Nonprofit free speech threatened

By Rob Schofield

Most Americans are familiar and comfortable with the notion that those who accept government money should expect strings to be attached. Sometimes, however, those strings can become unduly tangled and restrictive – especially when lawmakers try to place conditions on the exercise of constitutional rights or meddle with how recipients use their private funds.

Government cannot, for instance, demand that a grant recipient waive his or her right to a fair trial if accused of a crime.

Similarly, it cannot restrict a religious institution’s ability to conduct worship services with its own money just because it receives government funds to run a non-sectarian food pantry.

Unfortunately, the temptation to target and restrict protected and private activity of organizations that accept government funds is often impossible for government officials to resist.

The most recent overreach can be found in the U.S. House of Representatives’ narrow vote to include a “nonprofit gag” provision in its version of the federal Housing Finance Reform Act.

The proposal would prohibit nonprofit housing providers that receive federal funds from engaging in any number of constitutionally protected activities such as voter registration and grassroots organizing — even if such activities were paid for with private funds.

Indeed, the House proposal goes so far as to impose the restrictions on any organization that is affiliated (a term defined very broadly) with an organization that engages in the forbidden activities.     

Supporters attempt to justify the proposal as necessary to assure that taxpayers are not underwriting political activity, but current laws governing federal grants and the IRS code rules for 501(c)3 nonprofits already prevent such activity.

As a practical matter, there would be two real-world effects of this proposal: The voices of a number of committed nonprofits and individuals would be immediately squelched, and a dangerous precedent would be established for government censorship over one of the nation’s most important and vibrant reservoirs of productivity and creativity – the nonprofit sector.

In the long run, this means censorship for nonprofits of all political persuasions and an even narrower and feebler national policy debate.

Opponents are confident that the proposal is unconstitutional and promise a court challenge if it is enacted.

The House would do well, however, to save everyone the trouble and expense by accepting the Senate version of the bill – which includes no such language – and recognizing the difference between attaching reasonable strings to government funding and using them to strangle free speech.

Rob Schofield is director of public policy and government relations at the N.C. Center for Nonprofits in Raleigh.

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