February 13, 2012
Bullying Statists Are Destroying Private PhilanthropyBy Mark J. Fitzgibbons
The Susan B. Komen Foundation caved to pressure from the radical left and re-instated its private funding of taxpayer-funded Planned Parenthood. Congress, of course, could defund Planned Parenthood and make it run entirely on private funds. As with many other leftwing causes, conservatives are financing their ideological opponents, and the congressional Republican leadership lacks the backbone to stop it.
For those tempted to react to the Komen situation with more government regulation of the private philanthropic sector (e.g., urging "that Congress and the IRS exert far more control over all these foundations, more closely monitoring their activities and forcing them to rapidly spend down this mountain of assets on domestic charitable purposes [not political meddling]"), I respectfully suggest that's not the conservative solution, and would be counterproductive.
There are plenty of problems in the private philanthropic sector, the lack of government regulation not being one of them. In fact, the problems are often the result of just the opposite. Conservatives, more than anyone, should understand the downside of more government control over private charities and philanthropy.
Using taxpayer money and its police powers, big government is ruining private charity. Government doles out taxpayer money to nonprofit organizations, turning private charity to sycophants and pawns of big government.
Government regulation is already blurring the lines between the private philanthropic sector and government. The government uses its regulation to dictate controls of conscience, as it did by requiring Catholic institutions to provide abortion drugs.
The big-government police state also engages in ideologically motivated investigations to cripple nonprofit proponents of freedom and free-markets. Big government bullies private philanthropy in the direction of acquiescing to statism.
While the Internal Revenue Service has become a dominant force in regulating charities because the IRS controls the levers about tax-exempt status, it is the states that are the principal regulators of charities.
State regulation of charities is grounded in Tenth Amendment principles. That being said, state charity regulators are the biggest violators of the laws governing charities. Charity regulators tend to be statists who abuse their power, and bully charities.
One of the ways charity regulators violate laws, private property rights, and the Constitution is through their investigations of charities and other nonprofit organizations. Using investigations, charity regulators are able to intimidate charities and silence critics of government. In the 1950s and 60s, states bullied the civil rights movement, and the Supreme Court helped stem that tide in NAACP v. Alabama, blocking an investigation on First Amendment grounds.
At my website CharityRegulatorWatch.com, I describe just a few of the other ways charity regulators violate the law.
Now that the big threat to the political establishment is the Tea Party and the constitutional conservative movement, we should expect investigations like the audit directed at the Richmond Tea Party. The RTP complained that they paid for a protest permit when Occupy Richmond was allowed to protest longer, with more cost to the city, and for free. The RTP was issued an audit letter in response to their claim for justice.
Just the publicity that a charity or a nonprofit advocacy organization is being investigated can have devastating effects on its ability to raise private money. Regulators know this fact, and use it to achieve unlawful agendas.
Is it, for example, coincidence that California is moving to overturn parts of Proposition 209 about affirmative action when the nonprofit run by its champion, Ward Connerly, is being investigated by the California Attorney General?
When California Governor Jerry Brown was the state's Attorney General, he was given a grade of "A" from ACORN. Current Attorney General Kamala Harris has been called the "female Barack Obama." Now in combination, these leftwing statists are challenging Prop 209 while tying up its chief and most effective proponent in an investigation about his salary.
It was disappointing to see even a major conservative publication not be a little more suspicious of the investigation, or apparently even fail to contact Mr. Connerly himself. Ward Connerly is frequently subject to death threats, and uses post-tax money to pay for security. Conservatives should know better than to convict fellow conservatives based on stories broken by The New York Times.
This is a case of how investigations can hurt or even cripple effective critics of big government. Is Ward Connerly's salary disproportionate to Jesse Jackson's, or like Jackson, is he accused of using pre-tax funds from his organization to pay for a mistress and illegitimate child? And unlike Planned Parenthood, Connerly's organization isn't receiving taxpayer funds while covering up criminal behavior.
Nobody should rush to judgment until they know the facts, especially when the California AG is the investigator. What most people don't know is that the California AG is an habitual lawbreaker in investigations of charities.
The California statute authorizing AG investigations of charities is completely without standards and procedures, which allows the AG great discretion to abuse its investigative power.
The investigation statute allows the AG to "issue process and subpoenas in a manner consistent with the California Constitution and the United States Constitution." But that's mere pablum, because assuredly the AG could not issue investigative subpoenas in a manner inconsistent with the Constitution. The statute lacks any real standards that are checks on abusive investigations, and the Captain Ahab-like regulators take full advantage.
In operation, the California AG violates the Fourth Amendment's requirements of what constitutes a "reasonable" search of charities. As for probable cause required for investigations, the California AG merely cites in affidavits to the statute authorizing investigations, and issues subpoenas unilaterally, that is, without a judge or any objective third party approving the subpoenas.
Any American who has watched two episodes of Law & Order has a better understanding of probable cause than the California AG. The California AG operates like a police officer who issues his own warrants to bust down your door.
Because the California AG follows virtually no Fourth Amendment standards in investigations of charities, it is able to bully charities fearful of bad press associated with fighting investigations. Most charities choose to cede their rights and cooperate, which only emboldens more unlawful acts by the California AG.
In one such investigation, the California AG crossed into even more contemptuous territory. Interviewing an employee of a charity who works out of state in the office of a private business, a Deputy Attorney General commanded this employee to remove documents, data and other property owned by the private business without consent of the business.
What the California Deputy Attorney General did was command her witness to do what fits the black letter definition of larceny -- removing property without the consent of the owner. Solicitation of larceny is as serious an offense as larceny itself.
The bureaucrats and lawyers who regulate charities tend to be big-government statists who disrespect private property and other constitutional rights. They are ruining private philanthropy. Conservatives, I suggest, should not aid them. We should fight them, and return private philanthropy to where it belongs.
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