Legal News

Is Law Directed at Acorn an Illegal ?Bill of Attainder??

By Ashby Jones

Successful “bill of attainder” challenges are rare. Very rare. Like once-in-a-generation kind of rare.

And that makes us ever more interested in the case winding its way through the federal courts involving Acorn, the polarizing community-organizing group.

Here’s the story: Congress cut off funding to Acorn after the organization was caught up in a storm of controversy. The move came after hidden-camera videos showed employees of the group giving tax advice to two people posing as a prostitute and a pimp. It was the latest flap involving the group, which has faced accusations of voter fraud made by conservative activists and some Republicans in Congress.

But in trying to thwart what it sees as unethical conduct, Congress might have violated the Constitution by, yes, passing a bill of attainder, legislation that singles out a person or entity without due process or other rights that courts provide. Click here for the WSJ story, by Nomaan Merchant.

“The Acorn bill was poorly drafted and poorly conceived,” says Jonathan Turley, a law professor at George Washington.

Last Friday, Brooklyn federal judge Nina Gershon agreed. She sided with Acorn and ordered government officials to reinstate Acorn’s federal contracts. “That Acorn was singled out is obvious and undisputed by the government,” Judge Gershon wrote. The Justice Department has appealed the ruling.

In the past year, Congress has been more willing to take on specific groups in its legislation, like insurer AIG. That said. Don’t hold your breath for more successful bill of attainder challenges. Courts are loath to declare Congress in violation of the attainder clause without proof that legislators acted with what Turley calls a “desire to punish.”

Supporters of the funding ban say there is nothing wrong with Congress deciding not to fund a particular group. “Congress makes decisions with every appropriations bill on whether or not to give money to specific organizations and institutions,” says Hans A. von Spakovsky, a fellow at the conservative Heritage Foundation.

Acorn, meanwhile, says it has cleaned up its act, and that the proposed law would set a dangerous precedent. “It is important,” he says, “not just for Acorn and not just to cure this particular injustice, but also to make sure that this does not become the way government operates.”

Meanwhile, battle over the current funding ban isn’t over. “Judge Gershon’s opinion is persuasive, but that Is no guarantee that it stands up on appeal,” says Michael Dorf, a professor at Cornell University Law School. “I think it’s a close case.”

Full post as published by Law Blog - WSJ.com on December 18, 2009 (boomark / email).