The ACORN Lawsuit: Correcting the More Egregious Misstatements and Misunderstandings.

Nov 16 2009 Published by under Bipartisan

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."

That same argument has been picked up and echoed on a number of other websites.

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.

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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.

12 responses so far

  • You make an egregious error, sir.
    When you write, "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," you are arguing that there is such a thing as "legislative due process."
    Your thinking is wrong and the courts have ruled it is wrong. Whether it's ACORN, the Ku Klux Klan, the Communist Party, or an innocuous group like the Boy Scouts, no group has a "right" to a hearing when it comes to congressional appropriations. Appropriations are made subject to law and at the discretion of Congress. Congress may consider any evidence it wishes.

  • Eric Lund says:

    Glenn Greenwald has pointed out a couple of relevant Supreme Court precedents. The controlling precedent is United States v. Lovett (1946, 104 Ct.Cls. 557, 66 F.Supp. 142, affirmed), in which the Court specifically held that barring specific individuals from Federal employment by an Act of Congress was unconstitutional:

    Section 304 was designed to apply to particular individuals. [n4] Just as the statute in the two cases mentioned, it "operates as a legislative decree of perpetual exclusion" from a chosen vocation. Ex parte Garland, supra, at 377. This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type. It is a type of punishment which Congress has only invoked for special types of odious and dangerous crimes, such as treason, 18 U.S.C. 2; acceptance of bribes by members of Congress, 18 U.S.C. 199 202, 203; or by other government officials, 18 U.S.C. 207 and interference with elections by Army and Navy officers, 18 U.S.C. 58.

    IANAL, but Greenwald is. He argues persuasively that the act in question is a bill of attainder which prohibits an identifiable organization which has not been convicted of wrongdoing from being awarded Federal contracts, and that under the Lovett standard the law is unconstitutional on its face.
    Poster #1, either link to the precedent(s) you are citing or consider yourself outed as a B.S. artist.

  • I'm not a lawyer either but I've studied enough about the Constitution to know that that's a very weak cite, Eric. If Greenwald is a lawyer he's not a good one because he has allowed his personal biases as to outcome to cloud his legal judgment. Just because a career leftist wants it to be true doesn't make it so.
    This is not, regardless of Greenwald's inappropriate citation, a case of government employment. This is a case of whether this fantasized right of "legislative due process" is part of the appropriations process -- in this specific case, with respect to a notorious group. Does ACORN have "rights" in the process? I think not and already said so.
    I already dealt with this issue here:
    http://spectator.org/archives/2009/11/13/a-constitutional-right-to-publ
    I agree with, and linked to, Hans A. von Spakovsky's well reasoned article here: http://www.heritage.org/Research/Legalissues/wm2630.cfm
    He cited many persuasive authorities and so by implication did I.

  • Mike Dunford says:

    @Matthew Vadum (#1):

    When you write, "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," you are arguing that there is such a thing as "legislative due process."

    Congress has created an enormous body of law and regulation that deals with government contracts. Who can submit bids or proposals, how the bids and proposals are evaluated, under what conditions an offer can be revoked, what needs to happen for a contract to be terminated, what conditions need to be satisfied for a contractor to be barred from doing further business with the government, what they can do to get the ban lifted - all that, and more, is specified in the mass of contracting procedures.
    The provision barring ACORN from receiving federal money effectively strips them of the protection of those laws - even if they meet all of the criteria needed to successfully bid on a contract, they can't get the job.
    I don't think that Congress was obligated to create laws that govern contracts, but once they created those laws, I'm not sure they can turn around and declare that the laws apply to everyone in the US except ACORN and its allies. I would think that everyone is entitled to the equal protection of the law.
    I also think that Greenwald makes (in the article Eric linked to above) a valid point: if Congress can declare that ACORN can't receive federal money, what's to stop them from (for example) legislatively declaring that the NRA will be treated as a for-profit corporation for tax purposes? Or barring companies that do business with FOX News from getting government contracts for anything?

  • Mike Dunford says:

    @Matthew Vadum (#3):
    First, I'd like to apologize for the delay that took place before that comment was approved. Gmail seems to have spontaneously decided that all of my comment notifications are actually spam, so it took a while before I saw it.
    Moving on, you say:

    I agree with, and linked to, Hans A. von Spakovsky's well reasoned article

    If you're relying on the von Spakovsky article for anything whatsoever in this case, I'm forced to wonder if you've actually taken any time at all to look at the actual facts of the case. That article begins:

    Barring the Association of Community Organizations for Reform Now (ACORN) from receiving federal funds through the Defund ACORN Act is perfectly constitutional. It certainly is not a bill of attainder, as some recent reports have claimed.[1] The House of Representatives voted on September 17, 2009, to specifically prohibit ACORN from receiving federal grants, funds, or contracts, along with any other organization that have 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...that had its State corporate charter terminated due to its failure to comply with Federal or State lobbying disclosure requirements...that has filed a fraudulent form with any Federal or State regulatory agency.[2]

    If you take a moment to look at the actual complaint in the actual lawsuit that was actually filed, I think you'll find that the Defund ACORN Act is not actually challenged in the lawsuit. That really should not come as any sort of surprise, given that the Defund ACORN Act has not actually become law (at least not yet).
    The law that prompted the suit does not contain the Defund ACORN Act language, and it does not apply to non-ACORN-connected groups, as the Defund ACORN Act potentially could. I quoted the legislative provision in its entirety above - it simply bars ACORN, ACORN subsidiaries, and ACORN affiliated groups from receiving money.
    In short, your assertion that the law ACORN is challenging is Constitutional apparently rests on your acceptance of a single legal analysis of an entirely different law than the one that's actually been passed and signed into law.

  • Eric Lund says:

    I agree with, and linked to, Hans A. von Spakovsky's well reasoned article here
    The linked article utterly fails to cite a court precedent stating that Congress can bar a specific individual or organization from receiving a Federal contract. He also fails to acknowledge the Lovett precedent, let alone explain why it does not apply (if he were actually arguing the case in court he would have to do so, if for no other reason than to rebut ACORN's lawyers when they bring up Lovett). Furthermore, this statement in the act:
    ...indicted for a violation under any Federal or State law...
    raises due process issues because it imposes a punishment on persons who have not been found guilty in a court of law, contra the presumption of innocence which is constitutionally required. The last snippet of the quote from the law that Mike extracted presents ex post facto issues since under laws in effect at the time ACORN was actually required to submit all voter registration forms they obtained, whether legitimate or fraudulent (and ACORN themselves pointed out cases where they had reason to believe the registration was fraudulent).
    Your authority for the constitutionality of the statute, Mr. Spakovsky, is not a reliable source. Search for his name in the Talking Points Memo archives and you will find that as a political appointee in the Bush 43 Justice Department he played a leading role in pushing dubious voter fraud charges and in politicizing the Civil Rights Division. Not to mention that his sworn testimony in Congress regarding the US Attorney firings was subsequently challenged by former subordinates in the DOJ. See, for example, this story from July 2007 and links therein.

  • This reads like a wikipedia dispute. You both are just making things up now, I see.
    This is not about tax treatment of an advocacy group (the NRA example) nor is it about contracts. This is about whether Congress, exercising the power of the purse, has the constitutional power to say no to funding a specific group. If I understand your argument, you say it either does not have that power or that it does have that power subject to a requirement of "legislative due process."
    There is no such thing as "legislative due process." It is the brainchild of legal thinkers but has been rejected by the courts. If Congress wants to stop funding a group it is the sole prerogative of Congress to do so. You have not shown otherwise because you can't.
    You smear professional legal scholar Hans A. von Spakovsky based on statements in a liberal rag but uncritically accept the views of the oft-unhinged leftist (is he really a lawyer?) Glenn Greenwald. Gimme a break.
    If you'll excuse me, I have work to do. If you wish to follow my thoughts on the matter you'll have to read them in spectator.org and biggovernment.com.
    All the best to both of you.

  • Mike Dunford says:

    In the 15+ years that I've engaged in online discussions of various kinds, I've had a great deal of experience with people who declare victory then run from a discussion. I've found that it's more common than not for them to stick around for a while to watch the reaction to their departure.
    With that in mind, I think I'll ignore the last two paragraphs of Mr. Vadum's final reply, and respond to the rest anyway.

    This is not about tax treatment of an advocacy group (the NRA example) nor is it about contracts. This is about whether Congress, exercising the power of the purse, has the constitutional power to say no to funding a specific group. If I understand your argument, you say it either does not have that power or that it does have that power subject to a requirement of "legislative due process."
    If Congress wants to stop funding a group it is the sole prerogative of Congress to do so. You have not shown otherwise because you can't.

    I brought up contracts because this case is very much about contracts. The vast bulk - if not all - of the money that ACORN has been barred from receiving comes from the work that they have done as a contractor or subcontractor on various federal programs. Trying to talk about this case without talking about contracts is like trying to talk about Disney World without talking about the Magic Kingdom.
    When it comes to stripping funding from specific groups, I would argue that Congress absolutely has the right to refuse to earmark funds for any particular group. I also think that Congress has the right to establish the rules and regulations that govern how funds are distributed through the competitive contracting process. I don't think that Congress has the right to declare that everyone except named group X and associates have the right to the protection of those laws. If Congress thinks that those laws are not doing their job adequately, Congress can change them.
    The Defund ACORN Act that von Spakovsky discussed makes (at least arguably) a show of reforming the entire law. But that's not the law that's at the root of the lawsuit. The law in question simply bars ACORN, subsidiaries, etc, from receiving funds.

  • Hope says:

    Great Information

  • symball says:

    no need to link XKCD now- just type 386 and pretty well everyone will understand. a bit like goatse.

  • I think I'll ignore the last two paragraphs of Mr. Vadum's final reply, and respond to the rest anyway.

  • abb3w says:

    I note no response to the claim that United States v. Lovett ought be considered the controlling precedent.
    For the curious, the Volokh Conspiracy blog is currently hosting a PDF of the analysis from the Congression Research Service, as well as Professor Volokh's definitively clear "I don't know". Which means that at least the conservatives who consider the legallity blindingly obvious are deluding themselves.
    I suspect the case might get votes by Thomas and Scalia to uphold such a law in the SCOTUS if it gets that far, but I doubt they'd even have Alito on board for this.