Monday, January 09, 2012

A little common sense about free speech and nonprofits

Bill Lueders' article on the joint educational campaign of the MacIver Institute and Americans For Prosperity concerning the impact of collective bargaining reform and the current bieennial budget suggests that such communications are unheard of activity for a 501(c)(3). While acknowledging that the communiations don't refer to any candidate or contain any calls to vote for or against a candidate, the article quotes lefty "watchdog" Mike McCabe to the effect that the campaign is political advertising in masquerade. The reason, presumably, is that the communications take a position and disclose facts that place policies adopted by Governor Walker in a good light,. In McCabe's view, that makes it  "political."

But is that true? how unprecedented is this? Are there no 501(c)(3)s who, for example, put out communications that are unfavorable to Governor Walker? McCabe and Lueders don't know of any.

But I do. In fact it took me two minutes to find one. The Institute for Wisconsin's Future is a 501(c)(3).
It has put out a report entitled The Price of Extremism: Wisconsin’s economy under the Walker administration.  On it's website, it promotes the report under the heading "Walker policies costing Wisconsin jobs."

And then I remembered that Mr. McCabe himself has used his nonprofit's website to attack a candidate for public office in the middle of a campaign.

Now if the MacIver/AFP effort is close to the line, the IWF/WCD efforts must be well across it. They do mention a candidate for office. In fact, in an article discussing the report in the Shepherd Express, IFW's Director Jack Norman says that his 501(c)(3) organization's report " is a good reason to get rid of Walker midterm."

Now, as the President of a 501(c)(3), I wouldn't put stuff like that up on my website or be quoted saying things like that in connection with my group's activities (as opposed to in my individual capacity).

But I also wouldn't say IWF (or even WCD) has crossed any lines.

My point is simply that MacIver, AFP and IWF/WCD are basically doing the same thing.

If you are going to engage in educational (or even litigation) activities in the public interest, you've got to figure out what the public interest entails. There are all sorts of 501(c)(3)s - from the American Enterprise Insititute, Cato and the Institute for Justice to the ACLU, Brookings Institution and Brennan Center -with distinctive perspectives on that question.

Those perspectives may be reflected in the work that they do.The former group, being conservative or libertarian, may take positions that are consistent with certain positions held by Republicans. The latter, being liberal, may take positions that are consistent with certain policies held by Democrats. This doesn't mean that they are engaged in prohibited political activity.

This doesn't mean that these groups - whether on the left or the right - take "marching orders" from political groups or trim their work. If a person spends any significant amount of time thinking about things like law and policy or economics, she is probably going to develop a set of beliefs about these things that influence her work going forward. To be completely "disinterested" in the sense of having no distinctive views is often tantamount to being uninformed.

Now I can anticipate that some people are going to think it significant that MacIver and AFP have spent a lot of money communicating their conclusions and IWF (at least to date ) has not.

But how much money you spend doing something is irrelevant to whether it is or is not prohibited political activity. All political activity is prohibited. All activity within exempt purposes is permitted. (The amount spent can be relevant on lobbying but this isn't lobbying.)

One must, of course, comply with campaign finance regulations but these communications are not subject to Chapter 11.

So maybe the MacIver/AFP effort is not so unusual after all.


Dad29 said...


jimspice said...

It always cracks me up when these "non-profits" also claim to be "non-partisan" when it is laughably obvious they are about as partisan as you can possibly get.

John Foust said...

So if two guys in a van were driving around southeast Wisconsin, taking phone calls from both McGyver and Scott Walker and coordinating their activities, would that be legal?

George Mitchell said...

Rick's analysis speaks to why "watchdog" Mike McCabe loses so often when his issues end up in court.

The media would abhor the restrictions they advocate for others if applied to them. The MJS and others think they are special and deserve unique First Amendment protection. For now, at least, many judges disagree.

Rick Esenberg said...


It may or may not be. Depends on what they do.

John Foust said...

And what equipment they use.