Archive for the 'ACORN' Category

The Petition Process is Dead in Colorado

Posted by on Jan 25 2011 | ACORN, Amendment 63, Capitol Crazies, First Amendment, Freedom of Speech, Petition Rights, PPC, Purely Personal

This legislative session there will be yet another attempt to make it harder for citizens to change the Colorado State Constitution by raising the signature requirements to get something on the ballot. Why bother? The petition process in Colorado is already DEAD.

I mean it. Dead. Only a fool with a financial death-wish would try to get ANY initiative on a statewide ballot.

You see, the petition process frightens many in government because it gives us little people the ability to have a meaningful say in restricting government. When the legislature fails to address our needs, we can bypass them and bring an issue directly to our fellow Coloradans. Over the years we’ve been able to do this on a number of occasions. Take for example the Taxpayers Bill of Rights (TABOR) or Term Limits. Without the petition process, we would not have TABOR in place now saving us from an even larger budget deficit. And legislators certainly would never have limited their own terms in office.

To be sure, the enemies of the petition process have come from both the left and the right. In 2009, the legislature passed the 24-page HB 1326, which placed several restrictions and regulations on the petition process that did not exist before – restrictions that would hamper ordinary citizens from petitioning their government by greatly raising the cost of petitioning. Of course this does not effect the rich, union backed forces nearly as much as the little guy (us).

Additionally, the law for the first time opened up the individual proponents of petitions to be liable for a much more loosely defined “fraud” or wrongdoing by nearly anyone working or volunteering on behalf of the amendment. And here is where the story really begins. With the proponent of a petition forced to personally pay the legal costs if someone else commits “fraud” – even when their amendment does not pass – who in their right mind would take on that risk? Answer: me.

Right now I am the target of a legal complaint and may be personally liable for so-called “fraud” committed by other people during the signature gathering process for Amendment 63, our Right to Health Care Choice initiative. As this MUST READ Citizens in Charge article outlines, I could be forced into personal bankruptcy because of this legal complaint. All because I wanted my fellow Coloradans to have a say in how our government was run.

Despite the initiative process still officially on the books, it has effectively been nullified by this 2009 legislation. I join Vince Carroll at the Denver Post in calling for cleaning up these rules.

My current situation now serves as a warning to those who might be considering running an initiative in the future. Now read this Citizens in Charge article.

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ACORN decision explained

Posted by on Aug 13 2010 | ACORN, Bill of Attainder, Constitutional Law

(David Kopel)

The Bill of Attainder clause was among the topics of my Advanced Constitutional Law class last semester, so while I am not an expert on the clause, I’ll try to provide some guidance.

First, there are few Supreme Court cases on the clause. Second, Bill of Attainder controversies in the United States never involve the classic bills of attainder that were well-known to the Founders–namely a parliamentary vote that someone be executed for treason or some other crime. Accordingly, for Bill of Attainder law in the United States, the ratio of settled law to gray zones is lower than for many other topics of constitutional law. In my view, the legal analysis from the District Court (ruling for ACORN) and from the Second Circuit (ruling against ACORN) are both plausibly based in precedent.  The Second Circuit examined matters of law de novo, so District Court’s legal analysis was entitled to no deference.

Here are the key points of the Second Circuit decision:

ACORN has standing to sue all the defendants. Even if ACORN has no interest in applying for Department of Defense grants, the fact that the DoD statute specifically forbids grants to ACORN causes a reputational injury to ACORN.

Whether something is a Bill of Attainder depends on a three-part test: (1) “specification of the affected persons,” (2) “punishment,” and (3) “lack of a judicial trial.”

The government conceded on items (1) and (3). Accordingly the question is whether the federal funding cut-off constitutes “punishment.” Here again there is a three-part test (verbatim from the Second Circuit):

(1) whether the challenged statute falls within the historical meaning of legislative punishment (historical test of punishment);

(2) whether the statute, “viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes” (functional test of punishment); and

(3) whether the legislative record “evinces a [legislative] intent to punish” (motivational test of punishment).

According to the Second Circuit, withholding of federal grants, especially in regards to a corporation rather than an individual, is not a traditional form of punishment, so item (1) is not satisfied.

The government passed item (2) of the test, because there was an eminently plausible non-punitive purposes: namely to efficiently manage federal funds by not giving taxpayer dollars to an organization which by its own admissions had extensive problems with accurate accounting and proper financial management, and which has an admitted record of embezzlement and criminal convictions of employees. 

As for item (3), the Second Circuit agreed that there were some floor statements by Congresspersons indicating an intent to punish ACORN for alleged crimes; “however, here, the statements by a handful of legislators are insufficient to establish — by themselves — the clearest proof of punitive intent necessary for a bill of attainder.”

The three-part punishment test examines all three factors together. Accordingly, even if (3) were a close call, the government was so clearly the winner on (1) and (2), according the Second Circuit, that the government prevailed.

My editorial comment: Long before Andrew Breitbart broadcast the hooker tapes, the record of ACORN’s shady financial practices was so extensive, in my view, that Congress should have cut off all funding. In retrospect, some of the ACORN employees in the Breitbart tapes were unfairly maligned, because they contacted law enforcement shortly after the pretend pimp and prostitute departed. The Shirley Sherrod episode makes it very likely that any future videotape released by Breitbart will be viewed with cautious skepticism by much of the public, and there will not a be a rush to judgment.

While the Obama-Holder Department of Justice has been appropriately criticized for political favoritism in some cases (such as the New Black Panthers voter intimidation), in the ACORN case the DOJ played it straight, and followed its legal duty to vigorously defend the federal laws. The Obama-Holder DOJ deserves praise for its solid performance in the ACORN case.


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