- 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.

A POGO analysis of federal contractors found 62 - ranging from top research universities to major defense and health companies - that could violate the House measure.

“It would be a sort of nuclear bomb on government contracting,” said Ms. Brian, the group’s executive director.

Among those she says could lose contracts are Boeing, which POGO said paid millions of dollars to settle lawsuits that charged the company placed defective gears in helicopters it sold to the Army. Also on the list is Northrop Grumman Corp., which paid $15 million in fines to settle charges it sold aircraft navigation systems in violation of U.S. arms export laws.

A spokesman for Northrop Grumman said the company had no comment, while Doug Kennett, a spokesman for Boeing, would say only that “the legislation under discussion has zero impact on Boeing.”

ACORN has come under fire recently after conservative activists posed as a prostitute and pimp and, while on hidden camera, captured ACORN employees giving advice on how to avoid taxes. Other organization employees have been indicted on voter registration fraud charges.

Those incidents prompted a bipartisan backlash against ACORN, culminating in congressional action this month.

Congressional offices said ACORN has received at least $53 million in taxpayer money since 1994.

Some Republicans are leading a call to have the Internal Revenue Service remove ACORN’s tax-exempt status, arguing that ACORN is not a single entity and it’s impossible to understand everything in which the organization is involved.

ACORN did not return a call for comment but has said it agrees with Mr. Nadler’s analysis of the problems with the congressional efforts.

The House voted 345-75, with all 75 opposing votes coming from Democrats. Two Democrats voted present. The Senate voted 85-11 to cut off ACORN funding in the parks and public lands spending bill, and voted and 83-7 to cut off funding in the transportation bill.

Mr. Johanns plans to offer another amendment to the pending Defense Department spending bill.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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