Let's Take the GOP's Zombie ACORN Probe Completely Seriously

The community organizing collective ACORN may be disbanded but that doesn't mean Republicans are finished crusading against its former employees and tying them to the left-wing-tinged Occupy Wall Street movement.

The community organizing collective ACORN may be disbanded but that doesn't mean Republicans are finished crusading against its former employees and tying them to the left-wing-tinged Occupy Wall Street movement. On Monday, House Oversight Committee chairman Darrell Issa called for an investigation into New York Communities for Change, a group that works out of ACORN's former Brooklyn offices and is staffed by many of its former employees, for engaging "in fraud through its participation in the Occupy Wall Street protests." The basic ingredients of Occupy Wall Street, ACORN and fraud make for an intoxicating cocktail of right-wing preoccupations not likely to wear off. So let's begin by taking the allegations completely and utterly seriously.

The critical allegations against New York Communities for Change (NYCC), according to Issa's letter [PDF] to the U.S. attorney general in New York, are that it "solicited donations from union members under false pretenses and misappropriated those funds to support the protesters" of Occupy Wall Street. The allegations stem from a Fox News report published on October 26 citing anonymous sources working at NYCC accusing the organization of collecting cash donations for a United Federation of Teachers fundraising drive and giving the money to Occupy Wall Street.

Sources who participated in the teachers union campaign said NYCC supervisors gave them the addresses of union members and told them to go knock on their doors and ask for contributions—and did not mention that the money would go toward Occupy Wall Street expenses. One source said the campaign raked in about $5,000. ... 

Sources said staff members also collected door-to-door for NYCC’s PCB campaign — which aims to test schools for deadly toxins —but then pooled that money together with cash raised for the teachers union and other campaigns to fund Occupy Wall Street.

Citing the Fox News report in his letter to the U.S. attorney general, Issa makes two primary allegations: 1) NYCC, a community organizing nonprofit, is funneling money to Occupy Wall Street 2) It's telling donors the money is actually going to a United Federation of Teachers fundraising drive.

NYCC denies both allegations. “We have never given any money to Occupy Wall Street,” said Jon Kest, the executive director of NYCC, to Politico's Ben Smith on Monday. “It’s just absurd.”

But what if Kest is lying? If money raised by NYCC is traced to Occupy Wall Street, could that be considered a crime or misdemeanor?

Not likely.

In the state of New York, groups that want to raise money such as NYCC need to register with the Attorney General's Charities Bureau, a spokesperson at the attorney general's office in New York said. Upon registration, the group must explain how it will use its funds in a type of mission statement. If it wants to donate to outside groups, that must be disclosed and the outside groups must at least be vaguely aligned with the group's mission statement. Otherwise, it's a violation of New York state charities law. So does NYCC's registered mission statement jive with a donation to Occupy Wall Street? Fortunately, for NYCC, it does. Even if Kest is lying about where his group sends its money, a donation to Occupy Wall Street (a movement that deals with economic and social justice) would probably fall within NYCC's mission statement. Here's NYCC's registration documents and mission statement, available for viewing at the attorney general's charities database.

The undertones of social welfare and economic justice sound awfully familiar to what a sign might read at an Occupy Wall Street protest. So it's not a tough sell to say the two group's interests are aligned. But what about the second allegation: that NYCC employees "lied about how the money would be used"?

According to Fox News sources, the lying was recurrent. “We go to Freeport, Central Islip, Park Slope, everywhere, and we say we’re collecting money for PCBs testing in schools. But the money isn’t going to the campaign," a source told the network.

If those allegations can be proven to be true, it could spell trouble for NYCC, says Gene Takagi, a nonprofit attorney and director of the Nonprofit & Exempt Organizations Law Group. "It's the basic definition of fraud: you can't lie or cheat or deceit about raising funds or how funds are going to be used," he said. "Any individual committing fraud could be subject to criminal penalties and the state could revoke an organization's ability to raise charitable funds."

Still, the devil is in the details. "If they said they were using it for a particular drive and part of that drive is consistent with raising money for Occupy Wall Street, you would say that they hadn't committed fraud," he said. "But if there's no reasonable way the drives are correlated, you could say it would be worth investigating."

Whether U.S. attorney Loretta Lynch of the Eastern District of New York takes Issa up on his request for an investigation is far from certain. "I have no comment as it is a matter of policy that we do not confirm/deny or discuss investigations," said Lynch's spokesman in a statement.

Experts we spoke with said they would be surprised if a fraud case was pursued, given the small amount of money reportedly involved. (The Fox News source said that only $5,000 was raised in the fundraising drive in question.)

"For $5,000, I'm not sure that's something that the DA would pursue," said Takagi. Cliff Perlman a partner at the New York-city based law firm Perlman & Perlman, which specializes in nonprofit law, agreed. "In my experience, the U.S. attorney and the district attorney don't prosecute cases for those small numbers. It's really hard to get the government to intervene."