Radicals long have used the judicial system as a last-ditch weapon to circumvent legislative decisions. Last Friday, one of their leading lights, the Association of Community Organizations for Reform Now, or ACORN, showed the advantages of having a federal judge in one’s corner. U.S. District Judge Nina Gershon of the Eastern District of New York, a Clinton appointee, issued a preliminary injunction against the recent congressional cutoff of funds for the New Orleans-based nonprofit network. Judge Gershon ruled that Congress back in September violated the rights of the scandal-plagued ACORN by cutting off its funding. As ACORN and/or affiliates have received $53 million from Washington over the past 15 years, the ruling has ramifications for taxpayer funding of the Left generally. Barack Obama, long a supporter even before becoming president, may be taking special notice.
Over the course of nearly 40 years, ACORN has arguably grown into the central nervous system of Left activism in this country. Some 360 affiliated organizations now take in a combined roughly $100 million a year. While much of that money is derived from dues payments from 400,000 member households in 1,200 chapters, a large part also comes from corporate donations (often through intimidation) and government subsidies. ACORN has mastered the art of illegally commingling funds among affiliates. In several states, members have been implicated, and in some cases convicted, of such offenses as voter registration fraud. This past July Rep. Darrell Issa, R-Calif., the leading Republican on the House Oversight and Government Reform Committee, released an 88-page report concluding that ACORN has operated in violation of federal anti-racketeering statutes. The decision by Judge Gershon only will further convince such critics that crime pays, so long as the goal is redistributing wealth and income from “the rich” to those claiming to represent the poor.
ACORN during this decade has attracted the attention of ethical watchdogs. Concerns over the organization operating in a rogue fashion sharply rose last June when founder and chief organizer Wade Rathke was forced out of office after revelations that he’d covered for his brother’s theft of nearly $1 million during the turn of the decade. And those concerns positively exploded this September following the airing on the web and Fox News Channel of homemade videotapes made by two young adults posing as a couple, James O’Keefe and Hannah Giles, capturing ACORN office employees brazenly giving advice on how to break the law. Some called the recordings entrapment; others called it a public service.
Either way, the future of the nonprofit behemoth was now in jeopardy, especially in the area of its partnerships with the federal government. In short order, the IRS cancelled its contract with ACORN to work in its volunteer tax-preparation service program. The Census Bureau dropped ACORN as an enumerator group for the forthcoming 2010 Census of Population. And Congress decided to cut off a huge part of the funding spigot. The House of Representatives voted by a 345-75 margin to eliminate funds to ACORN, while the Senate voted 83-7 to bar Department of Housing and Urban Development funds from going to it or affiliated groups – ACORN Housing Corp. had been a major recipient of HUD aid. Even President Obama recognized that challenging votes of such margins was a political nonstarter. Thus, when lawmakers, led by Sen. Mike Johanns, R-Neb., inserted an amendment into the Fiscal 2010 Transportation-HUD final appropriations bill, the president signed the legislation.
ACORN quickly responded by going to court. Already, it had filed a suit in the Maryland court system against O’Keefe and Giles, plus Andrew Breitbart, the owner of the blog site BigGovernment.com, claiming they had violated a state law against secret taping. Now they would try to restore federal funding as well. On November 12, the Center for Constitutional Rights, the hard-Left public interest law firm co-founded in 1966 by late radical lawyer William Kunstler, went to U.S. District Court on behalf of ACORN and two affiliates, the ACORN Institute and New York ACORN Housing Company, to obtain a preliminary injunction against enforcement of the appropriations law. Congress, the CCR argued, had singled out ACORN for punishment without the benefit of a trial, thus violating the constitutional ban against bills of attainder. The funding cutoff, argued the group’s attorneys, also violated the Fifth Amendment’s right to due process and infringed upon the First Amendment’s right to freedom of association by targeting affiliated and allied organizations.
Judge Nina Gershon, who was named to the federal bench in 1996 by President Clinton at the recommendation of Sen. Daniel Patrick Moynihan, D-N.Y., proved receptive. On Friday, she issued a ruling that enjoined HUD, the Office of Management & Budget, and the Treasury Department from enforcing a ban on appropriations to ACORN. She wrote:
The question here is only whether the Constitution allows Congress to declare that a single, named organization is barred from all federal funding in the absence of a trial. Because it does not, and because the plaintiffs have shown the likelihood of irreparable harm in the absence of an injunction, I grant the plaintiffs’ motion for a preliminary injunction.
Judge Gershon added that “none of the government’s justifications stand up to scrutiny.”
ACORN CEO Bertha Lewis, for one, was ecstatic. “Today’s ruling for the Constitutional Rights for all Americans and for the citizens who work through ACORN to improve their communities and promote responsible lending and homeownership,” she said immediately following the ruling. Critics of the organization took a decidedly different view. Rep. Issa denounced the decision as “setting a dangerous precedent that left-wing political organizations plagued by criminal accusations have a constitutional entitlement to taxpayer dollars.”
Issa would seem to have the stronger hand. Congress didn’t “single out” ACORN because of its political beliefs. It singled out ACORN – as well it should – because of its longstanding pattern of criminal and otherwise suspect behavior. It is little short of bizarre that a nonprofit group can be considered as being deprived of constitutional liberties because it no longer can draw upon government largesse to pursue activities that are likely criminal. The courts, for example, have singled out for-profit corporations for disparate treatment even without proof of criminal intent, as in SeaRiver Maritime Financial Holdings v. Mineta (2002). In that case, the U.S. Court of Appeals, Ninth Circuit, barred any vessel from entering Prince William Sound “that spilled more than one million gallons of oil into the marine environment after March 22, 1989” – an obvious reference to the Exxon Valdez and no other ship.
But there is a larger issue here. Suppose ACORN were a conservative organization. And suppose as well it operated fully within the law. Would that entitle the group to federal funds? One would think not. Regardless of doctrine, a nonprofit association ought to be expected to raise donations through voluntary means. If the group can’t raise money from willing donors, it doesn’t have an implied right to conscript taxpayers to cover any shortfalls. Not subsidizing ACORN is not tantamount to “punishing” it, a view hardly unreasonable in light of its blatant violations of the public trust. What adds insult to injury is that ACORN has used its funds to press for a vastly expanded welfare state. Giving money to ACORN today pays off (to ACORN anyway) years down the road in the form of large increases in government spending at all levels. The Obama administration should take off its ideological blinders and appeal the district court’s injunction. But that would be a longshot. The president owes his political career to organizations such as ACORN.
Related: “Judge Restores ACORN Funding.”