Will New Federal Provision Stifle Advocacy?

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