A “Bill of Attainder” is defined as:

“Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.’’

(from Justice Story’s 1833 “Commentaries on the Constitution of the United States”)

The US Constitution bans Bills of Attainder by the Federal government (Article I, Section 9) and by State governments (Article I, Section 10).

Over a century ago, the Supreme Court specified that corporations are persons protected under the 14th Amendment, in Santa Clara County v. Southern Pacific Railroad.

So, would a bill targeting a specific corporation (i.e. a person, under SCOTUS precedent) for punishment be considered a Bill of Attainder?

Eugene Volokh was asked this question last week and posted about it . Today he posted an update. The Congressional Research Service was asked this question, and believes that the answer could well be “yes”:

The two main criteria which the courts would likely look to in order to determine whether legislation is a bill of attainder are (1) whether “specific” individuals or entities are affected by the statute, and (2) whether the legislation inflicts a “punishment” on those individuals. Under the instant bills, the fact that ACORN and its affiliates are named in the legislation for differential treatment would appear to meet a per se criteria for specificity.

The U.S. Supreme Court has also identified three types of legislation which would fulfill the “punishment” prong of the test: (1) where the burden is such as has “traditionally” been found to be punitive; (2) where the type and severity of burdens imposed are the “functional equivalent” of punishment because they cannot reasonably be said to further “non-punitive legislative purposes;” and (3) where the legislative record evinces a “congressional intent to punish.” The withholding of federal contracts or grants does not appear to be a “traditional” punishment, nor does the legislative record so far appear to clearly evince an intent to punish. The question of whether the instant legislation serves as the functional equivalent of a punishment, however, is more difficult to ascertain.

While the regulatory purpose of ensuring that federal funds are properly spent is a legitimate one, it is not clear that imposing a permanent government-wide ban on contracting with or providing grants to ACORN fits that purpose, at least when the ban is applied to ACORN and its affiliates jointly and severally. In theory, under the House bill, the behavior of a single employee from a single affiliate could affect not only ACORN but all of its 361 affiliates. Thus, there may be issues raised by characterizing this legislation as purely regulatory in nature. While the Supreme Court has noted that the courts will generally defer to Congress as to the regulatory purpose of a statute absent clear proof of punitive intent, there appear to be potential issues raised with attempting to find a rational non-punitive regulatory purpose for this legislation. Thus, it appears that a court may have a sufficient basis to overcome the presumption of constitutionality, and find that it violates the prohibition against bills of attainder.

Interesting, isn’t it? Here’s the Senate defunding amendment (which was tacked onto a HUD appropriations bill):

The amendment (No. 2355), as modified, is as follows:

  (Purpose: Prohibiting use of funds to fund the Association of Community Organizations for Reform Now (ACORN))

  After section 414, insert the following:

  Sec. 4__. None of the funds made available under this Act may be distributed to the Association of Community Organizations for Reform Now (ACORN) or its subsidiaries.

(you have to drill down into the “text as modified” link a couple of steps to get to that). This passed with overwhelming bipartisan support. When I read it, I wondered about the Bill of Attainder thing, since it names a specific legal entity. I also wondered why they wrote it that way, since it seems to me that ACORN could simply reincorporate under a different name and trivially get around this.

The House defunding bill, H.R.3571, was added as an amendment to H.R.3221 (a financial aid funding bill), was written much more generally, speaking to “certain indicted corporations” in generalities, and then listing ACORN as a specific example of one. A Huffington Post author points out the perils of the law of unintended consquences:

The congressional legislation intended to defund ACORN, passed with broad bipartisan support, is written so broadly that it applies to “any organization” that has been charged with breaking federal or state election laws, lobbying disclosure laws, campaign finance laws or filing fraudulent paperwork with any federal or state agency. It also applies to any of the employees, contractors or other folks affiliated with a group charged with any of those things.

In other words, the bill could plausibly defund the entire military-industrial complex. Whoops.

If you read the House bill, I think this is exactly correct. It’s incredibly broadly written - perhaps to avoid both the Bill of Attainder issue, as well as to avoid the “reincorporation” loophole. And it will apply far more broadly than ACORN, including much of the military-industrial complex; I think every one of the major players is in hot water with one government agency or another over one bid/contract or another.

As cress would stay, quite a sticky wicket, huh?