The scandal-ridden Association of Community Organizations for Reform Now, or ACORN, needs money. And more than ever it’s counting on the federal government to deliver it. A December 11 ruling by a federal judge in New York overturning a funding ban in the current budget may well reopen the floodgates. Ironically, it’s the U.S. Department of Justice (DOJ) that stands in the way. On December 16, the department filed a memorandum opposing the New Orleans-based nationwide radical nonprofit “anti-poverty” network’s claim that it had been unjustly singled out for a funding cutoff for Fiscal Year 2010. In other words, the government, for a change, was protecting taxpayer interests. Whether those interests prevail in court depends on interpretations of the Constitution’s ban on bills of attainder and its protection of due process and freedom of association.
Let’s backtrack a bit. September 2009 was not a good month for ACORN. Already reeling from recent revelations of voter registration fraud, tax evasion and embezzlement, the nonprofit behemoth, with some 360 affiliated organizations, suddenly found itself in an embarrassing situation. A pair of young conservative activists, James O’ Keefe and Hannah Giles, visited several local ACORN offices across the country and, armed with a hidden camera, taped employees giving advice on how to apply for business loans for illegal activities. The “Borat”/”Bruno”-style guerrilla recordings quickly made their way onto Fox News Channel and Big Government.com, triggering a national uproar. Critics accused these merry pranksters of entrapment; defenders praised them for performing a public service and black comedy.
ACORN’s federal benefactors moved into damage-control mode. The IRS dropped the organization from its list of participants in the volunteer tax preparation service program. The Census Bureau cancelled plans to hire ACORN volunteers as Census enumerators. Most damagingly, Congress cut off appropriations to ACORN. Earlier that July, GOP staffers with the House Oversight and Government Reform Committee, under the supervision of Rep. Darrell Issa, R-Calif., concluded in a lengthy report that ACORN by any reasonable definition qualified as a racketeering enterprise.
ACORN and two of its affiliates, the ACORN Institute and New York ACORN Housing Company, responded by seeking a preliminary injunction against enforcement of the appropriations ban. Represented by the Leftist public interest law group, the Center for Constitutional Rights, the plaintiffs argued in U.S. District Court for the Eastern District of New York that Congress had singled out ACORN for punishment without the benefit of a trial and thus had violated the constitutional prohibition against bills of attainder. The ban also allegedly violated the group’s right to due process (Fifth Amendment) and freedom of association (First Amendment). U.S. District Judge Nina Gershon, a Clinton appointee, sided with ACORN, enjoining the Department of Housing and Urban Development (HUD), the Office of Management & Budget, and the Treasury Department from enforcing the cutoff. Only days earlier, and arguably by little coincidence, ACORN’s outside investigator, former Massachusetts Attorney General Scott Harshbarger, concluded that there was “no evidence” linking the nonprofit group to illegal activity. What’s more, he noted, ACORN under the leadership of CEO Bertha Lewis had begun to institute sound internal controls.
The Justice Department quickly acted to reverse the injunction. On December 16, several U.S. Attorneys, led by Peter Leary of DOJ’s Civil Division, Federal Programs Branch, submitted a brief to the court (Civil Action No. 09-CV-4888), arguing that the ban was in accordance with federal public accountability statutes. Quoting from the Supreme Court’s landmark 1960 case, Flemming v. Nestor, they wrote: “Judicial inquiries into congressional motives are at best a hazardous matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed.” ACORN had little room to inquire. The brief noted that even the Harshbarger report, though sympathetic to the group, acknowledged extensive lawbreaking and the lack of leadership infrastructure “needed to manage and oversee a sprawling federation.”
Far from being a bill of attainder singling out a class of citizens for punishment, the legislative cutoff was based on a sound finding of facts. Leary and the other Justice Department officials concluded:
…(T)here is nothing improper in congressional consideration of the use of federal funds and congressional action to limit temporarily what it perceives as misdirected expenditures. Although these sorts of limitations generally sweep more broadly than one entity, there is no constitutional requirement that they do so.
The authors added that even the only potential waiver of sovereign immunity in this case, the Administrative Procedures Act, doesn’t support ACORN’s claims. The act stipulates that a court injunction against a funding ban must specify the federal officer or officers responsible for compliance; all other public officials are not affected. In applying the injunction against the entire U.S. government, as opposed to simply the heads of HUD, OMB and Treasury, Judge Gershon had misinterpreted the law.
ACORN has enjoyed federal largesse for some time. In last 15 years it has received more than $53 million in subsidies from HUD alone. It’s not about to let Congress cut off the spigot, especially now that the Government Accountability Office this past December informed Rep. Lamar Smith, R-Tex., as well as Rep. Issa that it had begun a full audit of the group. ACORN found out that month that it has an ally in Judge Nina Gershon. What they also found out is that they have a formidable opponent in the U.S. Justice Department.