From Our Brains to Yours
How political should your nonprofit be?
On Friday, a federal appeals court struck down a limitation on non-profit money in politics that felt to many of us in this business, as one of my colleagues put it, like “a fact of life, like gravity.” Boiled down, the ruling cleared the way for non-profits to raise and spend unlimited money in support of or in opposition to federal candidates, but maintained the requirement that the nonprofit campaigns remain strictly “independent” of candidate campaigns and parties. Armies of compliance attorneys are no doubt coming up with better summaries and more in-depth explanations of the implications, but that’s a reasonable top-line summary.
The New York Times succinctly explained the context:
Following the direction of recent Supreme Court decisions, the appeals court held that independent groups have a First Amendment right to raise and spend freely to influence elections so long as they do not coordinate their activities with a candidate or a party.
The Supreme Court has ruled that the federal government’s only legitimate interest in restricting political donations is combating the appearance or reality of corruption that could arise from allowing unlimited contributions directly to a candidate or political party.
The court has held that, on the other hand, a desire to level the playing field or limit the power of moneyed interests is not a permissible reason for the government to limit the amount a rich person might spend on independent efforts to elect or defeat a candidate. In this case, the appeals court held that nonprofit groups are essentially like rich individuals, so the government cannot restrict their independent spending either.
As the NYT blurb hints at, the underpinnings of decades of strict limits on campaign financing are tumbling. In addition to the federal appeals court ruling on nonprofit money in politics, the Supreme Court appears poised to erase some of the limits on corporate and union money in elections, there’s some speculation that the next step would be removing or significantly raising limits on candidates and parties to keep parity with the corporations, unions, and non-profits, and just last month a federal court ruled that a Connecticut law providing public financing for elections is unconstitutional.
Without delving into the arguments for and against limits on campaign finance – though those arguments are myriad and interesting, addressing both the theoretical and the practical sides of how we go about selecting those who will govern our nation – the context of deregulation provides an excuse to do some thinking about the role of nonprofits in politics.
Some of questions at the top of my mind today:
1) Pending a SCOTUS appeal, non-profits now have much more leeway when it comes to influencing elections; does that also mean they have more responsibility? From housing to education to veterans benefits to the environment, nearly every issue non-profits work on are heavily influenced by federal policy, and therefore by federal policy makers. With fewer legal limitations against electioneering, do non-profits have a responsibility to expand their policy work to advocating for those candidates who would make the best policy?
2) We know from years of data that political donors and “joiners” – those people who take a up a cause and give blood, sweat, and tears, or at least a few mouse clicks – are different than “charity” donors and joiners. Is engaging directly with politics an opportunity for non-profits to bridge the gap, finding political donors to plug into more traditional nonprofit work and giving nonprofit folks a bigger voice in electoral politics? Or is that a trap – are two communities different enough that should remain separate but equal-ish, so to speak, to the nonprofit leader?
3) The locus of the conversation on this has been around fundamentally political non-profits. EMILY’s list originated the most recent case, and EMILY’s list is first and foremost a political beast, regardless of which section of the IRS code it’s operating under. As the lines get blurrier legally, does it make sense for the lines between ’service’ and political non-profits to get more solid, or should they blur, as well?
What the IRS allows is just one factor. What’s best for the nonprofit sector, the people and causes non-profits serve, and the ways that politics should and shouldn’t intertwine are some of the factors that make up the big picture. I hope we’ll all take this opportunity to be deliberate and about the path forward: there are opportunities to make a huge difference in the world if we get this right.