Nonprofit Law Prof Blog

Thinking Big Thoughts: Nonprofits and Democracy… on Twitter….

With summer here and the day-to-day craziness mostly (!) under control, I have the luxury of a few moments of just … thinking.   It’s easy to get wrapped up in the text of the Code, the most recent case law, or the scandal du jour (I’m looking at you, NRA).   But I rarely have the time to step back and take a wider scope on things.   

At this particular moment, it is courtesy of Twitter, which seems somewhat antithetical to big thoughts (literally, given the word count), but one never knows from whence inspiration may come. In the matter of just a few days, a number of Twitter posts came across my feed that connect indirectly in my mind to a larger questions of the role of charity in a democracy. 

Twitter post number 1.  Nonprofit Quarterly posted an article on its website entitled “The Road Less Traveled: Establishing the Link between Nonprofit Governance and Democracy.”

https://twitter.com/npquarterly/status/1133559834203308033?s=20

This article discusses how best practices in nonprofit board governance increase the representation of the various communities served by a nonprofit.  The failure to follow these best practices results in a “’democratic deficit’ in board governance- that is, an absence of democratic structures and processes.” Addressing the democratic deficit doesn’t just benefit the charity – it benefits our democracy writ large: “Wider constituent participation in nonprofit governance will not only help citizens develop civic skills and democratic values … .”  

Twitter post number 2.   The second Twitter post links to a Nonprofit Quarterly podcast that discusses “No White Saviors,” a movement that discusses the impact of race on hierarchy and power in the international charitable economic development space.  

https://twitter.com/npquarterly/status/1132662674855202817

This links a Nonprofit Quarterly podcast that discusses “No White Saviors,” a movement that discusses the impact of race on hierarchy and power in the international charitable economic development space.   “Those with power hav[e] the resources and capability to make decisions on what should the outcome should be for vulnerable populations.” Podcast at 6:42.

Twitter post number 3. The third post is an interview with Phil Buchanan of The Center for Effective Philanthropy, posted on vox.com, where he responds to criticism of that wealthy philanthropy is undemocratic (set for the more fully in his book, Giving Done Right).

https://twitter.com/voxdotcom/status/1132995143378845697?s=20

In the interview, Buchanan is quoted as saying:

The structural critiques are important and they play out in our democratic politics. But in the meantime, here we are. We have significant wealth that’s been accumulated in this country. We have endowed private foundations that don’t even have a connection on the board to the original donor. These are institutions that are focused on a mission. They’re focused on the public good. I like working in the day to day, in the practical reality, where there are people with decision-making power to allocate these resources. I want to help them to do it effectively.

I think all of these pieces raise interesting views on the role of power and money and the role of the charitable sector in a democracy.  At the end of the Buchanan interview, he specifically asks if we should be subsidizing all of this through the tax code, and specifically the Section 170 charitable deduction (spoiler alert: he says yes, and expand it to non-itemizers).

I’m more interested, however, in the Section 501(c)(3) implications on all of this.  Since Section 501(c)(3) is the section that creates the boundaries between that which is charitable (at least, charitable in tax terms) and that which is not, does it make sense for those rules to play a role in policing this issue.   One could view the 1969 passage of the private foundation excise taxes as the historical pre-cursor for this discussion, as at least part of the background of that legislation was to minimize the benefit to and the influence of the most wealthy through charitable vehicles.  My thoughts aren’t fully formed on this, but I found it an interesting crossing of the Twitter streams in a very short 48 hour period.  Any musings and other big thoughts are, of course, most welcome.

EWW

Ellen Aprill's Review of Hamburger's "Liberal Suppression: Section 501(c)(3) and the Taxation of Speech"

Ellen Aprill (Loyola-LA) recently posted a review of Professor Philip Hamburger's (Columbia) "Liberal Suppression: Section 501(c)(3) and the Taxation of Speech" at HistPhil.org.     HistPhil, which is "a web publication on the history of the philanthropic and nonprofit sectors, with a particular emphasis on how history can shed light on contemporary philanthropic issues and practice."   Prof. Hamburger's book argues that, as a constitutional law matter,

    

...  theopolitical fears about the political speech of churches and related organizations underlay the adoption, in 1934 and 1954, of section 501(c)(3)’s speech limits. He thereby shows that the speech restrictions have been part of a broad majority assault on minority rights and that they are grossly unconstitutional.

 

Prof. Aprill bring a tax lens to this issue, highlighting the history of the Johnson Amendment.   The review introduces readers who might not be familiar with the public subsidy theory of exemption to a different approach to the Constitutionality issues and highlights much of the tax-focused scholarship in the area.

 

EWW

Research Handbook on Not-For-Profit Law

Edward Elgar Publishing has released the Research Handbook on Not-for-Profit Law, edited by Matthew Harding of Melbourne Law School. Here is the description:

This Research Handbook provides a comprehensive overview of scholarship on not-for-profit law. The chapters, written by world leading experts, explore key ideas and debates in relation to: theories of the not-for-profit sector, the composition and scope of that sector, not-for-profit organisations and the constitution, the legal conception of charity, the tax treatment of not-for-profit organisations and the regulation of not-for-profits. The book serves to represent not-for-profit law as a field of academic inquiry, and to point the way to future research in that field.

And here is the table of contents:

Introduction
Matthew Harding

Part I Theories of the Not-for-Profit Sector
1. A Law and Economics Perspective on Nonprofit Organizations
Richard Steinberg and Brian Galle

2. A Primer on the Neo-Classical Republican Theory of the Non-Profit Sector (And the Other Three Sectors Too)
Rob Atkinson

3. A Charity Law Perspective on a Liberal Perspective on Charity Law
Adam Parachin

4. The Not-for-Profit Sector: A Roman Catholic View
Fr Brian Lucas

Part II The Composition and Scope of the Not-for-Profit Sector
5. An Overview of the Not-for-Profit Sector
Myles McGregor-Lowndes OAM

6. The Boundary between Not-for-Profits and Government
Darryn Jensen

7. The Boundary between the Not-for-Profit and Business Sectors: Social Enterprise and Hybrid Models
Benjamin M Leff

8. Donor Intention and Dialectic Legal Policy Frames
John Picton

Part III Not-for-Profit Organisations and the Constitution
9. Not-for-Profit Organisations, Public Law and Private Law
Kathryn Chan

10. Not-for-Profit Organisations and Equality Law
François du Toit

11. Charity Law and Freedom of Political Communication: the Australian Experience
Jenny Beard

12. Not-for-Profit Law and Freedom of Religion
Pauline Ridge

Part IV The Legal Conception of Charity
13. The History and Future of the Law of Charity
G E Dal Pont

14. Charity in Common Law and Civilian Jurisdictions
Michael H Lubetsky

15. The Heads of Charity in Comparative Perspective
Debra Morris

16. Public Benefit Post-Pemsel
Mary Synge

Part V The Tax Treatment of Not-for-Profit Organisations
17. Taxation and the Not-for-Profit Sector Globally: Common Issues, Different Solutions
Ann O’Connell

18. Subsidizing Charity Liberally
Miranda Perry Fleischer

19. Ways the Charitable Deduction Has Shaped the US Charitable Sector
Roger Colinvaux

20. The Major Tax Concessions Granted to Charities in Australia, New Zealand, England, the United States of America and Hong Kong: What Lessons Can We Learn?’
Fiona Martin

21. Reforming Tax Policy with Respect to Non-Profit Organisations
Evelyn Brody

Part VI The Regulation of Not-for-Profit Organisations
22. Principles of Regulation of Not-for-Profits
Jonathan Garton

23. Design and Implementation of a Charitable Regulation Regime
Brian Galle

24. Redefining the Measure of Success: A Historical and Comparative Look at Charity Regulation
Oonagh B Breen

25. A Regulator’s View
Susan Pascoe AM

Lloyd Mayer

Brunson: God and the IRS

Samuel D. Brunson (Loyola University Chicago) has published God and the IRS: Accomodating Religious Practice in United States Tax Law. Here is a brief description:

Seventy-five percent of Americans claim religious affiliation, which can impact their taxpaying responsibilities. In this illuminating book, Samuel D. Brunson describes the many problems and breakdowns that can occur when tax meets religion in the United States, and shows how the US government has too often responded to these issues in an unprincipled, ad hoc manner. God and the IRS offers a better framework to understand tax and religion. It should be read by scholars of religion and the law, policymakers, and individuals interested in understanding the implications of taxation on their religious practices.

Lloyd Mayer

Update Memos Reflecting Tax Reform Available for Nonprofit Organizations Casebook (NOW WITH LINKS)

James Fishman, Stephen Schwarz, and I have written supplemental update memos for our Nonprofit Organizations casebook reflecting the recently passed federal tax legislation. One update is for students and the other is for teachers. Foundation Press should make them available shortly, but for those of you who need them urgently please email any of us and we can send them directly to you.

UPDATE: Here are the West Academic links to the 2018 Student Update and the 2018 Teacher's Manual Update (latter requires logging in as a faculty member).

Lloyd Mayer

Reiser & Dean: Social Enterprise Law (Oxford University Press)

Dana Brakman Reiser and Steven A. Dean (both Brooklyn) have written Social Enterprise Law: Trust, Public Benefit and Capital Markets. Here is an overview:

• Controversial thesis: law can make corporations better citizens and make it easier for start-ups to raise capital by preventing insiders from selling out a social mission for increased profit
• Timely analysis: explores potential impact of new crowdfunding rules and increasingly popular hybrid legal forms such as the benefit corporation on the ability of start-ups to raise capital
• Provocative solutions: several chapters show how corporate governance, contract and even tax law can be harnessed to balance public good against private greed

Lloyd Mayer

Zelinsky: Taxing the Church (Oxford University Press)

Edward A. Zelinsky (Cardozo) has written Taxing the Church: Religion, Exemptions, Entanglement,and the Constitution (Oxford University Press). Here is an overview:

• Explores the taxation and exemption of churches and other religious institutions, both empirically and normatively
• Reveals that churches and other religious institutions are treated diversely by the federal and state tax systems
• Focuses on church-state entanglements with respect to taxing or exempting churches and other sectarian entities
• Discusses improvements that can be made in legal and tax policy trade-offs, such as the protection of internal church communications and the expansion of the churches' sales tax liabilities
• A clear, balanced, and comprehensive treatment of the topic that is broadly accessible to tax policymakers, lawyers, nonlawyers, judges, tax specialists, and even those with no background in the subject

For a review, see Peter J. Reilly on Forbes.

Lloyd Mayer

More Social Enterprise Articles & Book Chapters

Earlier this week I posted a link to the recently published Financing the Benefit Corporation article by Dana Brakman Reiser and Steven Dean, but there have been a number of other recent articles and book chapters relating to social enterprise that are worth mentioning, including several draft book chapters forthcoming in The Cambridge Handbook of Social Enterprise Law: 

Seattle University Law Review: Benefit Corporations and the Firm Commitment Universe (sixteen articles, including the Reiser & Dean article )

Brian D. Galle (Georgetown), Self-Regulation of Social Enterprise, forthcoming in The Cambridge Handbook of Social Enterprise Law

Andrew S. Gold (DePaul) & Paul B. Miller (McGill), Fiduciary Duties in Social Enterprise, forthcoming in The Cambridge Handbook of Social Enterprise Law

Lloyd Hitoshi Mayer (Notre Dame), Creating a Tax Space for Social Enterprise, forthcoming in The Cambridge Handbook of Social Enterprise Law

Brett McDonnell (Minnesota), Three Legislative Paths to Social Enterprise: L3Cs, Benefit Corporations, and Second Generation Cooperatives, forthcoming in The Cambridge Handbook of Social Enterprise Law

Peter Molk (Willamette), Do We Need Specialized Business Forms for Social Enterprise?, forthcoming in The Cambridge Handbook of Social Enterprise Law

Emily Winston (NYU), Benefit Corporations and the Separation of Benefit and Control, forthcoming in Cardoza Law Review

Lloyd Mayer

 

Winer & Crimm: Gods, Schools, and Government Funding

Ashgate has released a new book by Lawrence H. Winer (Arizona State) and Nina J. Crimm (St. John's) titled God, Schools, and Government Funding.  Here is the description:

In recent years, a conservative majority of the U.S. Supreme Court, over vigorous dissents, has developed circumventions to the Establishment Clause of the First Amendment that allow state legislatures unabashedly to use public tax dollars increasingly to aid private elementary and secondary education. This expansive and innovative legislation provides considerable governmental funds to support parochial schools and other religiously-affiliated education providers. That political response to the perceived declining quality of traditional public schools and the vigorous school choice movement for alternative educational opportunities provokes passionate constitutional controversy. Yet, the Court’s recent decision in Arizona Christian School Tuition Organization v. Winn inappropriately denies taxpayers recourse to challenge these proliferating tax funding schemes in federal courts. Professors Winer and Crimm clearly elucidate the complex and controversial policy, legal, and constitutional issues involved in using tax expenditures - mechanisms such as exclusions, deductions, and credits that economically function as government subsidies - to finance private, religious schooling. The authors argue that legislatures must take great care in structuring such programs and set forth various proposals to ameliorate the highly troubling dissention and divisiveness generated by state aid for religious education.

Lloyd Mayer

California Historical Society Accepting Proposals for 2014 Book Award

The California Historical Society is accepting nominations for the 2014 California Historical Society Book Award.

According to today's Philanthropy News Digest, the Society will award a cash prize of $5,000  

to a book-length manuscript that makes an important contribution to California historical scholarship and adheres to high scholarly standards while being lively and engaging to general readers.  In addition to conventional works of historical scholarship, other works eligible for consideration include biographies, collections of letters or essays, photographic or artistic studies, creative nonfiction, and other ways of informing the mind and engaging the imagination in an understanding of California’s past.

The winning manuscript will be published in both print and e-book format, and the society will pay for an awards ceremony, promotion, and an author’s tour.

Eligibility and application guidelines are available at the California Historical Society Website.

VEJ

Updates Available for Schmidt's Nonprofit Law: The Life Cycle of a Charitable Organization

For those of you who use Betsy Schmidt's Nonprofit Law: The Life Cycle of a Charitable Organization in your class teaching materials, updates are available at  http://www.aspenlawschool.com/books/non_profit/default.asp under "Professor Materials." 

JDC

Updates for Fishman/Schwarz Casebook Available

For those who use Jim Fishman and Steve Schwarz's casebook, Nonprofit Organizations, Cases and Materials (4th ed. 2010), the 2013 Student Update is available here and 2013 Teacher's Manual Update is available here.  (Full disclosure: I collaborated on these updates.)

LHM

Karla Simon's New Book on Civil Society in China

Professor Karla Simon's new book on Civil Society in China is now in print.  The book is available for a significant early bird discount of $60 by logging on to www.oup.com/us and using promo code 31590.

JDC

 

Kentucky "Politics, Taxes, and the Pulpit" Conference

The University of Kentucky College of Law hosted yesterday a conference on the recent book Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts authored by Nina J. Crimm (St. John's) and Laurence H. Winer (Arizona State).  Commentators were Dean David A. Brennen, Joshua A. Douglas (Kentucky), Rev. Nancy Jo Kemper (Transylvania University) and Paul E. Salamanca (Kentucky).  The book is a comprehensive consideration of the constitutional and federal tax issues raised by religious leaders preaching politics from the pulpit and includes thought-provoking proposals for lessening the constitutional tensions in this area.

LHM

UK Charity Commission Urged to Allow Not-for-Profit, Charitable Newspapers

We have previously blogged about the trend in the United States toward the creation of nonprofit news organizations (see, for example, a Pew Research Center's Project on Excellence in Journalism post, a federal legislation post, and a Texas Tribune post).  Now from across the Pond comes word that a group of journalists, academics, and charitable funders is asking the Charity Commission for England and Wales to make it easier for nonprofits there to qualify as charities.  The requests were apparently based upon a recent report prepared by the Reuters Institute for the Study of Journalism at Oxford University titled Is There a Better Structure for News Providers?  The Potential in Charitable and Trust Ownership, which is summarized briefly on Oxford's website but is not yet available in full form.  The author is Robert G. Picard.  Here is the summary:

Charitable and trust ownership are frequently advocated as alternatives to challenges in commercial news organisations. This book adds information, evidence and knowledge to the dialogue taking place by exploring existing arrangements in UK, France, Canada, and US, looking at various structural arrangements and exploring advantages and disadvantages of various forms.

LHM

A Compelling Social Enterprise Story

The Community Development Law Clinic that I supervise recently represented Carolina for Kibera (CFK), a nonprofit organization that focuses on public health and community development in Kibera, a sprawling slum just outside of Nairobi, Kenya.  (For those who are curious, we performed a standard legal audit for the organization and determined that it is in fine legal condition.)  CFK was founded a decade ago by a UNC-Chapel Hill undergraduate, Rye Barcott, with a decidedly grassroots approach.  Residents of Kibera told Rye and his collaborators that young people in the community needed healthy activities, so they founded a soccer league that has grown into an important institution.  Soccer provided a way into the lives of young people and their families, and today CFK is a thriving, million-dollar-a-year NGO that runs several heralded programs including an extremely successful health clinic.  As CFK grew, Rye became somewhat of a social enterprise celebrity.  It did not hurt his reputation that he entered the Marines after graduating from Chapel Hill and continued to act as a principal of the organization while he was on active service in Iraq.

Now Rye has written a book, It Happened on the Way to War: A Marine's Path to Peace.  Available on Amazon, the book is being advertised as the next Three Cups.  I have not yet read the book, so I cannot endorse it (I hope it has more literary merit than Three Cups), but I can tell you that Rye's story is compelling and that, if he comes through your town to do a reading or a CFK fundraiser, it would be worth the trip.

TAK

Discussion of Hammack & Anheier's American Foundations: Roles and Contributions Hosted by Hudston Institute

On Tuesday, January 25th in Washington, DC, the Hudson Institute will be hosting a book discussion of American Foundations: Roles and Contributions, edited by David Hammack (Case Western Reserve) and Helmut Anheier (UCLA).  According to the announcement, the panelists will include co-editor David Hammack, as well as Leslie Lenkowsky of Indiana University, Steven Rathgeb Smith of Georgetown University, and Susan Ostrander of Tufts University.  Bradley Center Director William Schambra will moderate the discussion.

LHM

New Publication on Nonprofit Finance

A timely new book entitled Nonprofit Finance for Hard Times: Leadership Strategies When Economies Falter by Susan Raymond, has recently been publishedThe book is meant to be a tool for nonprofit organizations seeking to reassess strategies for managing their financial health.  It provides information and guidance on a variety of subjects including responding to the economic crisis, change in stability interests, financial support strategies, and a systems approach to revenue strategy. 

SS

Another Source on Nonprofit Performance Metrics

Yesterday I blogged about a joint project between The Urban Institute and Social Solutions to launch a web portal with information to help nonprofits improve performance.  Today, Root Cause, a nonprofit advisory organization, announced a new book recommending that nonprofits adapt for-profit data-driven performance measures to help judge and improve nonprofits' impact.  According to this story in Reuters, the book (entitled Building a Performance Measurement System: Using Data to Accelerate Social Impact) looks at the performance measurement system commonly used by the private sector to increase profitability, and modifies it "for a simplified, step-by-step customized system to help nonprofits improve operations and increase social impact."

A free PDF of the book and more information is available for download from the Root Cause web site.

JDC