Fittingly, Nonprofit Free Speech Curtailed by Congress Before Anyone Had a Chance to Say Anything About It

A leftover nonprofit/1st amendment issue raised by the FY 2012 omnibus appropriations bill passed by Congress last December got some attention this week in the form of a strong opinion piece by Mark Rosenman, director of Caring to Change, and Gary D. Bass, executive director of the Bauman Foundation and affiliated professor at Georgetown University’s Public Policy Institute. Their article was published in both The Chronicle for Philanthropy and the Foundation Center’s “Philantopic” blog.

The issue concerns some language that was inserted into the bill that, in the author’s opinion, curtails the free-speech rights of certain non-profit organizations. Rosenman and Bass see this is part of a long history of efforts (primarily by right-wing political groups) to prevent nonprofits that receive federal dollars from informing policymakers and the public about issues they care about.

The authors do a nice job of describing the language that was inserted, (although you have to get almost halfway through the article to get to it), and I agree that nonprofit organizations should be concerned:

With the new law, groups that receive money under the appropriations measure cannot use federal grants for “any activity to advocate or promote” any “proposed, pending, or future” tax increase (at any level of government) or any “future requirement or restriction” on a “legal consumer product” (e.g., tobacco and alcohol products, junk foods and beverages, and guns).

None of those key terms is defined. Suppose a group received federal aid to fight cancer by decreasing tobacco use and wanted to educate the public about the health dangers of cigarette sales, especially to minors. Presumably, that wouldn’t be allowed under the law. Or say another nonprofit won a grant to curb obesity. It might want to suggest a surcharge on sodas and other sugary foods as a way to deter consumption, but it probably couldn’t promote that idea.

The new law also forbids nonprofits from using federal money to influence some regulatory and executive-branch actions. That means a charity that receives federal money to provide care and support to families with disabled children, for example, would no longer be allowed to use any of its government money to comment on proposed state regulations that govern residential treatment or in-home services.

The point I want to add to this is about the process. What a lot of people who don’t follow Congress very closely may not realize—and may be surprised by—is that policy language like this often finds its way into appropriations bills. Before I started paying attention to how the appropriations process worked, I just assumed that appropriations bills solely concerned… appropriations. That is, I thought they just described spending amounts, and didn’t include much else. But Congress often inserts policy language into these bills that can have far-reaching consequences.

Rosenman and Bass complain that “charity leaders didn’t find out about [the language] in time to take action to prevent their passage,” which is quite possible, because the omnibus bill was rushed into passage after Congress failed to get FY12 appropriations bills out under the normal process. This raises the question: is it a good idea for Congress to be able to insert legislative language like this into bills during an expedited process where there is little time for advocacy or debate? But overall the authors are more critical of the substance of the language that was inserted into the bill than by the process by which it got in there.

In any case, it’s a good lesson for advocates on the importance of paying attention to the appropriations process, and that it’s especially important to be alert when spending bills come together quickly, like this one did.