The Silence of the Not-for-Profits

PRAccess - Fall/Winter 2004

In an era where the conservative NGO Watch has challenged the growing influence of liberal non-governmental organizations (NGOs) on a global scale for being "too political," (See "Policing Civil Society: NGO Watch" by Jean Hardisty and Elizabeth Furdon from PRA's Spring 2004 edition of The Public Eye), it should come as no surprise that similar barriers restricting the influence of not-for-profits have emerged during this election year in the United States.

Some of the obstacles are perhaps unintentional, coming from the way government laws and regulations are written. At least one is planned, the result of a deliberate impediment thrown in front of progressive groups. And maybe the most troublesome is the impediment of a self-imposed organizational silence that occurs when there is fear of reprisal.

Vague regulatory language has long plagued advocacy groups and community-based organizations as they look for guidance from the government on how to express political opinions. In fact, surveys of not-for-profit groups repeatedly indicate that their Directors do not fully understand the opportunities and limitations determined by their status. And who wouldn't be confused? Tax law and election law intersect in complex and unclear ways, and despite a bevy of analysts trying to untangle how the system works, most of us remain unclear on the concepts.

Some of this hesitancy is the understandable result of the ambiguous language that remains in federal regulations. For instance, the Internal Revenue Service (IRS) does say that not-for-profits may not lobby to any "substantial" degree, but for years it did not clearly define the meaning of "substantial." Supporters of campaign finance reform have commendably been eager to reduce the influence of big money on elections. While the McCain-Feingold Bipartisan Campaign Reform Act in 2002 sets in place some of these curbs, its complexity also adds to the confusion for not-for-profits. Recent news articles about tussles between Congress and the FEC serve to further fog the windshield. Small organizations cannot afford to hire legal advice to aid in the understanding of multiple federal bureaucracies. In the face of such uncertainty, what's an organization to do?

Sadly, such confusion often results in silence from the very groups that deserve a voice. Organizations can, and have, severely tamped down their participation in the election process. An eerie form of self-censorship comes into play when groups succumb to this fear without adequate information about their options. Many not-for-profits, especially progressive ones, are muted during this campaign when their voices could be amplified in ways that are perfectly legal.

One helpful response comes from the SPIN Project (from the Strategic Press Information Network) in the form of their accessible activist kit: Loud and Clear in an Election Year: Amplifying the Voices of Community Advocates. Another is Tufts political scientist Jeffrey Berry's attempt at publicizing the IRS simple-to-use filing option the "H election," under which certain not-for-profits can spend up to 20% of their revenues on lobbying. (See his article "The Lobbying Law is More Charitable than You Think" in the November 30, 2003 issue of the Washington Post). And a third is indefatigable Nan Aron and the Alliance for Justice's Nonprofit Advocacy Project.

Unfortunately for progressives there are other forces at work that contribute to the silencing of not-for-profits besides self-imposed censorship. Americans for a Better Country (ABC) emerged in September of 2003 as a conservative type of political committee called a "527" with the goal of outspending liberal 527s in the coming presidential election. One of its first actions was to request an advisory opinion from the FEC about the status of 527 political committees.

ABC explained itself in an early press release: "The liberal groups have already been raising money from billionaires, labor unions and other special interests and making plans to spend their unlimited soft dollars to affect the 2004 elections. ABC wants the advisory opinion to clarify whether this is permissible." In essence, ABC was asking the FEC to throw a monkey wrench into the gears of the progressive advocacy process.

The FEC issued a draft opinion in February 2004, indicating that spending by progressive 527 groups, like the MoveOn.org or Voices for Working Families, would be extremely restricted on any activity that "promotes, supports, attacks or opposes" a federal candidate. Even worse, the draft opinion left open the possibility that 503(c)(3)s, the most common educational and charitable not-for-profit classification, would fall into this category, too.

Response was swift. 200,000 public comments flooded in. Intense criticism from coalitions of progressive advocacy groups appeared. 120 House members who opposed the proposed change wrote to the FEC: "There has been absolutely no case made to Congress, or record established by the commission, to support any notion that tax-exempt organizations and other political groups threaten the legitimacy of our government when criticizing its policies."

By August 2004 the commissioners ruled 4-2 to impose fewer restrictions, to limit them to 527s, and to postpone putting them into effect until after the 2004 election. Although this decision generated a lot of attention in the legal community representing big not-for-profits, most of the 900,000 organizations classified as 501(c)(3)s in the United States were by many accounts unaware of how narrowly they had escaped a threat to their legitimate advocacy activities.

If they were watching at all, progressive groups probably missed the fact the incident has been generated by a conservative group intent on restricting liberal and progressive election year influence. Instead, they might have just continued to harbor the vague impression that somewhere in the Bush administration forces were at work to silence their views, aiding and abetting the chilling effect of self-censorship.

It is a sober tip of the hat to the power of not-for-profits that they have their adversaries. At the same time progressive not-for-profits should awaken to the reality that their survival demands the vigilance required by democratic structures the world over. At PRA we continue to be committed to such watchful observation.

-Pam Chamberlain, Researcher

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