The Blog

ACORN Wins Another Victory: Judge Says the Government Can't Cut Funding

Congress singled ACORN out for punishment in the absence of any judicial or administrative process adjudicating guilt. The judge declared the act of Congress was an unconstitutional bill of attainder.
This post was published on the now-closed HuffPost Contributor platform. Contributors control their own work and posted freely to our site. If you need to flag this entry as abusive, send us an email.

Mainstream press will ignore this story or botch it by repeating unfounded and misleading allegations against the group.

In the latest of a slew of actions exonerating ACORN of wrongdoing, yesterday U.S. District Judge Nina Gershon granted a permanent order against the United States government for withholding funds from ACORN. In its decision, the court found that the U.S. Congress singled ACORN out for punishment in the absence of any judicial or administrative process adjudicating guilt. The judge declared the act of Congress was an unconstitutional bill of attainder.

ACORN had sued the federal government in November 2009 arguing that Congress violated the Constitution by illegally targeting the group. Yesterday the judge upheld her earlier December 12, 2009 decision, which temporarily blocked U.S. officials from enforcing the funding ban on ACORN as well as a ban on ACORN's right to enter future contracts with the federal government. The judge said it was "unmistakable that Congress determined ACORN's guilt before defunding it."

In her thirty-three page opinion, Gershon said Congress had relied on unsubstantiated accusations to cut off ACORN's funds. Republican conservatives claimed Congress had to act to protect the taxpayer's money. Gershon countered saying, Congress can't "rely on the negative results of a congressional or executive report as a rationale to impose a broad, punitive funding ban on a specific, named organization." The judge also noted that federal contractors could be suspended or debarred, but agencies needed to follow the federal rules in the Code of Federal Regulations. "[T]he existence of [these regulations] militates against the need for draconian, emergency action by Congress," she added.

The judge said relief in this action would make clear that Congress was wrong to pass judgment on ACORN and wrong to single it out for punishment on the basis of that judgment. Moreover, according to the judge, the record establishes that Congress damaged ACORN's reputation. Gershon held the harm to ACORN's reputation persists because the OMB and other government agencies never canceled their instructions to stop funding after it notified "hundreds, if not thousands, of recipients." The judge said this well publicized action by Congress has damaged ACORN's ability to obtain funds not only from the federal government, but also from foundations and individual donors who are fearful of being tainted as an affiliate of ACORN. Foundations such as Ford and Mott Foundation cut off ACORN's funds.

As my upcoming book SEEDS OF CHANGE, The Story of ACORN, America's Most Controversial Anti-Poverty Community Organizing Group documents, for 40 years ACORN has been the most effective national anti-poverty organization in the country. Since its founding in Arkansas ACORN has been criticized by business leaders, Democrats and Republicans for its direct action tactics and its populist anti-poverty agenda.

It has long worked on the forefront to protect homebuyers from unjust foreclosures fueled by reckless lending practices and inadequate government regulation. In many cities and states, ACORN pioneered campaigns to increase workers wages and prevent unnecessary foreclosures by organizing homeowners and tenants, and pressuring lawmakers to enact laws protecting consumers from foreclosure scams. By the fall of 2009 ACORN and its sister organization ACORN Housing had helped prevent housing foreclosures for eight thousand homeowners by obtaining favorable mortgage changes, It rescinded sales, restored titles to owners, and negotiated new, affordable mortgages. In California, ACORN sponsored a bill to protect consumers from rip-offs by mortgage brokers--for example, by prohibiting brokers from steering borrowers toward loans that are most costly rather than loans they qualify for. ACORN worked for two years to ensure the bill's passage in December 2009, despite the opposition of the powerful bankers and brokers.

Its organizing, self-help and empowerment strategies dispel the conservative myth that we can only help the poor through private soup kitchens and charity and the liberal myth that the solution rests simply with more government services.

Beginning in 2008, it has come under a ferocious attack for voter registration fraud and claims it violated the tax-exempt status of some of its affiliates by engaging in partisan political activities.

But the attacks on ACORN are not really about bogus names on voter registration forms or staff members providing bad advice to a phony prostitute with a video camera. ACORN has long faced harassment from certain businesses, conservative activists, and intellectuals who attack it for ideological reasons, calling the group "socialist," "left-wing," and "opponents of the free market." Businesses that pay low wages have long opposed ACORN's efforts to raise wages for the working poor. Banks, private mortgage companies, and payday lenders have fought ACORN's campaigns to strengthen government regulations on the financial services industry on behalf of consumers.

For years conservative politicians have opposed ACORN's success at registering low-income, mostly minority voters, who they fear are more likely to vote for Democrats than GOP candidates. What most Americans know about ACORN is based on recent controversies manufactured by the group's long-term enemies.

Many defense contractors have committed crimes and drug companies have pled guilty to criminal fraud under the federal false claims act stealing billions from the taxpayers by ripping off Medicaid and Medicare yet Congress never passed a bill debarring them from federal contracts.

These attacks on ACORN have been part of a broader effort by the Republicans and businesses opposed to Obama - first as a candidate, then as President - and to associate him and his liberal policy agenda with "radicals" and even "socialism." The war on ACORN was obvious when on October 15, 2008, in the third and final presidential debate with Obama, John McCain--reflecting the years of groundwork by conservatives and Republicans in demonizing ACORN--charged that ACORN was "on the verge of maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy." At rallies and press events, McCain and Palin repeated this charge and demanded that Obama disclose his ties with ACORN.3

Criticism soared after two right wing activists James O'Keefe and Hannah Giles, who despised and feared ACORN, lured a few ACORN staff in three offices into providing questionable, even outrageous advice on tax evasion, human smuggling and child prostitution. Fox, the New York Post, CNN, and other mainstream media picked up on the story. Even though the employees did not create client files or bills, file tax returns, sign or submit loan documents, or arrange bank loans, the doctored and misleading videos were shown around the clock by Fox, CNN and on the blogosphere. The Washington Post contributed to a feeding frenzy with a September 20 headline blaring, "For ACORN, Video Is Only Latest Crisis," which read like an indictment prepared by the Republican Party.

This led to a rush to judgment by the U.S. Congress to strip federal funding from ACORN, and block future grants. ACORN was unprepared to deal with the relentless, mostly unfounded daily attacks on its credibility by the right-wing media and conservative politicians, and the mainstream media's general acceptance of the right wing's demonizing and ridiculing of ACORN. UPI, Reuters stories and even the New York Times repeatedly reported incorrectly that O'Keefe went into ACORN office dressed as a pimp, when in fact as Hannah Giles admitted the images of O'Keefe in an outlandish pimp outfit--a top hat, cane, huge sunglasses, white fur coat--were edited in later. Besides Congress cutting off funds to ACORN, the cartoonish pimp costume cost ACORN its reputation. It was aimed to implant in the public's eye that ACORN's African-American intake staff were buffoons.

In December the truth started catching up with the slurs on ACORN's reputation.
On December 7, 2009 an independent report by the former Attorney General Scott Harshbarger, cleared ACORN of any illegal conduct. The report found:

"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."

His report also noted that the videos were doctored and misleading.

"The videos that have been released appear to have been edited, in some cases substantially, including the insertion of a substitute voiceover for significant portions of Mr. O'Keefe's and Ms. Giles's comments, which makes it difficult to determine the questions to which ACORN employees are responding. A comparison of the publicly available transcripts to the released videos confirms that large portions of the original video have been omitted from the released versions."

Harshbarger report also noted:

"Although Mr. O'Keefe appeared in all videos dressed as a pimp, in fact, when he appeared at each and every office, he was dressed like a college student - in slacks and a button down."

The report also acknowledged that ACORN had already begun to implement many of the management and oversight reforms urged by Harshbarger. The report reinforced criticism of the mainstream media's handling of the story, including the way CNN played the "prostitution scandal" videotapes over and over again. As Joe Conason reported, "... the ACORN videotapes were an exercise in propaganda not journalism."

The mainstream press continued to botch the ACORN story. For example, the Associated Press story of the Harshbarger Report published in the Washington Post didn't mention that the conservative videographers rebuffed attempts by Harshbarger to interview them and refused to permit him to review the unedited tapes so he could compare the raw footage with versions that were released. Most major news outlets did not even mention the report. The Harshbarger report, which came on the heels of a successful ACORN lawsuit in Ohio that brought the state into compliance with the public agency vote registration provisions of the National Voter Registration Act (NVRA), brought some hope to ACORN's members that public opinion might shift in ACORN's favor.

Soon after Harshbarger refuted the charges of financial wrongdoing and voter fraud against ACORN, a nonpartisan Congressional Research Service report (CRS) released on December 22, 2009 found no evidence of voter fraud associated with ACORN and "no instances in which ACORN violated the terms of federal funding in the last five years." Moreover, the report found that the two conservative activists who secretly videotaped conversations with ACORN workers and distributed those recordings on the Web without their consent violated laws in Maryland and California. CRS also noted that as of October 2009, ACORN had been subjected to at least 46 federal, state, and local investigations with only 11 still outstanding. Only one state, Nevada, actually brought charges against ACORN and those were based an ambiguous law that prohibited paying staff to register voters.

Despite the fact that the CSR report was a comprehensive source for fact-checking the allegations aimed at ACORN, the New York Times buried the story in a short article on page 15, and USA Today noted it in a seven-sentence news brief. CNN took just a few seconds to mention the report, again playing a clip of the infamous undercover video. Most of the major news outlets, including the Wall Street Journal, ignored the CRS report. Time magazine and U.S. News & World Report used their end of the year round up spinning the ACORN story as a scandal.

Last week, the New York District Attorney for Brooklyn, Joe Hynes, cleared ACORN of any criminality. Since September 2009 Hynes' office investigated three ACORN employees who had been secretly videotaped by the phony pimp and prostitute, who came to ACORN'S Brooklyn office, seeking advice about how to purchase a house with money generated by their 'business.' The DA's investigation found no criminality and an official with the prosecutor's office said, an unedited version they reviewed showed that the truth had been sliced and diced.

But the damage has already been done. In Brooklyn, ACORN has been forced to regroup and re-brand under a new name: NY Communities For Change. And the group is facing a serious ability to function in various chapters around the country as funding sources dried up.

ACORN had been defamed and the positive news failed to undo the damage. The rush to judgment against ACORN threatens its very existence. By any measure, the barrage of subpoenas, investigations, castigations, and hasty official actions of questionable legality are far out of proportion to ACORN's lapses and ignore the enormous good that the organization has done. The onslaught recalls the voter fraud claims against ACORN in Florida and New Mexico in 2004. Only later, in 2007, did the public learn that all charges against ACORN in 2004 had been dropped and that U.S. attorneys had been fired for resisting White House pressure to prosecute ACORN on trumped-up charges of voter fraud.

In addition, as Katrina Vanden Heuvel said what happened to ACORN was "...reminiscent of the McCarthy era when individuals and organizations were ruined by allegations that ran as front page news, while later evidence that vindicated them was relegated to the back pages. There was little accountability for the false accusations, little redemption for those whose lives had been shattered."

Three events are sure to follow this decision. Rep. Darrell Issa (R-Calif.), ranking member of the House Oversight and Government Reform Committee, and other right wing Republicans will attack Gershon's decision and note that Bill Clinton appointed her. They will also repeat their talking points against ACORN-- unfounded statements criticizing ACORN--and the mainstream press will merely regurgitate the criticisms of ACORN without investigating the truth of these statements. And Democrats and the Obama administration will once again fail to come to ACORN's defense.

According to an Associated Press, the government planned to review the judge's ruling and consider whether to appeal.

Bill Quigley, legal director of the Center for Constitutional Rights, which represented ACORN, was quoted in the Associated Press saying:

"The judge's ruling is a complete rebuke to the right wing's smear tactics that unfortunately Congress fell for. This is why we have a system of checks and balances."