Federal Judge Grants Injunction Against Congressional Defunding of ACORN
by: Mary Susan Littlepage, t r u t h o u t | Report
The Center for Constitutional Rights (CCR) won its case last week, arguing that Congress' defunding the Association of Community Organizations for Reform Now (ACORN) was unconstitutional.
In the lawsuit ACORN v. USA filed in federal court in the Eastern District of New York, the nonprofit legal and educational organization CCR won on Friday a preliminary injunction in its case challenging Congress' unconstitutional defunding of ACORN.
The case charges Congress with violating the bill of attainder provision in the US Constitution, violating the Fifth Amendment right to due process and infringing on the First Amendment right to freedom of association by targeting affiliated and allied organizations as well. The ruling called on Congress to stop from singling out an organization for punishment without proper investigation or due process, and the ruling protects not only ACORN, but all other organizations or individuals that Congress unfairly targets.
Last September, Rep. Jerrold Nadler (D-New York) argued that passing an initiative to withhold federal funds from ACORN was unconstitutional. That's because the Constitution calls for prohibiting legislative acts that punish members of a group without a judicial trial.
Still, though, the House voted 345-75, which included 172 Democrats, to prohibit ACORN from getting federal funds. The vote came after the video camera controversy, which triggered much media coverage in right-wing news outlets and then also in the mainstream press. ACORN was denied funding for a three-year $780,000 grant for outreach to poor communities and to raise awareness of the lung disease asthma; ACORN's grant got dropped with the Environmental Protection Agency as a result of the approval of the Defund ACORN Act. The lawsuit also states that ACORN has been forced to close offices and drastically reduce services to moderate-income people around the country.
In its decision, the court found that it is likely that plaintiffs - ACORN, the ACORN Institute and the New York ACORN Housing Company - will be able to show that Congress' targeted defunding of ACORN violates the Constitution's prohibition against bills of attainder, legislative acts that single out a specific person or group for punishment. The court's ruling stated, "The plaintiffs have raised a fundamental issue of separation of powers. They have been singled out by Congress for punishment that directly and immediately affects their ability to continue to obtain federal funding, in the absence of any judicial or administrative, process adjudicating guilt ... The public will not suffer harm by allowing the plaintiffs to continue work on contracts duly awarded by federal agencies."
ACORN Executive Director Bertha Lewis said, "The court's decision is a victory not only for the many dedicated citizens who work with ACORN to improve their communities and promote responsible lending and homeownership, but for the constitution and the rights of all Americans."
Also, the CCR issued the following statement: "This is an historic victory for justice. Today the court acted as an important check on Congress, which attempted to act unconstitutionally as judge, jury and executioner. Our Constitution forbids lawmakers from singling out a person or group for punishment without a fair investigation and trial, precisely to avoid the kind of political retribution and grandstanding we saw in the case of ACORN.
"Big banks, pharmaceutical companies and private government contractors that have skirted the law are rewarded with bailouts, tax credits and billions of dollars in new contracts. Companies with multiple criminal convictions remain in favor, while Congress, without a shred of due process, joined in the scape-goating of an organization that helps average Americans going through hard times to get homes, pay their taxes and vote. And only this week, the former attorney general of Massachusetts released an independent report on ACORN, and complete transcripts showed that the infamous videotapes had been doctored and fully misrepresented the actions of the workers shown."
A special hearing on ACORN was co-sponsored by Rep. Darrell Issa (R-California) and Rep. Lamar Smith (R-Texas), and members of ACORN-investigating conservative organizations such as the Capital Research Center and big government attended. Officially titled a "Joint Forum on ACORN," the hearing gave Republican critics an opportunity to reiterate allegations against the activist group, which lost its long-standing federal funding in two September votes.
Republican members of Congress dubbed ACORN a "criminal enterprise" with close and current ties to the highest levels of the Obama administration and the labor movement. Also, Representative Smith said that because the president has ties with ACORN, the attorney general should appoint a special prosecutor to investigate ACORN.
Republicans brought 81 pages of documents about ACORN's voter registration activities in 2004 and 2006 to supplement Issa's July 2009 report, "Is ACORN Intentionally Structured as a Criminal Enterprise?"
The court ruling in ACORN v. USA came after Scott Harshbarger, senior counsel at Proskauer and former Massachusetts attorney general, recently released a report stating that ACORN doesn't show a pattern of intentional and illegal behavior in undercover videos that conservatives shot of ACORN staffers. The independent review is the result of two months of research and interviews by Harshbarger and lawyer Amy Crafts working in Proskauer's Boston, Washington and New York offices.
The report shows the independent analysis requested by ACORN on September 21 in the wake of the video controversies, significant negative news coverage and lost support among some funders, allies and supporters. The independent report makes clear that the controversy involving hidden-camera videos, which were edited before being partially released to the public, showed fundamental problems in the organization and structure of ACORN that date back to its founders. Also, the report noted that the video controversy was seen largely as ACORN's "third strike" after the disclosure in June 2008 of an embezzlement cover-up, which triggered the firing of ACORN's founder, and allegations of voter registration fraud during the 2008 election.
"While some of the advice and counsel given by ACORN employees and volunteers was clearly inappropriate and unprofessional, we did not find a pattern of intentional, illegal conduct by ACORN staff; in fact, there is no evidence that action, illegal or otherwise, was taken by any ACORN employee on behalf of the videographers," Harshbarger wrote. "Instead, the videos represent the byproduct of ACORN's longstanding management weaknesses, including a lack of training, a lack of procedures, and a lack of on-site supervision."
Videos of ACORN staffers advising a woman (Hannah Giles) acting as a prostitute and a man (James O'Keefe) as a boyfriend, led to much criticism. In the undercover videos, the pair plans to buy a house for use as a brothel, pretends to seek assistance with illegal matters such as prostitution and human trafficking and gets advice from a few ACORN employees. The two filmed their meetings with a hidden camera at ACORN offices, further igniting the Republicans' war against ACORN. The videographers visited ACORN or ACORN Housing offices in Baltimore, Brooklyn, Los Angeles, Miami, Philadelphia, San Bernardino, San Diego and Washington, DC.
However, Harshbarger notes that the unedited videos have never been made public. In addition, Harshbarger stated that the ACORN representatives who were videotaped were not organizers or supervisory level employees; they were members or part-time staffers. Also, he wrote that none of the individuals captured on video consented to being video- or audiotaped, and four of the states where the videos were recorded appear to prohibit such taping without consent. And he said, "There is no evidence that any action, illegal or otherwise, was taken by ACORN employees on behalf of the videographers."
The serious management challenges detailed in the report are the fault of ACORN's founder and many leaders who, in their drive for growth, failed to commit the organization to the basic, appropriate standards of governance and accountability, Harshbarger said.
Harshbarger criticized ACORN for not acting quickly to create reforms after founder Wade Rathke allegedly covered up an eight-year embezzlement by his brother. Rathke and certain former leaders, the report found, failed to understand the need for basic principles of accountability and compliance in the drive to grow and succeed. As a result, the report found, ACORN not only fell short of meeting the standards dictated by its own guiding principles, but also failed to meet the expectations and requirements of the stakeholders who supported and benefited from its advocacy and service work.
The report found that systemic shortcomings - including lax oversight and governance, lost focus on its core mission and growth beyond its means - set the stage for the video controversy that erupted this year and threatened to envelop the progressive grassroots organizing and advocacy group. Also, although the report credits reform leadership with making some gains in recent years to change the course of ACORN, the report stated that ACORN can only survive if its leadership embraces and executes profound governance reforms immediately.