Has your organization experienced similar incidents as those outlined in this paper? If so, please share your experience via e-mail with our Nonprofit Advocacy staff. July 2003 Executive Summary prepared by Gary D. Bass, Kay Guinane and Ryan Turner, with assistance from Tim Visser, an OMB Watch intern, who did research on the impact of the Patriot Act on nonprofits. This document is also available in MS Word and PDF format. The full paper is available online, or may be downloaded in either MS Word or PDF format. Perhaps nothing is as central to the nonprofit sector as protecting its right to speak out on issues. When there were attacks on nonprofit advocacy in 1983 and 1995, they were fended off by galvanizing responses organized by the sector. Unfortunately, it appears that such attacks are again surfacing, this time in was that are broader yet much harder to fight. Instead of a single legislative or regulatory proposal to limit nonprofit speech, the Bush administration and its conservative allies have either proposed or begun to implement a number of proposals that are akin to a "death by a thousand cuts." These "cuts" fall into three areas:

• Attacks on the nonprofit advocacy in the wake of disagreements with Bush administration policies;
• Government limitations on nonprofit speech, targeted to those organizations ideologically opposed to the Bush administration, particularly in the area of reproductive rights, HIV/AIDS, and international development; and
• Self-imposed restrictions by nonprofits in reaction to fears around implementation of the USA Patriot Act, including concern for the privacy of constituencies and stakeholders, and seizure of assets or key organizational resources.

Attacks on Nonprofit Advocacy

• Head Start: HHS sent to Head Start programs a letter containing inaccurate, confusing and vague information about federal laws governing their right to lobby. The same letter threatened to issue sanctions for programs that violated the law. The letter was a ham-handed effort to stop advocacy in opposition to the President's plan for Head Start reauthorization. A court chastised HHS and made the agency send a new letter, noting that federal grantees can lobby with their non-federal funds.
• Parent Centers Serving Families of Children with Disabilities: A bill to reauthorize the Individuals with Disabilities Education Act contained a provision that would prohibit nonprofits from receiving grant funds to run parent centers if the organization engaged in any "federal relations." While "federal relations" was not defined, the bill also prohibited lobbying; so it was clear that the intended scope of prohibitions was broad. This ban would have applied to any board members, as well as staff that happened to serve as board members for other organizations, even in their capacity as citizens. After a firestorm of protest the provision was dropped, but it is clear that some in the Bush administration and Congress support this type of proposal.
• IRS Selected Audits of Charities that Lobby: Several charities that elected to fall under the IRS "expenditure test" for lobbying purposes received phones calls regarding tax audits. This raised concern among some groups as to whether the IRS was targeting charities that lobby or simply "elected." IRS officials denied that the audits were targeted to those who elected to lobby under the expenditure test, but did acknowledge that lobbying was factor in selecting the groups for audits. The IRS has halted the program pending a review.

Government Control of Speech

• General Fears: Many nonprofits with differing perspectives from those of the Bush administration, such as those working on reproductive rights and HIV/AIDS, fear the government is taking actions to silence them. Some talk about targeted audits; others about being put on a blacklist; others claim they have been told not to apply for further grants: that the funds will be going to faith based organizations instead of them. Some believe the government and others are combing through their websites to find objectionable words to shut them down. Building off some written communications from government agencies, some groups feel it does not matter to government that the "objectionable" activities are not paid for with federal funds.
• Stop AIDS: The San Francisco-based group has been the subject of a HHS Inspector General examination and CDC reviews, all resulting in a clean bill of health. CDC recently sent a letter to Stop AIDS noting that materials announcing workshops may be in violation of laws encouraging sexual activity. A panel that was set up by law to insure that grantees were not encouraging sexual activity or other impermissible activities, however, cleared the workshops. Stop AIDS, moreover, notes that no federal funding is involved with the workshops. Yet CDC claims that is irrelevant and intends to increase oversight of other HIV/AIDS grantees.
• Targeting Protestors at the Barcelona AIDS Conference: Twelve House Republicans urged HHS to launch an inquiry concerning a dozen groups responsible for a protest during the XIV International AIDS Conference in Barcelona in July 2002; they wanted to know if the groups receive federal funding. Participants encouraged conference attendees to heckle HHS Secretary Tommy Thompson during his speech at the conference for not pledging more money for international HIV/AIDS efforts. According to conservatives, those who engage in such actions "should expect to get some blowback and some additional attention from Congress." Groups working on HIV/AIDS see the retaliatory actions as chilling. As one group said, "Anybody who hears what's happened is going to think twice about signing another flier or planning another demonstration."
• AIDS Programs in Africa and the Global Gag Order: House Republicans included two amendments in this year's $15 billion bill to help stop the spread of AIDS in Africa, which passed on May 1, 2003. The first provision would require one third of the money to be used to promote abstinence (a favorite cause of the religious right). The second would permit religious organizations that receive program funding to reject AIDS prevention strategies they find objectionable (such as instruction in the use of condoms). This action, combined with the "global gag rule," creates a double standard in the degree of control the U.S. government seeks to assert over activities and speech that it does not fund.
• Iraq Reconstruction Efforts : In May 2003, the U.S. Agency for International Development awarded $7 million in grants for "critical reconstruction and development needs" in Iraq. USAID said each grantee must agree to clear any an all publicity or media-related matters through USAID and consistently publicize the U.S. government's funding. The head of USAID said that he would "personally tear up their contracts and find new partners [for NGOs that do not comply]. [They] are an arm of the U.S. government."
• Spotty and Unequal Enforcement of Disclosure Rules: Section 507 of the FY 2004 Labor, HHS, Education appropriations bill carries a requirement that all recipients of such funding must describe activities and items funded in whole or in part with federal aid, as well as the amount and percentage of program costs paid for with federal funds. This information must be disclosed on all statements, press releases, bid solicitations and other documents. Some grantees, especially those with policy sentiments running counter to the current administration, have been questioned as to why such statements are not being provided. There is concern that such inquiries are the precursor to denial of grant renewals.
• NGOWatch: A new web-based effort by the American Enterprise Institute and the Federal Society for Law and Public Policy Studies will monitor the influence of NGOs engaged in multi-national activities. NGOWatch reflects a belief that NGOs are suddenly proliferating to an alarming degree in developing and developed nations, with a level of influence and visibility that extends far beyond their grassroots origins and organizational missions.

The USA Patriot Act

• The Patriot Act Grants Enormous Surveillance Powers: The Patriot Act creates opportunities for the government to seize assets of nonprofits. The Act also allows the government to spy on nonprofits with a low threshold of probable cause. The government can "search and tack" records in the course of surveillance without having to notify the target organization. It can search an organization's records for information about third parties and the organization may not tell anyone that the search is happening. The government can also "trap and trace" various types of Internet communications, track web searches, and monitor the source and subject of emails.
• From Citizens to Nonprofits: Challenging Dissent: Many citizens have already had visits from the FBI and other government officials because they have criticized the President, sometimes through uncivil language. One woman who protested against the war through Women in Black-- a nonprofit organization nominated for the Nobel Peace Prize -- received calls from the FBI asking her to "name names" and was threatened with a subpoena.
• The Chilling Impact on Nonprofits: A Winter 2002 survey of libraries, found that government agents had asked 8.3 percent for information about patrons. At least one library has tried a solution to "beat the system" by regularly informing its board of directors that there are no investigations. When no notification is forthcoming, this serves as a clue to the Board that something may be happening. Additionally, the Treasury Department, which has the authority to seize assets, issued guidelines on voluntary "best practices" for charities. The "best practices" will prove to be quite troubling, given that most nonprofits will likely be out of compliance.

Conclusion The preceding examples should collectively cause great concern for every nonprofit, and should be a rallying cry for nonprofit sector leaders. This administration -- and its conservative allies-- is stifling free expression and using the imprimatur of government to quash dissent. Even when proposals have been stopped or dropped, they leave a chill on nonprofit speech in their wake. It is to be expected that a President will push his or her policy agenda and use the tools at hand to do so. However, it is not appropriate for a President to attempt to silence those with which there is disagreement. In a democracy, the issues should be decided on the merits, and not on the basis of one-sided, unanswered facts or analyses. The more the public and our elected representatives hear from the nonprofit sector, including views from right to left, the better the resulting decisions.