Charities Had No Choice but to Take Unions’ Side in California Vote

To the Editor:

Leslie Lenkowsky’s recent column puzzling over non-profits’ opposition to California’s Proposition 226 and accusing them of needlessly aligning themselves with unions (“California Vote: Losing Proposition for Charities?,” June 18) misses the mark on a number of critical points.

First, while he may believe that the motivation behind Proposition 226 was to enforce the Supreme Court’s ruling in Communications Workers of America v. Beck, the language of the proposition does not support the assumption. Section I of the proposition, which laid out the general reasons for its passage, did not raise this issue; nor, in fact, are unions ever specifically mentioned in that section. What seems like “clear history” to Mr. Lenkowsky certainly would not have been evident to the average voter.

Second, charitable contributions through workplace giving are indeed voluntary, should be presumed to have the donor’s consent, and should not have been treated the same as mandatory deductions. The language of the proposition did not, however, make those fine distinctions. It said: “No employer or other person responsible for the disbursement of funds in payment of wages may deduct any funds from an employee’s wages that the employer knows or has reason to know will be used in whole or in part as a contribution or expenditure except upon the written request of the employee received within the previous 12 months on a form as described in subdivision (b).”

This language does not distinguish between voluntary and mandatory deductions, does not mention unions, and even prescribes the specific form on which the employee’s consent must be given. In a May 4, 1998, opinion, the Legislative Counsel of California also stated his belief that the measure would apply to payroll deductions for charities.

Third, Mr. Lenkowsky asserts that because of the differences between voluntary and mandatory deductions, the courts would have cleared the matter up after the election anyway. The idea that one should wait and hope for the courts to clean up a bad law

without making an attempt to defeat its passage in the first place is ludicrous, and I’m surprised to find Mr. Lenkowsky advocating such a strategy.

If non-profits had followed his advice, they would have risked being left with a very onerous provision. According to the Legislative Counsel’s opinion: “The plain meaning of words of a statutory initiative measure may be disregarded only when that meaning is repugnant to the general purview of the act or for some other compelling reason.”

While I think there may have been some legitimate grounds for a lawsuit on behalf of non-profits if Proposition 226 had passed, given the very broad language of the initiative, an automatic exclusion of charitable deductions was certainly not a foregone conclusion.

Fourth, if opposition to Proposition 226 has added “fuel to the fires already smoldering in Washington” around campaign-finance reform, then there is a misunderstanding of the issues involved. At stake for non-profits was their ability to participate in decisions about key public-policy matters. Charities are already prohibited from engaging in candidate campaigns or in supporting a particular party.

The “non-partisan campaigns” to which Mr. Lenkowsky refers are part of the initiative process itself. The initiative process is the legislative vehicle California uses, for better or worse, to decide many important public-policy issues. This process is the same as the passage of a law by the state Legislature or the county Board of Supervisors, except that the voters are the legislative body. Involvement in initiatives is legislative advocacy, a legitimate charitable activity that is already subject to Internal Revenue Service regulations, reporting requirements, and limits.

Of course, there are those who would further limit non-profits’ ability to participate in policy decisions. Perhaps the additional “fuel” is coming from that source.

Fifth, Mr. Lenkowsky’s assertion that charities were lining up against accountability shows a lack of understanding of both workplace giving and the initiative process. While many organizations that receive workplace donations do not get involved in initiatives, others see such involvement as an essential part of serving their clients and constituents.

Workplace-giving campaigns typically are conducted in the fall, while the final knowledge of what measures will be on the June or November ballots the following year is many months away. With the most forthright intentions in the world, charities that do see policy as part of their mission could not predict with certainty for their potential donors the amount of funds they might spend on initiatives the following year. Depending on how the final regulations had been drafted, charities might have had to make a choice between accepting workplace donations or participating in the initiative process.

This was not about accountability, but about preserving free-speech options.

Sixth, donors who give through workplace deductions already have complete control over their decisions. If they don’t like the activities of a certain charity, they can stop giving to it. By opposing Proposition 226, non-profits were not advocating against workers’ rights to make that choice.

I applaud the California Association of Nonprofits, the Let America Speak Coalition, and the numerous other non-profits that showed leadership on this issue. Far from “losing a piece of their soul,” they were trying to save it.

Caroline Tower
President
Northern California Grantmakers
San Francisco

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To the Editor:

As Colorado is facing its own ballot initiative dealing with “political contributions,” it seemed imperative to address some of the misconceptions and inaccuracies in Leslie Lenkowsky’s recent Opinion article on California’s Proposition 226.

First, in Colorado, as in many other states, union dues are voluntary, just as are contributions to workplace-giving campaigns. The language in the proposed constitutional amendment in Colorado clearly encompasses both categories of deductions from workers’ paychecks.

Second, involvement in political activities as defined in the Colorado initiative is imperative for most non-profits simply to conduct their business activities, and it is often equally necessary to fulfill their charitable missions. Many readers will remember the 1996 Colorado ballot initiative that would have removed property-tax exemptions for most religious and secular non-profits. Other ballot initiatives in our state have impacted funding for arts organizations, protection of the environment, animal rights, and numerous other issues directly related to the charitable missions of non-profits.

State campaign-finance laws already require that non-profits must set up a political-action committee to operate campaigns for or against ballot initiatives, and donors must be informed that contributions to those campaigns are not tax-deductible. But charitable non-profits can and do contribute monies to those campaigns from their general operating funds within the I.R.S. lobbying limits and state limits on campaign contributions.

The definition of “political contributions” in the Colorado initiative, however, goes far beyond positions on ballot initiatives to include “lobbying or governmental influence campaigns, and other expenditures to influence governmental, legislative, administrative, or executive actions.” Every attorney who has reviewed the initiative agrees that this could include a non-profit’s actions to obtain necessary licenses from state government, to negotiate contracts with government agencies, or to obtain zoning-board approval, just to name a few.

Third, the initiative covers any contribution “directly or indirectly for a political purpose.” This would mean that employers and workplace-giving administrators like United Way would have to institute new procedures to oversee the activities of non-profits that receive funds from them to insure that employees making contributions are “fully informed” about how their funds will be used. Non-profits receiving contributions derived from paycheck deductions will need to set up new administrative and financial controls to insure that such funds are not used for political purposes.

It is difficult to calculate how much money would be needed to institute such controls, since the language of the initiative is vague at best, but clearly these procedures would mean less money for services.

I should also note that the unions have proposed yet another constitutional amendment. Theirs would impose additional onerous reporting requirements for anyone, including non-profits, who makes contributions to issue or candidate campaigns or to lobbying expenditures.

The battle Colorado non-profits may face if either or both of these initiatives makes it to the November ballot is not a choice between expedience and principle, as Mr. Lenkowsky would argue. As it would be impossible for most non-profits to avoid some of the actions defined as “political activities,” we believe these proposals (and others like them) would mean more red tape, more bureaucracy, and more administrative cost for non-profit organizations — and less service to the community. Surely this is not what Mr. Lenkowsky or proponents of these initiatives have in mind, but it is what their proposals will accomplish.

Patricia Read
Executive Director
Colorado Association of Nonprofit Organizations
Denver

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To the Editor:

Leslie Lenkowsky tries to wrestle defeat from the jaws of victory in charities’ pivotal opposition to California’s Proposition 226.

Although ostensibly focused on labor unions, the measure — according to the formal judgment of the California Legislative Counsel, who rules on such matters, and other state officials and independent legal authorities — would have made it profoundly more difficult for non-profit organizations to support public-policy efforts through workplace-contributions programs like United Way.

Mr. Lenkowsky argues that by aligning themselves with labor unions, non-profits emphasized their own involvement in “political activities” and will likely incur the wrath of the proposition’s proponents, as well as contributors who prefer alms-giving models of charity. He further suggests that discretion — which he says United Way displayed by buckling under to pressure from Gov. Pete Wilson and major corporate donors and reversing its position on the measure — was better than the valor of fighting to maintain the right to use unencumbered workplace support to advocate for the people and causes that non-profits serve.

Mr. Lenkowsky is right in noting that non-profits fighting for their advocacy rights will face anger from those who wish to silence labor unions’ voice. Those in Congress, in state government, and in conservative organizations who have been active on “paycheck deception” issues are many of the same folks who have aligned themselves with other anti-advocacy efforts aimed at charities.

But charity did not voluntarily align itself with labor unions. It was put there by the people who drafted this proposition and others like it. And expediency, like that followed by United Way, is not an appropriate response when fundamental principles and rights are at issue.

Labeling public-interest advocacy and public education as “political activity” is an effort to delegitimize it. Non-profits should fight all attempts to so stigmatize and limit advocacy, public participation, and democratic discourse, or to suggest that policy work is not a legitimate and valuable pursuit of charity.

Mark Rosenman
Vice-President
The Union Institute
Washington

Editor’s note: The Union Institute is an institution of higher education. It is not affiliated with organized labor.