Why the Government should not prohibit Nonprofit Organizations from Lobbying
According to Merriam Webster’s online dictionary the term Advocate is “one that defends or maintains a cause or proposal. ” (Merriam-Webster’s, 2013). Advocacy in the non profit community is practically seen daily through the words and actions of those that support, are employed or are beneficiaries of the myriad of services performed. It is at the core of the founding attributes of any non profit organization and is the crux of its ability to generate revenue and carry on its mission and purpose.
However, one must be diligent to be able to differentiate advocacy from activities which may expose the organization to unwanted risk. Allowed under certain federal restrictions, lobbying is an activity which must be carried out with the utmost caution and transparency at all levels of government. Additionally non profit organizations which are the recipients of federal grants and/or funds must employ a greater degree of detailed oversight to ensure that no amount of said monies are being used to influence the legislative process.
Lobbying at its simplest is the support or opposition to a specific piece of introduced legislation. (Merriam-Webster’s, 2013). As such, the art of lobbying has been a central point of criticism and skepticism throughout history as one truly never knows the rhyme or reason legislators vote for a certain bill and who may have been behind the scenes swaying their decision. Although the basis for democratically electing a legislator empowers its citizens, lobbying is the truest form of having your voice heard and ultimately it takes money and influence to scream the loudest which is something most nonprofits rarely possess.
History It is noted from historical references that that the first person to actively engage a member of congress to advocate for a group he represented was William Hull in 1792. Mr. Hull, a veteran of our Revolutionary War, was hired by a consortium of veterans from the Commonwealth of Virginia to lobby Congress for additional compensation for their services during the war and as described by Grier, “press a claim for back pay they felt the nation still owed them for winning its liberty. (Grier) These heroes of our independence were individuals who had received land and monetary gain for the service of our newly formed government and arguably used said governmental monies to secure the services of Mr. Hull to lobby on there behalf. Although not considered illegal at the time, this may have also been the initial occurrence of using federal funds to lobby for a group’s desired legislative outcomes.
Although unsuccessful in his bid, Hull’s actions gained awareness and was seen by most as a negative ploy by the veterans to thwart the very democratic freedoms they fought for. According to Harvard professor Phillip Meade “Public outcry charged officers with attempting to establish a military aristocracy on the backs of the civilian population. ” This is the exact scenario that another veteran, James Madison, warned about in his famous essay Federalist 10 several years earlier.
In it, Madison urges his readers to consider the formation of a unified republic that could withstand any possible usurpation by organized groups he referred to as factions. As what would be comparable to a modern grass roots campaign, Madison’s publications go on to define factions as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. (10) Commonly referred to as special interest in today’s age, these factions were seen as the fractures that enveloped the fabric of a true democracy and what ultimately led to the idea and eventual creation of the Constitution and the establishment of a popularly elected congress. Madison knew then that factions would exist between the socio –economic levels of the day and that if left unchecked those that wielded power and wealth were sure to keep those that didn’t in that exact position.
In retrospect, Madison’s theories were on point and although the evolution of a democratically elected state would some what limit the lobbying efforts of the privileged, one can argue that our laws are heavily influenced by the golden rule, in other words those that have the gold make the rules. Current Debate The current argument for repressing the voices of federally funded nonprofits is the concern that hard earned tax payer dollars are being used by nonprofits to lobby governmental officials into continuously funding their requests and creating an environment of bias and unjust enrichment.
To that extent on December 23, 2011 President Barack Obama signed the Consolidated Appropriations Act, 2012 into law. 48 Section 503(b) broadened the scope of appropriation restrictions barring the use of federal funds to grantees or agents “related to any activity designed to influence the enactment of legislation” before Congress or any state or local government. (OMB, 2012) Specifically the circular in discussing Cost Principles for Non Profit Organizations, establishes principles for determining costs of grants, contracts and other agreements with non-profit organizations. In further describing the activities disallowed, the circular states that that federal funds may not be used to influence the outcomes of any federal, state or local election. Read about the weakest branch of government
“Congress included language in § 503 of the 2012 Consolidated Appropriations Act expressly prohibiting the use of CPPW funds:
(a) for publicity or propaganda purposes, for the preparation, distribution, or use of any kit, pamphlet, booklet, publication, electronic communication, radio, television, or video presentation designed to support or defeat the enactment of legislation before the Congress or any State or local egislature or legislative body or designed to support or defeat any proposed or pending regulation, administrative action, or order issued by the executive branch of any State or local government.
(b) to pay the salary or expenses of any grant or contract recipient, or agent acting for such recipient, related to any activity designed to influence the enactment of any legislation, appropriations, regulations, administrative action, or Executive order proposed or pending before the Congress or any State government, State legislature or local legislature or legislative body.
Consolidated Appropriations Act, 2012 (2011) Critics will state that this is the mere beginning to which the government should regulate lobbying efforts by federally funded nonprofits and argue that there are loopholes that allow said funds to be allocated to other areas in need thus freeing up time and assets to lobby. They clamor for the boa-restrictor like regulations that prohibit any and all lobbying efforts by said organizations; however I present the following debate as to its overreach. Constitutionality
As noted previously, the founding fathers of this great nation sought to counter balance the strength of any faction or special interest by allowing competing parties to have an equal voice and as fair of an advantage as everyone else. In drafting the Constitution, these men gave us citizens the right to free speech and the right to petition our government. ( DeKieffer p1)
The Supreme Court has also ruled on various instances where the doctrine of free speech and lobbying came into play and have ultimately declared it as unconstitutional to represses ones opinion.
In the Citizens United v. Federal Election Commission Supreme Court Case in 2010, Justice Kennedy explained on behalf of the majority “The First Amendment protects associations of individuals in addition to individual speakers, and further that the First Amendment does not allow prohibitions of speech based on the identity of the speaker. Corporations, as associations of individuals, therefore have speech rights under the First Amendment.
Because spending money is essential to disseminating speech, as established in Buckley v. Valeo, limiting a corporation’s ability to spend money is unconstitutional because it limits the ability of its members to associate effectively and to speak on political issues. ” Based on this clear and concise language dictated from our nations highest judicial court it is unimaginable that any attempt to silence the voice of an organization for merely receiving federal funds would be considered unconstitutional and undemocratic.
Any legislation to enact the regulation would be met with disdain and contempt from the majority of the nonprofit community and they would formalize a plan of advocacy and lobbying that has yet to be seen in this country. The lobbying industry itself would be up in arms at the contemplation of the proposed changes and the negative effect it would have on its revenue by loosing a key segment of clientele. They themselves would use their influence and tactics to garner enough opposition to negate the proposal. Equality
Thomas Jefferson is quoted in the Declaration of Independence that “all men are created equal” (1776) and this would tantamount to the modern equivalent that all corporations are also created equally in its” unalienable rights of life, liberty and the pursuit of happiness. ” (1776) Although the argument can be made that specific regulation are needed to restrain certain industries from overreaching their domain and risking the greater good of all; I opine that relegating a nonprofit organization to silence in exchange for federal funds is biased.
I state that on the argument that we as American’s are the recipients of federal aid in one capacity or another. We relish on social service programs, tax deductions, rebates, stimulus packages and the other tenfold benefits we receive on a daily basis. Should we then as recipients of federal funds, our own money handed to us, be stripped of our God-given right to free speech and to petition our government? Should we be silenced like the servants of the dictators and despots our media loves to condemn? No!
Our fore fathers fought the tyranny of taxation without representation and while we still have the freedom to hear the bomb’s bursting in air, we can not let our voices nor those of our organizations be muffled because we achieved a level of success that deemed us worthy of entrusting us with carrying out a mission for the greater good of all. Henceforth I offer the argument that if we were to silence our nonprofit recipients then we would create a biased society that segregates them from their for profit counter parts.
Consider the recent economic stimulus package that the federal government had to provide to a plethora of for profit businesses in order to maintain balance and liquidity in our financial markets. According to the most recent quarterly report to congress by the Special Inspector General of the Troubled Asset Relief Program, taxpayers provided approximately $419 billion to prop the nation’s financial system. (SIGTARP 2013) A considerable number of banks, auto manufactures and insurance companies were given aid with limited constraints or regulatory mandates put in place.
Based on data collected from The Center for Responsive Politics website opensecrets. org and ProPublica’s bailout, I have compiled the chart below illustrating the top 15 TARP recipients and the money each organization spent on lobbying in 2009. Excluding Fannie and Freddie Mac which are in government conservatorship, the remaining 13 entities spent over $40 million just in 2009. The Center for Responsive Politics also estimates that of “300 companies that have been aided by TARP, 26 paid lobbyists a total of $76. 7 million to represent them on Capitol Hill in 2008. (Beckel)
Imagine if those same for profit entities had been barred from lobbying all together as a result of a mandate. The outcry from these corporations would have been heard around the world. Actually, the concept of prohibiting the recipients of lobbying the federal government was also given consideration. “Treasury Secretary Tim Geithner said recently that institutions collecting these funds won’t be allowed to lobby the federal government going forward” (Beckel), however based on the subsequent and continued levels of lobbying by these organizations it was not so.