An Important Vote to Protect Charity Lobbying Rights

An article describing the legal services "poison pill" restriction and its relationship to more recent efforts to defund nonprofit advocacy work.

April 9, 2009

As the House and Senate last month approved the Serve America Act, a measure designed to greatly expand national-service opportunities and programs to recruit and manage volunteers, many people at nonprofit organizations were overjoyed by the new community-service programs that will soon be in operation.

But another important victory may have gotten lost in the excitement. During debates on the legislation, both houses of Congress deliberated over a highly contentious measure that would have curtailed the advocacy rights of nonprofit groups that accepted money provided by the new legislation. Fortunately, the Senate spit out the poison pill before it completed action on the bill, but it is important not to lose sight of the fact that lawmakers in the House got fairly far in their effort to thwart the advocacy efforts of charities.

For anyone who has tracked the sometimes complicated relationship between the federal government and nonprofit organizations over the past two decades, the debate over the proposed advocacy restrictions had a familiar ring. We've seen this movie before. The only question: Was it Groundhog Day or Friday the 13th? Is this a comedy where the painfully annoying main character is forced to relive each day until he finds the correct way to pursue a relationship with the object of his fervor, or is it a horror movie in which the main character keeps rising from the dead to come back and terrorize unsuspecting citizens?

The amendments in question, known variously as the Foxx and DeMint amendments for sponsors Rep. Virginia Foxx, Republican of North Carolina, and Sen. Jim DeMint, Republican of South Carolina, would have prohibited groups engaged in political or legislative advocacy from receiving national-service money, even if those activities were carried out with private support and had nothing to do with the groups' national-service activities.

The Foxx and DeMint amendments are reminiscent of a similar legislative initiative known as the Istook amendment, for then-Rep. Ernest J. Istook Jr., Republican of Oklahoma, who introduced it in the summer of 1995. The Istook amendment was a shot across the bow in the heat of battle that was the Republican Revolution. Under Speaker of the House Newt Gingrich, Republicans controlled the lower chamber of Congress for the first time in 40 years. And there was an air of score-settling that included an effort to cut off government support for groups that were considered allies of the ousted Democrats.

The rationale for the Istook amendment was that government dollars should not be used by charities to lobby for yet more government dollars. Proponents of the amendment argued that all money is fungible. Therefore any government-financed organization that conducted advocacy activities was being subsidized in its efforts. Put another way, every government dollar that comes into an organization frees up a dollar of private support to be used in lobbying and political work. The only way to prevent government dollars from subsidizing political advocacy of nonprofit groups would be to forbid government grantees from engaging in advocacy or, conversely, preventing organizations intent on carrying out advocacy efforts from receiving government grants.

The effort was audacious, threatening the speech rights of a broad range of organizations, such as the YMCA and Mothers Against Drunk Driving. And perhaps proponents did not expect the vast and fragmented nonprofit world to rise up in a coordinated defense of its constitutionally protected rights to free speech and assembly.

In truth, the Istook amendment is only the most prominent instance in a long series of attempts to curtail the advocacy rights of nonprofit organizations. The effort to "defund the left," as the legislation was first described, really began in earnest during the early years of the Reagan Administration, when the Office of Management and Budget floated a proposed regulation known as OMB Circular A-122, which was designed to curtail lobbying and political advocacy efforts of nonprofit groups.

The sticking point for Circular A-122 was that it would have covered government defense contractors, as much as it might have reined in liberal advocacy groups. According to Seen But Not Heard: Strengthening Nonprofit Advocacy, by Gary Bass and others, Supreme Court Justice John G. Roberts Jr., then a young associate counsel in the Reagan White House, warned that the regulatory proposal painted with too broad a brush. "It is possible to 'defund the left' without alienating TRW and Boeing," he wrote, "but the proposals, if enacted, could do both."

In a further comment, breathtaking in its unvarnished reasoning, Mr. Roberts noted that the proposal might preclude government contractors from being able to fly to Washington on corporate jets as part of their lobbying efforts. Heaven forfend!

In the end, the breadth of the Istook amendment probably led to its failure to pass, just as A-122 cast too wide a net for our future chief justice. Since the Istook amendment, there have been numerous attempts to reintroduce a variant of this proposal, always to no avail.

The only time this type of legislation has succeeded is in the case of a special effort to proscribe the use of federal money from the Legal Services Corporation by nonprofit legal-service organizations, which assist low-income citizens and immigrants in civil court and other legal proceedings.

Traditionally, nonprofit legal-service agencies also carried out a fair amount of advocacy work. But those agencies became a particular bête noire for conservatives. And in 1996, a special law was enacted to prevent those organizations from using even their own private dollars - currently at least $300-million in encumbered resources - on lobbying and political advocacy.

As long as those restrictions stand, they offer a cautionary tale to other nonprofit organizations. In particular, many legal-service organizations have had to create fully separate advocacy offices, established in entirely distinct physical spaces, resulting in tremendous waste of resources from the administrative duplication required by those rules. If such restrictions were applied to all nonprofit groups, the effect would be crippling.

Apparently, it's easier to silence the speech rights of organizations that serve mostly poor people and immigrants - not among the most politically powerful constituencies in Washington - than it is to curtail the advocacy rights of the YMCA and MADD.

Given the sweeping political changes in recent months, there is reason to believe that the onerous private-money restrictions on legal-service groups might be removed, either by Congress or the President.

Whatever the fix, lawmakers and many other Americans seem to have become increasingly aware that nonprofit groups of all types should have the right to speak out about public policies. Indeed, our nation is stronger if our government is informed by citizens who have direct experience through voluntary action.

There is a small and extreme element in our society - and a handful of politicians in Congress - who apparently believe that nonprofit groups should only carry out direct services under a vow of silence. But nobody wants to see a silent movie these days.

Vince Stehle is a program director at the Surdna Foundation, in New York, overseeing its grants to strengthen the nonprofit world. He is also chair of the New York Regional Association of Grantmakers.

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