A chat he had today at Dailykos, where, God love him, he titled his own diary “The Congressman with Guts Drops by for a Chat”:

http://www.dailykos.com/storyonly/2009/10/21/795703/-The-Congressman-With-Guts-Drops-By-for-a-Chat

Oh noes.  The gentleman from Florida is not playing by the rules.  He is being so uncivil and is actually getting passionate about an issue!  An issue!  We simply cannot have that in the Village.  </sarcasm>

Can we get another 400 of this guy for the house and 60 or more for the Senate?

Does anyone know what legislation they are discussing?

First off, Grayson is clearly a badass.

But, since I’m weird this way, does anyone know what the bill is about, called, or what its text is? Based on the last few seconds, it seems like it might be related to ACORN, but it’s unclear, and I’m actually curious to see if the bill passes the two-prong test that the “gentleman from Georgia” brought up.

HR 3571. The “Defund ACORN Act.”

Seriously.

For some more Grayson badass work:

http://www.dailykos.com/story/2009/10/22/795802/-Ive-dug-up-some-dirt-from-Rep.-Alan-Graysons-past

The more I learn about this guy, the more I have to love ‘im.

I don’t know what my uid was (how did anyone figure out Grayson’s?) but I was spurred to look up my first pseudonym (ain’t saying) and I posted my first Kos diary in 2004.

I WANT MY KUDOS.

Not really.

My favorite thing about Grayson is how he seems literally crazy. Like he is deciding from moment to moment whether to A. ask another question or B. bite out your jugular.

I am surprised that the law geeks are not all over this.  Me, I would think that defunding a previously funded organization is not a punishment but rather a simple financial decision.  It might be ACORN it might be Haliburton: the government need retain the right to fund or de-fund a given entity.  A bill of attainder would be taking the assets of ACORN, not saying that it is no longer entitled to government funds.

I am not saying that it is right to defund ACORN; I am saying that defunding it is not attainder.

Wow, I thought this must be about Acorn but it was unclear until the very end.  This guy is amazing, I love him, I wish we had a hundred more like him, and if he does well and if he is supported passionately by the grassroots (which is the case) then we will get more like him. 

Just absolutely wonderful.  God it’s about time.

He’s punking my represenative Paul Broun. Awesome. Paul Broun needs all the punking he can get. One of the things I hate about leaving Athens by the end of the year is I won’t get to see Paul Broun beat like a bass drum when his election comes around.

I like the part, after Grayson hits it out of the park, where he finally yields his remaining time. 5 seconds was just long enough for the out-of-frame sound of Brown chewing his own tongue.

“Will the gentleman yield?”  “No.”

Grayson is brilliant. He doesn’t raise his voice, wave his arms, pound the desk. He says what needs to be said and challenges the drones who, apparently, either don’t know what they’re talking about or are deliberately obtuse. I really do wish we had more Dems like Grayson.

Woo hoo!

Grayson is my representative.  We are so, so proud of him.  Which is especially cool because we (as Florida Democrats) are, in some ways, still reeling from the 2000 election.

I’ve heard local conservatives try to dismiss him as an “idiot.”  The level of frustration in their voices is a wonder to behold.

“Will the gentleman yield?” “No.”

That should be on a T-shirt.

Got to shoot Mr. Grayson’s campaign a few bucks. He’s more than earned the support of every real Democrat.

SCHOOLED!

Never have skilz from High Skool DeBait been honed to such excellent purpose!

I am not saying that it is right to defund ACORN; I am saying that defunding it is not attainder.

And the Supreme Court, in numerous settled legal opinions, disagrees with you.  It isn’t just the words as written, it is the words as they have been interpreted via precident.  Grayson’s on top of that as well.

A blue dog Dem attempted to shut up an articulate and cutting progressive Dem.  Colour me amazed.  I’m sure that Gordon went back and complained about the good old days when they weren’t allowed to open their mouths.

BTW Seeker, I think the name of the bill they are debating makes it clear that they are targeting a SPECIFIC organization.  That, my friend, IS a bill of attainder.

If it isn’t, then why name the organization specifically?  Why not word it such that any organization under a specific sort of investigation or indictment is so constrained?  Um, maybe because Blackwater/XE would get defunded too???

That’s what makes it a bill of attainder, under settled law.

Could you cite, please Ms. Kate.

What puzzles me (and I confess that I’m not well schooled in the matter) is that a definition of attainder that is so wide that it encompasses a defunding decision originating in politics would seem to make every funding decision permanent.  If Congress is blocked from defunding ACORN because it thinks it is acting improperly then does that not preclude, say, defunding Blackwater for torture or KBR for rape facilitation?

It isn’t the defunding that is the issue, but the SPECIFIC targeting of the bill toward a single organization.  I think Grayson explains that in the video quite well.

http://tpmcafe.talkingpointsmemo.com/talk/blogs/david46/2009/09/are-the-acorn-amendments-bills.php

http://www.good.is/post/the-constitution-in-the-news-bills-of-attainder/

There are laws prohibiting the government from doing business with organizations that have failed certain conditions, including fraud, illegal acts, etc.  They don’t specify the organizations.  So, yes, Blackwater could also not be defunded in such a specific way, unless certain legal sanctions were already served and met the test of existing laws or generally formulated laws.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0328_0303_ZS.html for the specific ruling on a bill that contains the same sort of language as the DIE ACORN DIE bill.

Steve that’s a great idea, I would totally buy that t-shirt.

Grayson is the shit.

Like most, I had no idea who this guy was until I saw the video of him telling the House Floor that the Republicans health care plan is for people to just die.

It’s kinda funny watching all the endless MSM handwringing going on over that statement, as if his use of excoriating hyperbole was the most egregious offense ever committed in Congressional history.  I can’t remember whether it was Rachel or Keith, but one of them put together a video package of all of the over-the-top hyperbolic statements made by GOP Congresspeople in the healthcare debate in the past few months, and pointed out that there was hardly a peep from the MSM village idiots over their words.

In any case, Rep. Alan Grayson has been named the #1 target by the RNC for the 2010 midterm elections, which makes him awesome in my book.  Hopefully, he gets enough campaign funding to embarass the GOP’s efforts to try to defeat him, and more importantly, I hope we can find another 100 people with his “guts” and his principles to send to Congress next year.

The only thing that sucks is that he’s in the wrong chamber of Congress.  The House isn’t gonna be what causes us headaches in finishing up this legislation, because the Blue Dogs just don’t have as much sway there, and because Nancy Pelosi has turned into a fierce leader for our side, unlike her spineless counterpart in the Senate, Harry Reid.

Imagine if we had just a handful of Democratic U.S. Senators who had this guy’s tenacious spirit?  We’ve got a couple who seem to share his core progressive beliefs (Franken and Feingold come to mind), but just haven’t been able to be as fierce in their vocal advocacy.  I suppose that’s as much as anything a problem with the very nature of the Senate compared to the House.

Rachel

http://videocafe.crooksandliars.com/heather/rachel-maddow-republicans-pretend-be-shock

“What is it?”

http://www.techlawjournal.com/glossary/legal/attainder.htm

Grayson’s point was that an attainder was intended to be used as a check for the separation of powers, not to punish an organization for political purposes. And it says right there in the Constitution.

The repugs are using an attainder in the same way the Supreme Court used the equal protection clause to get Bush elected, by bastardizing the meaning and intent of the measure. Color me not surprised.

EDIT: And it says *so* right there… (sigh)

TRANSCRIPT:
Grayson:  Does the gentleman from Georgia know what a bill of Attainder is?”

Broun (R-GA)    “A bill of, the answer’s yes, in fact it’s been very explicitly described by the court’s.”

Grayson:    “What is it?”

...Broun:    “The courts have applied a two pronged test. Number one, whether specific individuals or entities are affected by the staute, Number two, when the legislation affects a Quote “Punishment” End quote, on those individuals, it serves no legitamate regulatory purpose… ”

Grayson:    “Will the gentleman from Georgia explain what the Constitution says about Bills of Attainder?”

Outside Voice/another Republican:    “Mr. Chairman, will the gentleman yield for a second? The gentleman from Florida?”

Grayson:    “No. I’d like an answer to my question.”

Outside Voice/another Republican:    “Well, frankly, I can’t wait to see the discussion when it comes to . . . . ”

Grayson:    “I did NOT yeild, and I’d like an answer fron the gentleman from Georgia to my question, I. . .”

Chairman:    “Li, Li, Listen, let’s get back to all the time, is Mister, the gentleman from Florida, who will yeild to the gentleman from Georgia, will . . .”

Grayson:    “Right. What does the Constitution say about Bills of Attainder? It’s a simple question.”

Broun:    “The Constitution says “Congress shall pass no Bills of Attainder” but this is not one . . . ”

Grayson:    “Alright, now, would you agree with me that it is UnConstitutional to single out one or more persons without the benefit of trial?”

Broun:    “Uh, no sir, there is a two pronged test, this is not a Bill of Attainder, it is . . . ”

Grayson:    “Alright, well, when I, when I said, I’ll reclaim my time. I just quoted William Rehnquist writing the book “The Supreme Court”, he wrote that book and said “You can not single out on or more persons without the benefit of a trial.” Will the gentleman agree that Bills of Attainder are contrary to every principle of sound legislation?”

Broun:    “The two main criteria which courts would like to look, in order to determine whether legislation is a Bill of Attainder, one is whether a specific individual/entity is affected by extension, number two, whether the legislation affects a punishmenyt on the individuals . . . ”

Grayson:    “Will the gentleman please tell me whether you agree or not that Bills of Attainder are contrary to every principle of sound legislation?”

Broun:    “Bills of Attainder are UnConstitutional.”

Grayson:    “AND contrary to every principle of sound legislation, is that correct?”

Broun:  “That’s correct.”

Grayson:    “Alright. And you know who said that?”

Broun:    “Tell me.”

Grayson:    “James Madison in the Federalist papers.”

  “Now, do you, does the gentleman agree that the Bill of Attainder clause was intended not as a narrow or technical provision, but rather as an implementation of the seperation of powers, and a general safeguard against legislative exercise of the judicial function, or more simply, trial by legislation. Wil the gentleman agree with me on that.”

Outside Republican:    “Will the Gentleman yield?”

Grayson:    “No.”

  Laughter throughout the committee room , then silence. . .

Outside Representative:    “Um, the, the, will the gentleman restate the question?”

Grayson:    “The question is, will the gentleman from Georgia agree with me that the Bill of Attainder clause was intended not as a narrow or technical provision, but rather as an implementation of the seperation of powers, and a general safeguard against legislative exercise of the judicial function, or more simply, trial by legislation. Wil the gentleman agree to that?”

Broun:    “No, sir, I will not, and I ask counsel to help us with this, I think all this is determination of the court and I’d like to appeal to Mr. Sensenberner (wingnut who’s name I refuse to spell correctly)

Grayson:    “Well, I’m sorry, but it’s my time, not yours or Mr. Sensenberner’s, so I will reclaim my time, and I will point out that what you just you would NOT agree to is from a Supreme Court case called the United States V Brown, something I would expect you might know about, given your name.”
Outside voice:    “Will the gentleman yield?”

Grayson:    “No.”

  One voice laughs

Grayson:    “Uh, listen, we, we are trampling on people’s Constitutional rights. And I think it’s unfortunate that the mania that exists on the other side of the aisle regarding this one organization, and we know why that mania exists, it’s because they’ve registered an awful lot of Democrats, continues to distort and waste the time of this committee and many other committees here in Congress. ENOUGH IS ENOUGH! I yield my remaining 5 seconds”

http://www.progressiveelectorate.com/diary/1700/grayson-schools-paul-broun-on-constitution-he-will-not-yield-epic-win

“We’ve got a couple who seem to share his core progressive beliefs (Franken and Feingold come to mind), but just haven’t been able to be as fierce in their vocal advocacy”

Franken has been pretty fierce, his smack-down of the KBR rape defenders was pretty good

I love the bit where Broun says he’d like to yield to Sensenbrenner
As if that just because its Graysen’s time shouldnt mean Broun cant give it away

It seems like if they just struck out (c)(1) and (c)(2) that the bill would then be fine legal-wise and would still have the same effect.

The argument for it not being a bill of attainder seems to be a) it’s hard to see this as a punishment that does not serve a regulatory purpose (most of the bill just says that the government may not contract with/fund/promote organizations indicted for election fraud) and b) that it isn’t targeted at a specific organization. While parts (c)(1) & (2) call out ACORN specifically, there’s nothing in the language that suggests the bill only applies to them - it seems like those clauses are to clarify that they, as an organization, meet the description of prohibited organizations outlined in the bill.

Now, I’m pretty sure the bill was designed specifically to punish ACORN (see the title of the bill), just like Sen. Franken’s anti-rape bill was designed to punish KBR. Doesn’t mean it’s not a constitutional standard (although it seems pretty broad to say you can’t employ anyone who was ever indicted for election fraud).

Does anyone more familiar with legal standards of this know if calling someone out as a member of a prohibited group makes it a bill of attainder, and if so, would eliminating (c)(1) & (2) fix the problem without changing the effect of the law?

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0381_0437_ZS.html is the brief on US v Brown

I think the key idea in the various SCOTUS rulings spanning two centuries is that the Congress cannot use its power to do an end-run around the judicial system.  Any bill that attempts to punish a person, group, class of persons, etc. in that manner doesn’t make the cut. 

The government can reject funding once the judicial proceedings have been completed.  Being indicted is not enough because it is too easy to find some tinpot local to do the work for you.

Now, I’m pretty sure the bill was designed specifically to punish ACORN (see the title of the bill), just like Sen. Franken’s anti-rape bill was designed to punish KBR.

I disagree.

Yes, it could be argued that Franken’s amendment was PROMPTED directly because of actions taken by KBR, but I don’t see that provision being aimed at exclusively at one particular company - his amendment explicitly states that the government will not do business with ANY contractor who attempts to limit the rights of rape victims to seek legal recourse in the U.S. justice system.

Also, Franken’s proposed legislation isn’t an independent bill, but rather an amendment to be added to a comprehensive defense appropriations bill that covers a lot more territory than just his proposed anti-rape clause.  The ACORN bill being debated is in fact an independent bill written entirely for the sole purpose of defunding ACORN.

A further point as to why Franken’s proposed amendment is not a bill of attainder.

As far as I know, if KBR were to drop their rapist protection clause from their employment contracts tomorrow, Franken’s amendment could not be used to “punish” them for past transgressions before the provision was written into law.  DoD would be required to continue accepting bids from KBR if they came into compliance with the Franken amendment.  If the feds tried to blackball KBR for their past transgressions, but KBR is currently in compliance with the Franken amendment, KBR would file suit with SCOTUS and they would win… because they could argue that they were being punished ex post facto.

In the case of the proposed defunding of ACORN, the bill is attempting to punish the organization for past infractions.

Also, KBR could just stop trying to prevent its employee from seeking legal recourse and volia! under the Franken amendment funding KBR is now legal

Under the Defund ACORN act, ACORN could never recieve funding

Sorry to step on your point DTG, I should have refreshed b4 I blasphemed

Thanks to all who have provided so much info.

No biggie, as we both pointed out, the huge difference between the two pieces of legislation is that one is specifically designed to retroactively “punish” an organization for (perceived) past infractions, the other is designed to proactively prevent future infractions.

Unfortunately, what KBR was doing up until this point in regard to their employment contracts was perfectly legal (though obviously completely reprehensible).  They cannot be legally sanctioned by the DoD for what they did to the rape victims they had employed, because their employment contracts were perfectly legal.  And in fact, under the Franken amendment, their contracts will continue to be perfectly legal, but the amendment would give the federal government an equally legal means to remove them from the bidding process and to discontinue doing business with them.  If the amendment passes and KBR drops their rapist protection clause in their employment contracts, they would be legally entitled to continue pursuing federal government contracts.

I love the bit where Broun says he’d like to yield to Sensenbrenner
As if that just because its Graysen’s time shouldnt mean Broun cant give it away
Comment #32: jefft452 on 10/22 at 03:01 PM

But it gets even better if you hear it for what it really was -  “I’d like to use one of my lifelines, NOW!”

Thanks for the info for those who responded. To be clear, I think that Frnaken’s bill was an excellent piece of legislation and certainly doesn’t count as a bill of attainder, and that the ‘defund ACORN’ act is ridiculous for many reasons. I just don’t think it counts as a bill of attainder.

@DTG/jefft452 “the bill is attempting to punish the organization for past infractions. ”
While ex post facto laws are sad times and possibly disallowed in another part of the constitution, I don’t think that’s what the ‘attainder’ part hinges on. I’m totally with you that this is a bad bill, and I’m glad Grayson was raking his fellow representative over the coals for it, but I think he was being slightly intellectually dishonest, because I don’t think this bill meets the SCOTUS standard for bills of attainder.

The US vs. Lovett case, which is where the two-pronged test comes from, was about a law that specifically named three individuals and applied *only* to those individuals. I don’t think the ‘defund ACORN’ bill falls into that category, because despite the title, it doesn’t say ‘defund ACORN’. It says ‘defund any organization indicted for election fraud, for example, ACORN’.

@Ms. Kate “Being indicted is not enough because it is too easy to find some tinpot local to do the work for you. ” - I agree wholeheartedly that this particular bill is stupid, both for the indicted vs. convicted part and for the bit about having anyone who works for you who was ever indicted being enough to disqualify you. But that doesn’t make it a bill of attainder. There are plenty of ways to make a bill idiotic & a waste of time that don’t meet the specific test from US vs. Lovett.

I think the relevant summary of the bill (with heavy editing) is:
“Prohibitions- With respect to any covered organization, the following prohibitions apply…the term ‘covered organization’ means any of the following…Any organization that has been indicted for a violation under any Federal or State law governing the financing of a campaign for election for public office or any law governing the administration of an election for public office, including a law relating to voter registration….Additional Definitions:...The term ‘organization’ includes the Association of Community Organizations for Reform Now (in this subsection referred to as ‘ACORN’) and any ACORN-related affiliate.”

So I guess the question is, is calling out an entity as a member of an affected group enough to qualify a bill as a bill of attainder? Based on the SCOTUS case, I’m leaning towards no, but as I lack any sort of legal training, I’m open to being corrected.

Just popping in to say, Oh my, I’m in legislative love.  Grayson is my Favorite Person on the Planet these days, and best of all, he’s belongs to US, the Floridians who suffered through 2000, through JEB!, through Crist-Come-Out-of-the-Closet-Already, through Mark Foley’s shenanigans, through all of it.  My firstborn turns 18 next spring, and when he saw Alan Grayson on teevee tonight, he turned to me and asked, “Will I be able to vote for him next year, Mama?”

You betcha, baby.

And he’s no born-with-a-silver-spoon-in-his-mouth lawyer-type, either.  Go read his bio:

Our Congressman, Alan Grayson, grew up in the tenements in the Bronx. It was a hard life. He had to be a fighter to survive.

His parents were teachers. They made great sacrifices, to make sure that Alan received the best education.

Alan was a sick child. His mother took him to the hospital four times a week, for treatment. Without health coverage, he would not be alive today. He remembers that.

Alan rode the subway to school each day, and he worked hard. He was the valedictorian of his junior high school. By passing a test, he was admitted to an exclusive public high school. In high school, he achieved the highest test score among almost 50,000 students who took the test. Harvard College saw something in him, and admitted him.

For Alan, life at Harvard wasn’t easy. Alan cleaned toilets, and worked as a night watchman. Yet he earned a bachelor’s degree in only three years, with high honors, and he was Phi Beta Kappa. Alan graduated from Harvard in the top two percent of his class.

The US vs. Lovett case, which is where the two-pronged test comes from, was about a law that specifically named three individuals and applied *only* to those individuals.

Is the bit about the law covering only those individuals the important part?  I mean, if congress were to pass a bill that said “Alan Stuart Franken, the Senator from Minnesota, shall pay double taxes” SCOTUS would obviously slap it down as a bill of attainder.  But if they reworked the language so that it said “Jews named ‘Alan’ who have worked as both comedians and US senators shall pay double taxes*” I don’t think they’d be any more impressed, even though the bill now double-taxes a group larger than the one it’s intended to punish.

I guess the point is that the Defund ACORN act (seriously?  they couldn’t call it the Electoral Fraud Prevention act or something?) can’t be disqualified as a bill of attainder solely because it screws over other organizations.

Disclaimer: I have no legal training and am a foreign national besides.

*I’m aware that this bill is unconstitutional for other reasons, but work with me here.

Cool, so it sounds like the attainder-ness of the bill rests on whether or not SCOTUS would consider the requirements listed in the first section as applying to “easily ascertainable members of a group” (like ‘Senators from Minnesota named Alan’) or not - I imagine that would depend on how many organizations would qualify.

Help me out here:
Isn’t attainder predicated on its punishment-like quality?
How can we distinguish it from mere defunding for political or economic or performance reasons (which are presumably constitutional, or we’d still be obliged to buy wooden frigates)?

“How can we distinguish it from mere defunding for political or economic or performance reasons (which are presumably constitutional, or we’d still be obliged to buy wooden frigates)?”

we are not obliged to by wooden frigates, true
if we want to buy a wooden frigate anyway, we are not obliged to buy a crappy one, true

but if we want to buy a wooden frigate, and the wooden frigate division of General Dynamics meets all the Navys specifications, congress cant pass a law to purchace a “wooden frigate made by any company except General Dynamics”

”@DTG/jefft452 “the bill is attempting to punish the organization for past infractions. “
While ex post facto laws are sad times and possibly disallowed in another part of the constitution, I don’t think that’s what the ‘attainder’ part hinges on”

My point is not that its an ex post facto law (I would even argue that it is not because of Ms Kate’s point) my point is that no action that ACORN could possibly take would ever make them in compliance

Im not a lawyer, nor a Constitutional expert, and of course Supreme Court justices have been known to place their ideological bias above black letter law in the past
But I remember a case from the 60’s where the court ruled that even “The Communist Party of the United States” did not automatically fall under the definition of “Communist dominated organizations” and could in theory avoid being one

”@Ms. Kate “Being indicted is not enough because it is too easy to find some tinpot local to do the work for you. “ - I agree wholeheartedly that this particular bill is stupid, both for the indicted vs. convicted part and for the bit about having anyone who works for you who was ever indicted being enough to disqualify you. But that doesn’t make it a bill of attainder”

Not to speak for Ms Kate, but that IS what makes it a bill of attainder.  Back in the 1600’s Parliament would pass a bill of attainder against the Earl of Whatever, declaring him guilty of treason.  Bill of attainder = punished for crime by act of parliament instead of being found guilty at trial