Kansas Nonprofits Told to Sit Down and Shut Up

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There is important and distressing news for nonprofits coming from the state of Kansas, where Republican Gov. Sam Brownback has been implementing a string of policies that have been less than kind to the nonprofit sector. The latest from the Brownback administration is possibly the most significant and deleterious of the state’s cascading laws and regulations adversely affecting nonprofits: the Kansas Department of Social and Rehabilitation Services (SRS) has generated new boilerplate language for its contracts with service providers aimed at bolstering restrictions on state contractors using government funding for legislative lobbying. However, the language is much broader than that, and so vague as to put a muzzle over the free speech rights of nonprofits that are simply trying to advocate and educate for the sake of their constituents.

Foul Language

The new contract language reads as follows: “No funds allowed under this agreement may be expended by the recipient of the grant to pay, directly or indirectly, any person for influencing or attempting to influence an officer or employee of any agency, a member, or employee of a member of the United States Congress or the Kansas Legislature.”

It doesn’t take a constitutional law degree to see how bad this language is. First, what does it mean “to pay, directly or indirectly [italics ours], any person for influencing or attempting to influence?” How does the state plan to spot efforts to indirectly pay people? Would “indirectly” include nonprofits’ memberships in trade associations that, by their very definition and stated purpose, advocate and lobby on legislation and regulations?

Next, what does “influencing or attempting to influence” mean? In carrying out their programs, don’t nonprofit service providers always attempt to influence public agencies to provide needed services and support, especially if they advocate for their clients?

Also, what is the potential definition of “any agency?” Does the language mean “any agency…of the United States Congress or the Kansas Legislature” or “any agency” of government, whether connected to federal or state legislators or not?

In addition, does the state mean that “no funds allowed under this agreement” include funds that are paid by clients to the service providers as program service revenues?

While the SRS contracts may be the first for this new language, the Brownback administration plans to add this restriction to all state contracts with nonprofit service providers, according to SRS spokeswoman Angela de Rocha, who was cited in a report on the new contract language from the Kansas Health Institute News Service.

If one wanted to shut up a nonprofit service provider that uses state funding (or federal government pass-through funding), this language would be a way to do it. Just insert the broad SRS language and it becomes virtually impossible to imagine any scenario where a nonprofit contractor might not intentionally or unintentionally influence “agencies,” even if they are not devoting a millisecond to legislative lobbying, per se. The SRS language would keep the leaders and staff of nonprofit contractors constantly looking over their shoulders to see if they haven’t “influenced or attempted to influence” a governmental agency as part of the nonprofit’s mission of advocacy on behalf of its constituents, clients, and stakeholders.

Origins of a Nonprofit Advocacy Gag Order

So where is Kansas Gov. Brownback’s new version of a de facto nonprofit gag order coming from? Recent media reports point to a pair of recent situations that might have been trigger points. Among the first contracts to have this language inserted were the state’s proposed contracts with 12 centers for independent living. A couple of weeks ago, the state released an audit charging the Statewide Independent Living Council of Kansas with using government money to pay for its lobbying activities. The SRS audit called for SILCK to reimburse the state for over a half million dollars in funding that the state claims was misused by SILCK for lobbying. To put it mildly, SILCK is protesting the audit findings.

In addition, the SRS notice comes a few weeks after an SRS battle with nonprofits that provide services and support to victims of domestic violence. Several domestic violence service providers, led by the Kansas Coalition Against Sexual and Domestic Violence (KCSDV), have protested a decision by SRS to impose new funding requirements that the nonprofits deemed wrongheaded, insensitive to the needs of victims and survivors of domestic violence, and generally reflective of what they see as the state agency’s lack of awareness of how domestic violence services really get delivered. To suggest that KCSDV and others went public with their complaints about SRS is an understatement.

In these recent situations with SILCK and KCSDV, it’s easy to see why the Kansas Department of Social and Rehabilitation Services might want some of the nonprofits it works with to sit down and shut up, but the SRS move also appears to be part of a more overarching trend in Kansas.

What’s the Matter with Kansas?

Kansas Gov. Brownback hasn’t been much of a friend to the state’s nonprofit sector. First, there is the matter of the tax cut bill Brownback signed last week. According to the Wichita Eagle, “Both moderate Republicans and Democrats…say the [new budget’s] unprecedented tax breaks will force more than $2 billion in cuts to state services over the next five years, disproportionately hurting low-income and disabled Kansans, who need help most.” Then there was Brownback’s proposed elimination of the entire budget for the Kansas Arts Commission, and his Arthur Laffer-designed (of Reagan administration “Laffer Curve” fame) budget proposal to eliminate the state’s charitable deduction.

Add it all up and it doesn’t take too much to see that Gov. Sam Brownback is making Kansas into a state testing laboratory for a variety of conservative Republican policy concepts. In this light, the SRS contract language, which is intended to be used in all Kansas government contracts, could be a test case of a new policy that would silence the advocacy voice of nonprofits. Is this the beginning of a new conservative movement aiming to revive the Istook amendment’s proposed advocacy prohibitions of the 1990s?

Because they dominate so many state gubernatorial seats and state legislatures, Republican governors can experiment with some of their cherished policy agendas, such as ex-Gov. Jeb Bush’s creative efforts in Florida to explore privatized K-12 school programming or Wisconsin Gov. Scott Walker’s strategy for weakening the rights and scope of public employees’ labor unions. Brownback’s Kansas may be the new Republican petri dish for ideas regarding clamping down on the messaging of nonprofit human service providers. If so, the nation’s nonprofits had better pay tons of attention to what Brownback is devising in the Sunflower State—and get active in helping Kansas nonprofits to stand up and defeat what could amount to a de facto nonprofit advocacy gag order.

  • Margot H Knight

    Ironic when states’ rights manifest themselves as the denial of free speech rights.

  • Judith Randall

    But isn’t that exactly what lobbyists do?

  • Belinda

    Nice 1st the state says take those kind of people out of the State Hospitals and put them out there in the Community. We can pay the workers less and we can call it intergration, and it will make us look good, and those kind of people will be taken care of better for less money. Guess what it was done……… 2nd the State says oh we need to cut funding somewhere and we know just the place we will cut it from the those people who need it the most you know the ones who are developmentally disabled, so that they are only getting 75% of needs met….. and it keeps on going till those people the individuals I help each day only get maybe 30% of needs met and the people who help them barely make enough in wages to support themself let alone a family, and now we have a wonderful Governer who wants to make it even worse, and on top of it make it where you can not ask for any assistance in anyway from anyone. Well Mr. Brownback why don’t you come spend a day in my shoes and see if you still want to cut funding, and put what appears as a gag order in place!

  • David

    “First, what does it mean ‘to pay, directly or [I]indirectly[/I] \[italics ours], any person for influencing or attempting to influence?’ How does the state plan to spot efforts to indirectly pay people?”

    I would not share your worry. Recently, a Georgia nonprofit LEA started sending me emails recommending that I vote against public charter schools. I support public charter schools. So I wrote to Georgia legislators telling them that the nonprofit was engaging in advocacy. None of the legislators asked how I could detect advocacy. Every legislator thought spending money on lobbyists and gifts was a wonderful idea.

    To me, Kansas is taking the sane approach. Too many nonprofits have become sidetracked with politics rather than just doing their mission.

  • rick cohen

    Dear David: Thank you for your note. Do examine how truly constraining the Kansas language is (the source articles raise some serious concerns about how nonprofits might be sidetracked from their mission due to the contract addendum). Also remember the difference between “advocacy” and “lobbying.” Kansas is going way past lobbying. Id love to see the responses from the legislators you cited who thinking money on lobbyists and gifts is a great idea. How many legislators did you contact? How many responded? What did you specifically ask them? How did they add in how much they like lobbyists’ (I presume) gifts? Do share your information with the NPQ newswire audience. Thanks very much.

  • David


    I wrote to very few legislators in the Georgia House and the Senate, just my representatives and a few from a major school district. None saw an issue with a major school district and its 501(c)(3) LEF advocating against public charter schools. I asked them to tell the LEF to stop sending out emails advocating against competing school systems (charter schools). As for gifts, Google “Georgia gifts from lobbyists” and click on any recent peer-reviewed article from the Atlanta Journal Constitution.

    The issue in Georgia is that a family might not want to participate in the state schools that rank about 48th for high school graduation rates. These parents can start a charter school if they get a charter. They can get a charter from the state or their local school district. If they get the charter from the state, they do not get a sustainable amount of public funding. If they get a charter from the district, they do get adequate funding, at least by Georgia standards. But how can families get a district charter if the the district is using its LEF to advocate against charters? The solution is to put a muzzle on 501(c)(3) “advocacy”/

  • Pat Libby

    While it is extremely frustrating to read Rick’s report on the efforts of Gov. Sam Brownback to squelch nonprofit lobbying efforts in Kansas, it is even more frustrating to know that many nonprofits are painfully unaware of their right to lobby at all. In California a mere 2% of nonprofits engage in lobbying which I suspect is the case in many other parts of the country as well. A recent survey conducted at the University of San Diego found that 75% of nonprofits thought they were ineligible to lobby if part of their budget came from federal funds! We need to educate nonprofits about their lobbying rights, encouraging organizations to file the 501 (h) form, and make people aware of what they can do — particularly in an election year — to be politically engaged.

  • Peter Hudson

    The Kansas news is discouraging but not surprising.The neo-conservative ideological package involving abolishing an ability- to- pay progressive tax-system, and shrinking public services (with the exception of military and security expenditures) has been in the ascendent from the beggining of the Atlantic Triumvirate of Thatcher, Reagan and Mulroney in Canada. Right from the start it has been accompanied by suppression of dissent. There are of course the obvious ways of limiting freedoms of association through so-called anti-terror legislation. The less obvious ways, however, are precisely the ways reported in current Kansas whereby the Republican administration is well aware that the Non-Profit sector is one possible source of dissent. Margaret Thatcher insisted that the role of charity was to “bind the wounds”, and undertook to limit the advocacy and educational work of Non-Profits. Harassment was a prime strategy, as exemplified in a prolongued court case involving an attempt to remove the charitable status of Oxfam UK. A Conservative government in my own province during the same period, abruptly and without warning slashed grant funding to over 50 non-profits (in a very small jurisdiction of only a million citizens), openly admitting that they believed these agencies should not be engaged in policy research or publication of findings, and claiming to the public that “front line services” were not affected. Canada’s current Tea-Party look-alike conservative government has announced in its latest budget that it intends to curtail the advocacy activities of charities, by the simple device of removing, or threatening removal, of their status as charities. The Prime Minister has also launched a harassment campaign targeted at environmental groups opposed to expansion of Alberta Tar Sands exploitation, by way of repeated nuisance audits.

  • Chris Bray

    This is a dangerous road. Stop this in Kansas.

  • michael

    Yea, I understand the objections to this regulation, but I also understand the problem this regulation is trying to address. Any state capitol is awash in nonprofits engaged in rent seeking…..spending money on political lobbying in order to lock in a share of wealth. While much of this activity is concealed under labels such as ‘education’, it is in fact flat out advocacy for a larger chunk of the public purse.

    If someone can come up with an alternative way to curb this problem, I’m all ears.

  • Brenda Peluso

    Are you opposed to all lobbying or just that by nonprofits? I’m always baffled when people get so upset about nonprofits weighing in on public policy that directly affects the people and causes they serve, but seem to have no problem with the for-profit enterprises lobbying for policies that directly impact their profit margins.

  • Dave

    One concern is whether all Kansas nonprofits with government contracts will have to forego all public relations work, TV, radio or newspaper stories that any paid staff might generate for fear that someone from the state or Federal government might be informed and influenced to view their work as worthwhile. An indirect influence, indeed.

  • Cindy

    This article makes me embarrassed to live in Kansas and worried being a nonprofit professional in Kansas.

    The pendulum needs to come back to the center, the extreme views of a few harm so many vulnerable people in our state!

  • John Shehane

    Let’s suppose a for-profit corporation does business with Kansas, providing a service, equipment or goods in exhcange for compensation. Would that for-profit corporation be enjoined under this legislation from doing what nonprofits are prohibited from doing – buying influence through lobbying? Wouldn’t this fly in the face of free speech?

  • Teresa K. Scott

    This makes absolutely no sence! How can we advocate for what our clients/families and children need with this sort of gag-order in effect? What happens to our freedom of speech? And our rights for children and families with disabilities? This is a disgrace and flatly NOT RIGHT!!! Who voted for this to be in effect? Did we get a say in this? If you take away the rights for not-for-profit organizations to have a voice then whose voice will you be listening to? And how will our voices be heard? You know, my mom always told me that if someone did not want to hear opinions from others that their decisions influence, then it must be that there is a PERSONAL adgenda needing filled.. Do not use our rights to fulfill your personal adjendas.. We, the people, who have sat back for years being quiet and taking what fish are tossed our way and being satisfied with the injustices of funding for people with disabilities has come to an end. We have and are educationg the public as to people with disabilities, the long wait lists for services, and the injustices inflicted upon those denied services much needed because of funding. You are trying to throw us in the mix of Kancare,which we were “carved out of” until 2014…Now you have agencies starting a pilot program in our State, when billions of dollars and documented failures from other States have PROVEN that DD waivers and managed care do NOT work.. And now you are telling us we can no longer advocate for these rights? Really Sam Brownback, Please re-consider what you are doing and why.