Court Rules That Congress Unfairly Singled Out ACORN

Posted by John Atlas on December 14, 2009

A federal judge blocked U.S. officials from enforcing a funding ban on ACORN, one of America’s most effective anti-poverty groups. Congress cut off funding for ACORN — the Association of Community Organizations for Reform Now — in September after a right wing Web sites and TV news outlets, mostly Fox played secretly recorded videos in which employees of ACORN offered advice on how to set up brothels and avoid paying taxes. ACORN fired the employees suspected of wrongdoing.

ACORN sued the federal government in November, arguing Congress had violated the Constitution by singling out the group. ACORN was represented by the Center for Constitutional Rights.

Acorn’s lawyers argued in part that Congress had violated the Constitution’s ban on bills of attainder, legislation that punishes a specific person or group without a fair hearing. In making its argument, the Acorn lawyers included quotes from several Republicans accusing Acorn of being a criminal organization that deserved to be punished.

Federal Judge Nina Gershon agreed with ACORN’s lawyers concluding that the ban amounted to a “bill of attainder.” “[The plaintiffs] 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 even administrative, process of adjudicating guilt,” Gershon wrote in her decision.

In her decision, the judge wrote that those statements “underline the punitive nature of the government’s purportedly non-punitive reason” for banning Acorn. The decision noted that the ban had already prevented ACORN from receiving payment from contracts awarded before the ban took effect.

Gershon said ACORN had demonstrated “irreparable harm” from the ban. “The public will not suffer harm by allowing the plaintiffs to continue work on contracts duly awarded by federal agencies, which was stopped solely by reason of [the ban],” Gershon wrote. In defending the ban, the Obama administration argued it interpreted the bill narrowly enough to allow payment of existing contracts. But Gershon found the legislation too broad. With Friday’s injunction, ACORN will begin receiving funds, including between $40,000 and $60,000 for housing assistance, according to the decision from the district court in eastern New York.

“Today’s ruling is a victory 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,” ACORN CEO Bertha Lewis said in an emailed statement.

Predictably, Rep. Darrell Issa (R-Calif.), ranking member of the House Oversight and Government Reform Committee, issued a statement criticizing Gershon’s decision and noting that Bill Clinton appointed her. “This left-wing activist Judge is setting a dangerous precedent that left-wing political organizations plagued by criminal accusations have a constitutional entitlement to taxpayer dollars,” Issa said. “ Earlier this year Issa issued a report attacking ACORN. The report contained numerous factual errors and no evidence for its assertions that ACORN is a criminal organization.

The Obama Justice Department said it was reviewing the decision. Progressives should appreciate Judge Gershon’s courage to follow the constitution in the face of bi-partisan attacks against ACORN. Under the current political climate her decision will cut off any chance of an appointment to a higher court.

Gershon’s decision came on the heals of a successful ACORN lawsuit in Ohio that will bring the state into compliance with the public agency registration provisions of the National Voter Registration Act (NVRA) as well as an independent report by the former Attorney General of Massachusetts exonerating ACORN form any illegal action from the hidden-video scandal. With right wing Republican’s likely to call forth more attacks against ACORN it remains to be seen if liberals like HUD Secretary Shawn Donavan, Congressman Barney Frank, Senator Chuck Schumer, as well as Obama, who have failed to come to the defense of ACORN will find the backbone to stand up the continuous ferocious and unwarranted attacks against the group.

About the author more »

John Atlas is president and one of the founders of NHI. Atlas is the author of Seeds of Change: The Story of ACORN, America's Most Controversial Antipoverty Community Organizing Group (Vanderbilt University Press, 2010), a story about one group’s efforts to reduce inequality. Atlas lives in Montclair, NJ, and is working on an upcoming theatrical documentary funded by the Sundance Institute, Tribeca Film Institute, and PBS.

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