12 December 2009

forgotten era

All the way back in September, there was this kid with a video camera and goofy looking coat. And he became relatively famous for going around creating these videos implicating ACORN advisors in various forms of fraud or illegal activities. What was generally not shown were instances where he was told to take a hike (nor was this ever made clear to the American public how often this happened), or how often he was told what he wanted to know and then reported to the police (which happened at least twice that I know of). What resulted was a Congressional law designed to block the federal funding of ACORN on the basis that it was engaged in unlawful or fraudulent acts while receiving public monies.

Now I can certainly raise the case that the types of activities ACORN engages in don't always seem like things that I'd prefer to be funded through public taxation, but that would be an argument on the merits of the organisation itself rather than the behavior of its workers or even casting a doubt and blame on institutional-level corruption of the sort which might be deemed necessary to cut funding. Indeed, what was also not shown to the public was that ACORN responded in damage control mode by firing people and investigating with outside legal counsel for institutional fraud, precisely the measures taken by other similar, but far larger agents contracted by the federal government using public monies and actually investigated and charged (and fined or penalized) for committing illegal acts of fraud and abuse. That is, namely and usually, military defence contractors. Conveniently, when this fact is brought to the attention of people who already oppose ACORN, while supporting a complex marriage between foreign policy and military defence contracts, the necessities of war trumps the necessities of the poor.

I must admit I suffer from no such apprehensions.

This is largely because I find that it is more appropriate to penalize individuals who misbehave rather than institutions, holding the institution responsible for a portion of the monetary loss of fraud (because they employed some scumbag and deserve some penalty for doing so). If it is found that a CEO or board of director or some other institutional head advanced a policy of corruption to attain public monies for some nefarious end, such as smuggling underage women into the country to be used as sex slaves, then sure, that company deserves the disgrace it receives and would be likely stripped of future trust (for elevating unscrupulous business practices to positions of authority in the first place). The problem with the ACORN situation has been that they haven't been actually charged and convicted of such practices. They were of course shown doing some of them on TV and the internet (without the reasonable possibility of mounting their own fair legal defence as in a court of law where fraud is normally adjudicated), but they haven't been actually convicted of a crime here (naturally a number of major defence contractors have actually been found guilty of fraud and other acts of criminal intent or evasions, and have been fined in most cases many hundreds of millions of dollars for such things). Quite apart from whether or not I agree with the message and mission of agencies like ACORN (I might, I am somewhat sympathetic to poverty and oppression as problems which need advocates and tangible solutions), and quite apart from whether or not I agree that message and mission should receive federal funding (I might not here. Or at least, I might be less sympathetic to this than to other potential public means of alleviating poverty and oppression such as a negative income tax and educational reforms), the fact is that they DID receive such money, and are being stripped of that funding under rather conspicuous circumstances for what is now found to be an unconstitutional method. That is, to use Congress as a judge and jury and find them guilty of a crime, a means which was expressly forbidden under the Constitution of the United States referred to as a "bill of attainder". Since this is rarely used, I recall seeing it in history classes in high school with a degree of skepticism as to what on earth they were talking about. Generally we are a country content to use judicial systems to handle these matters and penalize misconduct (and use executive powers to pardon or reduce those penalties when our laws are themselves a force of misconduct), so it's not a common experience to see court rulings putting Congress in its place. There have been only 5 SCOTUS rulings in the entire history of the country successfully declaring an act as a bill of attainder (this was not SCOTUS but it may yet end up there). As so commonly happens when the constitution is invoked as a potential obstacle to doing something, it seems whoever wants to do something moves swiftly to dismiss it as an inconvenience. The fact that the Constitution has such a broad mandate on the manner and mechanisms of governance is no accident and means that in many such cases, this invocation will fall upon deaf ears as a majoritarian system does as it pleases to placate itself (supposedly). It does occasionally include specific no-nos that there is no way around in order to guarantee individuals and organisations within the country their relative human freedoms and equality before the law. Like this one.

If you want to deny funding to ACORN here are several arguments that you can make
1) That it is unconstitutional. Probably won't work, there's a huge pile of funding that this claim can plausibly apply to that isn't going anywhere and in some cases has been since deemed constitutional by court rulings. Appealing to an ancient document and seeking out the words "Congress shall make laws funding agencies doing X and Y", not finding such words, and then pretending that makes something legally invalid is not only ineffective, it's also an incomplete interpretation of the mission and methods of the Constitution and the government it set up (as well as the stated intentions of many of its constructors). Since the same reasoning often applies to the application of literal religious dogma, and often by the same sorts of people, it's hardly surprising to see. It's also generally inconvenient when the literal words get in the way of they are saying, meaning that their "interpretations" are based more on what they think government should do (for people other than themselves) rather than what the Constitution says it can do.
2) That it is unproductive. Probably won't work, most people seem to think social welfare programs are unproductive in some manner but also necessary. Economic and political experts tend to disagree on the importance of social welfare or a social safety net generally. Generally arguments there center on the importance of methods rather than that such things aren't necessary. Besides, there are in this case, far more government programs to which the model of "unproductive" spending applies. Market advocates (and now some liberals and ecologically sound thinkers) been trying to stamp out farm subsidies for decades. When it came up as an Obama campaign point I was impressed briefly. I was far less so when the actual budget came out. So good luck.
3) That it is an agency guilty of fraud, waste, and abuse. This mantra is quite effective at demonstrating a need to cut funding within political talking points and public interest. Not so much at actually generating the cuts in funding, at least at the federal level. If however this is the argument, then it remains to demonstrate that it is in fact guilty of those crimes and to show a sense of legal equivalence where other larger and perhaps more essential agencies are concerned. Other than the crime of setting up a harem of underage women prostitutes, I did not see evidence of any wrong doings myself. I haven't seen all the footage either so your mileage may vary. I personally would think a prostitute who doesn't pay taxes at all is more of a crime for example.

What you do not and cannot do is deny funding that already exists and deny future funding and contracts with the idea that they must be guilty of a crime solely because of public furor. Public furor was high over banking bailout scandals involving executive pay and demands and calls for action were made. What we could not do and did not do at the time was penalize those executives using legal force to tax or clawback monies that were given and promptly wasted. This may be a strong reason not to supply future aid to companies that perceived public sentiments so wrongly and acted inappropriately, or to consider more carefully attaching direct instructions as to the character of the money being supplied (something like: make loans or else). Here again, it was not in our power to deny funding already appropriated or even to deny future contracts specifically in the absence of any actual crimes (it was not in fact illegal for banks to use the money to pay bonuses, just dumb PR). The government might in my opinion benefit from a strong use of leverage or bargaining powers to attain more favorable terms with the agencies it supplies funding toward, and should certainly exercise greater diligence over its use as the money it doles out so rarely is visibly returned to taxpayers that supplied the bulk of funding to prevent or at least deter cases and causes of waste and fraud. It still shouldn't just go around penalizing people, companies, or non-governmental agencies that it interacts with through funding without actual legal cause.

Addendum. This does not mean I don't think ACORN should not have some sort of penalty imposed. But I object strongly to the methods being employed to do it. If they, as an institution, are found guilty of crimes against the public through the use of public monies, it will be appropriate for the judiciary branch to order any penalties that those infractions might entail and for the executive to carry them out by denying funding, for example. At present there is even administrative recourse as a matter of regulation (depending on the cabinet/sub-cabinet agency which was funding ACORN, usually HUD) which could have been used to find means to deny funding as well. Since both of these measures were sidestepped in a rush to assume and accord guilt, I disapprove of the methodology. In recent discussions online a historical case of a clan of cannibals came up. They were summarily executed when caught by a British army unit (this was in Scotland in the mid 18th century). It was then proposed that this was an example of a case where we don't or shouldn't bother with a jury and the accordance of basic civil rights. As in the case of ACORN, no matter how heinous you think their actions are, there is a process through which all manner of people are entitled to their defence. It may be a very brief process, perhaps a gruesome one, and not always what might be perceived as a perfect justice will result, but not following that process and slicing apart the contexts and protections that rules and laws supply to the rest of us for the convenience of immediately easing our conscience by depriving someone who will feel is heinous and infamous of their liberties and livelihood is far less likely to approach a just system.

The ease with which such abuses can be perpetrated and tolerated by a percentage of the public and the predictable claims of "judicial activism" where it results in these perceptions of imperfection (that is: that it produces rulings that are independent and opposite of a portion of the public's demands) are not inspiring if our idealistic society is deemed one of "rule of law" or "a Constitutional society" or whatever else it is that such people believe only themselves entitled to, but refuse to extend to others.
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