- The Washington Times - Wednesday, September 30, 2009

Congress is rushing to defund the controversial group ACORN, but its efforts might have unintended consequences: Some argue that one version of the effort violates the Constitution, while a growing chorus says a second measure is so broad that it could block major contractors such as the Boeing Co. from getting government jobs.

The Senate has twice adopted amendments cutting off funding for the Association of Community Organizers for Reform Now. The House has separately passed the “Defund ACORN Act,” which goes beyond ACORN to prohibit funding for any organization that has filed fraudulent paperwork with the government or violated campaign finance laws.

The Senate language might run afoul of the Constitution because it is so narrow and the House measure might be written too broadly, analysts say.

“The Senate language, I think, is plainly unconstitutional,” said Danielle Brian, executive director of the Project on Government Oversight.

The House version, in contrast, she said, could ensnare many other bad-actor contractors. “The House language from our perspective is delicious,” she said.

The constitutional issue stems from the Fifth Amendment, which prohibits bills of attainder - an ancient legal concept that deems a single person or entity guilty and worthy of punishment by legislation.

“It may be that ACORN is guilty of various infractions,” said Rep. Jerrold Nadler, New York Democrat, but “Congress must not be in the business of punishing individual organizations or people without trial.”

A Congressional Research Service Report agrees that the language may be improper - depending on what motivated the members of Congress. If lawmakers intended to punish ACORN, that could be a problem, CRS said.

But the lawmakers’ intent is good governance, said a spokeswoman for Sen. Mike Johanns, the Nebraska Republican who offered the two Senate amendments.

Mr. Johanns‘ “goal is to protect the taxpayer from waste, fraud and abuse. ACORN is an organization that has a pattern and culture of employees engaging in fraud and other illegal behavior. Receiving federal funding is a privilege, not a right,” said spokeswoman Ann Marie Hauser.

A spokesman for Rep. Darrell Issa, the California Republican who offered the House language on the floor, said Mr. Issa stands by the language.

“Frankly, I don’t know how anyone can successfully argue those who actually perpetrate fraud and misuse taxpayer dollars shouldn’t be held to a more scrutinized standard,” said Issa spokesman Kurt Bardella. “But if people want to start a crusade defending federal dollar recipients who have committed fraud and mismanaged taxpayer dollars, they are welcome to make that case to the American people.”

Hans A. von Spakovsky, a senior legal fellow at the Heritage Foundation’s Center for Legal and Judicial Studies, said what Congress has done “doesn’t come anywhere even close to being a bill of attainder.” He said the last time the Supreme Court ruled Congress had overstepped its bounds in this area was 1965, and these measures are different.

“Almost all of the cases involved individuals having something done to them by Congress. They’ve never, ever held that an organization not being entitled to federal appropriations is somehow prohibited,” Mr. von Spakovsky said.

At the same time, he warned that the House language on ACORN is broad enough that other contractors could well get ensnared in it - which is exactly what the Project on Government Oversight hopes.

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