On September 17, 2009, the House passed the "Defund ACORN Act" as part of H.R. 3221, 111th Congress, the Student Aid and Fiscal Responsibility Act of 2009. This act would limit certain organizations from receiving any federal contracts or grants, if the organization has ever been indicted for a violation of various campaign finance or election laws; has lost a state corporate charter for failure to comply with lobbying disclosure requirements; or has filed a fraudulent form with any federal or state regulatory agency. The limitations would also apply to any organization that has an employment or agency relationship with an individual indicted for a violation of election law. Once excluded, the organization would never be eligible to receive federal contracts or grants again. In addition, the bill specifically provides for the application of the above criteria jointly and severally to the Association of Community Organizations for Reform Now ("ACORN") and any ACORN-related affiliates. Similar language added as amendments to appropriations bills in the Senate would directly ban ACORN and its subsidiaries from receiving federal grants or contracts. The argument has been made that these proposals would violate the prohibition on bills of attainder found in Article I, § 9, cl. 3 of the Constitution. 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.