Wednesday, March 14, 2012

Are Nonprofits People, Too?

(Cross posted on Stanford Social Innovation Review. See also #ReCoding Good Citizens United Charrette)

Citizens United and the future of the social sector

Presidential primary season has put the practical effects of the 2010 Supreme Court decision in Citizens United vs. the FEC on painful display. By removing contribution limits, the decision has opened the floodgates to unprecedented cash flow for elections. It has also given birth to new organizational forms, as PACS morphed into SuperPACS, a new entrant into the already crowded campaign finance landscape of 501 c 4s, PACS, 527s, campaign offices and party coffers. According to data from the Center for Responsive Politics, the early March numbers show a 234% increase in spending so far in the 2012 election compared to the same point in the 2008 cycle. Most surprisingly, it has positioned nonprofit organizations, specifically 501 (c) 4 and (c) 6 social welfare organizations, at the center of the money flow between donors and the offices their candidates seek.

There is a great deal of discussion about what Citizens United means for elections, campaign finance, and democracy. But what does it mean for the nonprofit sector? This will be the topic of our second #ReCodeGood charrette, coming up on March 20 at Stanford.

We are asking questions about the many possible ways the new rules for political giving might shape the nonprofit, charitable landscape. These include:

·      Will the ability to make unlimited contributions to elections change donor behavior? Will more donors seek to achieve certain social outcomes by influencing elections through (c) 4 or (c) 6 nonprofits? Will they draw against their “charitable” budgets to make these contributions?
·      How will the constant drumbeat of media attention to these political nonprofits affect public opinion of and trust in other nonprofit organizations?
·      How will calls for greater scrutiny of politically engaged nonprofits affect the oversight of others?
·      Will the new landscape of donor behavior entice more charitable nonprofits – 501 (c) 3 organizations to start or partner with election-engaged social welfare nonprofits – 501 (c) 4 and (c) 6’s?
·      How will demands for donor disclosure in political setting change age-old practice of charitable anonymity?
·      How will we know any of the answers to the above, given the current state of nonprofit and election disclosure rules?

Since January of this year, at least four states - Montana, Hawaii, New Mexico and Vermont - have taken steps to counter the effects of the Citizens United decision. In Montana, a hundred year-old statute limiting corporate spending in elections, the Corrupt Practices Act, was upheld by the State Supreme Court, setting up a potential test case for Citizens United. The legislatures of Hawaii and New Mexico passed calls for a Constitutional Amendment to undo the decision and states across the country have revisited their existing rules on corporate spending and disclosure since January 2010. In Vermont, citizens in 58 of 60 town meetings held on “Town Hall Day” approved non-binding resolutions to undo “corporate personhood.”

While enormous spending gets all the attention, the roles of nonprofits and funders in both bringing the cases that resulted in Citizens United and responding to the current reality on the ground has warranted much less discussion. The appellant in the case, Citizens United, is a 501 (c) 4 nonprofit with an associated 501 (c) 3, the Citizens United Foundation. Nonprofit organizations and their funders have played a long role in advancing the legal strategy as well as those arguments being used to counter it. Corporate shareholders can (and are) seeking disclosure of political expenditures, however, there is no analogous process for nonprofit expenditures, as these organizations have no shareholders.

Participants at the March 20th charrette will include nonprofit lawyers, legal scholars, experts in political transparency, experts on nonprofit policy, and our special guest, Jane Mayer of The New Yorker. On March 22, the Stanford Center on Philanthropy and Civil Society is pleased to host Jane Mayer in a public conversation with #ReCodeGood’s Rob Reich. Join us on campus at the Stanford Law School, Room 290 – register here.

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