On March 10, 2010, U.S. District Court Judge Nina Gershon — a
Clinton-era appointee — ruled in ACORN v. United States
that the federal government was permanently enjoined from
enforcing its funding bans against the Association of Community
Organizations for Reform Now. Of course, this is the same Judge
Gershon who a decade ago made a similar ruling against New York
Mayor Rudy Giuliani, the result of which protected the use of
city funds for an art exhibit that included elephant dung smeared
on a painting of the Virgin Mary.
In her opinion Judge Gershon claimed the government
“ignore[d] the existence of comprehensive regulations promulgated
to address the very concerns Congress has expressed about ACORN.”
According to Gershon, the Code of Federal Regulations
“establishes a formal process for determining when federal
contractors can be suspended or debarred.” However, Judge Gershon
ignored the discretion Congress has to serve the public interest
by exercising its oversight powers when federal agencies have
failed to adequately implement debarment policies.
In fact, Congress retains the plenitude of legislative
power, even when that power is narrowly delegated to
administrative agencies. If federal agencies do not act
responsibly to protect the taxpayers’ interest, then Congress is
constitutionally required to intervene, especially in questions
that arise under Congress’s power to appropriate dollars that
originate from the wallets of the American people. Because we
were concerned that several agencies were not exercising proper
oversight, Congress defunded ACORN and the President signed a
Continuing Resolution banning all federal funds to ACORN and its
affiliates.
Subsequently, several federal agencies gave notice to ACORN
that they were suspending their contracts. The federal government
was simply responding to Congress’s emergency action to protect
the public interest.
In recent months, congressional investigators have made
several findings, which Judge Gershon ignored, concerning our
federal agencies’ lack of proper oversight in federal contracts.
On March 18, 2010, my committee held a hearing concerning the
government’s efforts to protect taxpayer dollars from going to
unworthy contractors. At this hearing, Congress heard testimony
from Inspectors General who opined about the ongoing struggle for
federal agencies to apply suspension and debarment policies and
procedures against poorly-performing contractors. Witnesses at
the hearing exposed the reluctance of some federal agencies to
protect taxpayers, and in the case of one agency, we learned that
suspension and debarment decisions were regarded as either
unimportant or unnecessary.
These facts intensify my alarm at Judge Gershon’s recent
decision to protect one of the worst actors in American history.
If ever there was an organization that deserved to have its
federal funding permanently stripped, it is surely ACORN. From
election fraud, to embezzlement, to abuse of tax-exempt
privileges, money-laundering, racketeering, and a host of other
criminal acts, ACORN is emblematic of the problems that can occur
when federal agencies are careless in awarding taxpayer
dollars.
There is no ambiguity in the government’s process for
suspension and debarment. The Federal Acquisition Regulations
(FAR) prescribes the process clearly. The government always
retains the right — indeed the responsibility — to terminate or
cancel any existing contract. Over a year ago, the Oversight
Committee convened a hearing to examine issues related to
government contracting. I said then, and I repeated on March 18
that we have a singular obligation to ensure that federal funds
are spent in a cost-effective manner, with as little waste as
possible.
I also noted that the system designed to protect taxpayers
suffers from fundamental flaws. Today, and especially given Judge
Gershon’s recent decision, I am concerned that we have made
little progress in this area.
Every federal agency and every federal contractor must know
that Congress will not falter in its vigilant oversight of all
issues related to federal contracting. We will not turn a
blind eye to the squandering of taxpayer dollars on contractors
who are guilty of waste, fraud, and abuse. And we will not
tolerate bureaucratic inertia or ideological favoritism to
protect organizations like ACORN, and others, that routinely
violate the taxpayers’ trust.
Judge Gershon’s ruling is wholly preposterous, and the
Justice Department must vigilantly pursue its reversal on appeal.
Perhaps there are more luminous jurists at the Second Circuit —
or the United States Supreme Court — who will see her glaring
jurisprudential folly and correct her mistake.
