's impeachment, if the Congress can show that a Cabinet appointee was complicit in the crimes.
[pedanticus]PS: If you wanted to name the company "war," it would be "Bellum," not "Bellus."[/pedanticus]
Posted by: Raging bee | September 21, 2009 5:27 PM
I wonder why congress felt it necessary to take such extreme measures against an organization for the actions of a few low ranking employees? There is no evidence to support that this was an organization wide policy handed down from higher execs. It seems a travesty to cripple an organization that has had such a strong impact in many low income communities.
Posted by: SEW | September 21, 2009 5:34 PM
@James Hanley (#47):
A bill that singles out a single organization strikes me as being a funny way to accomplish that goal.
I think we might be talking past each other a bit. The way I view it, the equal protection argument is a key part of the attainder argument - specifically, it's critical to the punishment that's being administered.
The bill removes ACORN's eligibility for federal contracts of any kind. In cases where ACORN would be legally eligible to compete for specific contracts if not for that bill, they are being denied the equal protection of the law (in this case, federal contract laws). The denial of equal protection rights is, in addition to being problematic in and of itself, a form of punishment.
Posted by: Mike Dunford | September 21, 2009 5:54 PM
James Harley #47: In your Bellus case (would that be a casus belli?) the correct action would be for the Pentagon to suspend the contract pending invetigation. If the investigation showed complicity or negligence on the part of Bellus management, then termination of the contract would be justified.
Suspension of ACORN pending investigation might be reasonable. It may well be that termination of ACORN would turn out to be justified based on their management being incompetent or corrupt. The problem is that the legislation permanently bars them BEFORE the investigation has been completed and their defense heard.
Posted by: JusticeLeague | September 21, 2009 5:54 PM
Raging Bee, other than your now-familiar reference to "fake-libertarian bum-boys" (which, frankly, sounds like an anti-gay slur to me) I have no idea what the fuck you're talking about now.
I'm not pretending to be confused about what statement you're referring to, I'm honestly totally confused. I thought you were referring to the statement I made @5 that
If it's some other statement you're referring to, please enlighten me rather than play games.As to your statement that "Expressing a principle you've never expressed before, which bears no resemblance to any other principle you've expressed before, is pretty inconsistent," it certainly can't be true that it's inconsistent to express a principle one has never expressed before. Otherwise any time we expressed a new principle we'd be open to the charge of inconsistency.
And how can you possibly know all the principles I've expressed before, to know if I'm being inconsistent with them? What astonishing arrogance to make such a presumption! As if the sum total of all my thoughts had appeared here at Dispatches! But to be sure, I have long held the principle that no one has a basic right to receive government monies. One can, of course, be denied those monies unconstitutionally, and I've said as much above, in my discussion of race and religion. But receiving federal funds as a basic right? No. And my argument here is not inconsistent with that.
And I certainly did not raise the issue, by which I meant the issue of whether defunding was a bill of attainder. That is the issue I hadn't thought about before because I'd never seen it raised. And I sure as hell didn't raise it--I'm responding to a post in which Ed is responding to a post in which Mike Dunford raises the question. Just how in the hell can you say I raised the question?!
You ask, "why did you not raise it before, in relation to any other organization applying for or receiving Federal money? Why in the world would I have raised the question of defunding being a bill of attainder before? As I noted, I've never seen it raised before, period. So why should I have raised it?
Or if we focus on the "in relation to any other organization applying for or receiving Federal money," then I'm not sure on what basis you can complain that I've never raised it before. Has there been a discussion of organizations receiving federal money here at Dispatches that I ought to have participated in and did not?
But what about outside of this blog? Do you actually know that I haven't raised issues in relation to other organizations receiving federal money before? In fact I remember back in 1991 discussing the Rust v. Sullivan case that denied federal funds to organizations that discussed abortion as an option for women. I remember supporting the decision of the Court on the grounds that if you receive federal money, they can tell you what you can and can't do. I think now I may have been to cavalier on the 1st Amdt. issue there, but that's not the point. The point is I have held the general position that there's no basic right to receive federal monies for close to two decades now. I also remember discussing the issue in my Art and Politics class, in discussion of National Endowment for the Arts money. In that issue I would also argue there's no basic right to receive federal money, but since denial was so clearly based on 1st Amdt. issues, I sided with artists who criticized the NEA's politicized grant process.
So on what basis can you claim I've never raised this issue in relation to any other organization applying for or receiving federal money? What a bizarre little prat you are to even imagine you have grounds for such a claim.
Posted by: James Hanley | September 21, 2009 5:57 PM
Bee,
If you would apply your standard consistently to the case in the thought experiment, then I accept that you have a fair standard, whether or not I am persuaded by it. Pedantic correction noted--Latin ain't my strong point.
Justice League,
Happy to play straight man to you! Again, I agree with you about what would be the appropriate thing to do. I'm not defending Congress's action as the proper response.
Mike Dunford,
Equal protection as a part of bill of attainder analysis? I'm not sure if that's "legitimate" in legal reasoning. Then again, I don't think our bill of attainder case law is very well developed. The Supremes don't like mixing and matching different types of analysis (except when they do, of course). I'm not saying I disagree with you general concept--I just don't know whether the Court, as a matter of law, would accept using equal protection--a separate constitutional issue--as a method of demonstrating attainder.
Posted by: James Hanley | September 21, 2009 6:07 PM
Well, the people listened enough to put a black urban liberal in the White House (AFTER the GOP already tried to tar ACORN with other false accusations); so the task we're talking about here is far from impossible. If the Republicans can come back from Watergate, and elect an empty hot-dog-wrapper like Bush Jr. TWICE, why can't the Democrats do as well with better material? Since when were Republicans the only people who could create sound-bites?
The question one has to ask though, is whether they voted Obama in, or voted Bush and the Republicans out? If you look at the disapproval ratings of both Bush and the Republican party leading up to the election, there is some evidence that the Democrats could have fielded just about any candidate and had a shot at winning. Also look at how relatively low the margin of victory actually was when compared to the ratings for the GOP. Really Obama should have won by a landslide. That doesn't prove anything, of course, but it could be indicative.
Don't get me wrong 'bee, I agree that the Democrats should be fighting, they need to grow a pair, scrub the yellow off of their spines, and stop letting the Republicans walk all over them. But, at the same time, there is a certain element of the media screwing up the mixture. There were Democrats who made legitimate arguments against what the Republicans were claiming, Whitewater, Gore's economic plan versus Shrub's, arguments against the swiftboat BS. The media made things worse by presenting both arguments, the truthful one and the GOP meme, as equally valid. Because of this, rather than prove the fact that the Republicans were lying, rather than quashing a phony, made up faux issue, it actually lent credence to the "debate."
I'm not saying the Democrats should shy away, or that they should dump ACORN, I am simply pointing out that there are logical reasons why they might choose to do so and Michael Heath's argument that it might help them, may be the position for them to take. Unfortunately, overall, we have a confrontational, talking point, sound bite media environment right now. The BS that the GOP spins fits better with it than a reasoned reply that establishes the facts.
Posted by: dogmeatib | September 21, 2009 6:14 PM
@James Hanley (#53):
IANL, so I don't know how the legal argument would fly either, but it really doesn't seem like a huge stretch to me. If Congress is barring ACORN from competing for funds that they would otherwise be eligible for, they're creating an equal protection problem. If they're doing so - as they seem to have here - by singling out a named group for punishment by legislative fiat, they're using the denial of equal protection as a punishment, and creating an additional Attainder problem.
Posted by: Mike Dunford | September 21, 2009 6:30 PM
Mike,
IANAL either, but I did a fair amount of Con Law in grad school (before wising up and shifting to political economy). I do know that different constitutional rights are normally treated differently. That is, it's not uncommon for a law prof to growl at students, "that's not an equal protection argument, that's a due process argument!" So while I wholly see the logic of the connection you make, lawyers are trained to keep certain things very separate.
Of course I'm open to correction by one of our resident lawyers who's more up to date than I am. And in my con law classes, including the one I taught, bills of attainder were never even discussed! So maybe I'm way off.
It seems to me that a basic due process attack on Congress's action, with the attainder issue left aside, might be the strongest claim ACORN has.
Posted by: James Hanley | September 21, 2009 6:57 PM
Although ACORN has become notorious for its stupid employees, they actually do have a number of intelligent ones as well. So I'd be surprised if they don't raise both the Attainder and the due process arguments.
Posted by: Mike Dunford | September 21, 2009 7:07 PM
I just did a quickie review of the case law on attainder. It's mercifully brief, which I suppose is good as it means our various governments haven't tried to do it too often. But it's also a bit cryptic and undeveloped. The most helpful statement seems to come from Nixon v. Administrator of General Services 433 U.S. 425 (1977), in which the Court stated
Make of that what you will.And in the classic case, Cummings v. Missouri 71 U.S. 4 Wall. 277 277 (1867), the Court defined attainder as,
which leaves open the question of what counts as punishment, about which reasonable people can disagree.The case most directly on point seems to be United States v. Lovett 328 U.S. 303 (1946), in which Congress passed a spending act that directed that "no salary or other compensation shall be paid to certain employees of the Government" who were specified by name. The Court stated that the purpose of the legislation
I think the case of ACORN can perhaps be distinguished as being about "mere" control of disbursing channels. The employees, being already employees, had a right to a continuing paycheck barring something that would cause them to lose their jobs. The question about ACORN is do they have a right to receive the funding that is now denied them? And the employees were permanently barred from government (unless the President reappointed and Congress reapproved them). I haven't seen the language of the ACORN amendment--is there an attempt to permanently bar them from receiving federal funds?The Court then repeats the Cummins language that
But my question remains: despite our common-sense understanding of this as punishment of ACORN, does it legally constitute punishment? And I don't think that is clear at all. The answer would have to come from some other case law. I'm not sure what that case law would be, but the only possibly relevant case that pops into my head at the moment is Rust v. Sullivan, and supports of ACORN's position better hope that's not the best source (and I assume it probably isn't) because in that case the Court sided with the government's denial of funding.I think Volokh's confident "I don't know" is, at present, the best answer. As he, I think correctly, points out (cited above by Ed, but I want to emphasize it);
The key is not whether the non-punitive argument is persuasive or even believable, but whether it can be reasonable. That is, if we operated behind a veil of ignorance and didn't know that the wingnuts passionately hated ACORN and would find any excuse to defund them, could we plausibly find a nonpunitive purpose here.That was the purpose of my thought experiment above @47. If you find a plausibly nonpunitive purpose there, I think you would have to find one in the present case. If you don't find one there, then I wouldn't expect you to find one in the present case. Personally, I see it in both cases, but I think Volokh's "I don't know" is right precisely because reasonable people can disagree on that.
I'm not persuaded by Ed's recitation of Cantor's off-the-congressional-record comments. If they're not part of the legislative history, they don't carry much legal weight.
Posted by: James Hanley | September 21, 2009 8:31 PM
James - thanks for putting together your last link. It does accomplish a framework for us to judge the validity of subsequent arguments.
Posted by: Michael Heath | September 21, 2009 8:40 PM
Raging Bee,
OK, going back through the arguments, I think perhaps I see what you were pointing to in my arguments, although you seem to shift ground over successive comments. Perhaps this is your crucial critique of me?
But as before, I would not that just because you've never seen that principle expressed here does not in any way mean that I am using it inconsistently. While I don't really remember pondering that particular principle before, its consistent with my overall beliefs about government. And it wasn't directed at the idea of ACORN developing a sense of entitelement as much as whether our arguments ("our," hence the word "we") fall into that error.Now if you really believe I made that up on the spot just to attack ACORN, then you have no excuse for doing so. I know you think libertarians in general, or at least the "fake" variety, are just the Rove Republican bum boys (which, again, I think is an anti-gay slur), but you have previously agreed I am not of that ilk (which led you to question whether I was a "real" libertarian, even though you call the others the "fake" ones--it's all very confusing). The long and short--nothing in my argument was plausibly read as being motivated solely or primarily by anti-ACORN bias, and for you to have done so is to your discredit.
I won't hold my breath waiting for you to admit that, just possibly, you might have been a teensy bit hasty in making such a characterization. I don't remember ever seeing you exhibit enough decency to admit that maybe, just maybe, you might not have been 100% correct.
Posted by: James Hanley | September 21, 2009 9:08 PM
Fellow denizens of the intertubes,
You forget what this organization known as ACORN has done to America. They have ripped it from its roots, bringing us into an era of disdain for rule of law and order. They rigged a federal election in order to elect an illegal immigrant/Islamofascist communist from Hawaii. Because of them every night we must go to bed in fear of being strangled by Barry Soetoro's lei-wielding brown shirt KGB. They also weakened the levees of New Orleans in order to destroy their secret underground lair, and inventing global warming to scare people away from their hideout in Antartica.
Clearly Soetoro's persistent brain-washing has made your brains mushy. I am not afraid! Stand up to your elementary aged children with notepads! Fight the illegal president! Fight for America!
America!
Glen Bek
Posted by: ESC | September 21, 2009 9:38 PM
Assuming that Acorn believes that the defunding actions of Congress were unconstitutional, what procedural steps would have to be taken to have the actions of Congress declared unconstitutional? Would Acorn have to file suit in a federal District Court against Congress? Would Congress have to defend itself against Acorn? Would there then be headlines such as "Acorn sues Congress for Money"? What would be the reaction of Barney Frank and Nancy Pelosi if there were told they don't have have total control over spending? Just wondering.
Posted by: ejhickey | September 21, 2009 9:44 PM
While I don't really remember pondering that particular principle before, its consistent with my overall beliefs about government.
You think people should be unable to count on getting what their government promises them, even when they comply with the law and the government's conditions? That's not libertarianism (left or right), that's tsarism at its most capricious and corrupt. If our government passes a law that says people who meet certain conditions are entitled to government money, why shouldn't the people who meet those conditions consider themselves entitled to the money? If the law says they're entitled, then, by definition, they ARE entitled.
And it wasn't directed at the idea of ACORN developing a sense of entitlement as much as whether our arguments ("our," hence the word "we") fall into that error.
I see absolutely no evidence that anyone here is falling into that error. The subject here is the arbitrary nature of one action by Congress, and has nothing to do with anyone's opinion on whether or not ACORN has any right to feel "entitled" to anything. YOU are the only one going off on that tangent.
Posted by: Raging Bee | September 21, 2009 9:59 PM
I'm not pretending to be confused about what statement you're referring to, I'm honestly totally confused.
That's bullshit: I quoted the passage just before I attacked it in comment #26. Then I quoted it again. Then YOU included it in a paste of my words. Here it is for the FOURTH time, straight from your comment #24:
We have to be careful not to slip into inadvertantly creating a claim that an organization has an on-going claim to federal monies once it has received some.
Posted by: Raging Bee | September 21, 2009 10:08 PM
Maybe I missed something in this amendment's process. Was it introduced as a floor amendment in both houses, or was it introduced in committee in both houses? If in committee was there ever an investigation into "wrongdoings" by ACORN?
Has any congressional committee ever investigated Michelle Bachmann's allegations? Has there ever been an indictment against the organization brought to trial where they can defend themselves? Will the next target after ACORN has been thrown in front of the bus be Moveon.org?
Bill of Attainder or no, this is very much in violation of the basic "innocent until proven guilty" tradition, and I don't like it. Not one bit.
Posted by: Mike Haubrich, FCD | September 21, 2009 10:38 PM
Me @ 4 (my first comment on this thread):
I want to concede the italicized portion of my argument for the time being to Raging Bee. He's convinced me in this thread that standing on principle on this matter is imperative, and that principle should require adequate due process, which ACORN clearly has not received yet to date.
I still stand by my argument the Democrats should use their swift response as a way to compare their reactions to the Republicans ignoring far worse behavior when it comes to cronyism and corruption by them and their favored groups that receive taxpayer monies if ACORN's due process doesn't turn out well for them or if the Democrats do nothing more and ACORN submits to Congress' current will.
But Raging Bee - their not getting adequate due process is just plain wrong. You were and are right for pushing that argument above all other arguments. I was wrong to focus too much on the political hay in a manner that obfuscates the deprivation of ACORN's due process rights (at least in principle and policy, I don't know as a matter of law).
Posted by: Michael Heath | September 21, 2009 11:00 PM
Raging Bee @63,
You once again rewrite my words to present something I did not in fact say. You either do this purposefully, or you do not understand you are doing it. Neither possibility is to your credit.
Feel free to indulge your hatred of me. I'll no longer engage you in debate, since you seem unable to do so with any semblance of integrity.
Posted by: James Hanley | September 21, 2009 11:30 PM
Michael Heath | September 21, 2009 11:22 AM:
Flouting the rules, and not being held to account, establishes that a party is strong. If the party had a weakness, the weakness would be used to hold them accountable.
To many Americans, "giv[ing] Americans the finger" when a party's messes are exposed, demonstrates that said party is the strong party, and the other party is weak (unless the other party successfully holds the offending party accountable.)
People respect shows of strength, even when they should not, and the GOP's constant flouting of fair play amounts to a long sequence of demonstrations of strength, an appearance which the Democrats aid and abet by their nearly continuous failures to hold the GOP accountable for anything.
What America is seeing, is that the GOP holds the Democrats accountable (though often for imagined, rather than real offenses), but the Democrats do not hold Republicans accountable for anything.
The strategic opportunity you describe, which the Democrats have created for themselves, is nice, but it seems to me, that appearing strong is a much more successful strategy than appearing honorable.
Posted by: llewelly | September 22, 2009 12:18 AM
Gee, llewelly, doesn't that much cynicism make it hard to get out of bed in the morning? Not that I disagree with you, unfortunately. The only thing I'd add is how well the Republicans parlay any Democratic attempt at appearing strong into a "they're so mean and unfair" moment, thereby allowing the Republicans to simultaneously appear strong and unfairly picked on. There's a genius at work, no doubt. A perverse genius, but a genius nonetheless.
Posted by: James Hanley | September 22, 2009 12:27 AM
'Michael, James, #passim:
Quick post, I'm off to work shortly:
On this side of the Atlantic - yes it is. The right is a right to compete for federal funds disbursed on projects put out for tender on equal terms with other potential recipients. That's not a privilege.
As for impeachment, Raging Bee is right; there wasn't a shadow of a case for Clinton's impeachment over Lewinsky. The articles passed by the House for his impeachment for perjury should in a sane world have been met with a plea of no case to answer before the Senate; the lie, if lie it was, was wholly immaterial to the investigation in which the question was asked. It could not sustain a charge of perjury, for that reason. The voting was political; the fact that 50 Senators voted for removal says much more about their corruption, whether "noble cause" or otherwise, than it did about Clinton.
Posted by: Robin Levett | September 22, 2009 2:28 AM
Jerrold Nadler voted for HR 1586, which imposed up to 90% taxes on the bonuses of AIG employees who were contractually entitled to them. The government literally confiscated the private property of citizens as punishment for AIG’s collapse and subsequent government bailout, and it did so without a trial. Looks like Nadler is a bit of a hypocrite when it comes to Bills of Attainder.
Posted by: ejhickey | September 22, 2009 2:36 AM
@ejhickey:
HR 1586 did not apply only to AIG, and it did not mention AIG or any individual employee by name. HR 1586 placed that tax on the bonuses of all employees of businesses that received more than a certain amount of TARP money.
Had AIG been singled out for special treatment, it would have been a Bill of Attainder, and Nadler would have been a hypocrite. But it didn't, and he isn't - at least in this case.
Posted by: Mike Dunford | September 22, 2009 5:55 AM
Robin,
And it may work out the same on this side of the pond as well, for the same reason. It's just not been applied in in an attainder case (yet) so far as I know. The right to compete can, of course, plausibly be claimed as a liberty right. But if it is a defunding now, with no attempt to ban them from future competition for funds?
I respectfully disagree on the Clinton impeachment. Impeachment follows basic legal forms, but is not actually a legal action. It is a political action, so different standards of analysis apply. And because the special prosecutor law--quite unwisely--allowed the special prosecutor to pursue any and every lead in any and every direction, the critique that the lie was wholly immaterial to the investigation, which would be an accurate statement in most cases, is not accurate here because the investigation was in fact about anything and everything. A piss-poor way to set up a law on investigations, to be sure, which is why we finally dropped the special prosecutor law.
Posted by: James Hanley | September 22, 2009 7:11 AM
@James Hanley #73:
That is actually even more a punishment than barring them from future competition for funds - any right to receive the funds for which you have competed is even stronger than the right to compete in the first place.
On impeachment; Clinton didn't lie to the Special Prosecutor on any matter material to his investigation. The alleged lie cited was whether he had touched Lewinsky's "breasts and private parts". Whatever view you take of sexual morality, touching the breasts and private parts of a consenting (sober, compos mentis etc) adult cannot in itself possibly be a high crime and misdemeanour. The lie, if such it was, was therefore not on a relevant issue - unless it served to protect a separate lie (in the Jones case) which was perjurous - ie on a material issue. Since the Lewinsky relationship was not relevant to the Jones case, his earlier lie (isiw) in that case was not itself perjurous. So no perjury.
I do however entirely agree with you that impeachment as it is currently practised in the USA - since the mid 1970s - is entirely political. Why the articles of impeachment didn't just read "We don't like Slick Willy and we'll do what we need to do to bring him down" I don't know - they'd still have been passed by the House and still have had insufficient support in the Senate to remove him from office.
It's worth pointing out, by the way, that the Judge refused to accept the Jones's legal team's definition of sexual relations, and the version that remained clearly excluded (for Clinton) oral sex performed upon Clinton by Lewinsky. Having proposed a specific definition of "sexual relations", and accepted the judge's change to the definition, it doesn't lie in the mouth of Jones's team to then say that Clinton lied by adopting that definition.
Why the judge decided that it was appropriate to allow the Jones team to depose Clinton on the the Lewinsky relationship I have no idea. There was no attempt by them to establish anything beyond a sexual relationship. That in and of itself is irrelevant to the Jones allegations, but would be highly damaging to Clinton if it ever "got out". It wouldn't be unreasonable to take the view that the entire intention (by the Jones team) was to get Clinton on record on oath as to his sexual antics, relevant or not to the case at hand.
Posted by: Robin Levett | September 22, 2009 9:23 AM
Robin,
Regarding impeachment. I think we're using "political" in two senses of the word. In the "it's just political" sense, it's been that way both times it's been used, 1868 and 1999 it was political in that sense. In 1974, when impeachment papers were being prepared for Nixon, it was not.
But I didn't mean it in the "it's just political" sense. I meant it in the "it's a part of our political/governmental processes" sense. It's a political process for removing a president from office, just as elections are a political process for putting a person in the presidency. That means we cannot apply legal analyses too closely, because impeachment only follows legal forms, it isn't actually a legal process.
Posted by: James Hanley | September 22, 2009 9:45 AM
Robin,
As to your other point, about punishment. You and the others nearly have me convinced. But I'm going to play it safe and note that Eugene Volokh knows a lot more about American constitutional law than do I, and he remains unsure about whether this is an attainder. I don't dispute that you and others have made a strong argument on the grounds I put forth, "punishment." Perhaps strong enough to convince the U.S. courts, but I just hesitate to predict what they'd do in such uncharted territory.
But now I hope ACORN pursues this claim, just so we can get an answer to the question.
Posted by: James Hanley | September 22, 2009 9:54 AM
@James #76:
On punishment, Lovett, the case Prup referenced upthread, includes the following passage:
The issue in that case was exclusion (by section 304 of an appropriations bill) from government employment of alleged "subversives". The bill was passed eventually because the House refused to pass the appropriation unless the section as included - the President is quoted as saying that "The Senate yielded, as I have been forced to yield, to avoid delaying our conduct of the war." (Remind me who the real patriots are...).
Congress tried to defend it as an exercise of its power of appropriations. Congressman Kerr, the chair of the subcommittee which "investigated" the allegations is quoted in the report as saying "These people have no property rights in these offices. One Congress can take away their rights given them by another."
SCOTUS was having none of it.
Volokh's concern was whether there was a collateral non-punitive purpose to the legislation - but in the light of Lovett, I can't see that that is an issue. Kerr had also said that "the issue before the House was simply: '... whether or not the people of this country want men who are not in sympathy with the institutions of this country to run it.'" Once can see as much non-punitive purpose there as in the ACORN case; but SCOTUS said that isn't enough.
I am of course only a lawyer in England & Wales...
Posted by: Robin Levett | September 22, 2009 12:46 PM
Wales?! Well, now, that explains a lot. Just kidding--I actually have no idea what might explain, except for a particular accent. I do say, though, that for a furriner you've got a much better grasp of American constitutional law than most of our "real Amurricans."
The distinction I would make, were I opposing council, is that Lovett doesn't apply because this is not "a decree of perpetual exclusion." But I think I'm more and more on the defensive now, and would have to get more cleverer to win the argument.
And that's what I like most about blogs. When we can actually focus on the issues and worry them to death until we really get a handle on them.
Posted by: James Hanley | September 22, 2009 2:22 PM
ACORN has alrealy -- and very promptly -- fired the alleged offenders, with very little hesitation
..and will of course again, if left to their own devices, pursue the same crap again if given the chance and scan the room for audio-visual equipment.
This is the child that scam artistry begat.
Another, more important question:
Is the funding of ACORN and similar sprouts of demogoguery, Constitutional?
Probably about as Constitutional as the NEA now getting shanghaied into making cornball posters for the dear leader.
And for many Democrats, that's damn close enough, and good enough.
I just love Chicagoland politics.
Posted by: Sauron the Great | September 22, 2009 7:13 PM
Hardon The Insignificunt:
Well, shit, what can I say? You're no fucking smarter than you were the last time you came here. But, then again, being a loudmouthed dumbfuck is so "presidential" for the reichtards. STFU.
Posted by: democommie | September 22, 2009 7:43 PM
I'll take demmocreep's insightful response to mean here that...
Why....YES...YES INDEED!
Making so many easy hits in a row with ACORN and getting advice on getting, oh golly..let's see here... underage hookers in the US from abroad and other *ahem* questionable signups and advocacies is well within the purview of the constitution's allowances for other people's "tax dollars at work."
No problems here. Move along. Move along.
Though that does lead to other questions. Sorry to rain on the parade.
Would THESE hookers not qualify for a public option health coverage.
Being a working girl is a tough road, ya know.
Surely our land shall show compassion.
Well, shit, son, THAT's what you can say!
Posted by: Sauron the Great | September 22, 2009 8:10 PM
Sauron, on the ludicrous NEA "issue":
Where were you when the previous administration *in actual fact, not in fantasy-land* committed serious Hatch Act violations?
Can we assume you were (at least) this incensed when Lurita Doan gave a presentation to the GSA (a procurement arm of the government) asking them, inter alia, "How can we help our candidates [in the '08 elections]?" Can we assume you, at a minimum, sought her immediate resignation?
Can we assume you were (at least) this incensed over the politicization of the Justice Department through the firings of several U.S. Attorneys in late 2006 and early 2007?
Posted by: Douglas McClean | September 22, 2009 8:38 PM
D. McClean:
on the ludicrous NEA "issue
Can we assume you were (at least) this incensed over the politicization of the Justice Department through the firings of several U.S. Attorneys in late 2006 and early 2007?
Fist things first.
Yeah. Ludicrous. What a hoot.
Having the Dear Leader's mug on everything is just droll compared to firings of people, eh?
No doubt North Korea's Bea Arthur look-alike would give a good "amen" shout out here as well.
Actually, it's worse than it first appears. At first glance it's just corny-looking. I mean, what's the big whoop about seeing the same mug over and over and over and over and having this reimbursed by the taxpayer's (usually unwitting or unwilling) wallet? No more harm done than the fact that in the audio realm on NPR not too many people are nonplussed to the fact that we hear far more of Paul Krugman mouthing off to the sad tune of violens far more than, say, George Will.
So what's the biggie?
First, there IS (or should be) the thorny philosophical carnage of all this. It's ugly to force people to think (usually without merit at that) that the nation needs artists of this tacky caliber of dung cake pics and urine festivals and cornpone paintings for any reason--must less political. And at that, the nation will slide into the ocean, sans their contributions that the open market for all its inherent greed can't seem to gather.
The notion, of turning your average Joe Six Pack into a "patron of the arts" is no more real than paying gasoline taxes means we're all budding patrons of roadway and oil recovery engineers. Only in a very distant and disconnected sense is this true.
IN the political realm, things are even uglier, and we're prone to be getting into the Dear Leader syndrome here of those Orwellian posters where the medium truly IS the message and the visage of Obama follows you all the day long. That's quite a distinction from politicized firings and other forms of disincentive or advocacies. And should also therefore be illegal.
____________________
As to the attoneys general firings, well, what can I say?
Par for the course with most administrations. Turning over a new leaf, new game in town, new head honchos, big man upstairs, whatever. Make of it what you please, and it's no skin off my nose, but there is no "I" in the "we" approach to the modern administration. Any of them.
Politicization is everywhere. How much taxpayer money was involved in typing those letters of notification that certain services were no longer needed?
Ink and paper are cheap. So is email.
Canvass and paint and the visages of presidents on white unicorns to promote a single man?
Well now...
Posted by: Sauron the Great | September 22, 2009 10:26 PM
Soreone:
I know that you think you're a genius. Unfortunately, you're just a garden variety fuckwad. Your stupidity and dishnonesty ooze out of every one of your comments. I understand that on the websites that your fellow reichwing fuckheads hang out at, such mendacity and ingnorance is praiseworthy; at this blog, otoh, it's just pathetic.
Posted by: democommie | September 22, 2009 10:36 PM
Wow, Sauron, you just made all those God-Soap labels look coherent. Your blithering belongs on "High Weirdness by Mail."
Posted by: Raging Bee | September 22, 2009 10:36 PM
Sauron,
Way to confuse the issues. My hat's off to your for your outstanding dissembling skills. However, the NEA itself is not the issue. It's been around for several decades now, funded by both Republican and Democratic administrations alike. So if your complaint is something it's doing right now, stick to the point and don't try to give us the impression that all of the NEA's foibles are attributable to this administration. Anyway, what's your proof that this alleged conspiracy is actually happening? You read it on a right-wing blog somewhere so you know it's gotta be true? Evidence, dear boy, evidence!
As to the attorneys general firings, you again misrepresent the issue. The issue is not about bringing in a new crop with a new administration. That is undoubtedly legitimate, as presidents have the right to demand the resignations of existing ones and appoint new ones. Bush having done that is not what anyone is criticizing. What is not legitimate is, after having brought in a new crop, firing them for purely political reasons, such as not investigating opposing party candidates aggressively enough. That is not par for the course with most administrations. So you ducked the issue.
And you wholly ducked the question of Lurita Doan and the GSA, which is identical to what you are accusing the NEA of, except you have no evidence, and there is evidence aplenty of Doan having violated the Hatch Act, according to the special counsel's report. You have a rumor, the other side has legal allegations. Hmm, which should I take more seriously?
Why don't you actually address that instead of running from it, you chickenshit? (Or is that "chickenhawk"?)
Posted by: James Hanley | September 22, 2009 10:44 PM
James Hanley:
You could have just typed that last sentence and left it at that. I do, however, appreciate that commenters like you, Michael Heath, dogmeatib and others take the time to flesh out the "You're full of shit--here's why." constructs that I don't have the time or patience to do.
Posted by: democommie | September 23, 2009 6:42 AM
the NEA itself is not the issue. It's been around for several decades now, funded by both Republican and Democratic administrations alike. So if your complaint is something it's doing right now, stick to the point and don't try to give us the impression that all of the NEA's foibles are attributable to this administration. Anyway, what's your proof that this alleged conspiracy is actually happening? You read it on a right-wing blog somewhere so you know it's gotta be true? Evidence, dear boy, evidence!
No, the mug of Bambi was found on a poster, which in turn is quite easy to find on any number of websites, chief. Not just "right wing" ones or other bugbears du jour.
No--I did NOT make the NEA an issue regarding merely THIS administration's desire for accolades and recognition, or claim that their problems with advocacy started therin.
Their long-standing positions as budding "artists" who feed at the trough are admittedly legendary.
I DID cover the philosophical issue in general about government funding of art, and that's a good one to skewer as well. Certainly I didn't give the "impression" that "all" the NEA's foibles are "due" this administration.
In fact, they've had "foibles" for decades now. If that's the correct term.
No, the issue in this case is not whether both sides fund the "art" campaigns of elephant dung and piss in bottles, but rather the promotion of artists for what are purely political purposes. Having the Dear Leader's mug shown mounted on horseback, to some, just seems cheapjack or tawdry. It IS that--but so much more.
The issue is not price of all this either. No doubt it is but a fraction of the cost of a soda per person in the US, at most. It is a matter of principle. Granted, this sounds like a scold, and this is the wrong forum for that kind of thing, since this is not a forum for principle but a bitch session that not all the wretched world is doing what good lefties like. Yet.
As for firing for political reasons--that's what POLITICIANS do--and Clinton was among those who proved his muster with his acts as well.
Lurita Doan and the GSA, might be identical in a legal sense, and yes, that's important. But it's not quite the same level of cultural fallout.
Take demmocommie with you. He needs a place to stay for the night.
Posted by: Sauron the Great | October 21, 2009 11:00 PM