October 27, 2011; Source: New York Nonprofit Press | The New York City Campaign Finance Board has proposed a new regulation aimed at requiring disclosures for election-related independent expenditures: “Electioneering refers to the personal qualities, character, or fitness of a candidate, or supports or condemns that candidate’s public record or position on issues, such as ‘Tell Candidate X that her position on budget cuts is wrong.'” Nonprofits that fall under this definition would have to identify themselves if they spend $1,000 or more, and identify their donors if they spend $5,000 or more under this concept of election-related independent expenditures.

It is easy to see the Board’s intent—and equally easy to see the unintended negative consequences for nonprofit public policy advocacy. Some of the most effective nonprofit public policy advocacy—non-election, non-campaign-related—involves identifying the specific politicians, in office or standing for office, in terms of their connection to particular issues that nonprofits want to affect. At the same time, there are those “nonprofits” that all but the equivalent of campaign operations doing candidates’ door-knocking when, with the intent of mobilizing voters, they tar politicians with broad-brush criticisms. Where is the line between nonprofit public policy advocacy and nonprofit election-related expenditures? How much disclosure should there be? Among the nearly three-dozen nonprofits that signed a letter to the Board expressing their concerns are the downstate nonprofit association (the New York Nonprofit Coordinating Committee, a variety of well-known service providers and community developers such as the New York City branch of Habitat for Humanity, Asian Americans for Equality, and the Fifth Avenue Committee), and a number of advocacy-oriented groups such as Citizen Action, Naral Pro-Choice New York, the New York League of Conservation Voters, and the Tenants Political Action Committee.

There’s no simple answer. Common Cause of New York weighed in with testimony at the Campaign Finance Board saying that the focus should be on the “organized money” behind independent expenditure campaigns, but not on the “organized people,” and called for exempting expenditures by nonprofits and unions that are really member-to-member communications. “Non-profits and base building groups should be able to engage in advocacy work without running afoul of the electioneering law,” said Deanna Bitetti, Associate Director of Common Cause/NY. The unions in particular are claiming that this regulation would violate their First Amendment free speech rights, and have been rallying nonprofits to see how their free speech rights would be affected.

Some good government groups support and defend the Campaign Finance Board’s plan. For example, Dick Dadey of the Citizens Union told New York 1 that “Some of the information that is out there about the impact [of the proposed regulation] on unions and not for profits is wrong”. The chair of the Campaign Finance Board himself, Father Joseph P. Parkes, penned an op-ed explaining the importance of disclosure of the moneys behind independent campaign expenditures: “Disclosure of fundraising by the candidates is important, but it is not sufficient. A complete view of money in the political system also requires that other entities, including political action committees, 501(c)(4) groups, corporations, and unions, disclose the money they raise and spend to influence elections. Most candidates know who funds the independent television ads and glossy mailers that sing their praises and denounce their competitors. Without robust disclosure, the general public does not . . . Though New York City’s public matching funds system has long provided a model for jurisdictions seeking to moderate the influence of big money, a gap in disclosure requirements has kept the details of independent spending hidden from public view.”

The Board’s action is consistent with a November 2010 vote by the citizens of New York, amending the New York City charter to require disclosure of election-related independent expenditures. How should New York City follow the wishes of its citizens and at the same time protect the vital nonprofit function of public policy advocacy?—Rick Cohen