Beyond the Cause: The Art and Science of Advocacy An Assessment by Alliance for Justice

Transcription

1 Beynd the Cause: The Art and Science f Advcacy An Assessment by Alliance fr Justice Independent Sectr has issued an extensive new reprt, Beynd the Cause: The Art and Science f Advcacy, with the gal f identifying hw the nnprfit and philanthrpic sectr can increase its influence n public plicy and answering tw questins: 1. What appraches and strategies shape cnsistently successful advcacy effrts? 2. Hw well des the cmmunity f rganizatins currently engaged in sectr-wide advcacy perfrm? The study, cnducted in , included three surveys, mre than 100 interviews, a literature review, seven case studies and six issue analyses. An extensive descriptin f the methdlgy fr each cmpnent f the study is included in the appendices. The methdlgy indicates that senir members f the research team were respnsible fr gathering infrmatin, cnducting interviews, and preparing the case studies. Thugh the senir members f the research team are nt identified, cntributrs and cnsultants are acknwledged in the executive summary and include several Independent Sectr staff. The result is a reprt that identifies five strategic appraches t successful advcacy campaigns, as supprted by the seven case studies; extensively explres six sectr-wide issues identified by Independent Sectr as mst critical; and prvides a recmmendatin that the sectr must establish a cnvening rganizatin and ensure there are adequate resurces t supprt investments in the type f functins and relatinships nted in this study. As nted in the Huffingtn Pst by NCRP President Aarn Drfman The unstated implicatin is that Independent Sectr shuld be that rganizatin. There are sme imprtant weaknesses in the reprt that undercut its effectiveness, particularly when cnclusins and recmmendatins dn t match the evidence the reprt itself presents. The study cmes at an imprtant time in the histry f the nnprfit sectr and the natin. Nnprfits play an essential rle in American demcracy, and ften represent peple wh have a limited vice in the plicy prcess. The sectr generates innvatin -- bth thrugh its prgrams and research -- that mves us clser t slving pressing prblems. Nnprfits play an invaluable rle in bringing a diverse set f perspectives t the plicy-making table. Many nnprfits play a singular rle in influencing public plicy because they represent cmmunities, bth in terms f gegraphy and issue fcus, and are an essential cunterweight t ther frces in the demcratic prcess, such as well-funded special interests. Regrettably, the imprtant cntributin this study culd play in enhancing the rle and effectiveness f nnprfit grups is undercut, in part, by its flawed and ambiguus methdlgy and the nature f its cnclusins, which are divrced frm the evidence its wn research presents. Our analysis fllws.

2 * * * Analysis 1: AFJ believes that the central factr in the success f nnprfit advcacy is the presence f sustained, lng-term funding fr grups and mvements, a principle reinfrced, in fact, by many f the findings f the reprt. Regrettably, the reprt misses an pprtunity t call fr increased supprt fr n-the-grund advcacy effrts, and instead fcuses n raising large amunts t fund sectr-wide plicy wrk at the natinal level. The first prtin f the reprt, which details the essentials f successful advcacy, implicitly reinfrces the case lng made by AFJ and many ther grups that advcacy in all its frms must be significantly accelerated at the natinal, state, and lcal levels by nnprfits f all sizes in whatever issue areas are imprtant t them. It then details sme effective, and familiar, strategies fr cnducting lbbying and ther plicy-related activities. While it presents ne view f successful advcacy, the strategies identified cannt be seen as cmprehensive. Althugh the case studies used by the study s authrs t infrm their cnclusins are nt representative f mst 501(c)(3) advcacy effrts, this prtin f the reprt serves as a valuable recapitulatin f sme well-established principles and serves as a call t actin by nnprfits and a call fr supprt frm funding partners. Hwever, we believe that the cnclusin f the secnd part f the reprt, which recmmends $20 millin dllars be directed t certain administrative, sectr-wide prblems, is misguided. There is a desperate need fr philanthrpic investment in nnprfits that advcate fr scial justice issues. T suggest, in this envirnment, that allcating $20 millin ver fur years s nnprfits can advcate fr their wn needs instead f the needs f thse they serve is uncnstructive. Mrever, this recmmendatin desn t seem t be distilled frm the findings in the reprt. The study suggests that rganizatins shuld cmmit t lng-term gals and planning ut years. This type f cmmitment is impssible withut adequate and sustained funding. The study fails t address the challenges f securing the type f funding that makes this pssible and des nt call upn the philanthrpic sectr t change its funding mdel. As an example, the study pints t Americans fr Tax Refrm as a mdel f a laser-like fcus a fcus ne culd argue they were able t maintain frm years f general supprt. The reprt als suggests that rganizatins shuld priritize laying a fundatin, investing in research and building relatinships but des nt indicate that this takes time and mney, and again, fails t address the challenges f securing the type f funding that makes this pssible. In times f state budget-cutting and vastly increased need by the mst vulnerable in ur sciety, nnprfits are ding mre with less. As ther research has shwn, particularly the highly regarded Strengthening Nnprfit Advcacy Prject (SNAP), and AFJ s experience and research, the crrect cnclusin wuld be a call fr grant makers t make multi-year general-supprt grants t nnprfits, t recgnize that success is incremental nt instantaneus, and t stick with that investment fr the lng-term. Further, helping small and mid-sized nnprfits better understand the best practices utlined in the reprt, and build capacity t implement them, wuld als be a prductive use f funding f the magnitude suggested by the reprt s authrs. 2

3 As we have learned, and as the case studies demnstrate, anther key ingredient fr successful advcacy is the need t be able t participate in all types f advcacy in all arenas f ur demcratic system. All but ne f the case studies highlight advcacy by nn-501(c)(3) rganizatins. 501(c)(4)s and fr-prfit crpratins (and their affiliated PACs) can engage in certain types f plitical activity ff-limits t 501(c)(3)s. Just as many rganizatins wrking tgether are needed t make change, ften the different types f players can emply effective strategies when wrking tgether. Analysis 2: AFJ fully supprts the reprt s findings that the sectr is strnger when it wrks tgether, but the issues identified by the reprt as requiring sectr-wide actin were nt based n widespread cnsensus nr are they the mst likely t be thse tackled by either the IRS r Cngress in the freseeable future. The study identifies six pressing issues affecting the sectr: changes t IRS Frm 990 and 990- PF; Advcacy and Lbbying rules f Public Charities and Private Fundatins; the Charitable Tax Deductin; Nnprfit Tax Exemptin; Gvernment-Funded Research n the Nnprfit Cmmunity; and Gvernment-Nnprfit Cntracting. This issue set is an dd mix at best. The larger issue set presented in Appendix B nly cnfunds the reader further. One can nly imply that this cluster f issues is the ne that Independent Sectr itself sees as mst relevant t the sectr. We wuld welcme clarificatin f the ratinale fr these chices. Further, the issues selected are at dds with cmmn wisdm abut the prspects fr actin n tax r nnprfit refrm in the next Cngress, and ignres several issues that are likely t emerge. The reprt indicates that the six sectr-wide issues were chsen by a very small grup f respndents, and shws n evidence f having emerged frm a brad-based survey f nnprfits r plicy experts. It is particularly unfrtunate that the issue set being prmted des nt reflect the reality f the significant pressures and cntrversies being faced by the nnprfit sectr during this electin cycle, many f which have a far greater chance f becming plicy issues requiring sectr respnse than many f the matters currently highlighted. The study s wn cnclusins indicate there is little chance fr success n mst f them. The prbable futility f the recmmended apprach is nt surprising since the sectr is nt mnlithic, particularly if the diversity f the sectr is analyzed. Fr example: If yu ask 501(c)(6)s prfessinal and trade assciatins what they see as the mst pressing issue facing the sectr, they might say restrictins n federal emplyees attending meetings and cnferences. If yu ask 501(c)(4)s scial welfare rganizatins what they see as the mst pressing issue facing the sectr, they might say defining the scpe f primary purpse. 3

4 If yu ask public charities ne type f 501(c)(3) what they see as the mst pressing issue facing the sectr, yu might get a very different answer depending n the size f the rganizatin, its missin and gegraphic lcatin. Larger charities, like hspitals and universities, may, in fact be very cncerned abut threats t the charitable deductin, whereas, smaller charities like lcal fd banks and hmeless shelters may be mre cncerned abut restrictins n use f gvernment-granted funds. If yu ask private fundatins anther type f 501(c)(3) what they see as the mst pressing issue facing their sectr, they might say expanding the IRA charitable rllver. The reality f the wide variety f nnprfit rganizatins wrking at natinal, reginal, and lcal levels, and their equally varied interests and pririties, is masked in the reprt by an inapprpriate reliance n a narrw slice f the sectr fr the interviews and surveys. A fuller examinatin f the sectr wuld almst certainly lead t a cnclusin abut sectr leadership and funding significantly different frm the ne drawn by the reprt s authrs. Analysis 3: AFJ, which serves as a majr natinal resurce n nnprfit advcacy law and regulatin, is very pleased by the reprt s fcus n the need fr increased activity thrughut the sectr. Unfrtunately, the text includes sme significant misstatements f fact which may nly serve t reinfrce the widespread cnfusin which plagues the nnprfit cmmunity abut what kinds f lbbying and plitical wrk are permitted. In its discussin f advcacy, the reprt highlights the imprtance f the legal rules and hw they are perceived and understd by rganizatins. Sme aspects f the law are subject t legal interpretatin and experienced tax and electin lawyers may disagree n the interpretatin. While we may nt agree with hw all the statements f law and plicy in the reprt are characterized, there are sme significant legal inaccuracies that require crrectin. Appendix A, a chart describing Rules Gverning Nnprfit Lbbying and Plitical Activity, cntains sme factual errrs. In particular, The chart says mistakenly says that Electineering Cmmunicatins are prhibited fr 501(c)(3) rganizatins. In fact, 501(c)(3) rganizatins can engage in electineering cmmunicatins. The prhibitin n crpratins including 501(c)(3)s, 501(c)(4)s, 501(c)(5)s, and 501(c)(6)s engaging in electineering cmmunicatins was struck dwn by FEC v. Wiscnsin Right t Life, 551 U.S. 449 (2007). An electineering cmmunicatin is defined as: any bradcast, cable, r satellite cmmunicatin that refers t a clearly identified candidate fr Federal ffice and is made within 30 days f a primary r 60 days f a general electin. Electineering cmmunicatins culd include grassrts lbbying ads r even public service annuncements that refer t a plicymaker wh happens t be up fr re-electin. 4

5 The definitin f Electineering Activity, gives the cnfusing impressin that 501(c)(3) rganizatins may nt participate in a number f activities that are actually allwable. Fr example, ftnte 3 states that electineering activity is [d]efined bradly by the IRS as plitical activity designed t influence the selectin f any individual t federal, state, r lcal ffice, including issue advcacy, ads, plling, get-utthe-vte activities, etc. This definitin is simply inaccurate. While 501(c)(3) rganizatins cannt supprt r ppse candidates fr public ffice, they may indeed weigh in n executive branch nminatins, as well as nnpartisan plling, get-ut-thevte activities, and issue advcacy, all subject t certain rules. The chart states that, regarding 501(c)(4)s, 501(c)(5)s, and 501(c)(6)s, Expenditures fr electineering activities are tax-exempt. Hwever, Sectin 527(f) f the Internal Revenue Cde specifically impses a tax n expenditures by exempt rganizatins fr an exempt functin, which is defined as influencing r attempting t influence the selectin, nminatin, electin, r appintment f any individual t any Federal, State, r lcal public ffice r ffice in a plitical rganizatin, r the electin f Presidential r Vice-Presidential electrs, whether r nt such individual r electrs are selected, nminated, elected, r appinted. 527(e)(2). The definitin f exempt functin is mre narrw than hw the reprt defines electineering activities. As t express advcacy fr 501(c)(4)s, 501(c)(5)s, and 501(c)(6)s, the chart says it is Permitted, but must be registered as limited independent expenditures. Under federal tax law, express advcacy cannt be the rganizatin s primary purpse and under federal electin law, express advcacy must be cnducted independently f a candidate r campaign (with sme exceptins). There is n registratin requirement, althugh rganizatins engaging in express advcacy must cmply with reprting and disclaimer rules. As t electineering cmmunicatins fr 501(c)(4)s, 501(c)(5)s, and 501(c)(6)s, the chart says they are Permitted, but must be registered as limited electineering cmmunicatins. There is n registratin requirement, althugh rganizatins engaging in express advcacy must cmply with reprting and disclaimer rules. In additin t the errrs in Appendix A, there are several ther misleading cmments: The reprt mits that private fundatins may attempt t influence legislatin thrugh technical advice r assistance t a gvernmental bdy r nnpartisan analysis, study, r research. 4945(e). These exceptins t the definitin f lbbying apply alng with the self-defense exceptin mentined in the reprt. The reprt (n page 165) perpetuates the miscnceptin abut the hlding f Citizens United. The reprt states that the Supreme Curt decisin in Citizens United v. Federal Electin Cmmissin, which gave fr-prfit crpratins, individuals, and unins the ability t make unlimited cntributins t Super PACs and 501(c)(4) scial welfare rganizatins fr partisan plitical activity. At the time f the decisins, Super PACs hadn t yet been created and mre imprtantly, the decisin als gave all crpratins fr-prfit and nnprfit the ability t make unlimited independent expenditures. In fact, Citizens United, the plaintiff in the case, is a 501(c)(4). And, the decisin itself had n impact n the rules fr individuals. 5

6 Analysis 4: The reprt serves the laudable purpse f reinvigrating the natinal cnversatin abut the vital rle nnprfits play in ur demcratic prcess, but describes the sectr in incnsistent, cnfusing ways. The purpse f this prject is cmmendable, but any study f this nature shuld embdy the fundamental values f the sectr as defined in the bradest sense. This incredibly diverse sectr includes grups that, amng ther characteristics, are natinal, reginal, and lcal; large and small; prgressive, cnservative, and nn-idelgical; staff-run and vlunteer-driven; and 501(c)(3)s and 501(c)(4)s. In an effrt t simplify the sectr, the reprt and the nline vide that accmpanies it t ften cnflate the nnprfit cmmunity beynd recgnitin. The nnprfit sectr is nt synnymus with the charitable sectr, as the reprt infers. Additinally, while Part II f the reprt purprts t be abut the charitable sectr, mst f the case examples in Part I are nt in fact f charities, but instead scial welfare grups which are tax exempt under sectin 501(c)(4) f the tax cde r are fr-prfit crpratins. The discnnect between the case studies f successful advcacy mst f which are (c)(4)s and the discussin f the key sectr-wide issues, is made even mre cnfusing by Ftnte 3 n page 111, which says This paper uses the term charitable and nnprfit interchangeably. If that s the case, the authrs are saying the issue set they are tuting is nly applicable t 501(c)(3)s, which are thse defined in the law as charitable. Assuming this is the meaning f the ftnte, ne might questin why Sectin I f the reprt setting up the value f advcacy disprprtinately fcuses n an entirely different kind f nnprfit than that used t justify the $20 millin recmmendatin. In rder t prperly analyze the sectr and draw meaningful cnclusins, it is imprtant t be clear abut which grups are included and t prvide straightfrward and accurate descriptins f the rules that gvern them. Fr example, the reprt s and vide s discussins f the effects n Citizens United misrepresent the effect n the 501(c)(4)wrld (page 165) and the Issue Paper n Advcacy and Lbbying Rules fr Charities and Private Fundatins addresses many issues related t scial welfare rganizatins, which are neither charities nr private fundatins. T supprt its thesis f what makes fr successful advcacy, the study includes seven case studies f rganizatins: Tw large, well-funded natinal 501(c)(4) rganizatins (Human Rights Campaign and Americans fr Tax Refrm); ne multinatinal crpratin (General Electric); and fur calitin effrts (including ne that was led by Independent Sectr, that serves as the nly example invlving (c)(3) leadership). Regrettably, the reprt relies t heavily n the experience f large 501(c)(4) rganizatins, which ignres the bulk f the sectr s 501(c)(3) advcacy wrk, and cnfuses the already ftenmisunderstd difference between (c)(3) and (c)(4) entities. The selectin f General Electric amng the case studies als strikes us as puzzling since the experience f a multinatinal crpratin wuld seem t have very little in cmmn with mst nnprfit rganizatins. 6

7 While the case studies are interesting, the strategies and tactics emplyed by the prfiled rganizatins and calitins may nt be viable fr mst nnprfits. All f the case studies fcused n successful, well-funded advcacy prgrams at the federal level. Mst nnprfits d nt have the benefit f the kinds f financial, legal, structural, staff, and bard resurces that the prfiled rganizatins enjy. This fcus thrughut the reprt n large, natinal rganizatins is an inherent flaw in the study, and creates a bias that, nt surprisingly, translates int cnclusins favring natinal slutins undertaken by large institutins. In additin, we believe that there is limited value in prfiling individual grups, since rarely is success in an issue attributable t ne single rganizatin. A better mdel wuld be t prfile a successful issue utcme and then detail the brad-based mvement that made it pssible. Analysis 5: We agree that establishing and mbilizing a brad-based calitin can be a valuable advcacy strategy, but the reprt s puzzling cnclusin that a single grup shuld take primary respnsibility fr managing sectr plicy and advcacy is nt supprted by the evidence presented. The reprt presents clear evidence abut the lack f desire--even amng thse entities interviewed fr the reprt--fr a central crdinating bdy t lead all natinal advcacy effrts related t sectr-wide issues, and then, incngruusly, urges supprt fr a $20 millin, fur-year prject that it infers shuld be led by the reprt s spnsr itself. Virtually every finding in the text belies the startling cnclusin that it is necessary t spend $20 millin t supprt a single rganizatin s effrts t prtect the interests f the nnprfit sectr. The reprt ignres its wn evidence which says that there is virtually n appetite fr unified actin and certainly n willingness t anint ne rganizatin as the recipient f such a large amunt f funding. As the reprt itself states, Interviewees nted a number f bstacles that leaders must vercme in rder t be effective n sectr-wide issues. These include significant differences in the interests and idelgical perspectives f sectr rganizatins, lack f trust, and incentives t differentiate rather than jin with ther rganizatins. If this finding is crrect, it wuld seem cunterprductive t set up a scenari where a leader wuld be aninted with n prspect f fllwers. If there is t be a central fcus fr the sectr, and if there is agreement abut what cmprises the sectr, a prcess wuld have t be established f cnvening sectr grups t discuss issues, set pririties and then engage in a cllabrative strategy t prceed. The questin is whether nw is a prpitius time fr that wrk t happen given the enrmus budgetary and plicy stresses currently facing many cmmunities. 7

8 Cnclusin The title f the reprt, Beynd the Cause, embdies its fundamental flaws. The cause can never be separated frm the wrk f nnprfit grups, either individually r cllectively. By definitin, there is nthing beynd the cause fr the grups serving the public gd. This study seems t ignre its wn evidence that nnprfits are imprtant actrs in ur demcratic system, desperately in need f lng-term, sustained supprt fr their advcacy effrts by making recmmendatins that culd ptentially divert significant resurces t a single rganizatin that wuld be charged with managing the unmanageable. Althugh it is certainly true that there are many sectr-wide issues that require attentin in rder t prtect the legal and administrative infrastructure n which the sectr rests, the set described in this reprt seems deficient. Nr d the reprt s cnclusins abut funding a single grup t pursue them match its wn findings, let alne any cmmn-sense analysis f the nnprfit cmmunity. We believe leadership will cme, as it has cme, frm many surces, and the interests f the sectr will certainly be defended thrugh calitins that reflect the fundamental nature f the extrardinarily diverse nnprfit wrld. We are extremely happy that attentin is being paid t nnprfit advcacy at this crucial time in ur natin s life. A reprt f this nature culdn t cme at a better time, and there is much f value in its research. But the errneus cnclusins it reaches are inimical t enhancing the pwer f nnprfit rganizatins t shape public plicy and advance the causes t which thse grups are devted. 8