Barring the Association of Community Organizations for Reform
Now (ACORN) from receiving federal funds through the Defund ACORN
Act is perfectly constitutional. It certainly is not a bill of
attainder, as some recent reports have claimed. The House of
Representatives voted on September 17, 2009, to specifically
prohibit ACORN from receiving federal grants, funds, or contracts,
along with any other organizations that have been:
indicted for a violation under any Federal or State law
governing the financing of a campaign for election for public
office or any law governing the administration of an election for
public office, including a law relating to voter
registration...that had its State corporate charter terminated due
to its failure to comply with Federal or State lobbying disclosure
requirements...that has filed a fraudulent form with any Federal or
State regulatory agency.
Any organization that employs, contracts with, or retains any
individuals that have "been indicted for a violation under Federal
or State law relating to an election for Federal or State office"
or have such an individual acting on the organization's behalf or
with its express or apparent authority is also affected by this ban
on receipt of federal funds. This is clearly a prohibition on receiving
appropriated funds from Congress or any other federal agency.
The CRS's Flawed Legal Analysis
The Congressional Research Service (CRS) has issued a report
mistakenly concluding that a "court may have a sufficient basis to
overcome the presumption of constitutionality, and find that [the
Defund ACORN Act] violates the prohibition against bills of
attainder." This conclusion is clearly wrong for a
number of reasons; indeed, it should be noted that even the CRS
seems to concede its argument is weak at best.
Definition of a Bill of Attainder. Article I, § 9,
cl. 3 of the Constitution states that "No bill of attainder or ex
post facto Law shall be passed" by Congress. This prohibition also
applies to state governments. The Framers considered this
prohibition so important that these "are the only two individual
liberties that the original Constitution protects from both federal
and state intrusion." James Madison said that bills of attainder
"are contrary to the first principles of the social compact, and to
every principle of sound legislation." But accordingly, what
constitutes a bill of attainder is rather narrow.
The bill of attainder clause has never been read to prevent
Congress from defunding an organization or a corporation whose
employees engage in criminal conduct, and it has rarely been
invoked by the modern Supreme Court. Indeed, the Court has "not
invalidated legislation on bill-of-attainder grounds since 1965." The
CRS report correctly cites to the holding in U.S. v. Brown
in which the Supreme Court defined a bill of attainder as a "law
that legislatively determines guilt and inflicts punishment upon an
identifiable individual without provision of the protections
of a judicial trial."
Even with regard to laws that single out individuals, the
Supreme Court has distinguished criminal penalties from other
congressional regulations. For example, in overturning a law that
provided criminal penalties for any individual who was a Communist
who held union office, the court made it clear that Congress did
have the authority to ban Communists from holding union office,
which is a much more severe sanction than simply being ineligible
for federal grants. This is particularly true given that the
Defund ACORN Act in no way prevents affected organizations from
continuing to raise as much money as possible in private
The Two-Prong Test. The CRS report also correctly
points out that the courts look to two major criteria to determine
if "legislation is a bill of attainder:
1. Whether specific individuals are affected by the
statute (specificity prong), and
2. Whether the legislation inflicts a punishment on those
individuals (punishment prong)."
However, the CRS report incorrectly applies these criteria, even
if the same analysis applies to organizations Congress no longer
wants to fund.
In assessing the first point, the CRS report places a great deal
of emphasis on the fact that Section 602(c) of the Act applies the
funds prohibition to all of ACORN's affiliates, characterizing this
as "joint and several liability," and questions applying such a
prohibition based on the "hypothetical" possible behavior of just
one employee. However, there is nothing unusual about
corporate entities suffering legal consequences because of the
behavior of individual employees, whether they work for the parent
company or an affiliate. This is a common occurrence, particularly
in the civil context: State and federal law enforcement agencies
routinely sue corporations on the theory of vicarious liability,
and state governments routinely pull the operating license of a
corporation if an individual employee neglects to properly comply
with state requirements to maintain such a license. In some cases,
such vicarious liability may seem unfair,  but it is
perfectly constitutional to debar an entire company from receiving
government contracts or grants because of one or more employee
The CRS report also wrongly second-guesses the rationale for
Congress acting to approve this Act, saying that "it would be
difficult to establish why ACORN and its affiliates are deserving
of differential treatment." First, the courts have never required
even rough consistency or proportionality in congressional funding
or defunding decisions. How many appropriations acts would survive
such an activist test with the courts stating, "We think the
designated university is not especially deserving of the petunia
study center"? Even if some rough proportionality were required of
congressional funding cutoffs, CRS ignores the recent news reports
on undercover videos documenting the acts of ACORN employees in
encouraging and engaging in possible conspiracies in numerous
offices to suborn mortgage fraud, bank fraud, tax fraud, and human
trafficking in underage girls for prostitution. It is completely
rational -- and not legally punitive -- for the government to
decide that it does not want to do business with an organization so
fraught with potential malfeasance.
The CRS also ignores the comprehensive report issued by
Representative Darrell Issa (R-CA), Ranking Member of the Committee
on Oversight and Government Reform. This report found that
"structurally and operationally, ACORN hides behind a paper wall of
nonprofit corporate protections to conceal a criminal conspiracy on
the part of its directors, to launder federal money." It
intentionally blurs "the legal distinctions between 361 tax-exempt
and non-exempt entities [in order to divert] taxpayer and
tax-exempt monies into partisan political activities."
Senator Charles E. Grassley (R-IA) also issued a report on ACORN
concluding that "[d]ollars raised for charitable [purposes] appear
to be used for impermissible lobbying and political activity."
ACORN has received more than $53 million in federal funds since
1994 and is eligible for $8.5 billion in available stimulus
funds. Congressional concern over an entity and
its subsidiaries that receive taxpayer funds engaging in numerous
possible violations of state and federal law is more than enough
justification to meet any test applied by a court trying to
determine the reasonableness and rational basis for such
legislation. Indeed, one former ACORN board member, Marcel Reid,
recently called upon the U.S. Department of Justice to conduct a
nation-wide RICO investigation based on these and similar facts.
The CRS report then analyzes the Act to determine whether it
meets the "punishment" prong of a bill of attainder. As it says,
the Supreme Court has identified three types of punishment that
meet the criteria:
1. where the burden is such as has traditionally been found to
2. where the type and severity of burdens imposed cannot
reasonably be said to further non-punitive legislative purposes;
3. where the legislative record evince a congressional intent to
Misapplying Lovett. The CRS report begins by conceding
that there is no evidence evincing congressional intent to
punish. The CRS report properly concludes that
there are no court decisions whatsoever holding that the
denial of federal funds to an organization like ACORN "is the "type
of 'punishment' traditionally engaged in by legislatures as a means
of punishing individuals for wrongdoing." It then speculates on
whether such a denial would "functionally" serve as a punishment,
an analysis that depends on the type and severity of the
legislatively imposed burden. However, the CRS report tries to
compare prohibiting an organization from receiving federal funds to
the personal employment and contract rights upheld by the Supreme
Court in United States v. Lovett. This is a completely
inappropriate and invalid comparison.
In Lovett, three federal government employees who were
suspected of being subversives by the House Committee on
Un-American Activities were prohibited by Congress from receiving a
federal salary unless they were reappointed to their jobs by the
President with the advice and consent of the Senate. The Supreme
Court found this to be a bill of attainder since it denied these
individuals their contractual rights to federal employment. While
it makes sense to consider the abrogation of such a vested property
right to employment based on a claim of subversive activity to be
legislative "punishment" within the criteria for a bill of
attainder, the CRS report's conclusion that this is "similar" to
preventing an organization from receiving appropriated funds from
Congress defies common sense, particularly when applied to Sec.
602(a), which prohibits prospective contracts and grants from being
awarded to a covered organizations. Nonprofits like ACORN have no
vested property or contractual right to receive federal contracts
or grants. Such a view also defies case law -- and federal
statutory and regulatory provisions.
Congressional Authority to Cut Off Funding. The
Antideficiency Act prohibits the federal government from making or
authorizing "an expenditure or obligation exceeding an amount
available in an appropriation" or involving the government "in a
contract or obligation for the payment of money before an
appropriation is made." The Federal Acquisition Rules require
government contracts to insert provisions making it clear that all
payments are "conditioned upon availability of funds," i.e.,
conditioned on Congress appropriating the funds to make such a
payment or grant. Thus, Congress has the authority to cut
off funding to an organization like ACORN even in contracts or
grant agreements entered into prior to the effective date of the
Act because all funding under such agreements would be subject to
appropriations by Congress. This also would defeat ACORN's possible
attempt to sue for breach of contract if Congress does cut off
funding for hoped-for, long-term contracts and grants.
The facts of the Flemming case are also directly
applicable to the Defund ACORN Act. The Supreme Court held that a
provision of the Social Security Act that terminated the benefits
of aliens who were deported based on certain criteria was not a
bill of attainder. The mere denial of government benefits is
"certainly nothing approaching the 'infamous punishment' of
imprisonment." As the Court states,
only the clearest proof could suffice to establish the
unconstitutionality of a statute on such a ground. Judicial
inquiries into Congressional motives are at best a hazardous
matter, and when that inquiry seeks to go behind objective
manifestations it becomes a dubious affair indeed. Moreover, the
presumption of constitutionality with which this enactment, like
any other, comes to us forbids us lightly to choose that reading of
the statute's setting which will invalidate it over that which will
Congressional Discretion. Under the mistaken legal
analysis of the CRS report, Congress would have no legal authority
to exercise its discretion on appropriations. Once federal funds
were appropriated in an earmark or for any other purpose and
dispensed to a particular organization, Congress would have no
right to terminate that earmark or end the appropriation of those
particular funds. Such a result is clearly untenable, and there is
no statutory or constitutional basis for it. Such a rule would
prevent Congress from deciding that organizations that have
received federal TARP funds and have committed bad acts--be it
waste, fraud, or abuse of contracts -- could have their specific
appropriations terminated absent a formal judicial proceeding.
Unlike most contracting parties, the government would effectively
be prohibited from choosing not to engage in business with an
organization that had shown itself unworthy of trust.
The CRS report outlines in detail the procedural rules required
for federal agencies to debar a contractor or suspend a grant
recipient, and then criticizes the Defund ACORN Act for not
following the same rules. However, Congress is not bound by such
regulations, and there is no requirement that the Act follow the
procedural rules and limitation set out in the regulations. Again,
what Congress is doing here is choosing with whom to do business,
not making a judicial or quasi-judicial determination of guilt or
any kind of concomitant punishment.
"Minor" Legal Violations. The CRS report also
substitutes its judgment for that of Congress, criticizing the
legislation for focusing on "relatively minor legal violations such
as campaign financing, election laws or disclosure requirements."
This shows a fundamental lack of knowledge and understanding of the
federal laws governing campaigns and elections. Many violations of
the Federal Election Campaign Act are felonies punishable by large
fines and criminal indictment and imprisonment. Voter
registration fraud is also a felony under the National Voter
Registration Act that can result in imprisonment for up to five
years. The claim that violations of these
federal laws are "relatively minor legal violations" does not
reflect the judgment of Congress, and the Congressional Research
Service does a disservice to Members of Congress when it makes an
assertion that is clearly contradicted by Congress in passing these
"Permanent Exclusion." Finally, the CRS report makes a
fundamental error when it places emphasis on the supposedly
"permanent exclusion" that would be imposed in the Act when
compared to current CFR regulations that limit debarment to
generally no more than three years. This ignores the fact that no
legislation passed by Congress is permanently enshrined in the
United States Code. Congress can, at any time, amend the Defund
ACORN Act -- if it becomes law -- to change the length of the
prohibition. This comparison also improperly seems to limit the
authority of Congress to decide the circumstances under which an
organization should qualify to receive federal funds.
It also confuses criminal punishment with the civil implications
of not receiving government funds. When an individual is
sentenced to imprisonment -- which is the core focus of the bill of
attainder clause -- such incarceration is a permanent scar and
blemish on the life, livelihood, and reputation of an individual.
Even if the individual is pardoned, those years behind bars cannot
be restored. Yet unlike criminal punishments that restrict
constitutionally protected, individual rights, organizations such
as ACORN have no constitutional right to receive federal
appropriations. Moreover, an equivalent amount of funding can be
restored to ACORN if Congress changes its mind.
A Constitutional Act
In sum, the Defund ACORN Act does not meet the legal definition
of a bill of attainder. There is no valid reason why the courts
would not defer to the legislative judgment of Congress as to the
regulatory purposes of this statute, particularly since its general
provisions provide no proof of punitive intent and further the
interests of not providing taxpayer funds to organizations that
violate campaign finance and election laws -- laws that implicate
the very essence of our democratic form of government and our
The CRS report at one point concedes the tenuousness of such a
claim, as it should, when it admits that a "court would most likely
be able to discern a rational, non-punitive purpose for [the Act]:
a desire to prevent federal funds being used for activities that
violate federal or state law." There is no basis for a
court to overcome the presumption of constitutionality of the Act
and rule otherwise.
von Spakovsky is a Senior Legal Fellow at the Heritage
Foundation and Manager of the Civil Justice Reform Initiative.
Defund ACORN Act, Sec. 602(b) (amendment to
Student Aid and Fiscal Responsibility Act of 2009, H.R. 3221).
Congressional Research Service, No. 7-5700, The
Proposed 'Defund ACORN Act:' Is it a 'Bill of Attainder?' (Sept.
22, 2009) [hereinafter CRS Report].
Const. art. I, § 10, cl. 1.
Heritage Guide to the Constitution 154 (David F. Forte &
Matthew Spalding eds., 2005). See also "Can Congress Punish
People? Why the Constitution Prohibits Bills of Attainder",
Heritage Foundation WebMemo No. 2356, March 23, 2009,
Federalist No. 44.
Supra, note 6at 155. See also,
United States v. Brown, 381 U.S. 437 (1965).
Report at 1-2 (citing Brown at 468) (emphasis added).
CRS Report at 2 (emphasis added). It should
be noted that although the Act specifically defines ACORN as a
"covered organization," ACORN would meet the general definition
even if were not specifically named. ACORN has had dozens of
employees indicted for voter registration fraud in numerous states,
meeting the general criteria in Sec. 602(c)(3) of the Act.
Despite many scholars' increasing
reservations about vicariouscriminal liability for a corporation
based on the acts of one employee, the courts have upheld its
constitutionality. See generally, New York Central &
Hudson River R.R. v. United States, 212 U.S. 481 (1909);John
Hasnas, "Rethinking Vicarious Criminal Liability: Corporate
Culpability for White-Collar Crime," WebMemo No. 1195, Aug.
15, 2006, available at http://www.heritage.org
Staff of H. Comm. on Oversight and Government
Reform, Is ACORN Intentionally Structured As a Criminal Enterprise?
(July 23, 2009), at 3.
Kathleen Parker, ACORN's Overdue
Unraveling, Wash. Post, Sept. 23, 2009.
United States v. Lovett, 328 U.S. 303
If this were not so, there would be a long
list of disappointed defense contractors who would be in line to
collect for future earnings from their canceled, decades-long
Flemming v. Nestor, 363 U.S. 603, 617
363 U.S. at 617. See also Houston v.
Williams, 547 F.3d 1357, 1364 (11th Cir. 2008) (county government's
denial of funds authorized by federal program to a felon and
convicted sex offender was not an unlawful bill of attainder since
it neither determined guilt nor inflicted punishment; rather, it
furthered the goal of allocating resources).
See 2 U.S.C. § 437g(d).
42 U.S.C. § 1973gg-10.