ACORN sues feds to reinstate funds

Investigator removing computers from ACORN's NOLA office (AP)

This morning, representatives of ACORN filed a lawsuit against the government, seeking reinstatement of federal funding that Congress cut off last September.

The Center for Constitutional Rights, which has agreed to represent ACORN (Association of Community Organizations for Reform Now) in this matter, alleges in its complaint that Congress, which named ACORN specifically as an organization no longer qualified to receive federal funding, had in effect passed a bill of attainder against the organization.

Bills of attainder are forbidden in the Constitution, per Article I, Section 9, Clause 3:

No Bill of Attainder or ex post facto Law shall be passed.

According to the online Tech Law Journal, a bill of attainder is any legislative act that singles out a person or group of persons for any form of punishment without benefit of a trial. This was made unconstitutional because the Constitutional Convention wished to forbid the legislature to usurp judicial authority by trying criminal or other cases. Five separate Supreme Court cases, argued between 866 and 1984, bear directly on what a bill of attainder actually is.

ACORN's representatives apparently wish to argue that the withholding of funds is a punishment that ought to be up to a court to decide. The counter-argument, assuming that the case comes before a judge, is expected to be that the exercise of Congressional discretion for the dispersal of public funds cannot be construed as to punish any person or group from whom Congress sees fit to withhold such funds, for any reason whatever.

The prior case that resembles the ACORN case most closely is Nixon v. Administrator of General Services, 433 US 425 (1977). Former President Nixon sued the General Services Administration after Congress passed a law abrogating the GSA's agreement with Nixon concerning the preservation of his papers and the infamous tape recordings that he had made. Among other things, Nixon alleged that Congress had passed a bill of attainder. In rejecting that specific claim, the Court held:

• However expansive is the prohibition against bills of attainder, it was not intended to serve as a variant of the Equal Protection Clause, invalidating every Act by Congress or the States that burdens some persons or groups but not all other plausible individuals. While the Bill of Attainder Clause serves as an important bulwark against tyranny, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all. Pp. 468-471.

• The Act's specificity in referring to appellant by name does not automatically offend the Bill of Attainder Clause. Since at the time of the Act's passage Congress was only concerned with the preservation of appellant's materials, the papers of former Presidents already being housed in libraries, appellant constituted a legitimate class of one, and this alone can justify Congress' decision to proceed with dispatch with respect to his materials while accepting the status of his predecessors' papers and ordering in the Public Documents Act the further consideration of generalized standards to govern his successors. Pp. 471-472.

• Congress, by lodging appellant's materials in the GSA's custody pending their screening by Government archivists and the promulgation of further regulations, did not "inflict punishment" within the historical meaning of bills of attainder. Pp. 473-475.

• Evaluated in terms of Congress' asserted proper purposes of the Act to preserve the availability of judicial evidence and historically relevant materials, the Act is one of nonpunitive legislative policymaking, and there is no evidence in the legislative history or in the provisions of the Act showing a congressional intent to punish appellant. Pp. 475-484.

Mr. Kurt Bardella, spokesman for Representative Darrell Issa (R-CA-49), rejected the ACORN claim and suggested that ACORN is now acknowledging its now-desperate financial straits.

Congress first began to act after two undercover journalists, posing as an under-age prostitute and her procurer, made a series of scandalous videotapes in which ACORN employees in several offices cheerfully advised the couple how to evade taxes, import similar "prostitutes" into the country, and commit other acts of criminal and civil fraud. (One such employee almost blithely boasted to the couple that she herself had been abused by her husband and had finally killed him. Local police never were able to find an unsolved murder case to match those allegations.) On September 18, the House voted 345-75-2 to forbid ACORN to receive federal funds, and the Senate passed a similar measure by a similar margin.

At first, ACORN on numerous occasions suggested that the federal funds constituted merely a "small part" of their budget, this although on that same day they suspended their services in Ohio. But today, in their legal pleadings, they state that the loss of federal funding has affected them in other ways and caused them to lose their credit and several private foundation grants. Bertha Lewis, the head of ACORN, now publicly states that ACORN might not survive.