Politics & Money: Hundreds of Millions from Philanthropists or to DAF Sponsor; Donor Lawsuit (Mostly) Fails

A previous post reported on billions of dollars flowing to section 501(c)(4) organizations with at least partially political agendas, and related critical commentary. The recent midterm elections have now sparked two stories about philanthropists, nonprofits, hundreds of millions of dollars, and politics. We also have the latest court decision in a frustrated donor lawsuit arising out of the 2020 election.

First, the Chronicle of Philanthropy reported in "A Half-Billion Dollars of Influence: Big Philanthropists and the MidtermElections" that 32 of the 100 biggest political donors are also major philanthropists by one measure or another, and that collectively these philanthropists made political contributions in the 2021-22 election cycle of at least half a billion dollars based on federal campaign finance reports. As the article notes, this almost certainly understates their political spending since it does not capture contributions to organizations not subject to public disclosure of donors or spending that is reported under state campaign finance laws. George Soros leads the pack with at least $125 million contributed to a super PAC, but 14 others have given at least $10 million.

Second,  Politico reported in "Two anonymous $425 million donations give dark money conservative group a massive haul" that the section 501(c)(3) DonorsTrust received two enormous gifts, sources unknown. Since DonorsTrust is a sponsoring organization for donor-advised funds, presumably the donors can advise as to the ultimate recipients of their largesse even though ultimate control rests with the 501(c)(3). One of the 2021 donations (for $427 million) was apparently in cash, while the other (for $426 million) was in the form of "closely held common stock in a C-corporation."

Third and finally, the fate of a donor's lawsuit shows the risks of large donations since they do not always obtain the desired results and the donor may not have legal recourse. In Eshelman v. True the Vote, a Texas appellate court affirmed the dismissal of a multi-million dollar donor's lawsuit agains the named nonprofit and its leaders on standing grounds. It did so based on the failure of the plaintiff to provide evidence that the gift was conditional on certain uses of the gifted funds (to challenge alleged voter fraud in the 2020 elections), which failure meant that the plaintiff lacked an injury sufficient to grant him standing. (The court reversed the dismissal of the lawsuit as against the nonprofit's law firm and lawyer because it found they had not raised the evidentiary issue but relied solely on alleged deficiencies in the plaintiff's complaint, which the court found did not exist; presumably those defendants will raise the evidentiary issue on remand.) The lower court's dismissal was without prejudice, however, so the donor may still attempt to correct the standing issue so as to pursue his lawsuit against the nonprofit and its leaders.

Lloyd Mayer