April 26, 2012

It’s Time to Stop Letting Congress Stomp on Nonprofit Advocacy Rights

Richard White/Chronicle of Philanthropy

Nonprofit organizations have fewer rights to speak out about important public-policy matters today than they did last year.

The latest assault on advocacy came in a spending bill Congress approved to provide money to education, health, and human-service groups.

These new restrictions on advocacy were passed as part of a coordinated campaign by conservatives to quash popular democracy. Unfortunately, as contrasted with past “defund the left” efforts, charity leaders didn’t find out about them in time to take action to prevent their passage.

The challenges to nonprofit advocacy began more than three decades ago when the Heritage Foundation started making new restrictions a priority. This attack was pushed by the Reagan White House in the early 1980s, took the form of major Republican congressional legislative efforts in the mid-1990s, and has arisen in various forms since then.

Some conservative lawmakers and Republican White House officials have tried to go so far as to limit what charities can do with private contributions; others have tried to restrict the types of activities that nonprofits can conduct with federal funds.

Most of their efforts were stopped by groups whose missions were to serve as watchdogs to protect charities’ rights and the coalitions they organized.

Nevertheless, conservatives succeeded in several attempts to chip away at nonprofit advocacy rights.

For example, Congress voted to prohibit social-welfare organizations classified under Section 501(c)(4) from receiving federal grants if they lobby. Additionally, grantees of the Legal Services Corporation face greater restrictions on advocacy than do other federal grantees.

Many grant-making foundations were alarmed by these attacks.

Like much of society, they recognized that strong nonprofits help build a vibrant democracy. And they know that the only way to do that is to preserve the ability of nonprofits to speak out on public-policy issues, to challenge institutional power, and to encourage Americans to get more involved in democratic decision making.

A legacy of attacks on charities’ advocacy was that a small number of foundations provided support for nonprofit watchdogs to monitor attacks on advocacy and to help train nonprofits to influence public policy. While laudatory, those grants were too limited and episodic.

Strikingly, in the past few years, even limited foundation grants for protecting and promoting nonprofit advocacy rights have dropped to minimal levels.

Many organizations that used to serve in the watchdog role no longer have staff members dedicated to monitoring advocacy rules, and some nonprofits that devoted all of their work to this cause no longer can. Such losses make it all the more likely that nonprofits will not be prepared to fight future attacks on their rights to influence public policy.

The blueprint for what to expect can be seen in the newly enacted appropriations law, which expands the list of advocacy activities beyond lobbying that nonprofits are forbidden to conduct with federal money.

With the new law, groups that receive money under the appropriations measure cannot use federal grants for “any activity to advocate or promote” any “proposed, pending, or future” tax increase (at any level of government) or any “future requirement or restriction” on a “legal consumer product” (e.g., tobacco and alcohol products, junk foods and beverages, and guns).

None of those key terms is defined. Suppose a group received federal aid to fight cancer by decreasing tobacco use and wanted to educate the public about the health dangers of cigarette sales, especially to minors. Presumably, that wouldn’t be allowed under the law. Or say another nonprofit won a grant to curb obesity. It might want to suggest a surcharge on sodas and other sugary foods as a way to deter consumption, but it probably couldn’t promote that idea.

The new law also forbids nonprofits from using federal money to influence some regulatory and executive-branch actions. That means a charity that receives federal money to provide care and support to families with disabled children, for example, would no longer be allowed to use any of its government money to comment on proposed state regulations that govern residential treatment or in-home services.

To be sure, the new law is limited in scope at this point to programs paid for through a single appropriations bill, the one that covers the Departments of Health and Human Services, Labor, Education, and several independent agencies. But close to one-third of nonprofit revenue comes from the federal government, so it is easy to see that more groups will be affected if this idea spreads to legislation that affects the arts, the environment, or so many other kinds of groups.

While charities are not permitted to use federal money to lobby, they certainly ought to educate both the public and policy makers and advocate on social problems if they receive government money to solve those issues. Policymakers need to receive information from independent, nonpartisan parties such as federally financed nonprofit groups. Their experience, research, and ideas are often vital to improving lives in our communities. But the new law makes this difficult in many cases and out of the question in others.

The new legislation is a case of the public interest losing out to private ones. Charities advocate on issues in which people’s voices are not adequately heard in the democratic process; they work to promote the common good. The additional restrictions on charities’ free-speech rights make that point clear; they demonstrate how monied interests impose their will on ordinary people and the groups that try to serve them.

The new law was drafted by Rep. Denny Rehberg, a Montana Republican, and supported by industry representatives, including the American Beverage Association.

Why would a trade association want new restrictions on nonprofit advocacy? Maybe because it wants to kill federal money to anti-obesity and other public-health programs that could affect how many sweetened drinks Americans buy. Knowing how hard that is, they go after the speech rights of health charities that get federal aid. And this appears part of a continuing conservative attack on nonprofit speech.

One of the leaders of the assault on nonprofits is Cause of Action, an organization established a few months before these restrictions were enacted, that is directed by Daniel Epstein, a former staff member of the House Oversight and Government Reform Committee, led by Rep. Darrell Issa, a California Republican. Before that, he was a legal associate at the Koch Foundation, which promotes free-market and limited- government groups.

Cause of Action has written to at least 20 groups that receive federal money to fight obesity and promote tobacco-use warnings indicating to them that they may have engaged in illegal lobbying activities. The group said it was writing “only as a convenience” to tell the grantees they may be subject to civil penalties and private lawsuits imposing triple damages and lawyers’ fees.

This is reminiscent of other right-wing efforts, begun in the 1980s, to stifle charitable advocacy work by suing nonprofits. These assaults on charities earned their own acronym describing their effect: They were called SLAPP suits (Strategic Lawsuit Against Public Participation) and were often filed by corporations and other deep-pocket conservatives.

Democracy depends on the ability of ordinary people to have a voice in public-policy decisions. It is most often nonprofits that help people advocate for policies and programs that improve their lives. So attacks on nonprofit advocacy end up undermining our democracy. That is yet another reason for foundations to invest in protecting speech rights for nonprofits.

Gary Bass is executive director of the Bauman Foundation. Mark Rosenman, professor emeritus at the Union Institute and University, works on efforts to improve how nonprofits and foundations serve the public.