Federal Funding of ACORN

December 12th, 2009

By Tom Carter

justice_scales1Judge Nina Gershon, of the United States District Court in Brooklyn, ruled yesterday that Congress cannot single out ACORN to deny federal funding.  As some constitutional experts had expected, Judge Gershon ruled that Congress’ action against ACORN constituted a bill of attainder, an unconstitutional act that punishes a group or individual without a trial.

This is an important ruling, not only for ACORN and its associated organizations, but for the principles of separation of powers and due process.  The power to judge the guilt or innocence of persons and organizations, and to punish those found guilty, is reserved to the judicial branch, which is required to operate within the requirements of due process.

Regarding the constitutional prohibition of bills of attainder, Professor Eric M. Freedman, of Hofstra Law School, said:

Congress may not act as judge, jury and executioner. That is precisely what the Congress sought to do in this case, and the district court was entirely right to enjoin it.

From Judge Gershon’s decision:

They [ACORN] have been singled out by Congress for punishment that directly and immediately affects their ability to continue to obtain federal funding, in the absence of any judicial, or even administrative, process adjudicating guilt.

Judge Gershon also said:

The question here is only whether the Constitution allows Congress to declare that a single, named organization is barred from all federal funding in the absence of a trial. …it does not….

ACORN gets about ten percent of its funding from the federal government, totaling about $53 million since 1994.  These funds are appropriated by Congress and distributed in the form of grants and contracts by federal agencies.  And, of course, ACORN isn’t the only organization that receives taxpayer dollars.

There’s no doubt that ACORN and other organizations that receive federal funding engage in partisan political activities.  They can claim that some activities use federal funds, while others don’t.  The fact is, however, that denying government support to organizations like this reduces their overall capability to operate, to include engaging in political activity.

I don’t like the idea of my tax dollars being given to organizations like ACORN or to any organization that is supposed to be primarily funded by private sources.  It doesn’t matter whether the organization is leftist-oriented, like ACORN, or even if it is purely non-partisan.  If a group of people wants to get together to pursue their own goals, let them pay for it themselves.

I support Judge Gershon’s decision, which will stand unless the Justice Department appeals it and wins, which seems unlikely.  What Congress did in denying funding to ACORN was, in effect, to subject the organization to a legislative trial, find it guilty, and punish it.  No American should want that to happen to any person or organization — today it’s ACORN, but who will it be tomorrow?


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12 Responses to “Federal Funding of ACORN”



  1. larry |

    Tom
    No one really expected ACORN to suffer any loss in this dog and pony show that Washington ran on the voters.


  2. Tom |

    I’m not sure what you mean, Larry. In any case, the Constitution says in Article 1, Section 9, “No Bill of Attainder or ex post facto Law shall be passed.” This was clearly a bill of attainder, and the judge applied the Constitution as written. What else would you have wanted to happen?


  3. Brian Bagent |

    Tom, I think you and the judge are putting the cart before the horse. Punitive actions, which is the end game for a bill of attainder, take things away from people that they would otherwise rightfully have. To not give something to someone is not the same thing as taking something away from them. It is a gross perversion of logic to equate the two things.

    There is no more right to federal money for anyone for any reason than there is a right for me to steal.


  4. Tom |

    No one involved in this that I know of considers access to federal money a “right.” When Congress decided that ACORN could no longer receive federal funding, as they had before and as similar organizations still do, that was the punitive part.


  5. larry |

    I read the part of the Constitution you referred to.
    I don’t see where it would prevent congress from reducing funding. Technically reducing the ACORN funding just short of stopping it altogether would be worth debating.


  6. Tom |

    Larry, the way this works, Congress appropriates funds for certain purposes, and federal agencies spend it. If Congress passes a law that says a specific organization is to be punished by receiving less funding or no funding, that’s a bill of attainder. They would have to forbid funding under certain circumstances or for certain purposes to all organizations or persons.


  7. Brian Bagent |

    That’s the issue Tom: depriving someone of a thing, even a thing to which they’ve grown accustomed to being provided by someone else, is not punitive.

    In any case, why let a little thing like the constitution stand in the way when it is so routinely ignored anyway? By definition, that is tyranny – for the government to pick and choose what portions of the law they are going to obey.

    Constitutionally, none of these organizations should be getting any of this money for any reason. How convenient for ACORN to cry foul on bills of attainder when the very money they are crying about is given them via extraconstitutional means in the first place.

    You cannot cherry-pick the parts of the constitution that we wish for the government to obey.


  8. Tom |

    No, Brian, this is the issue, and it’s very simple: Was the act in question a bill of attainder? Yes. Does the Constitution allow that? No.

    No amount of philosophizing and navel-gazing changes those simple facts.

    Beyond that, what “tyranny” are you talking about? What portion of the law did some part of the government pick-and-choose to obey? Not vague libertarian incantations, but actual specifics about real law.

    Exactly how is the congressional authorization and appropriation of funds for these kinds of purposes unconstitutional? What court has ever ruled it to be so? If it’s so clearly unconstitutional, how do you explain the fact that no party has ever challenged it in court and obtained such a ruling?

    The Constitution and laws are all cherry-picked all the time. That’s true in every legal system. You can write thousands of words yearning for a return to 18th century and what you think the Constitution really means, but the simple reality is that it means what it means today. As Macbeth might say, all this is “sound and fury, signifying nothing.”


  9. Brian Bagent |

    From http://dictionary.law.com/Default.aspx?selected=68

    “a legislative act which declares a named person guilty of a crime, particularly treason. Such bills are prohibited by Article I, Section 9 of the Constitution.”

    I don’t have a copy of Black’s law, so this was as good as I can get.

    Depriving ACORN the opportunity to go to the federal trough doesn’t fit the definition. QED.

    “The question here is only whether the Constitution allows Congress to declare that a single, named organization is barred from all federal funding in the absence of a trial. …it does not…”

    And since when does it take a trial to deny an entity federal funding? Is there a precedent for that that I am unaware of?

    The federal government can deny money to whomever it sees fit. That isn’t the same thing as declaring ACORN guilty of a crime and subsequently incarcerating the principle actors of ACORN.

    I’ve heard of people going to trial and then prison for defrauding the federal government, but I’ve never heard of a trial that would ban federal monies to anyone. That’s just silly.

    Allocation of resources is unquestionably the bailiwick of the legislature within the confines of the constitution.


  10. Tom |

    Brian, we’re just talking past each other here. Again, the point is that the judge (with a lot of expert opinion supporting her) decided that the act before her was a bill of attainder. Given that decision, the ruling that it was unconstitutional, following the plain language of the Constitution, was unavoidable.

    Just to be clear, I have very little sympathy for ACORN. It’s clear that the organization, in the main, is corrupt and highly partisan. What I do support is the rule of law, as it exists today, not as what we or millions of other people with opinions might wish it to be. If Congress were to decide to stop providing federal funds to all organizations that to any extent lobby and are involved in partisan politics, I would cheer. And that would be constitutional.


  11. Brian Bagent |

    Not that it is of any particular moment, but the judge is very clearly in error on this issue. I recognize the fact that “things have changed” down through the years, but that doesn’t mean that this judge’s ruling is in line with what the constitution says, or what the body of decisions based on English common law declares that bills of attainder actually are, nor does it comport with the historical reason that this provision was added to the constitution.

    This judge, and others who think like her, have created new case law with this. It declares that entitlements are a constitutional right. Think on this for a second: Entitlement = natural right? I really don’t even know what to say other than this is an obvious absurdity.

    The whole reason why jurisprudence is where it is today is because of the corruption of FDR. The Hughes, Stone, and Vinson Courts of the 30s were coerced into accepting much of FDRs New Deal by Roosevelt’s threat to pack the court with justices that held his world-view, not justices that would uphold the constitution as the courts had previously done.

    It was the very clearly unconstitutional New Deal that ushered in such sweeping changes that one might be now inclined to view not giving federal largess as some sort of punitive action. This is a completely foreign view from EVERY court up until that point. Now, we simply accept the New Deal and everything that came with it as an article of faith.

    I would also add that the New Deal was ultimately the brainchild of Maynard Keynes, a close adviser of Roosevelt’s. Do we need any more evidence of the disastrous consequences of Keynes’ philosophy than what is happening to the dollar as I type this? We are staring at hyperinflation in this country as a result of Roosevelt, Keynes, and everything that the New Deal brought with it.


  12. Brianna |

    Brian – it took Roosevelt and Keynes to start it; Bernanke, Greenspan and Obama did not have to finish it the way they did though (I’m not sure how well Bush understood what was going on with the housing bubble). Not to mention the person who seems to be Keynes’s heir apparent: Paul Krugman. He was at a White House jobs summit that was held a couple weeks ago, if I remember the date correctly. Having read some of his stuff, there is no worse person to put around an economics table when you’re trying to avoid higher inflation.


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