POLITICS
11/24/2009 05:12 am ET | Updated May 25, 2011

GOP FAIL: Congressional Report Says Bill Defunding ACORN Appears Unconstitutional

The Defund Acorn Act is likely to be ruled unconstitutional, the Congressional Research Service says in a report obtained by the Huffington Post, responding to questions from Reps. John Conyers (D-Mich.) and Barney Frank (D-Mass.).

The Constitution forbids "bills of attainder" written to punish a specific individual or group of people. The independent research body determined that the bill intended to defund the community organizing group ACORN "would appear to meet a per se criteria for specificity."

The constitutional question, then, is whether depriving a group of public funds constitutes a "punishment."

And CRS asks, if it's not a punishment then what is it?

"While the regulatory purpose of ensuring that federal funds are properly spent is a legitimate one, it is not clear that imposing a permanent government-wide ban on contracting with or providing grants to ACORN fits that purpose, at least when the ban is applied to ACORN and its affiliates jointly and severally. In theory, under the House bill, the behavior of a single employee from a single affiliate could affect not only ACORN but all of its 361 affiliates. Thus, there may be issues raised by characterizing this legislation as purely regulatory in nature. While the Supreme Court has noted that the courts will generally defer to Congress as to the regulatory purpose of a statute absent clear proof of punitive intent, there appear to be potential issues raised with attempting to find a rational non-punitive regulatory purpose for this legislation. Thus, it appears that a court may have a sufficient basis to overcome the presumption of constitutionality, and find that it violates the prohibition against bills of attainder," it offers. [Emphasis added]

That's about as far as the CRS could conceivably go in deeming it unconstitutional without stepping on the Supreme Court's jurisdictional toes.

Score one for Rep. Jerry Nadler (D-N.Y.), who took the floor immediately after the House rushed through the GOP amendment and introduced many of his colleagues to the term "bill of attainder."

You can't do this, he told the chamber. Now, CRS appears to agree.

Though it does single out ACORN and its affiliates, the way the bill is written has it applying broadly to any organization accused of fraudulent interaction with a state or the federal government.

Rep. Alan Grayson (D-Fla.), however, rejected the notion that the bill is poorly written. "It's deliciously written," he claimed.

The bill furthers an objective that Grayson argues should be widely embraced: that the government should not do business with fraudsters. To that end, he asked people to fill out a public spreadsheet listing, with evidence, what other companies have been charged with one of the applicable violations. (The response from the public has been impressive and can be seen here.)

Reporters have gotten in on the search, too; Jeremy Scahill notes that Blackwater, now doing government business as Xe, should be barred from receiving federal funds by any reasonable definition. It has, after all, been involved in massacres and its founder has been implicated in murder.

ACORN has come under fire for giving tax advice to a man and woman posing as a pimp and a prostitute. Grayson noted, however, that Blackwater has itself been accused of running a prostitution ring.

"So what's worse, you tell me, actually running a prostitution ring, or giving tax advice to one?" he asked.

Grayson said that even if this bill is ruled unconstitutional, the issue has been given political life. "There are various ways that this is going to unfold, but the main thing is that we now have a clear path towards a destination that people very much want, which is to have fraud-free government," he said. "The public is fed up and understandably so. If I tell people that you can be convicted over and over and over again of cheating the government and still get government contracts, they're appalled. They're shocked. Yet that's the way it's been. And it doesn't matter to me whether we end that deliberately or inadvertently. The point is, it has to end."