Nonprofit Law Prof Blog

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

Donor Questions & Fatigue For Contributions to Aid Ukraine

As the Russian invasion of Ukraine passes the one-year mark, donor questions and fatigue have started to become evident. On the questions side, the AP had a recent story titled For donors, wartime Ukraine aid creates blurry ethical line. It highlights the dilemma of some donors, and particularly U.S. nonprofits that face legal restrictions, who want to support Ukraine but do not want to support actual combat activities. This issue is of course complicated by the fact that some items can be used for either humanitarian or fighting purposes.

On the donor fatigue side, devex reported last month that Philanthropic donations to Ukraine have largely dried up. This story notes that over 70 percent of contributions for Ukraine relief were announced before July 2022, with fewer announcements since then, although there have been some notable exceptions. At the same time, the Chronicle of Philanthropy reports that Foundation Giving to Ukraine Peaked at Beginning of Invasion, but Has Stayed Steady Since (subscription required). It notes that Foundation Source found that more than $7 million has been given to support Ukraine by the 273 private foundations it analyzed.

Lloyd Mayer

Xenophobia and Nonprofits

In Italy, "since the expansion of the EU, the most recent wave of migration has been from surrounding European states, particularly Eastern Europe, and increasingly Asia, replacing North Africa as the major immigration area." This, according to ISTAT, Italy's official census bureau.  And also, "Italy was one of the European countries with colonies in Africa during the modern period. Lasting from 1890 to 1941, Italian colonialism in Africa included the present day countries of Libya, Ethiopia, Eritrea, and Somalia. Italian colonialism in Africa came to an end with the death of the Italian leader Benito Mussolini, the collapse of the Fascist regime, and the defeat of Italy in World War II."  Of the 7,461,894 people born elsewhere now living in Italy, less than 10% -- 670,000 -- are clandestini.  And even then, not all of those extra legal immigrants are from North Africa.  The entire immigrant population is less than 9% of Italy's population.  Nevertheless, the fascists in the Italian government are literally drowning extra legal immigrants -- men, women, and children -- from North Africa in the year round choppy waters of Mediterranean Sea.  

Just yesterday, a rickety migrant ship sunk off the coast of Italy with 150 people on board.  If I don't cuss, I might spit.  For a  sober discussion of Italy's immigration policies and how they came to be what they are, read this article.  So far, 43 of the estimated 58 bodies have washed up.  The migrants were from Afghanistan (were NGO activities have been crippled by the Taliban), Iran, Pakistan, and Somalia, among other countries.  Eighty-five people survived.  

The remains of a sunken sailboat washed up on the shores of southern Italy.

Meanwhile, the Prime Minister and the rest of her Mussolini clones are defending their "distant ports" law that took effect just three days earlier, despite warnings that the law would result in many deaths.  That law is aimed at preventing NGO's from rescuing migrants out of the cold choppy waters of the Mediterranean Sea.  As if that will discourage desperate people from Italy's formerly occupied lands, and other places, from risking it all to escape the places from which colonists derived illegal wealth and even bodies.  Italy, ironically, abolished slavery in its African colonies.  But on the very first day the distant ports law went into effect, Italy fined Medecins Sans Frontieres (Doctors Without Borders) and banned its rescue boats from Italian ports for 20 days.  

Hours after the parliamentary vote, the Doctors Without Borders (MSF) charity said its Geo Barents vessel had been blocked for 20 days and the organisation fined 10,000 euros. The sanctions were imposed after MSF was accused of withholding some information about a rescue it completed last week, when the Geo Barents took 48 migrants to the Adriatic port of Ancona, a spokesperson for the charity said.

Rescue personnel collect washed up bodies on a southern Italian beach.

The right wing xenophobic fascist bastards in the government offered the Italian version of "thoughts and prayers" even as bodies were still being collected:"

Italian Prime Minister Giorgia Meloni expressed "deep sorrow" for the deaths. Blaming human traffickers, she vowed to block migrant sea departures to prevent such disasters.  Her right-wing administration has taken a hard line on migration since taking office in October, mostly by restricting the activities of migrant rescue charities with tough new laws that won final parliamentary approval on Thursday. Meloni accuses charities of encouraging migrants to make the dangerous sea journey to Italy, acting as so-called "pull factors". Charities reject this, saying migrants set off regardless of whether rescue boats are in the vicinity. "Stopping, blocking and hindering the work of NGOs (non-governmental organisations) will have only one effect: the death of vulnerable people left without help," Spanish migrant rescue charity Open Arms tweeted in reaction to Sunday's shipwreck.

“Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion. Bad men need nothing more to compass their ends, than that good men should look on and do nothing. He is not a good man who, without a protest, allows wrong to be committed in his name, and with the means which he helps to supply, because he will not trouble himself to use his mind on the subject.”  -- John Stuart Mill, 1867.

darryll jones

Indian Supreme Court Applies "Paradigm Shift" on Commerciality and Unrelated Trade or Business

John and Mark wrote a lot about a "donative" theory of tax exemption, the central thesis of which is that tax exemption should be limited to organizations that demonstrate they are worthy of exemption by generating sufficient public support such that its capital derives from donations. A necessary corollary, of course is that an organization should not be tax exempt if too much of its operating capital derives from sales.   We all pretty much agree that the ideal charity, for which tax exemption is appropriate, is the one to which donate, and which organization, in turn, gives all its resources to appropriate beneficiaries.  Somewhere in their two articles, they admit that ideal has never been the exclusive model for tax exempt organizations and, if I recall correctly, almost all organizations rely to one degree or another on income from sales of the "charitable" product -- tuition admission prices or hospital charges, for example.  The enduring question, of course, is how much fee for service or goods (charitable or not) is too much so that we no longer consider the organization charitable.  That is the difficult question.  I don't remember if John and Mark settled on a definitive answer applicable in all cases but I kinda doubt it.

In India, the Indian Supreme Court, has approved a "paradigm" shift, in effect imposing a donative requirement limiting tax exemption to charitable organizations whose fees for services or goods do not exceed 20% of "total receipts:"  

The paradigm change achieved by Section 2(15) after its amendment in 2008 and as it stands today, is that firstly a GPU charity cannot engage in any activity in the nature of trade, commerce, business or any service in relation to such activities for any consideration (including a statutory fee etc.). This is emphasized in the negative language employed by the main part of Section 2(15). Therefore, the idea of a predominant object among several other objects, is discarded. The prohibition is relieved to a limited extent, by the proviso which carves out the condition by which otherwise prohibited activities can be engaged in by GPU charities.  The conditions are:  

(a) That such activities in the nature of trade, commerce, business or service (in relation to trade, commerce or business for consideration) should be in the course of “actual carrying on” of the GPU object, and

(b) The quantum of receipts from such activities should be exceed 20% of the total receipts.

(c) Both parts of the proviso: (i) and (ii) (to Section 2 (15)) have to be read conjunctively-given the conscious use of “or” connecting the two of them. This means that if a charitable trust carries on any activity in the nature of business, trade or commerce, in the actual course of fulfilling its objectives, the income from such business, should not exceed the limit defined in sub-clause (ii) to the proviso.

In what is apparently the first case applying the paradigm shift, the Indian Supreme Court remanded a case involving an exempt newspaper whose advertising income exceeded 20% of receipts.  If I read the opinion correctly, any amount of unrelated fee for service/goods precludes tax exemption.  Fee for related service/goods may not exceed 20% of all receipts. I gotta think this through.  The Court remanded to the lower tribunal for finding on the "nature of the receipts."  If advertising is unrelated to the charitable mission -- as it generally is here in the U.S. under the "fragmentation rule discussed in American College of Physicians," the newspaper may not accept any amount of advertising revenue.  If it is related, advertising revenue may not exceed 20% of receipts.  Meanwhile if you are interest in Indian law of ta exemption or just comparative law, download both opinions for an interesting discussion.  

 

Click on the picture to get an "Analysis of the Current Legal Framework for Civil Society in India."

 

darryll jones 

FLASH! Governments Don't Trust Nonprofits

Fair use is your friend

Those pesky nonprofit do-gooders are busy doing good, and at the same time trying to avoid geopolitics all over the place.  They shan't get away with it; around the globe government is protecting us in what almost seems a concerted effort.  In Congress, House Foreign Affairs Committee Chair McCaul accused USAID of not doing enough to "investigate credible allegations a nonprofit receiving a $110,000 grant is associated with designated terrorist organizations more than eight months after committee staff raised the issue. USAID took no action to investigate the grant to Helping Hand for Relief and Development (HHRD) even after being provided detailed information on the allegations." He called the failure to investigate "alarming," "grossly negligent," and "unacceptable." 

Just last week, McCaul spoke out against Venezuela's "Draft NGO Law:"

Venezuela’s draft law to regulate non-governmental organizations is the latest attempt by the ruling socialists to stifle dissent and terrorize the opposition. By heavily regulating NGOs and banning political adversaries, the regime will effectively squash one of the few remnants of political opposition in the country. We strongly urge the Biden administration to recognize that the Maduro regime is not a reliable counterpart and its policy of unilaterally easing sanctions undermines efforts to restore Venezuela’s democracy.”

And last week we reported that Alliance for Global Justice's fundraising platform was disconnected after other another nonprofit accused it of accepting donations for foreign terrorist organizations, and at the same time issued warnings to AfGJ's bank that it was violating federal law.  NGO Monitor published a report this month in which it asserts "clear and convincing evidence of links between the Popular Front for the Liberation of Palestine (a group designated as terrorist by several governments) and the European Government-funded NGO Network."

And in Myanmar:

The Organisation Registration Law was introduced by Myanmar’s so-called State Administration Council in October 2022, repealing the former Association Registration Law 2014. It makes registration of NGOs and associations mandatory rather than voluntary, and requires the declaration of funding sources and locations of operation among other information that aid workers deem risky to provide. But being unregistered comes with financial penalties and potential prison time. While it's not unusual for organizations to share information about their activities, this law threatens the need for organizations to protect those they support and their personal data, said a Myanmar-based aid worker who asked to remain anonymous for security purposes. There must be no consequences for having received humanitarian assistance, they added. The law forbids the provision of aid to areas not controlled by the council and those who oppose the junta, which forcibly seized power of the country in a coup in 2021. 

The junta is trying to ensure no money moves from NGOs to resistance fighters, according to a report by the International Crisis Group. A local advocacy worker who also requested anonymity said it’s also about preventing human rights groups from reporting the military’s violations, and believes registering with the junta will only give the regime legitimacy.

Meanwhile, in Vietnam:

• A wave of recent closures of environment organizations in Vietnam, as well as the arrests of NGO leaders, reflects the difficult position that activists face in the one-party state.
• Nonprofit organizations have an unclear legal status in the country, and are vulnerable to pressure from the state as well as from powerful private interests.
• Though the communist-led government has at times recognized the value of NGOs as partners in implementing social and environmental programs, it has also attacked the concept of civil society as a threat to official ideology and morality.

Later on in Zimbabwe

Jeers filled the air when lawmakers of the ruling ZANU-PF party celebrated after the Private Voluntary Organizations Amendment Bill, which regulates non-governmental organizations, passed in Zimbabwe’s Senate late Wednesday. The legislation, which still awaits President Emmerson Mnangagwa's signature, makes it a criminal offense for NGOs to support or oppose political parties or candidates in any election. Supporters say the legislation is designed to curb financing for terrorism and money laundering in Zimbabwe. Ziyambi Ziyambi, Zimbabwe’s justice minister, told Parliament after the bill passed that law-abiding NGOs have nothing to fear. “All we are saying is: if you come and you say you want to assist – in quotes – water sanitation, you have not any business in getting into political lobbying,” he said. “So, we are saying: we want to follow the money where it is going. So, we believe that this is a progressive piece of legislation.”

Musa Kika, a human rights lawyer who heads the Zimbabwe Human Rights NGO Forum, said the law infringes on Zimbabweans’ basic rights. “Our position is this law is unconstitutional,” he said. “It violates freedom of association. It violates citizens’ rights to organize and self-organize in spaces outside the state. So that’s our position that this law cannot and will not stand constitutional scrutiny by an independent and any competent court.”

And finally, in Italy, where the Ghost of Mussolini roams and fascism is on the rise, Amnesty International is condemning new legislation implementing a "distant port" requirement with ever greater impunity:

In the central Mediterranean, over 2 thousand people lost their lives in 2022 while engaging in irregular sea crossings to seek international protection or better lives in Europe. In December 2022, the Italian government adopted two measures affecting NGO ships that patrol the central Mediterranean and rescue people in distress at sea. The first is a new “distant ports” practice, that requires NGO ships carrying refugees and migrants rescued at sea to have people disembark in ports in central and northern Italy, including in the Adriatic Sea – i.e. in ports particularly distant from the position where rescues are typically carried out. The second is a new decree-law introducing a number of additional requirements for NGO rescue vessels. In combination, these measures significantly reduce the capacity of NGO rescue ships to patrol the areas of the central Mediterranean where shipwrecks are more likely to occur. Amnesty International calls on the Italian authorities to end such measures as a matter of urgency.

I don't like marinara sauce with my fascism.  I like good ol' fashioned American fascism.  That's why I live in Florida.  

darryll jones

Taliban Exclusion of Women from NGOs and Universities Costing Afghanistan $7 Billion (and Counting)

Click on the picture for a background report.

We have been following the situation in Afghanistan involving the Taliban's order barring women from university and charitable organizations.  We reported, for example, that the State Department imposed increased sanctions on the Taliban after the Taliban summarily banished women from going to university or working with NGOs.  When the Afghan government collapsed shortly the U.S. withdrew troops, the Biden administration froze the government's bank accounts.  Afghanistan is losing about $140,000 every single day just in interest on the frozen capital, assuming an approximate 5% rate.  This in a country with GDP per capita of less than $400.

An interesting WSJ Podcast quantifies the financial costs and how those costs are impacting the Afghan people.  Here is a partial transcript:  

Annmarie Fertoli: When the US left Afghanistan in 2021 and the Taliban took over, the Biden administration made a bold move. It froze $7 billion that the Afghan Central Bank had kept in reserves in the US. The White House put much of that money in an account in Switzerland. The so-called Afghan Fund was pitched as a way of helping the Afghan people, but so far no funds have been released. Instead, the money has frozen as the US bumps up against the limits of its power to sway the Taliban. I'm Annmarie Fertoli from the Wall Street Journal, and joining me now is our DC reporter, Daniella Cheslow. Hi Daniella, thanks for being here.

Daniella Cheslow: Yeah, the picture of Afghanistan's economy is pretty bleak. The World Bank estimates the economy contracted by about 30% between 2021 and 2022. The UN says malnutrition reached a record high. This is partly because of economic factors, and that includes the international community cutting off a lot of aid since the Taliban took over. There's also been a drought and flooding that impacted crops. The Afghan Fund wouldn't directly help out in humanitarian aid. That's not its role, but it could help keep inflation stable. Over the summer, Afghanistan's year on year inflation reached above 18%, which is really making it harder for people to afford food and other basic goods. It's come down somewhat since then, but it's still high. There was some fear for a while in Afghanistan that the country's economy would completely collapse. What has been keeping it somewhat stable is a pipeline of cash that the United Nations flies in. The World Bank has said that if that were to dry up, it would seriously set back what it called Afghanistan's anemic recovery.

Annmarie Fertoli: The Afghan Fund is just one part of the picture here. I wonder what you heard from other groups that are trying to help the people of Afghanistan without propping up the Taliban?

Daniella Cheslow: Yeah, that question is on people's minds in DC. The US has found ways to aid people in countries it's sanctioned like North Korea. But I think that Taliban poses a unique problem. It has banned women from working in NGOs that came out in December. Many organizations that worked in Afghanistan suspended or cut back their operations because they said they couldn't reach their targets. The result is a moral dilemma, which is what I heard from Ibraheem Bahiss at the International Crisis Group, which still has a presence in Afghanistan.

Ibraheem Bahiss: Do we want Afghans to suffer at the cost of hoping that it would change the Taliban's behavior or at least keep the Taliban tied down? Or do we want to address the crisis that the Afghan population is grappling with, even if the Taliban will benefit from the improved humanitarian situation and economic situation in the country?

Unfreeze Afghanistan is a "coalition of US and Afghan women" that want Taliban to respect the human rights of women and the United States to unfreeze the money.  

darryll jones

Turkey, Syria, and Disaster Relief

By now, you've undoubtedly read about the earthquakes in Turkey that killed at least 5,100 people in Turkey and Syria and left an estimated 150,000 people without homes in Turkey alone. 

Governments, including several countries in the EU, the United States, Russia, and Israel, are stepping up with disaster relief. But for an earthquake that has affected an estimated 23 million people, there cannot be too much help.

And charitable organizations are stepping up, allowing individuals and corporate entities to step up. The Turkish and Syrian Red Crescents are looking for donations and volunteers. The International Blue Crescent Relief and Development Foundation says it needs tents, heaters, blankets, MREs, thermal clothes, and first aid kits. Plenty of other charitable organizations are also raising funds to provide relief for the victims of the earthquakes.

And this fundraising strikes me as absolutely critical. With a massive disaster like this, we need the government, the private, and the public sector to step up. A couple things to think about when deciding how and where to help:

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United States Imposes Additional Sanctions on Taliban For Barring Women from Universities and NGOs

A Press Statement issued yesterday by Secretary of State Antony Blinken:  

I am taking action today to impose additional visa restrictions on certain current or former Taliban members, members of non-state security groups, and other individuals believed to be responsible for, or complicit in, repressing women and girls in Afghanistan through restrictive policies and violence, including the Taliban’s decision to ban women from universities and from working with NGOs.  The immediate family members of such persons may also be subject to these visa restrictions, enacted under Section 212(a)(3)(C) (“3C”) of the Immigration and Nationality Act.

The Taliban’s most recent edicts ban women from universities and from working with NGOs, and further the Taliban’s previous measures that closed secondary schools to girls and limit the ability of women and girls to participate in the Afghan society and economy.  Through these decisions, the Taliban have again shown their disregard for the welfare of the Afghan people.

So far, the Taliban’s actions have forced over one million school-aged Afghan girls and young women out of the classroom, with more women out of universities and countless Afghan women out of the workforce. These numbers will only grow as time goes on, worsening the country’s already dire economic and humanitarian crises.  Women’s and girls’ quality, safe, and inclusive education and workforce participation is essential to growing and strengthening economies, reducing inequality, and fostering stability.  Equal access to education and work is also an essential component to the vitality and resiliency of entire populations, including all adults and children, regardless of gender. The Taliban cannot expect the respect and support of the international community until they respect the human rights and fundamental freedoms of all Afghans, including women and girls.

We continue to coordinate closely with allies and partners around the world on an approach that makes clear to the Taliban that their actions will carry significant costs and close the path to improved relations with the international community.

We condemn in the strongest of terms the Taliban’s actions. The United States stands with the Afghan people and remains committed to doing all we can to promote and advance respect for the human rights and fundamental freedoms of all Afghans, including women and girls.

For previous coverage, see this post.

 

darryll jones

Tax-Exempt Status and Associated Factors among Charitable Foundations in China

 

When I was a much younger and hungrier professor, I wrote an article about tax exempt organizations in China.  My pre- or recently tenured self was feeling especially erudite so I christened the article with a ridiculously pompous title, appropriate to my membership in a learned society I guess.  Sheeesh!  Click on the link if you want to know the title, I am too embarrassed now to include it in bright light hyperlink. I was scheduled to present the pre-publication paper to an audience in Beijing in October 2001, but then 9/11 happened and the whole world changed in an instant.

 

Even in 2003, when I wrote the article, access to information -- especially from China or other authoritative states -- was difficult (at least for me).  One thing is true, though.  Information proliferates exponentially every day.  Even North Korea won't be able to withstand the progress of online yakety-yak.  Nowadays, Chinese nonprofit laws can be accessed with just a click of a mouse.  I wish I had access to the article whose title is in the headline back then.  It provides a nice summary of Chinese nonprofit law, some useful empirical data and supported conclusions.  The world is truly getting smaller.  Here is the Introduction to Tax-Exempt Status and Associated Factors among Charitable Foundations in China.

 

dkj

 

Continue reading

Taliban Order Women to stop working for NGOs

In a stunning display of bonehead-ism, the Taliban ordered all NGOs operating in Afghanistan to stop employing humans with XX chromosomes.  The order is indefinite and states that NGOs not complying will lose their license to operate in country.  XY chromosome humans may continue working with NGOs.  The order was prompted apparently by the Ministry of Economy's observation that NGO's were not requiring XX humans to wear proper clothing while providing services to or for NGOs.  The United Nations, Secretary of State Antony Blinken, and several large NGOs - the Red Cross,  Save the Children, Care, and the Norwegian Refugee Council, have all issued statements urging the Taliban to reverse course.  The organizations have all suspended operations, explaining that they depend heavily on XX humans and that the order makes it impossible to carry out their charitable missions.  Here is the UN statement:  

Statement attributable to the Spokesperson for the Secretary-General - on Afghanistan

The Secretary-General is deeply disturbed by the reported order of the de facto Taliban authorities banning women from working for national and international non-governmental organizations. This decision will undermine the work of numerous organizations working across the country helping those most vulnerable, especially women and girls. The United Nations and its partners, including national and international non-governmental organizations, are helping more than 28 million Afghans who depend on humanitarian aid to survive. The effective delivery of humanitarian assistance requires full, safe and unhindered access for all aid workers, including women. The reported ban on women working with the international community to save lives and livelihoods in Afghanistan will cause further untold hardship on the people of Afghanistan.  The Secretary-General reiterates the rights of all women to participate in the workforce thus contributing to the greater good. 

Here is the Red Cross statement, which also references the Taliban's order banning XX humans from education as well.  

The ICRC in Afghanistan employs hundreds of women. Humanitarian work in Afghanistan and around the world is only possible thanks to the efforts of all staff, including women. Questioning the full inclusion and participation of women in operations would jeopardize the whole humanitarian action.

The ICRC is particularly concerned about the future of the Afghan healthcare system and its female patients. Since November 2021, the ICRC has been supporting 45 health structures including hospitals and medical schools, with a total capacity of 7057 beds serving an estimated population of 26 million people. This support includes the payment of the running costs, medical consumables and the salaries of 10,483 health workers (around one third - 33% - of which are women). This support is ongoing and discussions are currently taking place with relevant authorities regarding the impact the recent decision might have on it.

It is clear that if women are no longer able to complete their health studies, in different specialties, it will have an even more severe impact on the delivery of healthcare services across Afghanistan, putting millions of lives at risk.

At a time at which more than half the population (over 24 million people) is in need of humanitarian assistance, we urge the IEA authorities to consider the impact of the recent announcement on the population and to find a solution that will enable all humanitarian actors, to continue delivering life-saving assistance to millions of Afghans.

Here is a helpful link to Afghan laws, but apparently this is a nation of men, neither of laws nor women.  Click on the BBC podcast below for a report providing the larger context.  

 

 

dkj

 

Latest on Ukraine Crowdfunding: Tomas the Tank; United24 Approaches $200 Million

The BBC reports the latest successful fundraising effort to support Ukraine, with a Czech crowdfunding campaign raising more than $1.3 million to pay for a modernized Soviet-era T-72 tank named, appropriately, Tomas. The Czech defense ministry and Ukraine's embassy in Prague supported the campaign, which the Czech Defense Minister called "a proper present" for Russian President Vladimir Putin's 70th birthday. Organizers of the campaign say it will continue, in order to pay for more military equipment for Ukraine.

The article notes that the main charitable donations programs to support Ukraine is United24, which to date has raised almost $200 million for military equipment, humanitarian and medical aid, and for rebuilding Ukraine. It also reports that Russia is trying to raise funds through crowdfunding as well, although some of those campaigns are reported to be less than voluntary.

Lloyd Mayer

King Charles III: Britain's New Defender of the Faith

Today's Religious News Service presents an interesting analysis of the new British monarch's task of making the country's rapidly expanding numbers of nonbelievers feel included. The analysis begins by noting that the recently deceased Queen Elizabeth II's funeral was not entirely representative of Britain’s increasingly secular population. The funeral service was held in Westminster Abbey. According to RNS, the "medieval abbey, the sublime music and military processions were all a visual and aural feast, but the event was at its heart a Christian ceremony, with the coffin placed in front of the altar and presided over by robed clergymen."

With this in mind, RNS continues, the Queen's funeral "was not entirely representative of Britain’s increasingly secular population. Even its believers are less likely to be Christian than at the start of Elizabeth’s reign, with 2.7 million Muslims, 800,000 Hindus and a half-million Sikhs, among many other faiths. Christians, who once consisted mostly of various Protestants — chiefly members of the Church of England, the Church of Scotland and the Church in Wales — and Roman Catholics, have been joined by a growing Pentecostal movement and other evangelical churches, according to the BBC."

In Britain, though, the Church of England remains the official, established church, with the monarch as its Supreme Governor, and since Elizabeth’s death on Sept. 8, we have seen it in the ascendant. Yet, there are also signs that the late monarch, now-King Charles III and the Church of England have recognized that the time has come to adjust.

RNS continues its analysis:

In a landmark speech in 2012 at Lambeth Palace, the London home of the Archbishop of Canterbury, the queen said of the Church of England that “Its role is not to defend Anglicanism to the exclusion of other religions. Instead, the Church has a duty to protect the free practice of all faiths in this country.”

She credited the established church with having done so already. “Gently and assuredly, the Church of England has created an environment for other faith communities and indeed people of no faith to live freely,” she said.

The new king has endorsed those words as recently as Sept. 9, the night after his mother died, in his first televised address to the British nation as its king. “The role and the duties of Monarchy also remain,” he said, “as does the Sovereign’s particular relationship and responsibility towards the Church of England — the Church in which my own faith is so deeply rooted.”

But he continued, ”In the course of the last 70 years we have seen our society become one of many cultures and many faiths.”

Nearly 30 years ago, as prince of Wales, Charles articulated concern about other faiths and Christian denominations in modern Britain not feeling included, and controversially suggested that when he became king he should be called Defender of Faiths — plural— rather than the title Defender of the Faith bestowed on Henry VIII by the pope in 1521 and used by England’s monarchs since.

Anglicans reacted harshly to Charles’ gambit, fearing he would not be fully wedded to assuming his role of Supreme Governor of the Church of England when the time came. Even after he rescinded his statement in 2014, the moment haunted Charles. His statement on Sept. 9 came in part to reassure doubters, who then heard him proclaimed king and Defender of the Faith the next day before the Accession Council, who proclaimed him the new monarch.

Then, bit by bit, we saw more evidence of how the king and his advisers, as well as the late queen, through her funeral plans, tried to embrace other traditions.

The Sept. 12 service of thanksgiving for the queen’s life was held at Edinburgh’s St Giles Cathedral, the main church of the Church of Scotland. Representatives of other faiths were in attendance, and the Gospel was read by Mark Strange, primus of the Scottish Episcopal Church, the other main Protestant church in Scotland besides the Church of Scotland.

More surprising, a passage from Paul’s Letter to the Romans was read by Leo Cushley, the Catholic archbishop of St. Andrews and Edinburgh, and included lines often interpreted as encouraging ecumenical dialogue: “We know that all things work together for good for those who love God, who are called according to his purpose.”

When Charles then paid a visit to Northern Ireland, more efforts were made to include the Catholic population, for whom the monarchy has long been a sensitive issue. At St. Anne’s Cathedral in Belfast — where the president of Ireland, Michael Higgins, and Taoiseach (as Ireland calls its prime minister) Micheál Martin were in attendance — Eamon Martin, the Catholic archbishop of Armagh and Primate of All Ireland, offered a prayer; others were said by Methodist and Presbyterian church leaders. At a service during Charles’ stop in Wales, prayers were said by Muslim and Jewish representatives as well as representatives of several Christian denominations.

But a reception at Buckingham Palace for 30 faith leaders on Friday (Sept. 16) — before the new king met any world leaders in London for the funeral, and even before he took part in a vigil with his siblings at the lying-in-state of his mother — spoke volumes about the importance Charles assigns religion in Britain.

Charles welcomed not only the Catholic archbishop of Westminster but Bishop Kenneth Nowakowski of the Ukrainian Catholic Eparchy and Imam Asim Yusuf, telling them that Britain’s sovereign has an “additional” duty — presumably in addition to being Supreme Governor of the Church of England — to protect “the space for faith itself” in Britain. This duty, he said, is “less formally recognized but to be no less diligently discharged.”

He added: “It is the duty to protect the diversity of our country, including by protecting the space for faith itself and its practice through the religions, cultures, traditions and beliefs to which our hearts and minds direct us as individuals. This diversity is not just enshrined in the laws of our country, it is enjoined by my own faith.”

That Charles’ words were backed up by his mother was evident in the state funeral Monday. The specialness of the Church of England and of multifaith, diverse Britain was acknowledged as a procession of religious representatives entered Westminster Abbey in advance of the main funeral party: Jews, Baha’is, Jains, Zoroastrians, Buddhists, Sikhs and Hindus, as well as Chief Rabbi Ephraim Mirvis; Pope Francis was represented by Archbishop Paul Gallagher, the Vatican’s secretary for relations with states.

Reading prayers during the service were the Rev. Iain Greenshields, moderator of the General Assembly of the Church of Scotland; Shermara Fletcher, principal officer for Pentecostal and charismatic relations for Churches Together in England; the Rev. Helen Cameron, moderator of the Free Churches; and Roman Catholic Cardinal Vincent Nichols.

The questions that remain are: "What happens now?" "What shall we see at Charles's coronation?" "Will it be all-inclusive affair, or will it be limited to clergy of the Church of England?" Of great importance also, is whether King Charles III, whose titles include "Defender of the Faith," be a defender of both believers and nonbelievers. After all, in the last British census (2011), a quarter of the population said they had no religion.

Prof. Vaughn E. James, Texas Tech University School of Law 

 

Cross-Border Philanthropy: Nicaragua Shuts Down 101 Groups; Report on Developments in Asia

The Associated Press reports that in late June the Nicaraguan government closed an additional 101 nonprofit organizations with the approval of the country's congress, bringing the total shut down over the past four years to over 750. The claimed basis for the most recent closures is an alleged failure to comply with a 2020 "foreign agent" registration law. This recent group includes the local branch of Missionaries of Charity, an organization established by Mother Teresa. Hat tip: Chronicle of Philanthropy.

Separately, Give2Asia released a report on Unlocking Cross-Border Philanthropy in Asia, with contributions from the Asia Philanthropy Circle and the King Baudouin Foundation, and support from the Bill and Melinda Gates Foundation. Here is a description of the report:

This study focuses on a very specific idea that more private funders in Asia are committed to solving some of the most pressing issues facing the region and looking beyond their own countries and territories to make meaningful change. This idea is at the heart of a growing discussion around whether and how regional philanthropy within Asia will develop as wealth increases.

Prior to this study, the authors had an idea of the landscape of cross-border giving based on prior research, informal conversations, and our accumulative grantmaking experiences in several markets. This study aims to assess these assumptions by exploring the nuanced perspectives of a diverse group of philanthropic stakeholders and their respective markets. It will also expand our existing knowledge to more potential markets in the region.

Broadly, the study aims to answer two key questions

Is there appetite and need for infrastructure that supports cross-border giving within Asia?

If so, what locations, institutions, and services might be involved to build such infrastructure?

Hat tip: Philanthropy News Digest.

Lloyd Mayer

NYU School of Law Hosts 2022 Social Entrepreneurship and Impact Investing Conference

    Earlier this month, the Impact Investing Legal Working Group (“IILWG”) and the Grunin Center for Law and Social Entrepreneurship at NYU Law hosted a conference entitled “Legal Issues in Social Entrepreneurship and Impact Investing in the U.S. and Beyond” at NYU.  The IILWG is a group of lawyers and legal/compliance professionals who work or desire to work in the fields of impact investing and social enterprise.  It is comprised of a impact investors, social enterprises, law firms, nonprofit organizations, foundations, and academic institutions.  The Grunin Center for Law and Social Entrepreneurship was formed in May 2017 by two NYU School of Law alumni.  Its mission is to “enhance the community of lawyers and legal institutions engaged in social entrepreneurship and impact investing and to accelerate their effective participation in these fields.” 

    The 2022 conference focused on the following themes: (1) Inclusive Capitalism and Going the Last Mile; (2) Blending Finance to Advance Climate Adaptation and Resilience; (3) Elevating Beneficiaries: Inclusive Design in Impact Instruments; (4) Climate Regulation and the Long and Winding Road; (5) Legal Implications of Minority Wealth Equity Strategies; and (6) Prepare for Impact: Training Lawyers for ESG, Impact Investing, and Social Enterprise Practices.  The complete Program Agenda may be found here.  The themed panel discussion on minority wealth equity seems particularly relevant in light of recent tragedies involving racially charged violence, and it focused on supporting minority-owned businesses in the United States and abroad.  My former Corporations professor, Professor John Coates, delivered a keynote on the proposed SEC climate regulation in confronting a global concern.  The agenda also included, inter alia, an in-progress case study on MicroBuild, a global impact investing fund with a goal of providing adequate housing for the poor.  The topics from the conference lend credence to the notion that impact investing is an effective vehicle for resolving global challenges in a new era of much needed change.

 

Khrista McCarden

Hoffman Fuller Associate Professor of Tax law

Tulane Law School

Global Study Shows Impact Investing Interest Is Growing

Earlier this week, IFA Magazine published an article entitled “Interest in Impact Investing at All-Time High Worldwide” in which it referenced a global study.  In the United States, the percentage of individuals who find impact investing appealing has jumped from 51% to 61% since 2020.  Perhaps most interestingly, millennials have registered the largest interest in impact investing across numerous countries: 67% in the UK, 66% in the U.S., and 68% in Australia.  What makes this relevant is that many commentators have noted there will be a large scale shift of wealth to millennials by baby boomers in the coming years.  This begs the question whether millennials will choose to invest in benefit corporations and forego traditional charitable giving avenues.

The study also noted that the environment was the largest concern internationally.  For example, 34% of those in the UK, 30% in Australia, and 34% in Germany were concerned primarily about climate change.  Americans were chiefly concerned with health care.  The top concern for 25% of U.S. individuals surveyed were health, including disease prevention and cures.   Finally, the study also noted the growing concern about greenwashing in the U.K.  Greenwashing is the practice of using marketing spin to deceive the public about how environmentally friendly a company’s products, aims, and policies are. It will be interesting to see what U.K. policies are put into place to stop this practice.

 

Khrista McCarden

Hoffman Fuller Associate Professor of Tax Law

Tulane Law School

 

Giving to Ukraine & the Importance of Nonprofit Efficiency and Transparency (Top-Ranked Charities)

Last month, an article in Fortune noted that Ukraine so far has received more than 600 grants totaling almost $900 million. The article’s source for this information is Candid, an information services company specializing in nonprofits.  In fact, Candid provides updates on a Philanthropic response to the war in Ukraine page as donations are made.  The article stated that charities, such as Bloomberg Philanthropies, the IKEA Foundation, and the American Red Cross have donated $25 million, $22 million, and $12 million, respectively. Celebrities and others have also made large donations to Ukraine.  Ryan Reynolds and Blake Lively donated $1 million to Ukrainian refugees through the United Nations refugee agency in late February. Netflix co-founder Reed Hastings donated $1 million to Razom, a 501(c)(3) aiding Ukraine. Other celebrity donors have raised significant sums for Ukraine, including Ashton Kutcher and Mila Kunis who raised over $30 million and Bethenny Frankel —a former Real Housewives of New York star who raised $85 million for Ukraine.

The article also references Congress’ approval of The Ukraine Supplemental Appropriations Act, 2022 in March, which provides $13.6 billion in emergency funding, which includes $3.5 billion for military supplies alone.

The author notes that these figures raise the question of how much the war is costing Ukraine.  According to Ukrainian Prime Minister Denys Shmyhal, Ukraine is spending approximately $4 billion each day on war.  Russia’s war expenses are believed to be over $20 billion per day according to Consultancy.org.

Clearly, Ukraine needs any funds that are donated to end up in the hands of those charities that will put them to their best possible use.  I have written about the need for efficiency in terms of charitable giving (an "efficient charitable market"), and this issue is brought into sharp focus in considering the current plight of Ukraine.  The need for transparency is brought into sharp focus as well.  Organizations such as Charity Navigator, CharityWatch, and BBB Wise Giving Alliance are helping donors find appropriate relief efforts.  Charity Navigator has compiled a list of top nonprofits seeking to advance relief and recovery efforts in Ukraine.  CNBC recently published a list of over 30 organizations that are highly-rated in terms of financial efficiency and transparency by category.  

 

Khrista McCarden

Hoffman Fuller Associate Profesor of Tax Law

Tulane Law School

Ukraine Update: Crowdfunding's Key Role; IRS Notice on Employee-Leave Donations

Two recent news stories underline the importance of crowdfunding for supporting Ukraine and Ukrainians. The N.Y. Times reports that Ukrainian appeals to private individuals and companies have led to contributions of numerous items that have military applications, including drones, night vision scopes, body armor, rifles, and ammunition. The Chronicle of Philanthropy reports that the Ukrainian government is enhancing its crowdfunding efforts to keep support flowing even as the Russian invasion of Ukraine passes the three-month mark.

And even the incredibly busy IRS has taken the time to ease ways of supporting Ukraine. Notice 2022-28 provides guidance on how employers can adopt leave-based donation programs to aid citizens and residents or Ukraine, individuals presently in Ukraine, or refugees from Ukraine. Importantly it states:

Employer leave-based donation payments made by an employer before January 1, 2023, to section 170(c) organizations to aid victims of the further Russian invasion of Ukraine (qualified employer leave-based donation payments) will not be treated as gross income or wages (or compensation, as applicable) of the employees of the employer. Similarly, employees electing or with an opportunity to elect to forgo leave that funds the qualified employer leave-based donation payments will not be treated as having constructively received gross income or wages (or compensation, as applicable). 

Lloyd Mayer

Ukraine Donations Update: Billions of Dollars, Millions of Volunteers, Airbnb, Crypto, Tax Research Scholarships

Donations to help Ukrainians and stories about them continue to promulgate, even as Russia's invasion of Ukraine continues. Here are some highlights:

• Candid is tracking the philanthropic response to the war in Ukraine, including reporting almost 600 grants totaling over $700 million and another 137 pledges worth over $660 million. It also reported on a survey from Fidelity Charitable that found a quarter of Americans have donated to support Ukraine.

• Global Citizen reports that the Stand Up for Ukraine event in Warsaw resulted in pledges totaling over $10 billion to support the millions who have had to flee their homes in Ukraine. This is in addition to numerous grassroots volunteer efforts, as detailed by Elizabeth Cullen Dunn (Indiana University) at The Conversation.

• Airbnb's much publicized efforts to help Ukrainian refugees have at times created frustrating situations for those refugees, according to a recent MarketWatch report.

• Crypto donations are also part of the effort, in part because Ukraine aid groups are actively seeking them according to this Chronicle of Philanthropy article (subscription required). The L.A. Times also reports that over $59 million in crypto assets have been received by the National Bank of Ukraine and other recipients that support the Ukrainian military.

• Tax Research Scholarships: Three European and international tax organizations (EATLP, IBFD, and IFA) have joined together to offer research grants to graduate students and others pursuing tax research that have had their careers disputed by the war in Ukraine. The deadline for applying for the the grants of up to EUR 3000 per month for up to one year is April 30, 2022.

Lloyd Mayer

 

Russian Orthodox Parishes in Europe in Uproar as War Rages in Ukraine

Religion News Service (RNS) is today reporting that the war in Ukraine has split Russian Orthodox parishes across Europe, forcing believers outside Russia to either stay loyal to the church leadership in Moscow despite its support for the invasion, leave the church in protest or seek a messy middle ground.

Writing for today's edition of RNS, Tom Heneghan states:

While public opinion in Europe has almost unanimously denounced the war Russian President Vladimir Putin has unleashed, the small communities of Russian Orthodox faithful to the Moscow Patriarchate are in a bind because its head, Patriarch Kirill, has come out solidly in its favor.

Many of these believers are Western-born descendants of earlier emigres who have few links to today’s Russia but a faith anchored in the Russian tradition. Some belong to other Orthodox churches but happen to frequent a Russian church. 

Meanwhile, in Paris, Metropolitan John of Dubna, Archbishop of the Russian Orthodox Churches in Western Europe, in an open letter to Patriarch Kirill on March 9, struck a typical note by declaring solidarity with Ukraine and calling the war “monstrous and senseless.” While denouncing Kirill’s support of the war and asking for his intervention, Dubna stopped short of taking action that might signal a formal break.

Others stopped commemorating the patriarch in their liturgies -- an act which ranks as a serious protest in Orthodox churches -- but otherwise kept their dissent discreet. Only more attentive parishioners would notice at a Sunday service that the patriarch was not mentioned in normal commemorative prayers.

The Parish of Saint Nicholas of Myra in Amsterdam, where several hundred worshippers from about 20 nations attend weekly services in Dutch, Russian or English, has learned how complicated this choice can be. Probably the first Western Orthodox church to break ties with Moscow over the Russian invasion of Ukraine, St. Nicholas went from loyal criticism of Moscow’s decision to switching its allegiance to the rival Ecumenical Patriarchate in Istanbul.

“There are many traditions within Russian Orthodoxy,” Archimandrite Meletios Webber, head of the parish, told the congregation earlier today, Monday, March 14.

The London-born archimandrite — a monsignor in Roman Catholic terminology — spoke in a clipped English accent at his church near central Amsterdam. Another Orthodox priest translated his remarks into Russian.

“This tradition cannot be attached to any organization or any thought which promotes violence and warfare,” said Meletios, born an Anglican but converted during his studies at Oxford by the influential British Orthodox theologian, Bishop Kallistos Ware.

Heneghan tells the story leading to this announcement in lively and interesting detail:

Horrified by the ferocious fighting in Ukraine, the four priests of St. Nicholas first signed a petition in early March asking Patriarch Kirill to urge Russian authorities to end the war. But Kirill, doubling down like his ally Putin, came out in favor of the war, prompting a petition from Orthodox priests in Russia against the violence. Even the head of the Ukrainian Orthodox Church loyal to Moscow, Patriarch Onufry, appealed to Putin for “an immediate end to the fratricidal war.”

The priests in Amsterdam decided they could no longer commemorate Kirill at their divine liturgies and informed their superior, Archbishop Elisey of the Moscow Patriarchate in The Hague.

On March 6, Archbishop Elisey turned up unannounced just before their Sunday service. He took over the celebration and made sure a deacon from outside the parish commemorated Kirill.

“His visit was like a spiritual tank sent to our parish,” one parishioner complained afterwards to the Dutch daily Nederlands Dagblad.

The archbishop, who came in a car from the Russian embassy, warned the priests that both the Moscow Patriarchate and the Russian Foreign Ministry were closely following developments in the parish.

The priests saw Archbishop Elisey’s warning as a threat but loyally mentioned his name during the service. “Then we started making contact with other hierarchs,” Meletios said.

“We have not left the Moscow Patriarchate,” the priests wrote on the parish website last week in an initial report about the archbishop’s unexpected visit. They listed examples from the past when dropping a patriarch’s name from a liturgy was not considered a schism.

But by Tuesday, March 8, a “Z” — the symbol widely used in support of Moscow’s intervention in Ukraine — was daubed on the church’s gates. During the week, the parish received enough other threats that it decided to close down until further notice.

It was “no longer possible to function within the Moscow Patriarchate and provide a spiritually safe environment for their believers,” they concluded in another report on Saturday.

“We cannot go back on our decision to distance ourselves from Patriarch Kirill. Our consciences will not allow that,” they said. “So we see ourselves forced to link with the Ecumenical Patriarchate.”

The priests have now asked Archbishop Elisey to officially dismiss them from his diocese and asked Metropolitan Athenagoras, the top cleric of the Ecumenical Patriarchate in the Benelux countries, to take them under his wing.

According to the priests, they took this "very difficult step with pain in [their] hearts." As far as they are concerned, they and their parish "are concerned with the kingdom of Heaven and not with any political movement of any kind of kingdom here on Earth.”

As an ordained minister of religion myself, I stand in solidarity with these priests who have chosen to speak truth to power. I wish them well.

Prof. Vaughn E. James, Texas Tech University School of Law