ACORN takes it on the chin

If anyone got snagged in the modern culture wars, it was ACORN, the community service program that became a conservative target and found itself in the national crosshairs after guerrilla activists caught some ACORN staffers on videotape in embarrassing scenarios. When Congress cut off federal finding for ACORN, the organization sued, claiming this was a Bill of Attainder. The district court ruled in ACORN's favor, but the Court of Appeals reverses, and ACORN loses.

The case is ACORN v. United States, decided on August 13. It's always a strange political culture that acquaints us with obscure constitutional provisions. When Nixon wouldn't hand over the tapes in the early 1970s, we had to familiarize ourselves with Executive Privilege. When Clinton got caught up in a sex scandal in 1998, we had to review the impeachment provisions. And when Republicans went after ACORN, we learned about the Bill of Attainder.

The Bill of Attainder Clause prohibits any "law that legislatively determines guilt and inflicts punishment upon an identifiable individual (including corporations) without provision of the protections of a judicial trial." The question here is whether the funding cutoff is a "punishment" under the Bill of Attainder Clause. It isn't. The Second Circuit (Miner, Cabranes and Wesley) notes that ACORN was not permanently banned from federal funding and it rejects the argument that even a temporary cutoff that could destroy the organization equals punishment under the Constitution, particularly since ACORN only receives 10 percent of its funding from federal grants. The Court says, "we doubt that the direct consequences of the appropriations laws temporarily precluding ACORN from federal funds are 'disproportionally severe' or 'so inappropriate' as to constitute punishment per se."

ACORN could win the case if the funding cutoff was a functional punishment, i.e., if the legislative action constitutes a grave imbalance or disproportion between the burden on ACORN and the legislative purpose. That argument is rejected because, among other reasons, the congressional funding decision affected other, related organizations also and therefore ACORN was not the only organization affected. Finally, while a Bill of Attainder may exist if Congress clearly intended to punish the organization, while some conservatives in Congress went out of their way to condemn ACORN and called it a "criminal enterprise," Congress as a body did not make any findings of guilt to that effect.

ACORN may yet win the case, but not under the Bill of Attainder Clause. The case is remanded to the district court to take up ACORN's First Amendment and due process claims.