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.