ACORN so­lu­tion pe­nal­izes other con­trac­tors

The Washington Times Weekly - - Politics - BY STEPHEN DINAN

Congress is rush­ing to de­fund the con­tro­ver­sial group ACORN, but its ef­forts might have un­in­tended con­se­quences: Some ar­gue that one ver­sion of the ef­fort vi­o­lates the Con­sti­tu­tion, while a grow­ing cho­rus says a sec­ond mea­sure is so broad that it could block ma­jor con­trac­tors such as the Boe­ing Co. from get­ting gov­ern­ment jobs.

The Se­nate has twice adopted amend­ments cut­ting off fund­ing for the As­so­ci­a­tion of Com­mu­nity Or­ga­niz­ers for Re­form Now. The House has sep­a­rately passed the De­fund ACORN Act, which goes be­yond ACORN to pro­hibit fund­ing for any or­ga­ni­za­tion that has filed fraud­u­lent pa­per­work with the gov­ern­ment or vi­o­lated cam­paign fi­nance laws.

The Se­nate lan­guage might run afoul of the Con­sti­tu­tion be­cause it is so nar­row and the House mea­sure might be writ­ten too broadly, an­a­lysts say.

“The Se­nate lan­guage, I think, is plainly un­con­sti­tu­tional,” said Danielle Brian, ex­ec­u­tive di­rec­tor of the Project on Gov­ern­ment Over­sight.

The House ver­sion, in con­trast, she said, could en­snare many other bad-ac­tor con­trac­tors. “The House lan­guage from our per­spec­tive is de­li­cious,” she said.

The con­sti­tu­tional is­sue stems from the Fifth Amend­ment, which pro­hibits bills of at­tain­der — an an­cient le­gal con­cept that deems a sin­gle per­son or en­tity guilty and wor­thy of pu­n­ish­ment by leg­is­la­tion.

“It may be that ACORN is guilty of var­i­ous in­frac­tions,” said Rep. Jer­rold Nadler, New York Demo­crat, but “Congress must not be in the busi­ness of pun­ish­ing in­di­vid­ual or­ga­ni­za­tions or peo­ple without trial.”

A Con­gres­sional Re­search Ser­vice Re­port agrees that the lan­guage may be im­proper — de­pend­ing on what mo­ti­vated the mem­bers of Congress. If law­mak­ers in­tended to pun­ish ACORN, that could be a prob­lem, CRS said.

But the law­mak­ers’ in­tent is good gov­er­nance, said a spokes­woman for Sen. Mike Jo­hanns, the Ne­braska Repub­li­can who of­fered the two Se­nate amend­ments.

Mr. Jo­hanns’ “goal is to pro­tect the tax­payer from waste, fraud and abuse. ACORN is an or­ga­ni­za­tion that has a pat­tern and cul­ture of em­ploy­ees en­gag­ing in fraud and other il­le­gal be­hav­ior. Re­ceiv­ing fed­eral fund­ing is a priv­i­lege, not a right,” said spokes­woman Ann Marie Hauser.

A spokesman for Rep. Dar­rell Issa, the Cal­i­for­nia Repub­li­can who of­fered the House lan­guage on the floor, said Mr. Issa stands by the lan­guage.

“Frankly, I don’t know how any­one can suc­cess­fully ar­gue those who ac­tu­ally per­pe­trate fraud and mis­use tax­payer dol­lars shouldn’t be held to a more scru­ti­nized stan­dard,” said Issa spokesman Kur t Bardella. “But if peo­ple want to start a cru­sade de­fend­ing fed­eral dol­lar re­cip­i­ents who have com­mit­ted fraud and mis­man­aged tax­payer dol­lars, they are wel- come to make that case to the Amer­i­can peo­ple.”

Hans A. von Spakovsky, a se­nior le­gal fel­low at the Her­itage Foun­da­tion’s Cen­ter for Le­gal and Ju­di­cial Stud­ies, said what Congress has done “doesn’t come any­where even close to be­ing a bill of at­tain­der.” He said the last time the Supreme Court ruled Congress had over­stepped its bounds in this area was 1965, and th­ese mea­sures are dif­fer­ent.

“Al­most all of the cases in­volved in­di­vid­u­als hav­ing some­thing done to them by Congress. They’ve never, ever held that an or­ga­ni­za­tion not be­ing en­ti­tled to fed­eral ap­pro­pri­a­tions is some­how pro­hib­ited,” Mr. von Spakovsky said.

At the same time, he warned that the House lan­guage on ACORN is broad enough that other con­trac­tors could well get en­snared in it — which is ex­actly what the Project on Gov­ern­ment Over­sight hopes.

A POGO anal­y­sis of fed­eral con­trac­tors found 62 — rang­ing from top re­search uni­ver­si­ties to ma­jor de­fense and health com­pa­nies — that could vi­o­late the House mea­sure.

“It would be a sort of nu­clear bomb on gov­ern­ment con­tract­ing,” said Ms. Brian, the group’s ex­ec­u­tive di­rec­tor.

Among those she says could lose con­tracts are Boe­ing, which POGO said paid mil­lions of dol­lars to set­tle law­suits that charged the com­pany placed de­fec­tive gears in he­li­copters it sold to the Army. Also on the list is Northrop Grum­man Corp., which paid $15 mil­lion in fines to set­tle charges it sold air­craft nav­i­ga­tion sys­tems in vi­o­la­tion of U.S. arms ex­port laws.

A spokesman for Northrop Grum­man said the com­pany had no com­ment, while Doug Ken­nett, a spokesman for Boe­ing, would say only that “the leg­is­la­tion un­der dis­cus­sion has zero im­pact on Boe­ing.”

ACORN has come un­der fire re­cently af­ter con­ser­va­tive ac­tivists posed as a pros­ti­tute and pimp and, while on hid­den cam­era, cap­tured ACORN em­ploy­ees giv­ing ad­vice on how to avoid taxes. Other or­ga­ni­za­tion em­ploy­ees have been in­dicted on voter regis­tra­tion fraud charges.

Those in­ci­dents prompted a bi­par­ti­san back­lash against ACORN, cul­mi­nat­ing in con­gres­sional action this month.

Con­gres­sional offices said ACORN has re­ceived at least $53 mil­lion in tax­payer money since 1994.

Some Repub­li­cans are lead­ing a call to have the In­ter­nal Rev­enue Ser­vice re­move ACORN’s tax-ex­empt sta­tus, ar­gu­ing that ACORN is not a sin­gle en­tity and it’s im­pos­si­ble to un­der­stand ev­ery­thing in which the or­ga­ni­za­tion is in­volved.

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