When The Government Comes Knocking
The finances of the Clinton Foundation have now come under renewed scrutiny with the launch of Hillary Clinton’s 2016 presidential bid.
This is not unexpected in the hard-hitting rough and tumble of high-stakes politics. What is highly worrisome to me — and should be to any nonprofit — is the potential abuse of basic constitutional principles in the opposition’s pursuit of political goals.
All of us, regardless of our politics or ideology, need to be aware of these threats. Most particularly those whose organizations thrive by taking bold stands that trigger vigorous opposition.
Here’s but the latest example. In breathless alarm, Richard Henry Lee, writing in the American Thinker urges the Attorney General of Arkansas to subpoena Clinton Foundation records before “incriminating documents disappear”. All on the grounds that the Clinton Foundation is registered in Arkansas.
If this tactic sounds familiar it should. Remember The Agitator’s series on the attempt by the Attorney General of Oklahoma to intimidate, silence and smear the Humane Society of the United States, issuing subpoenas in the name of ‘fraudulent fundraising’? Again, using state fundraising regulations and the fact that HSUS was soliciting contributions in Oklahoma.
[ You can find the HSUS series here, here and here.
This tactic — increasingly employed by politically ambitious attorneys general and their charity regulating lapdogs in the states — involves what is known as ‘judge-less search warrants’. They run counter to the guarantees of the U.S. Constitution’s Fourth Amendment that requires a neutral judge to authorize any subpoena or search. And too often this intimidating tactic goes unchallenged.
Fortunately, for all of us, the Humane Society had the guts to fight back. Claiming a “yearlong campaign of political harassment and public vilification”, the Society filed suit and an Oklahoma judge blocked the Oklahoma Attorney General from obtaining all but one of the documents, thanks to the Fourth Amendment.
Unfortunately, far too few nonprofits choose to fight back against unfair, intimidating or bullying tactics, believing that simply the publicity of an official investigation can hurt the organization. They quietly roll over and let the government bullies win.
Because many nonprofits are effective critics of government policy, the politicians who make the policy, and their special interest supporters who benefit from those policies (e.g., meat packers vs. the Humane Society), they are especially ripe for attacks by government regulators.
Of course, this isn’t just a U.S. phenomenon. It can happen everywhere and anywhere. Top Canadian environmental, human rights and anti-poverty nonprofits got a taste of the chilling lash of government when the Conservative government hauled some top groups in for tax audits.
Because nonprofits in the U.S. are about to enter the extraordinarily charged atmosphere of a presidential election season, it’s wise to be on guard against the grandstanding ‘legal’ tactics of those politicians who oppose their stand on key issues. (Canadian nonprofits are facing the same highly charged climate as well.)
Mark Fitzgibbons, the President of Corporate Affairs at American Target Advertising, has spent nearly his entire career working to protect the free speech rights of nonprofits and defending against political and regulatory abuse of those rights. He has written a magnificent summary of the constitutional protections available to U.S. nonprofits when it comes to abuses by state regulators.
I urge you to read Mark’s summary as it appeared earlier this month in The Nonprofit Times. Then share it with your organization’s CEO and counsel.
Is your nonprofit prepared when the government comes knocking?
Roger