Nonprofit Law Prof Blog

Great Post at HistPhil.Org on Medici, Magnificence and Philanthropy

There is a great read over at HistPhil.org by Guido Alfani discussing his new book  As Gods Among Men: A History of the Rich in the West (Princeton University Press, 2023). In particular it looks at the concept of "magnificence" as it related to Lorenzo de' Medici and his public provision of money to the arts and other endeavors.

From the post: "Why was Lorenzo de’ Medici (1449-1492) called “the Magnificent”? Because of all he did for his Republic, Florence. He was a major patron of the arts, also establishing an art school, the Garden of San Marco, where the likes of Michelangelo were trained. He raised splendid buildings, such as the Basilica di Santa Maria in Prato and his own villa at Poggio a Caiano (both commissioned to Giuliano da Sangallo, one of the most celebrated architects of the time). A poet himself, he protected and promoted writers and intellectuals (Poliziano, Marsilio Ficino, Pico della Mirandola) and in general, he did much to strengthen the position of Florence as one of the main cultural hubs of Renaissance Europe. There is no doubt that to this day, the city continues to benefit from Lorenzo’s deeds."

Philip Hackney

 

Elgar Encyclopedia of Nonprofit Management, Leadership and Governance

Edward Elgar has published the Encyclopedia of Nonprofit Management, Leadership and Governance, edited by Kevin P. Kearns (University of Pittsburgh) and Wen Jiun Wang (Sam Houston State University). I was fortunate enough to be able to participate, writing the entry on private inurement. Here is the description:

The Elgar Encyclopedia of Nonprofit Management, Leadership and Governance is the ultimate reference guide for those interested in the rapidly growing nonprofit sector. Each insightful entry includes a definition of the concept, practical applications in nonprofit organizations, and discussion of current issues and future directions.

With contributions from over 200 renowned experts in the field, this Encyclopedia provides a comprehensive overview of the essential topics related to nonprofit management, leadership and governance. Entries explore a diverse range of issues and actors within the nonprofit sector, including business planning, crowdfunding and fundraising, governing boards, mergers and acquisitions, risk management, stakeholder management and wealth inequality. They cover the foundations of the sector alongside more current and topical issues including celebrity, diaspora, LGBTQ+ and ePhilanthropy; authoritarian regimes; the digital divide; and the millennial generation’s civic engagement.

This Encyclopedia is a vital resource for students and scholars of organization studies, business and management, corporate governance, and public administration. Its practical applications will prove beneficial to a diverse range of stakeholders across the nonprofit sector, including professional managers, board members, donors, government officials, and media professionals.

Lloyd Mayer

Schiller: "How Philanthropy Went Wrong - And How to Fix It"

Amy Schiller (Dartmouth) has published The Price of Humanity: How Philanthropy Went Wrong - And How to Fix It. Here is the description:

An attempt to rescue philanthropy from its progressive decline into vanity projects that drive wealth inequality, so that it may support human flourishing as originally intended.

The word “philanthropy” today makes people think big money—Bill and Melinda Gates, Warren Buffet, and Andrew Carnegie come to mind. The scope of suffering in the world seems to demand an industry of giving, and yet for all the billions that are dispensed, the wealthy never seem to lose any of their money and nothing seems to change.

Journalist, academic and consultant Amy Schiller shows how we get out of this stalemate by evaluating the history of philanthropy from the ideas of St. Augustine to the work of Lebron James. She argues philanthropy’s contemporary tendency to maintain obscene inequality and reduce every cause to dehumanizing technocratic terms is unacceptable, while maintaining an optimism about the soul and potential of philanthropy in principle.

For philanthropy to get back to its literal roots—the love of humanity—Schiller argues that philanthropy can no longer be premised around basic survival. Public institutions must assume that burden so that philanthropy can shift its focus to initiatives that allow us to flourish into happier, more fulfilled human beings. Philanthropy has to get out of the business of saving lives if we are to save humanity.

Lloyd Mayer

Yetman: Academic Research and the Unrelated Business Income Tax

Robert J. Yetman (UC Davis Graduate School of Management) has published a book chapter titled The taxation of nonprofit organizations: academic research and the unrelated business income tax in the Research Handbook on Nonprofit Accounting (Edward Elgar Publishing 2023). Here is the abstract:

Nonprofit organizations in the United States do not generally pay income taxes on net profits, but they are subject to Unrelated Business Income Tax on net profits from activities unrelated to their primary charitable mission. Taxable activities are common, particularly among larger organizations. Often these taxable activities utilize the same assets and personnel as an organization's tax-exempt mission-related activities. Operating taxable unrelated activities alongside tax-exempt activities can create difficult choices regarding how much taxable revenues to earn, and how aggressively to avoid taxes. Research in this area is nascent. A recent change in laws has made nonprofit tax returns publicly available. Data availability will allow researchers to expand our understanding of how this income tax affects the choices made by and operations of nonprofit organizations.

Lloyd Mayer

Miranda Perry Fleischer’s Chapter in Giving In Time is Especially Worth Your Time

On Tuesday, I posted some musings on a current investigation by the DC AG into several nonprofits associated with Leonard Leo, but it didn’t include a link to a Politico article that was posted that same day, so I have updated the previous post with the following: “UPDATE: Politico posted another article today that reports that the Leo-affiliated entities are not cooperating with the DC AG and that the DC AG is also investigating Arabella Advisors, a "liberal 'dark money' group" that was the subject of a complaint from a conservative watchdog group.”

On Monday, I posted a book review of the recently published Giving in Time: Temporal Considerations in Philanthropy, in which I promised “hours of enjoyment and benefit” for readers interested in questions about the timing of charitable expenditures, and the laws that constrain, incentivize, or otherwise affect such issues. Today, I want to return to that book to especially recommend Miranda Perry Fleischer’s chapter, Intergenerational Justice and Charitable Giving: A Libertarian Perspective. I’m separately posting about that chapter not so much because of its insights into the central question of the book – time – but because it is such a clear and concise summary of Professor Fleischer’s work theorizing nonprofit law from a libertarian perspective. I agree heartily with Fleischer that at least some corrective is needed to the fact that “tax scholarship [including exempt-organizations tax scholarship] focuses overwhelmingly on welfarism and egalitarianism….” Fleischer’s work is among the most important to investigate “what comprehensive rights-based theories of justice say about [the law of] charitable giving.” The chapter builds on prior work by Fleischer, but the chapter is well worth reading even if you are familiar with professor Fleischer’s prior work.

Fleischer seeks to refute the simplistic (but popular) view that “libertarianism stands for the proposition that one can do whatever one wants with one’s property[.]” Instead, the argument made by libertarians for very strong protection of existing property rights is subject to two extremely important caveats.  First, the “Lockean proviso” holds that privatization of natural resources is only just if “enough and as good is left for others.” Any claim to ownership of natural resources (such as land) cannot be just if others were excluded from the use of that resource without them having access to other resources just as plentiful and valuable. Second, the justice of the current distribution of property is dependent on the justice of not only the original acquisition but also all subsequent transfers. Fleischer quotes Jeremy Waldron’s work on Robert Nozick stating, “The point of Nozick’s argument … was that egalitarians were condemning the existing distribution for the wrong reason—that is, simply as unequal—rather than on account of the violence, fraud, expropriation, ethnic cleansing, state corruption, and so on, involved in the history of most holdings of property in America.”  Importantly, violation of these two requirement for a just distribution of property doesn’t only justify governmental corrective action, it plausibly demands it. In other words, even a minimal state (sometimes called a night watchman state) is plausibly required to use the legal system to transfer property from some owners to others to rectify past injustice.

What does all this have to do with charity law? Fleischer argues that the deduction for donations to charity are the equivalent to a governmental subsidy to the charity, and therefore libertarianism weighs in favor of a more restrictive deduction for charitable contributions, not a more permissive one. She argues that a charitable tax deduction for charities that do anything other than some plausible version of rectification of past injustices is not justified. Although she does permit quite broad interpretations of what constitutes rectification, including general mitigation of poverty. As for the question of “time,” these insights suggest that it is important to look at the past as well as the future when one is determining both how to give and how the laws should incentivize or constrain giving. When evaluating the laws that affect the choice between present or future spending, Fleischer concludes that donors should be free to choose whether to emphasize current spending or future spending, but perhaps limitations on future generations’ control of a donor’s charitable endowments may be justified. I’m not sure I agree with all of Fleischer’s conclusions about how to apply the basic insights of property-rights-based theories of justice to charity law questions, but I do think her summary of these basic insights, and the reasoning she uses to apply them, is an important corrective to the dominant modes of analysis of such issues.

Benjamin Leff

Book Review of Giving In Time: Temporal Considerations in Philanthropy

I’m on sabbatical this semester, which for me means reading whole books. I just finished reading the best book I’ve read so far about an issue that continues to grow in importance among nonprofit law scholars, and, well, the title is pretty self-explanatory: Giving in Time: Temporal Considerations in Philanthropy (Urban Inst. 2023). The volume, edited by Ray Madoff and Benjamin Soskis, contains essays from leading scholars from a wide variety of perspectives on how philanthropists should consider the “temporal” aspects of their charitable giving. The introduction asserts that “Questions surrounding … the obligations of the donor to the present or to the future[,] are now some of the most fiercely debated within the philanthropic and nonprofit sectors.” Of course, the focus of this blog is not on how philanthropists should act, but how the law does or should shape the balance of restrictions and incentives contained in the law. Nonprofit legal scholars have always been interested in this issue, of course, since under English common law it was legal for charitable trusts to exist in perpetuity, while private trusts could not due to the (infamous to law students) “rule against perpetuities.” Perpetual charitable trusts, and the weight given a trust indenture to bind future trustees to the intent of the donor/testator, created a “dead hand” problem for charity along with the immortality it granted philanthropists’ intentions.  The book is not exclusively about philanthropy law, but it provides important perspectives from historians, philosophers, and political scientists (along with legal scholars) that will be useful to legal scholars considering this issue.

The “slant” of the book is decidedly on the side of those who favor present uses of charity over attempts at perpetuity. One of its editors, Ray Madoff, is perhaps the leading scholar advocating for changes to current law in the interest of rebalancing the existing incentives for future giving.  But even her chapter (co-authored with Brian Galle) advocates relatively modest changes to the Private Foundation “payout rules” largely intended to preserve the existing balance. This delicate balance was introduced in the 1969 private foundation legislation, when Congress rejected proposed legislation that would require private foundations to spend down their assets over a lifetime in favor of a requirement for a mere 5% annual distribution. Madoff and Galle propose keeping the 5% payout rule, which permits perpetual foundations (as long as they invest well), and they advocate some modest changes of law to “tighten up on all these rules.” Their essay takes seriously counter arguments and largely does them justice.

I previously posted on Lila Corwin Berman’s wonderful book, The American Jewish Philanthropic Complex. Berman also has a chapter in this volume. In my post on Berman’s book, I wrote, “My main criticism of the book is that one could read it as presenting the flourishing of the ‘present spending’ movement as unremarkable, and the rise of endowment advocates as a novel (and negative) trend.” And I asserted that “the law of charities in the United States has always been deeply supportive of delayed charitable giving ….” That (minor) critique also applies to Berman’s contribution to Madoff and Soskis’s book, but placing her contribution alongside historical chapters by Soskis and Rob Reich make it clear that the struggle between current spending and endowment building has been with us for a very long time.

I’m generally skeptical of simplistic arguments in favor of presentism over futurism in philanthropy, and I’m generally a supporter of laws that respect and maintain a balance in which both perspectives have the opportunity to flourish. But, as always, arguments in favor of “balance” mean that each proposed revision of existing law needs to be critically evaluated in light of the complex interactions between interested stakeholders.  This new volume will give hours of enjoyment and benefit to anyone looking to expand their understanding of the issue.

Benjamin Leff

Update Memos Available for Fishman et al., Nonprofit Organizations, Cases & Materials

Summer 2023 Student and Teacher's Manual Update Memos are now available for the Nonprofit Organizations, Cases and Materials (6th edition) casebook. The Student Update is available for anyone to download and may be distributed to students at no charge, while the Teacher's Manual Update is available for free to anyone registered with West Academic as an instructor.

Lloyd Mayer

Book Recommendation: How to Save the World in Six (Not So Easy) Steps

I’ve just finished reading a truly excellent book by nonprofit law professor and former dean of Columbia Law School, David Schizer. On one level, How to Save the World in Six (Not so Easy) Steps (Post Hill Press 2023) is a trove of good advice for nonprofit board members, leadership, and even funders. But it is also a deep meditation on some of the most difficult and interesting issues in the nonprofit world. The six steps are: (i) plan, (ii) persevere, (iii) prioritize, (iv) pivot, (v) publicize, and (vi) partner. It seems intuitive that all six “p”s are important to the success of any venture. But Schizer explains – and illustrates with countless examples from his own experience and the experience of nonprofit leaders he interviewed – that each step is deeply complicated by the central tensions of the nonprofit sector.

For example, in the chapter called “Prioritize,” Schizer points out that the fundamental difference between non-profit and for-profit enterprises is that for-profit enterprises can measure their effectiveness (and therefore guide their priorities) by a relatively simple metric: profitability. Nonprofit enterprises can’t do the same.  Because their purpose is to advance some non-monetary goal, they need to find or create the metrics by which to measure their own effect. If they can’t be rigorous in this undertaking, it’s impossible for them to decide which activities they should pursue, and how. In the “Publicize” chapter, Schizer points out that this same rigorous application of effectiveness metrics is at the heart of communicating the organization’s work to its stakeholders. This central tension in the nonprofit sector – that it cannot rely on profits to measure success – is both the sector’s strength and its weakness. Nonprofit stakeholders all know this, but it is rare to read a practical guide that is so sensitive to the many permutations of this central issue.

Benjamin Leff

The American Jewish Philanthropic Complex

I’m following my post from yesterday about a really good book, by posting about another really good book.  Lila Corwin Berman’s The American Jewish Philanthropic Complex: The History of a Multimillion-Dollar Institution is a history of philanthropy in America in the past hundred years or so, with a special focus on Jewish philanthropic institutions. One of my favorite things about this book is that my great uncle, Henry Zucker, plays a relatively minor, but important role in the story (albeit plausibly as a villain).

Even if you’re not very interested in American Jewish history or unlikely to read the whole book, I highly recommend watching this conversation between Berman and Rob Reich (not to be confused with Robert Reich) from 2021. I especially like the way that they provide a general introduction to what’s at stake in the study of philanthropy generally (6:40-13:30), in which Berman calls philanthropy “a certain kind of engine that pulls [government and the market] together.” She argues that giving to philanthropy is “not exactly a private activity at all” but is “as deep a relationship [with the state] as April 15^th when you pay your taxes.”

The conversation also has a very interesting discussion of the historical development of donor-advised funds (“DAFs”), which Reich calls “the kudzu” of contemporary American philanthropy, and “a genuine problem.” The book does a very compelling job of describing two historical trends in American Jewish philanthropy, one of which arguably gave us the historical antecedent of the DAF. In the first half of the 20^th Century, Jewish federations began to appear and flourish as a mechanism for “professionalizing” Jewish philanthropy. These federations almost exclusively focused on current spending, believing that donors wanted to see the immediate benefits of their charitable giving. There was massive immigration of poor Jews to American cities at that time, and institutional philanthropy was one potential support for those migrants. In the beginning of the second half of the 20^th Century, this “present spending” ideology was countered by a movement for to facilitate endowment giving, possibly because the volume of needy immigrants declined. The Jewish Community Federation of Cleveland (under the direction of my Uncle Henry) promoted a new philanthropic “institutional technology” which allowed donors to give to the federation not for current spending but for the future.  Even more novel was the ability of donors to “advise” the federation how to spend the money in the present or future. That structure became the DAF. It also resulted in the reduced influence of the “present spending” advocates.

My main criticism of the book is that one could read it as presenting the flourishing of the “present spending” movement as unremarkable, and the rise of endowment advocates as a novel (and negative) trend.  In the longer history of philanthropy, of course, the urge of donors to create perpetual endowments, and the development of legal innovations to facilitate that urge, is the norm. After all, the very first purpose of the charitable trust in 17th Century England was to permit an exception to the “rule against perpetuities,” which prevented donors from creating perpetual charitable institutions until the law was modified. An historical moment when Jewish institutions successfully persuaded their donors to resist that urge is the surprising story, not the fact that legal institutions permit charitable endowments today. Whether the current law of DAFs goes too far and constitutes “a genuine problem” or not, the law of charities in the United States has always been deeply supportive of delayed charitable giving, whether through university endowments, private foundations, or (non-DAF) public charities with large endowments. Berman's book gives us evidence that advocates of immediate spending also have a long history to draw from.

Benjamin Leff

Ellen P. Aprill Reviews "For Profit Philanthropy"

The incomparable Ellen P. Aprill has written an insightful review essay (which is unfortunately behind a paywall) about Dana Brakman Reiser’s and Steven A. Dean’s book, For-Profit Philanthropy: Elite Power and the Threat of Limited Liability Companies, Donor-Advised Funds, and Strategic Corporate Giving.  She characterizes the book as lamenting the “unraveling of a pact between elites and the public that fueled half a century of philanthropic achievement.”  That pact, which Reiser and Dean call “the Grand Bargain,” is found in the Tax Reform Act of 1969, which created the rules for so-called private foundations.  “This bargain, they believe, enacted rules grounded on principles of targeting, timing, and transparency to ensure that elite resources serve public rather than private ends. For them, new approaches that renounce this Grand Bargain destroy trust in elite giving.”  In other words, a lot of money doesn’t flow through private foundations as much anymore, and that’s bad for the charitable sector. 

Aprill recognizes what a massive contribution this book makes to the literature critically evaluating the outsized influence of hyper-wealthy charitable donors.  But she is critical of several aspects of the book’s analytical frame. Among other things, she argues that one should not compare charitable LLCs (the first focus of the book’s analysis) to wealthy donors giving to private foundations, but to wealthy donors giving directly to charities, which of course was never blocked by the Grand Bargain. Since 20^th Century philanthropists like John D. Rockefeller and Andrew Carnegie waited until relatively late in life to establish their philanthropic foundations, contemporary philanthropists criticized by Dean and Reiser “do one better than the Grand Bargain” by actively pursuing their philanthropic activities when they are still young.

Aprill does acknowledge that charitable LLCs do benefit from “entity-ness” while avoiding the burdens that would be imposed if they were treated as corporations that would have to qualify for some form of tax-exempt status to avoid corporate-level taxes. She argues that the value of this “entity-ness,” which enables wealthy elites to develop a prestigious philanthropic identity should not be underestimated. She proposes a rule that would automatically treat philanthropic LLCs as corporations, forcing them to seek tax-exempt status, probably under section 501(c)(4). While they would still avoid the rules that apply to private foundations, they would at least be subject to self-dealing rules, and have some transparency through the filing of Forms 990.

Notwithstanding Aprill’s excellent observations, I highly recommend the book (as does she). It is really really good.

Benjamin Leff

Synge, The University-Charity

Hot off the presses is a new book by Mary Synge (Hon Senior Fellow, University of Melbourne; Hon Senior Research Fellow, University of Liverpool; Associate Professor, University of Reading), The University-Charity. Here is the description:

Most universities are described as either registered or exempt charities, but very little attention is paid to their charitable status, or its significance.

For the first time, this book examines universities through a charity law lens. It interrogates – and challenges – the proposition that all not-for-profit universities are charities as a matter of law, and examines the consequences of charitable status: both in terms of the way universities operate and in terms of their relations with the State. Charity law has a valuable contribution to make to current debates surrounding university practices, not least in respect of education and research, executive remuneration, and governance. It also has a critical role to play in marking out – and defending – the boundary between charity and government. The University-Charity examines the legal and regulatory framework, and asks to what extent universities demonstrate that vital ‘hallmark of charity’: the need to be – and to remain – independent of government. The recent transactions involving the College of Law and Regent’s University, both formerly charitable institutions which are now operated on a for-profit basis, are also examined against a charity law framework.

It will be seen that the University-Charity can be expected to behave differently from other universities, and to be treated differently.

Lloyd Mayer

Plerhoples: Social Enterprises and Benefit Corporations in the United States

Alicia E. Plerhoples (Georgetown) has written Social Enterprises and Benefit Corporations in the United States, which has been published in The International Handbook of Social Enterprise Law (Springer 2023). Here is the abstract:

The United States is the birthplace of benefit corporations precisely because of American society’s over-reliance on the private sector to solve societal problems. U.S. federal and state regulation continuously fails to provide robust social safety nets or prevent ecological disasters. American society looks to companies to do such work. U.S. social enterprise entities attempt to upend the U.S. legal framework which binds fiduciaries to focus on shareholder value. These entities are permitted, and sometimes required, to consider environmental, social, and governance (“ESG”) impacts of their operations, essentially internalizing ESG costs that would otherwise be paid by American communities and the environment. This chapter traces social enterprise development under U.S. law, starting with a brief discussion of corporate law as a creature of state law. It then provides an overview of the two major types of social enterprise entities in the United States: (1) the Delaware Public Benefit Corporation, and (2) the California Social Purpose Corporation. The chapter briefly discusses other types of U.S. social enterprise entities, including hybrid ventures, worker cooperatives, and the low-profit liability company. The chapter concludes with a discussion of responses to companies’ ESG efforts by legal scholars, asset managers, and the U.S. Securities and Exchange Commission. These responses and the uptake of publicly traded public benefit corporations indicate a seismic shift forward in the use of ESG frameworks in the United States.

Lloyd Mayer

Sidel: The Future of Civil Society Research in China, Hong Kong and Vietnam

Mark Sidel (Wisconsin) has posted The Future of Civil Society Research in China, Hong Kong and Vietnam, which has been published in A Research Agenda for Civil Society (Edward Elgar 2022). Here is the abstract:

I have worked on civil society research, particularly on nonprofit–state relations and philanthropic issues in China and Vietnam for several decades. More recently I have been closely following the situation in Hong Kong after China took draconian steps to control Hong Kong in mid-2020,especially through the enactment and enforcement of the National Security Law applicable to Hong Kong. I have long followed the work of civil society researchers in China, Hong Kong and Vietnam, and collaborated with some of those impressive scholars. And I have long been concerned about the future of research in this important field in those jurisdictions. Let me discuss each of these areas in turn, with a focus on:

• Key ideas, main debates, significant relevant publications and unresolved issues.

• Observations about changes in civil society in over the past years with expectations for the period to come.

• Suggestions about the content of a future civil society research agenda.

Lloyd Mayer

Documentary on Nonprofit Organizations and a TED Talk, both Provocative

A story in the Nonprofit Times highlights a book I had not previously heard about entitled "Uncharitable:  How Restraints on Nonprofits Undermine Their Potential."  Has anybody read this book?  So the book has now turned into a documentary, the slick trailer for which is below.  The author, Dan Pallotta, apparently believes (I don't want to speak for him, especially since I have neither read the book nor seen the upcoming documentary) nonprofits should be allowed to harness the profit-seeking motivations and practices prevalent in the capitalist market, presumably without fear of losing tax exempt status.  Here is a portion of the Nonprofit Times summary.  

Uncharitable, a documentary that argues nonprofits operate under excessively prohibitive constraints, is set to be released in late March. The movie is based on Dan Pallotta’s 2008 book, Uncharitable – How Restraints on Nonprofits Undermine Their Potential. Uncharitable was initially published by Tufts University Press. A new paperback edition was released by Brandeis University Press last year.  The book offers a series of arguments against some of the primary complaints perennially levied against nonprofits. Within its first chapter, Pallotta cautions against:

1. Constraints on compensation, stating that the impulse for leadership to act charitably does not automatically require self-deprivation;
2. Prohibitions on risk which punish bold actions by nonprofits while rewarding timidity;
3. A focus on short-term vision spurred by a perceived need for immediate gratification;
4. Discouragement of paid advertising, which potentially allows nonprofits to cede attention and other results to competitors; and,
5. Discouragement of investment returns, which potentially reduce or eliminate non-donation funding sources.

 

Uncharitable Official Movie Trailer from Kathleen Gyllenhaal on Vimeo. 

By the way, Kathleen Man Gyllenhaal is a Yale Graduate with a degree in Film Studies; she married the father of Jake, of Brokeback Mountain fame, and adopted the Swedish name pronounced "Yeelenhall."   Uncharitable's author has also delivered a TED Talk entitled, "The Way We Think About Charity is Dead Wrong."  This guy is kinda fixated on nonprofits and tax exemption obviously.  Must be some kind of nut or something.  Listen to his TED Talk below.

 

 

 

 

darryll jones

Book Talk & Discussion (February 7th; Zoom available): For-Profit Philanthropy

A reminder that Brooklyn Law School will be hosting a conversation with Dana Brakman Reiser and Steven A. Dean on Tuesday, February 7th to discuss their new book For-Profit Philanthropy: Elite Power & the Threat of Limited Liability Companies, Donor-Advised Funds, & Strategic Corporate Giving. Attending by Zoom is available, but RSVPs are due by February 2nd. Here is the abstract:

In For-Profit Philanthropy, the authors reveal that philanthropy law has long operated as strategic compromise, binding ordinary Americans and elites together in a common purpose. At its center stands the private foundation. Prophylactic restrictions separate foundations from their funders' business and political interests. And foundations must disclose more about the sources and uses of their assets than any other business or charity. The philanthropic innovations increasingly espoused by America's most privileged individuals and powerful companies prioritize donor autonomy and privacy, casting aside the foundation and the tools it provides elites to demonstrate their good faith. By threatening to displace impactful charity with hollow virtue signaling, these actions also jeopardize the public's faith in the generosity of those at the top.

Private ordering, targeted regulation, or a new strategic bargain could strike a modern balance, preserving the benefits of the compromise between the modest and the mighty. For-Profit Philanthropy offers a detailed roadmap to show how it can be accomplished.

Lloyd Mayer

 

Reiser & Dean: For-Profit Philanthropy

Dana Brakman Reiser and Steven A. Dean (both Brooklyn Law School) have written For-Profit Philanthropy: Elite Power and the Threat of Limited Liability Companies, Donor-Advised Funds, and Strategic Corporate Giving, to be published by Oxford University Press and scheduled to be available in January 2023. Brooklyn Law School will host a hybrid launch event on February 7, 2023, at 6:00 to 7:30 p.m. Here is the description:

This book exposes a migration of business practices, players, and norms into philanthropy that strains the regulatory regime sustaining public trust in elite generosity through accountability and transparency and proposes legal reforms and private solutions to restore it.

Practices, players, and norms native to the business sector have migrated into philanthropy, shattering longstanding barriers between commerce and charity. Philanthropies organized as limited liability companies, donor-advised funds sponsored by investment company giants, and strategic corporate philanthropy programs aligning charitable giving by multinationals with their business objectives paint a startling new picture of elite giving.

In For-Profit Philanthropy, Dana Brakman Reiser and Steven A. Dean reveal that philanthropy law has long operated as strategic compromise, binding ordinary Americans and elites together in a common purpose. At its center stands the private foundation. The authors show how the foundation neatly combines donor autonomy with a regulatory framework to elevate the public's voice. This framework compels foundations to spend a small but meaningful portion of the assets their elite donors have pledged to the public each year. Prophylactic restrictions separate foundations from their funders' business and political interests. And foundations must disclose more about the sources and uses of their assets than any other business or charity. The philanthropic innovations increasingly espoused by America's most privileged individuals and powerful companies prioritize donor autonomy and privacy, casting aside the foundation and the tools it provides elites to demonstrate their good faith. By threatening to displace impactful charity with hollow virtue signaling, these actions also jeopardize the public's faith in the generosity of those at the top.

Private ordering, targeted regulation, or a new strategic bargain could strike a modern balance, preserving the benefits of the compromise between the modest and the mighty. For-Profit Philanthropy offers a detailed roadmap to show how it can be accomplished.

Michael E. Hartmann at American Affairs has already published a review of the book, titled Big Philanthropy and the Benefits—and Limits—of the Bygone “Grand Bargain” (hat tip: EO Tax Journal).

Lloyd Mayer

Broad Overviews of Civil Society Research, Form 990 Data, Nonprofit Studies, Political Activities, and Scandals

There have been a series of recent publications either pulling together past nonprofit research, looking forward to future nonprofit research, or both, including articles in the special issue of the Nonprofit & Voluntary Sector Quarterly marking that publication's 50th anniversary. These include:

• A Research Agenda for Civil Society (Kees Biekart & Alan Fowler, editors; Edward Elgar Publishing): "Mapping a wide range of civil society research perspectives, this pioneering Research Agenda offers a rich and clear insight for academics and practitioners hoping to embark on future civil society research. Kees Biekart and Alan Fowler bring together over 20 expert contributions from researchers across the globe who are actively engaged in testing the old and generating new knowledge about civil society."

• Unlocking the Potential of Open 990 Data (Cinthia Schuman Ottinger & Jeff Williams; Stanford Social Innovation Review): "As the movement to expand public use of nonprofit data collected by the Internal Revenue Service advances, it’s a good time to review how far the social sector has come and how much work remains to reach the full potential of this treasure trove."

• Disciplinary Contributions to Nonprofit Studies: A 20-Year Empirical Mapping of Journals Publishing Nonprofit Research and Journal Citations by Nonprofit Scholars (Megan LePere-Schloop & Rebecca Nesbit; Nonprofit & Voluntary Sector Quarterly)): "In celebration of Nonprofit and Voluntary Sector Quarterly’s 50th anniversary, we present a bibliometric analysis of nonprofit research published between 1999 and 2019, within and outside of three core nonprofit journals—NVSQ, NML, and Voluntas. We seek to understand which journals, across scientific domains and social science disciplines, inform nonprofit research in one of three ways, by (a) publishing articles, (b) citing the three core journals, or being cited in these core journals. We found that nonprofit research published in economics and social sciences journals has kept pace with a large increase in indexed research. Meanwhile, though the core nonprofit journals robustly cite and are increasingly cited by business and management and public administration journals, they are less engaged with other social science disciplines. We discuss ways that the core journals could increase their visibility and penetration into these other disciplines and highlight perspectives potentially missing from the core journals."

• Government Regulation and the Political Activities of Nonprofits (Deborah A. Carroll, Suzette Myser & Seongho An; Nonprofit & Voluntary Sector Quarterly): "We propose a conceptual model of the political activities of nonprofits that qualify for exemption under subsections of the Internal Revenue Code other than 501(c)(3), including social welfare organizations, civic leagues, social clubs, and so on, which considers three categories of explanatory factors: organizational capacity, financial strategy, and operating environment. Using a Heckman selection model with longitudinal IRS 990 data, we find government regulation to be an obstacle for nonprofits to engage in the policy process. Political activities of non-501(c)(3) organizations are also negatively associated with government support, suggesting these organizations perceive government intervention differently from 501(c)(3) organizations when engaging in political activities."

• Nonprofit Scandals: A Systematic Review and Conceptual Framework (Cassandra M. Chapman, Matthew J. Hornsey, Nicole Gillespie & Steve Lockey; Nonprofit and Voluntary Sector Quarterly): "High-profile charity scandals have always represented a threat to the nonprofit sector, which relies on public trust and funding to operate. We systematically review 30 years of empirical research on scandals involving nonprofits and present both quantitative and qualitative syntheses of the 71 articles identified. Informed by this review, we generate a conceptual model theorizing the causes and consequences of scandals, as well as how nonprofits can best prevent and respond to organizational transgressions. We then put forward a research agenda that elaborates five key factors that are especially important for understanding nonprofit scandals but remain understudied: (a) integrity versus competence violations, (b) moral licensing, (c) the multilevel nature of organizational transgressions, (d) sectoral causes of scandal, and (e) effective responses. We close the article with recommendations for nonprofit managers about how to conceptualize, prevent, plan for, and respond to transgressions occurring within their organizations, and any resulting scandals."

Lloyd Mayer

New Vehicles for Philanthropy: Three Considerations

Three new publications by Ofer Eldar (Duke), Dana Brakman Reiser & Steven Dean (Brooklyn), and Rasheda L. Weaver (Rutgers) highlight the myriad of possible forms for pursuing philanthropy currently, as well as their pros and cons. Here are summaries:

• Are Enterprise Foundations Possible in the United States? (Eldar): "This book chapter discusses the ability of entrepreneurs to form enterprise foundations in the US and the hurdles for forming them. The US regime for tax-exempt private foundations is very restrictive and does not practically allow them to have substantial ownership of for-profit firms. As a result, there is a perception that enterprise foundations are not feasible in the US. However, enterprise foundations, broadly defined as industrial firms controlled by any nonprofit firm, need not involve ownership by a private foundation (as it is defined in the US Tax Code) and could also be owned by other types of nonprofits. Such enterprise foundations are unlikely to benefit from key tax exemptions (such as tax-deductible donations or income tax exemptions), which probably explains their unpopularity. The chapter evaluates recent developments to liberalize the law of enterprise foundations, including (1) the "Newman's Own" exception that permits private foundations to own business firms under certain restrictive conditions, and (2) the perpetual purpose trust, which was recently utilized to transfer the ownership of Patagonia from the founder to a trust and a non-exempt nonprofit."

• For-Profit Philanthropy: Elite Power and the Threat of Limited Liability Companies, Donor-Advised Funds, and Strategic Corporate Giving (Reiser & Dean): "This book exposes a migration of business practices, players, and norms into philanthropy that strains the regulatory regime sustaining public trust in elite generosity through accountability and transparency and proposes legal reforms and private solutions to restore it."

• Social Entrepreneurship: A Practical Introduction (Weaver): "[This book] equips aspiring entrepreneurs with the tools needed to design and launch businesses to create positive social change in their communities. This accessible textbook aims to educate and motivate people interested in social entrepreneurship, showing that such businesses are a valuable part of the community development toolbox. Each chapter focuses on a key aspect of social entrepreneurship, from value creation and business planning to impact measurement and scaling up. Different social business models are presented, with analysis of their strengths and weaknesses. Cases and examples are included throughout the book and showcase real-life social enterprises in North America, South America, Europe, Australia, Africa, and the Caribbean. Discussion questions also support reflection and learning. A downloadable workbook offers support with checklists, social impact measurement, and other areas. An instructor manual containing test questions and experiential exercises is also available as a digital supplement for adopters. This book is ideal for introductory courses in social entrepreneurship and community development. It will also be valuable for those involved in social enterprises on the ground."

Lloyd Mayer

Fleischer: The morality of charitable bequests

Miranda Perry Fleischer (San Diego) has a chapter titled The morality of charitable bequests in a the new book Inheritance and the Right to Bequeath: Legal and Philosophical Perspectives (Routledge 2022). Here is the abstract for the chapter:

Although discussions of inheritance law and policy focus on private bequests to family members, decedents also bequeath large sums to charity – roughly $42 billion in 2020 in the United States alone. The place of charitable bequests has largely been overlooked in the philosophical literature, which tends to approach inheritance as the transfer of wealth between generations of the same family. Most theorists simply assume, with little discussion, that charitable bequests raise different policy concerns and should be given favourable treatment. This chapter explores the interaction of charitable bequest-giving and two common concerns of inheritance law and policy, namely equality of opportunity and the hereditary transmission of political and economic power over others. It argues that charitable bequests are not equal when it comes to alleviating such concerns, and in fact, some charitable bequests exacerbate them. To that end, priority should be given to charitable bequests that further the head start of the least-advantaged and that do not perpetuate family control over assets.

Lloyd Mayer

Annual Status of Civil Society Published

Lucy Bernholz published her annual industry assessment of civil society entitled Philanthropy and Digital Civil Society: Blueprint 2022. You can download it here.

Think readers will be interested in the report. It is described as follows: "Philanthropy and Digital Civil Society: Blueprint is an annual industry forecast about the ways we use private resources for public benefit in the digital age. Each year, the Blueprint provides an overview of the current landscape, points to big ideas that matter, and directs your attention to horizons where you can expect some important breakthroughs in the coming year."

‘This year’s Blueprint asks us to consider that many perceived “impossibilities” – think of the major transformations we need to solve our biggest challenges – are indeed possible, and how digital civil society and independent philanthropy can help make them a reality,’ said Bernholz, Senior Research Scholar at the Stanford Center on Philanthropy and Civil Society (Stanford PACS) and Director of its Digital Civil Society Lab.

‘We are in a threshold moment, and civil society, rooted in collective purpose and shared values, has clear opportunities to lead in creating new and better pathways forward.’

Philip Hackney