Predictably enough, the news that ACORN filed a lawsuit challenging Congress' decision to bar ACORN and it's "affiliates, subsidiaries, or allied organizations" from receiving federal funds has attracted a bit of attention, both in the traditional media and on blogs. Predictably enough, there's a great deal that's being said about the suit that either distorts the facts or just plain gets things wrong. Predictably enough, I'm unable to sit idly by when someone is wrong on the internet, so I'm going to try to identify and correct some of the more egregious errors that have been popping up.
I'm going to start by looking at an assumption that seems to be at the root of many of the arguments in favor of Congress' decision to defund ACORN:
1: Congress decided to give ACORN the money, so Congress can take away the money anytime it wants to.
One of the more explicit examples of this argument comes from American Spectator's Doug Brandow:
The argument really is too silly to refute. Once it votes money, Congress isn't allowed to defund any organization in the future until, what, a full-scale trial? Or does that principle apply only if the organization has misused the cash? In contrast, the Red Cross could be defunded tomorrow because it hasn't gone around advising would-be pimps and prostitutes? Or does this rule apply only to left-wing groups whose misdeeds were caught on tape?
That argument leaves out one very important fact: although Congress explicitly voted to bar ACORN from receiving Federal money, Congress did not actually vote to give most (if not all) of the money in question to ACORN.
It's easy for people to get away with the "Congress giveth, so Congress can taketh away" claim because most people don't know much about how many Federal programs are administered.
When Congress (for example) votes to give the Department of Housing and Urban Development money to provide counseling to homeowners in danger of foreclosure, HUD does not typically run out and hire a bunch of new Federal employees to do the work. Instead, HUD contracts with other organizations (usually non-profits) to do the work.
These contracts operate like other federal contracts - groups have to compete to be awarded the funding, they have to abide by the same laws and regulations that govern any other contractor, the agency that administers the contract checks up to make sure that the money in question is being spent the way that the contractor said it would, and the group is expected to be able to show that they've delivered the services that they agreed to when they signed the contract.
Congress did not pass a law that said that "laws so-and-so, such-and-such, and etcetera, which earmarked sums of X, Y, and Z for ACORN, are hereby revoked". Instead, they passed a sweeping declaration that ACORN (and the large number of allegedly related groups swept up in the funding ban - we'll get to that shortly) can receive no Federal money in any form. This means that existing contracts to provide services are being cancelled, and ACORN has been barred from even competing to receive any new contracts.
The vast majority - if not all - of the money in question comes not from direct Congressional earmarks, but through these competitive contracts. This is important to keep in mind, because there's a big difference between Congress saying "no earmark for you!" and barring a specifically named organization from competing for contracts on an equal footing with any other similarly-situated group.
2: ACORN is arguing that they have a Constitutionally-protected right to taxpayer dollars.
This assertion seems to be very popular, particularly on right-of-center websites. For example, at the American Spectator's site, Matthew Vadum writes:
Activist group and organized crime syndicate ACORN has a constitutional right to defraud the people of the United States it claims in a federal lawsuit.
Actually, the lawsuit, filed with the assistance of the allegedly terrorist-funded Center for Constitutional Rights, doesn't use the word fraud, but that's what it amounts to because ACORN argues in the document that it has a right to taxpayer dollars. I kid you not.
Given that ACORN is suing to overturn a law that bars them from receiving federal money, it's easy to make the argument that they're claiming a Constitutional right to your taxpayer dollars. Easy, but incorrect.
ACORN's actual argument is different. They do not argue that they, as a group, have any particular right to Federal money. What they are arguing is that they have the right to be treated the same as any other similarly-situated group when it comes to Federal money.
That might seem like a subtle difference, but it's a very important one - particularly when you keep in mind what I pointed out above with regard to Federal contracts.
3: Congress is simply doing its duty, and safeguarding Federal money from waste, fraud, and abuse.
This argument has been made by Congressional staff:
"The intent is not to punish but to safeguard taxpayers from waste, fraud and abuse," said Ann Marie Hauser, a spokeswoman for Sen. Mike Johanns, Nebraska Republican and a leader in the fight to stop the funding. "ACORN is an organization that has a pattern and culture of employees engaging in fraud and other illegal behavior. Receiving federal funding is a privilege, not a right."
The "safeguarding funds" argument bears a striking resemblance to the fertilizer output of a large and very well-fed male bovine.
The bill in question treats ACORN differently from any other Federal contractor, and it's not exactly like ACORN is the only group accused of massive wrongdoing that receives taxpayer dollars. As ACORN pointed out in its lawsuit, Congress has not stepped in to bar organizations like KBR from receiving contracts, even though KBR performed contract-related work so poorly that US troops have been electrocuted in showers. Many other contractors have been accused, indicted, and convicted of misuse of government funds without losing their ability to compete for future contracts.
Not only has Congress never stepped in to bar any other organization accused of wrongdoing from receiving federal funds, they've never stepped in to specifically bar any other organization convicted of wrongdoing from receiving funds.
In addition, ACORN has not been accused of malfeasance connected with or involving all - or, as far as I can tell, any - of the specific government contracts that are being cancelled as a result of the law. Congress certainly didn't identify any specific cases of contract waste or fraud involving ACORN.
Given both the lack of consistency and the lack of specific contract fraud allegations, it's very hard to see the "we're just safeguarding the taxpayer" argument as anything other than a pitifully transparent attempt to find some non-punishment justification for the law.
4: This legislation targets only an organization that was involved in widespread wrongdoing, including voter registration fraud and helping people get federal money for prostitution.
Again, this is a common assumption that seems to be involved in all of the justifications for the Congressional action. It's also one that seems to ignore the text of the actual legislative provision, which reads, in its entirety:
None of the funds made available by this joint resolution or any prior Act my be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations.
What, you may wonder, makes an organization an "affiliate", "subsidiary", or an "allied organization"? The truth is, nobody knows. The terms were never defined by Congress in any way. At the moment, according to the lawsuit, many federal agencies are interpreting the regulation to bar funding from any of the 361 organizations that were identified in a report written by the minority staff on the House Committee on Oversight and Government Reform.
Many - most - of those organizations have not been accused of wrongdoing of any kind, let alone wrongdoing that is associated with work for which they receive government funds. The extent of the connections between those groups and the organizations that have been at the center of the controversy is entirely unknown - the report in question does not go into detail, and there have been no actual hearings or investigations associated with the report.
These organizations have been barred from receiving federal funds quite literally because Congress decided that guilt by association - without trial or any other form of due process - is a sufficient reason to cut off funds.
There are other questionable arguments and assertions out there, but I think this covers the most serious.
Some of you may - and probably will - note that I've steered clear of discussing the wrongdoing by ACORN that led to the Congressional action. This should not be read to mean that I think the alleged conduct was acceptable, that I support the group, or even that I think that there should be no consequences for their actions.