DOJ Defends ACORN Funding Ban While Gutting It

The Harshbarger investigation is getting a lot of attention this week; and rightly so. ACORN hired former Massachusetts Attorney General Scott Harshbarger to conduct an “independent” review of the organization in an effort to provide ACORN some cover to show that they were serious about reform. The Harshbarger report concludes that ACORN was not at fault, rather the blame should rest with its founder Wade Rathke, the intrepid aspiring journalists Hannah Giles and James O’Keefe who revealed ACORN’s most recent corruption, and the low level ACORN employees and members who were featured in the videos.

This attempt to whitewash ACORN and its employees’ wrongdoing has been appropriately decried by Representative Darrell Issa, the Republican National Lawyers Association, and contributors to Biggovernment.com.

ACORN’s pending litigation against the federal government has received less attention. Last week, unbeknownst to all but avid court or ACORN watchers a pivotal moment occurred in the lawsuit. Peter D. Leary, an attorney at the Department of Justice filed a brief defending the Congressional efforts to defund ACORN. His brief defended the defunding, while severely narrowing its scope and application.

Congress was clear in its decision to defund ACORN. The plain language of the Continuing Resolution (CR) is unmistakable:

“None of the funds made available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations.”

The Department of Justice has however issued a memorandum severely narrowing its application.

Harvard Law School professor and Acting Assistant Attorney General David J. Barron concluded that the CR “should not be read as directing or authorizing HUD to breach a pre-existing binding contractual obligation to make payments to ACORN or its affiliates, subsidiaries, or allied organizations where doing so would give rise to contractual liability.” He reaches this conclusion by parsing the definition of the term “provided.” I wonder where Professor Barron was when President Clinton was attempting to define the word “is.”

This memorandum and its conclusions defy both logic and common sense.

Now we turn to the brief filed last week by the government. It defends the defunding of ACORN noting that the Executive Branch has interpreted the CR ban on funding narrowly, and relying heavily on the fact that a CR is by definition temporary in nature.

The brief relies on the Barron memorandum noting that “the Executive Branch has interpreted [the ban on funding] more narrowly, such that ‘section 163 does not direct or authorize [Agencies] to refuse payment on binding contractual obligations that predate the Continuing Appropriations Resolution.'”

To reinforce the point that the defunding is only temporary attorney Peter Leary states that “[t]ellingly, three of the four full-year Fiscal Year 2010 Appropriations Acts that have been enacted since the CR went into effect contain no provisions foreclosing plaintiffs from applying for or receiving federal grants.” The message is clear, Obama’s Justice Department will defend the actions of Congress to defund ACORN so long as they are only temporary and the free-flowing access to federal funds is restored soon.

This brief may be music to the ears of Representative Jerrold Nadler. If you recall he’s been fighting the ban and advising ACORN’s attorney on the issue. While DOJ has not gone so far as to agree with ACORN, it has eviscerated the intent and substance of the ban on funding.

It’s time for Congress to permanently defund this corrupt organization. Congress must protect the taxpayers and ensure that no more federal funds are not subject to waste, fraud or abuse by ACORN.