The Congressional spotlight is being focused

The Washington DC Examiner reported the other day that a Congressional Philanthropy Caucus is being organized in the House, co-chaired by North Carolina Republican Robin Hayes. The Democratic co-chair was not identified, and the newspaper didn't name its source for the story. Some quick poking around just now didn't turn up any denials, and the Chronicle of Philanthropy appears to believe it.

Such a move seems inevitable given the various non-profit and philanthropy related issues that have in recent years been the subject of Congressional bills or hearings, and the general increase in public awareness due to things like the Gates and Buffett philanthropies and some non-profit scandals. And it does seem clear from kludgy messes like last year's federal Pension Reform Act that a lot of Congressmen and Senators are not yet up to speed on what this sector does and how, and a defined caucus ought to help with that learning curve.

Nonetheless I can't help thinking of the prediction Joel Fleshman is going around making (out loud and in his book) about foundations: that if they don't define and adopt a new more-transparent version of the charitable-foundation social contract, Congress will eventually define it for them. I think he's right about that -- our society slowly but continuously becomes less tolerant of secrecy from all its public or civic institutions, including publicly-held companies, and there's no reason to expect foundations to be exempted from that.

And I would apply Fleishman's logic to the not-for-profit tax-exempt sector as a whole: the statute of limitations on permission to be a young industry is not yet defined but it's also not open-ended. In some ways we perform our role in society better than other sectors do and some ways we don't, at all; and we won't be allowed to avoid that fact forever.

A constitutional right to federal grants?

Public-health and human-services groups have celebrated two federal court rulings overturning a string that Congress placed onto federal grants for overseas work to combat HIV/AIDS, and a broad coalition is now working to defeat the Bush Administration's appeal. On the specific issue at hand I'm totally with them, but at another level this makes me uneasy.

A US law enacted in 2003 requires nongovernmental organizations to pledge their opposition to prostitution as a condition of receiving funds for international anti-AIDS work. The issue is that non-profits doing such work feel they must work with sex workers and that in order to gain trust they have to refrain from trying to talk folks out of being prostitutes. That's a policy-tactics choice which I'm fine with but a lot of folks in the U.S. Congress aren't, hence the idea of requiring signing that pledge in order to get federal funding.

The pledge, it's worth noting, does not stop anyone from working with prostitutes nor require anyone to specifically try to stop them from plying that trade, and United Nations-affiliated programs were specifically exempted from it. You can read it for yourself here in one of the court decisions, see page 12. Actually the feds' interpretation of the pledge, according the court ruling, has been more that it would prevent a group from advocating the legalization of prostitution.

Regardless, the plaintiffs successfully turned this into a free-speech issue; the government's counterargument is that it's just a contract issue (there's no constitutional right to a grant and anyone not wanting to sign the pledge can just decline to accept one on those terms). It turns out that the Supreme Court has previously concluded that when the federal government is the funder, speech-inhibiting grant requirements have a big enough impact that they can constitute an unreasonable infringement of the First Amendment right to free speech. (See the page of that court document numbered 56.) As one of the federal judges put it, “The Supreme Court has repeatedly found that speech, or an agreement not to speak, cannot be compelled or coerced as a condition of participation in a government program.”

That was news to me but as stated it sounds like the government can't require somebody to sign a loyalty oath as a condition of receiving an entitlement, like a Social Security check. An interpretation that it means the government can't place conditions on a discretionary optional grant...is it just me or does that slope sound rather slippery? Can't we imagine scenarios where such a right to federal grant money could lead to funding going to groups carrying out far-less-positive agendas? Is that really what the Supreme Court meant?

And do we really want corporations (albeit in this case not-for-profit ones) to be able to assert inalienable rights just like an individual person? I thought Teddy Roosevelt settled that point a while back in the negative and I've always been glad he did. I dunno, could be I'm just exposing my ignorance of constitutional law and theory, but...really not sure the forest isn't being lost for the sake of a tree here.

Your tax dollars at work

The U.S. government, it turns out, has been passing federal-employee personal contributions on to more than 1,200 non-profits which owe federal taxes, and has issued billions of dollars in federal grants to the same delinquent charities.

This revelation comes from the General Accounting Office, as reported by MSNBC and written about by Trent Stamp of Charity Navigator. The watchdog agency says that the true number of non-profits delinquent on payroll taxes but still receiving federal-employee donations is undoubtably even higher. That's because federal law for some bizarre reason prohibits the relevant officials from checking whether charities that are to receive employee donations are up to date on their routine federal tax returns.

The GAO picked 15 of the delinquent charities at random to check out further, and concluded that every one of them was probably acting illegally -- doing things like buying a boat for the executive director while failing to pay federal payroll taxes. (And let's keep in mind that most of what is called "payroll taxes" is actually money withheld from employee paychecks.) The GAO made up a bogus charity, applied for funding from three local offices of the federal employee-contributions system, and received funds from all three with no trouble.

Ok clearly part of the story here is serial incompetence in our federal bureaucracy. But for me the bigger issue is this: the fact that fewer and fewer Americans still think non-profits to be highly trustworthy is not simply due to "a few prominent rotten apples that have made headlines" as I keep hearing people tell each other at conferences. There is a broader problem here in this sector and it is not being faced.