Will New Federal Provision Stifle Advocacy?

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April 4, 2012; Source: Nonprofit Law Matters

Eric K. Gorovitz of Adler & Colvin reports that the Consolidated Appropriations Act of 2012 contained some interesting new language on nonprofit advocacy. Section 503 of the Act attached the following language regarding appropriations for the Departments of Labor, Education, and Health and Human Services: no appropriated funds can be used for “any activity to advocate or promote any proposed, pending or future Federal, State or local tax increase, or any proposed, pending or future requirement or restriction on any legal consumer product, including its sale or marketing, including but not limited to the advocacy or promotion of gun control.”

Read it again. That paragraph deserves a Talmudic review and response. 

What might be considered “advocating” or “promoting” a future tax increase? Might someone charge that an educational advocacy organization cannot point out that additional revenues might be needed to support education? Might an organization be prevented from advocating for school equalization formulas because some school districts might be required to generate additional tax revenues for schools as a result of formula changes?

What might constitute “advocating” or “promoting” a “requirement or restriction on any legal consumer product?” Would advocating for more explicit information about the health consequences of certain foods pierce Section 503? Would advocating that sugar-laden soft drinks or snacks be removed from K-12 schools be a violation? Would advocating against concealed handgun permitting be a violation?

Note that the provision uses the less than precise terms “advocate” and “promote” rather than the narrower and more explicit term “lobby.” We would love to find out who managed to insert that unbelievably horrendous provision into the Appropriations Act without the major national nonprofit watchdogs barking in opposition. Did this provision slip by the lobbyists of the nation’s nonprofit leadership organizations? –Rick Cohen

  • Lucy Bernholz

    Can’t help but notice the special attention paid to gun control…does that offer any insight about source of language?

  • Bobby Watts

    Is advocating that the Bush tax cuts should expire count as advocating for a tax increase? Triple-boos for this language in the bill.

  • Leslie Scallet

    A vivid example of why “nonprofit leadership organizations” — and anyone concerned about the success of nonprofit missions — need to pay attention to “advocacy” issues. The lack of resources to follow (much less fight) such crippling provisions is an open invitation to more of them.

  • Janet Rechtman

    So this seems like the opposite of Citizens United: nonprofits (which are incorporated) are NOT entitled to free speech! But other incorporated entities are people and therefore entitled to use their money to subsidize their mouths! What next? How else can the reverse Robin Hoods in Congress steal voice from the poor and give voice to the rich. What a world we live in!

  • rick cohen

    Lucy: I saw the same! What a country we’re in, eh? Take a look at Pat Buchanan’s piece in Taki’s Magazine (http://takimag.com/article/a_nation_arms_itself_for_what_patrick_buchanan), the libertarian magazine that ran the widely reviled Derbyshire piece called “The Talk”. The gun stuff is pretty scary. Thanks for the comment.


  • rick cohen

    Dear Leslie: Your point is important, particularly on nonprofit advocacy rights. I remember a couple of years ago coming up with all kinds of strange limitations and prohibitions on advocacy tucked into laws where one would never have expected to find this stuff. It’s a warning that all groups have to have special antennae raised to spot language like this provision that could metastasize into restrictions of broad and negative applicability.


  • Elizabeth Burden

    This isn’t so startling. What the language says is that appropriated funds–that is, funds that nonprofits may receive via federal grants and contracts, can’t be used for lobbying or advocacy. This type of provision is already in place in most federal grants and contracts awarded to nonprofits.

    These limitations are why nonprofits need to have diverse sources of funding–beyond federal funds–so that they can engage in the full spectrum of advocacy that is allowable under IRS regulations. Undesignated, contributed income can be spent on advocacy–the new language doesn’t change that.