Monday, November 16, 2009

Congress' Move to Pull $$ Plug on ACORN Is Challenged in Court as Unconstitutional

ACORN Charges Congress Violated Constitution's Ban on 'Bills of Attainder' That Single Out Individuals or Groups for Punishment Without Trial or Judicial Review When Lawmakers Passed GOP-Sponsored 'Defund ACORN Act' -- Lawsuit is Latest in Community Group's Aggressive Counterattack Against its Conservative Critics

Congress voted in September to withhold all federal funding for the community advocacy group ACORN in the wake of a scandal in which two conservative activists posing as a pimp and underage prostitute secretly videotaped ACORN employees in its Baltimore office that one of the activists admitted was for political reasons. ACORN promptly sued the activists and the conservative Web site that posted their videotapes for violating a Maryland state law that requires two-party consent for electronic surveillance. Now ACORN is striking back at Congress with a lawsuit challenging the constitutionality of its move to defund the organization, on the grounds that by singling out ACORN, the lawmakers violated a constitutional ban on "Bills of Attainder." (Illustration: Jared Rodriguez /Truthout)

(Posted 5:00 a.m. EST Monday, November 16, 2009)
(Updated 5:00 a.m. Tuesday, November 17, 2009)



Last September, just as Congress was getting ready to pass a Republican-sponsored initiative to withhold federal funds from the community advocacy group ACORN, Rep. Jerrold Nadler (D-New York), warned that the measure was wholly unconstitutional.

The "Defund ACORN Act," sponsored by Representative Darrell Issa (R-California), "is in blatant violation of the Constitution's prohibition against Bills of Attainder," said Nadler, the chairman of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties. The Senate also approved a measure to strip ACORN of federal funding.

Now ACORN -- the Association of Community Organizations for Reform Now -- has struck back.

The Center for Constitutional Rights (CCR), a civil-rights organization, filed suit against the federal government on behalf of ACORN, alleging lawmakers violated the Constitution's Bill of Attainder provision by doing exactly what Nadler had advised against and, as such, declaring the group and its officials guilty of crimes.

The complaint, filed in U.S. District Court in New York, claims that Congress also violated ACORN's Fifth Amendment right to due process as well as its First Amendment right to freedom of association by targeting its subdivisions, such as the ACORN Institute and the New York ACORN Housing Company, which are also plaintiffs in the case.

Three officials of the Obama administration -- Treasury Secretary Timothy Geithner, Housing Secretary Shaun Donovan and Budget Director Peter Orszag, who is charged with enforcing the congressional provision -- are also named as defendants in the suit.


A Bill of Attainder is a legislative act that singles out an individual or group for punishment without a trial or judicial hearing. The Supreme Court, in decisions dating back to the Civil War era, has held that the Constitution -- specifically, Article 1, Section 9 -- prohibits all legislative acts, "no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial...."

"The Constitution says that Congress shall never pass a Bill of Attainder," Nadler said before the House voted 345-75, which included the support of 172 Democrats, to prohibit ACORN from receiving federal funds. "Bills of Attainder, no matter what their form, apply either to a named individual or to easily ascertainable members of a group, to inflict punishment. That's exactly what this amendment does."

"It may be that ACORN is guilty of various infractions, and, if so, it ought to be vetted, or maybe sanctioned, by the appropriate administrative agency or by the judiciary," Nadler said. "Congress must not be in the business of punishing individual organizations or people without trial."


The furor over ACORN was touched off by conservative filmmaker James O'Keefe and right-wing columnist Hannah Giles, who posed as a couple planning to buy a house for use as a brothel and getting advice from a few ACORN employees, rather than being turned away.

The pair filmed their meetings at ACORN's offices in Baltimore with a hidden-camera, producing a video that brought to a fever pitch the long-simmering Republican war against ACORN.

The video was trumpeted by Fox News and other right-wing news outlets, starting a stampede in the mainstream press and in Congress, where a majority of panicked Democrats joined the herd in approving legislation to strip ACORN of federal funds.

ACORN promptly fired the employees who advised O'Keefe and Giles and later filed a multimillion-dollar lawsuit in Maryland Superior Court in Baltimore against the activists, alleging the pair violated a Maryland state law that requires that all parties must agree to sound recordings., a conservative Web site that posted O'Keefe and Giles' videos, was named as a co-defendant in the lawsuit. The site is registered to Andrew Breitbart, a columnist at The Washington Times.

ACORN also hired Scott Harshbarger, a former attorney general of Massachusetts, to conduct an internal probe into its own operations.


Congress' actions, the complaint alleges, has "decimated" an ACORN affiliate -- the ACORN Institute -- which operates autonomously from the national group. The subsidiary's grant with the Federal Emergency Management Agency to conduct home fire safety assessments and other grant applications were rejected, forcing AI to fire 17 of its 20 employees, since Congress voted to strip the organization from receiving federal funds.

Additionally, an application ACORN itself had with the Environmental Protection Agency for a "three-year $780,000 grant for outreach to poor communities, to raise awareness of an educate about the lung disease asthma was rejected" as a direct result of Congress' passage of the Defund ACORN Act.

The lawsuit also claims ACORN has also been forced to close offices and "drastically reduce services to moderate income people across the United States."

For example, "in September 2009, the New York first-time home buyer education classes enrolled 100 first-time home buyers, but in October, due to budget and staff cutbacks, it enrolled 7 people." Additionally, "many organizations partnering with ACORN cut off relationships with ACORN for fear of being tainted by association with ACORN.

Moreover, banks that worked with ACORN have suspended their funding of the organization's programs due to the fact that ACORN Housing Corporation has no 'pipeline' of new clients in need of mortgage and financial assistance due to the reduction in ACORN operations brought about as a result of the budget suspension of federal funds."

ACORN and CCR are seeking a temporary restraining order barring the federal government from reallocating funds intended for ACORN and a preliminary injunction to block Congress from punishing an organization before launching an investigation.

ACORN has received more than $50 million in federal grants since 1994. The group is now the subject of several statewide investigations following the release of the videos.


"It is outrageous to see Congress violating the Constitution for purposes of political grandstanding," said Bill Quigley, the CCR's legal director. "With all the crimes and infractions committed by banks, pharmaceutical companies, and private government contractors, they have been rewarded with bailouts, tax credits, and billions of dollars in new contracts."

Quigley also accused Congress of having "bowed to Fox News and joined in the scapegoating of an organization that helps average Americans going through hard times to get homes, pay their taxes, and vote. Shame on them."

Bertha Lewis, ACORN's chief executive, said in an affidavit included with the lawsuit that she "underestimated" the effect of the resolution. "It gave the green light for others to terminate our funds as well," she said. "All of our state and local grants were frozen, as were most of our private foundation funds."


Since the videos went viral, The Washington Post, The New York Times and other major news outlets have recounted the "troubled" history of the poor people's advocacy group, but left out the five-year anti-ACORN campaign waged by former White House adviser Karl Rove and other Republican operatives.

Dropped down the memory hole is the fact that ACORN was at the center of the so-called "Attorneygate" scandal, when the Bush administration pressured U.S. attorneys to bring indictments over the grassroots group's voter-registration drives and then fired nine prosecutors who resisted what they viewed as a partisan strategy not supported by solid evidence.

Two of the nine U.S. attorneys who were fired in 2006 were targeted because they refused to bring criminal charges against individuals affiliated with ACORN. The firing of another US attorney was due, in large part, to his refusal to convene a grand jury and secure a voter-fraud indictment against individuals, some of whom were affiliated with ACORN.

GOP operatives resumed the fight against ACORN in the 2008 presidential campaign, seizing on some ACORN employees who apparently were padding their registration numbers by submitting bogus forms with fake names like "Mickey Mouse."


For its part, ACORN has insisted that its own quality control flagged many of the suspicious registration forms before they were submitted to state officials and that state laws often require outside registration groups to submit all forms regardless of obvious problems.

[CNN noted in its September 23 report on ACORN's lawsuit against O'Keefe and Giles that the community group itself initiated an investigation in Florida that resulted in 11 arrests earlier that month for fraudulent voter registration].

Independent studies also have shown that phony registrations rarely result in illegally cast ballots because there are so many other safeguards built into the system.

For instance, from October 2002 to September 2005, a total of 70 people were convicted for federal election-related crimes, according to figures compiled by The New York Times last year. Only 18 of those were for ineligible voting.


That figure -- 70 people -- appears in a misleading Republican report about ACORN released July 23, a little more than a month before the ACORN videos were broadcast on Fox News. The report was prepared by Representative Issa, the ranking Republican on the House Committee on Government Oversight and Reform.

The report -- entitled "Is ACORN Intentionally Structured as a Criminal Enterprise?" -- cited, among other material, several dozen published reports from right-wing news organizations, including Fox News' Glenn Beck and, whose proprietor, Andrew Breitbart, worked closely with the filmmakers of the ACORN video, to demonstrate that the organization has engaged in widespread criminal acts related to voter fraud, tax evasion and racketeering.

But according to an October 18, 2008, report by the nonpartisan Web site, "Neither ACORN nor its employees have been found guilty of, or even charged with, casting fraudulent votes," although "several ACORN canvassers have been found guilty of faking registration forms and others are being investigated. But the evidence that has surfaced so far shows they faked forms to get paid for work they didn't do, not to stuff ballot boxes."

Indeed, the cases suggest that ACORN was the intended victim of the attempted fraud, in that the phony registration forms were part of an effort by employees to exaggerate their work product.

The report said, "No evidence has yet surfaced to show that the ACORN employees who submitted fraudulent registration forms intended to pave the way for illegal voting. Rather, they were trying to get paid by ACORN for doing no work.

Dan Satterberg, the Republican prosecuting attorney in King County, Washington, where the largest ACORN case to date was prosecuted, said that the indicted ACORN employees "were shirking responsibility, not plotting election fraud."

The report was prepared after Republican presidential candidate John McCain jumped on the anti-ACORN bandwagon, citing it at the third presidential debate. He declared ACORN "is now on the verge of maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy."


The motive of Republicans in escalating their war on ACORN was suggested by a line in Representative Issa's report -- to delegitimize President Obama. On page five, the report states, "Documents provided by former ACORN employees and contained in this report demonstrate the degree to which ACORN and ACORN affiliates organized to elect President Barack Obama in 2008."

The McCain campaign's attempt to politicize ACORN -- and hype the danger of voter fraud -- also paralleled the allegations made by Republicans during the final days of campaign 2004.

In October 2004, Marc Racicot, chairman of the Bush-Cheney 2004 presidential campaign, called on Democratic presidential nominee Sen. John Kerry to demand that ACORN and other voter registration groups stop engaging in voter registration fraud. Racicot said these registration efforts would "ultimately paralyze the effective ability of Americans to be able to vote in the next election."

Two weeks before the 2004 presidential election, Republican National Committee Chairman Ed Gillespie and Ohio Republican Party Chairman Bob Bennett announced the formation of a media campaign to counter what they claimed was voter registration fraud in nine Ohio counties.

"The reports of voter fraud in Ohio are some of the most alarming in the nation," Gillespie said on October 20, 2004.


In some ways the attacks on ACORN for allegedly signing up phony voters served as a cover for Republican efforts to purge real voters from the voting rolls, a tactic that became infamous in the battleground states of Florida and Ohio during the George W. Bush era.

In Florida, another battleground state in the 2004, President Bush's brother Jeb was governor and the state's Department of Law launched a statewide probe into voter-registration fraud just two weeks before the presidential election. A press release from the Department of Law cited ACORN, which registered more than 212,000 new voters in the state.

In the two weeks before election 2004, GOP officials raised similar concerns in Colorado, Minnesota, New Mexico and Pennsylvania.

Having finally succeeded in dealing a severe blow to ACORN with the undercover videos, Republicans have tried to spread the stain to Obama. In a speech on the House floor last September, Representative. Steve King (R-Iowa) called Obama "the star of ACORN, the lead, chief organizer ... He walks with them all the way through."

King then demanded that every House committee launch an investigation into ACORN and criticized as "a lame little announcement" that the Justice Department will look into the group's activities.


In response to what appeared to be Congress' knee-jerk reaction to defund ACORN, House Judiciary Committee Chairman John Conyers (D-Michigan) and Financial Services Committee chairman Barney Frank (D-Massachusetts) requested the nonpartisan Congressional Research Service to "research and issue a comprehensive report concerning proposed and pending Congressional and other activity related" to ACORN.

In a two-page letter sent September 22 to Daniel Mullhollan, director of the CRS -- a unit of the Government Accountability Office, the investigative arm of Congress -- Conyers and Frank asked the CRS to determine, among other things, whether the "Defund ACORN Act" is unconstitutional or "would represent an unlawful Bill of Attainder."

The CRS, in a written report prepared for Congress the same day Conyers and Frank wrote to the agency -- and cited in ACORN's lawsuit -- said that "singling out ACORN .... may well constitute a Bill of Attainder."

(Jason Leopold is editor-in-chief of The Public Record, where this report was originally published.)

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Volume IV, Number 87
Special Report Copyright 2009, The Public Record. Reposted by permission.
The 'Skeeter Bites Report Copyright 2009, Skeeter Sanders. All rights reserved.


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