Bruce R. Hopkins - The Law of Fundraising

5 5. Income Tax Regulations (Reg.) § 1.501(c)(3)-1(d)(2).

6 6. Cobb, The Rise of Religious Liberty in America, 482–528 (1902); Lecky, History of European Morals (1868).

7 7. Torpey, Judicial Doctrines of Religious Rights in America, 171 (1948).

8 8. E.g., Trustees of the First Methodist Episcopal Church v. City of Atlanta, 76 Ga. 181 (1886); Trinity Church v. City of Boston, 118 Mass. 164 (1875).

9 9. Walz v. Tax Commissioner, 397 U.S. 664, 673 (1970).

10 10. Trinidad v. Sagrada Orden de Predicadores, 263 U.S. 578, 581 (1924).

11 11. St. Louis Union Trust Company v. United States, 374 F.2d 427, 432 (8th Cir. 1967). Also Duffy v. Birmingham, 190 F.2d 738, 740 (8th Cir. 1951).

12 12. H. R. Rep. No. 1860, 75th Cong., 3d Sess. 19 (1939).

13 13. McGlotten v. Connally, 338 F. Supp. 448, 456 (D.D.C. 1972).

14 14. Green v. Connally, 330 F. Supp. 1150, 1162 (D.D.C. 1971), aff'd sub nom. Coit v. Green, 404 U.S. 997 (1971).

15 15. Rabin, “Charitable Trusts and Charitable Deductions,” 41 N.Y.U. L. Rev. 912, 920–925 (1966).

16 16. Saks, “The Role of Philanthropy: An Institutional View,” 46 Va. L. Rev. 516 (1960).

17 17. “Proposals for Tax Change,” Department of the Treasury, Apr. 30, 1973, at 72.

18 18. Fink, “Taxation and Philanthropy—A 1976 Perspective,” 3 J. C. & U. L. 1, 6–7 (1975).

19 19. Friendly, “The Dartmouth College Case and the Public–Private Penumbra,” 12 Tex. Q. (2d Supp.) 141, 171 (1969).

20 20. Giving in America—Toward a Stronger Voluntary Sector (1975). All quotations herein from the Commission's report are by permission.

21 21. Id. at 9–10.

22 22. Rockefeller 3d, “America's Threatened Third Sector,” Reader's Digest, Apr. 1978, at 105, 108.

23 23. These quotations in fuller form, and others, are collected in O'Connell, America's Voluntary Spirit (New York: The Foundation Center, 1983).A companion book by Bruce R. Hopkins, Starting and Managing a Nonprofit Organization (7th ed.), addresses this point in additional detail and traces the origins and development of a hypothetical charitable organization to illustrate applicability of the various laws, including fundraising regulation requirements.

24 24. These data are from Giving USA 2021: The Annual Report on Philanthropy for the Year 2020, published by the Giving USA Foundation and researched and written by the Indiana University Lilly Family School of Philanthropy. One set of commentators observed that the “story of philanthropic giving in 2020 was as complex as the year itself,” noting that “[g]iving rose 3.8 percent despite a global pandemic that upturned daily life, prolonged but uneven economic fallout, and renewed attention to civil rights and racial justice” (Stiffman and Theis, “Giving Grew in a Tumultuous Year but Not for All. What's Ahead in 2021?,” 33 Chron. of Phil. (No. 9) 28 (July 2021)).

25 25. IRS, Statistics of Income Bulletin (Spring 2021).

26 26. Hopkins, The Nonprofits' Guide to Internet Communication Law (Hoboken, NJ: John Wiley & Sons, 2003), Chapter 4.

27 27. Daniels and Narayanswamy, “Digital Giving Goes Mainstream,” 26 Chron. of Phil. (No. 13) F-1 (May 22, 2014).

28 28. Daniels and Narayanswamy, “Online Giving Grows More Sophisticated,” 26 Chron. of Phil. (No. 13) F-3 (May 22, 2014).

29 29. 26 Chron. of Phil. (No. 13) F-4 (May 22, 2014).

30 30. “Click, Click, Cash?,” 27 Chron. of Phil. (No. 9) 10 (May 2015).

31 31. Id. at 11, 12, 14, 16, 19. In general, “The Best of Online Fundraising,” articles beginning on pp. 9, 10, 12, 14, 16, 18, 20, and 22, 28 Chron. of Phil. (No. 7) (May 2016). Also, Haynes, “Not Just for Dancing Teens,” 33 Chron. of Phil. (No. 7) 16 (May 2021) (describing TikTok as a fundraising tool).

32 32. Wash. Post, Feb. 7, 1980, at A1. Also see “Correction,” Wash. Post, May 11, 1980, at 2.

33 33. One commentator, reflecting a concern that lingers, observed that many states “are beginning to reexamine laws regulating charitable solicitations in the wake of recent disclosures revealing the actual expenditure patterns of many organizations” and concluded: “Of primary concern have been the revelations that in many instances only a small percentage of the money given to further a charitable cause is expended on that cause.” Quandt, “The Regulation of Charitable Fundraising and Spending Activities,” 1975 Wis. L. Rev. 1158, 1159 (1975).

34 34. Wash. Post, Nov. 3, 1977, at C1.

35 35. Wash. Post, Mar. 23, 1993, at A1. The reference to the “Neuharth Foundation” (not its formal name) reflects the fact that the chairman of the board of the foundation is Allen H. Neuharth, formerly the chief executive of the Gannett Co.; the foundation was established in 1935 by New York newspaper publisher Frank E. Gannett.

36 36. Id. at A6.

37 37. Id. The three-year investigation of the spending practices of the Forum culminated in an agreement by its trustees to pay to the organization about $174,000 in settlement of claims as to lavish spending; the specifics of the settlement are detailed in XII Nonprofit Counsel (No. 2) 1 (Feb. 1995).

38 38. Wash. Post, Oct. 2, 1993, at A1.

39 39. Id. at A8. According to this account, some states are investigating this practice, either on the basis of fraud, to force the marketers and vendors to register as professional fundraisers (see § 3.31), or to cause the charities to disclose the percentage of their receipts from this source (see § 3.40).

40 40. Wash. Post, Feb. 10, 1994, at A1.

41 41. Id.

42 42. Id. at A16. Deep into the article is this statement: “Part of the problem, according to the foundation, is that it is very expensive to initiate a direct-mail campaign” (id.).

43 43. Kane, “Where Are Your Charity Dollars Going?,” CNBC.com, December 9, 2010.

44 44. Id.

45 45. Fitzpatrick and Griffin, “Little of Charity's Money Going to Help Animals,” CNN.com, June 15, 2012.

46 46. Id.

47 47. Id.

48 48. Evans, “Charities Deceive Donors Unaware Money Goes to a Telemarketer,” Bloomberg.com, Sept. 11, 2012.

49 49. Id.

50 50. Winter, “N.Y. Woman Arrested over Newtown Massacre Scam,” USA Today, December 29, 2012.

51 51. Id.

52 52. “Idaho Couple Arrested for Cancer Fundraiser Fraud,” The Seattle Times, August 29, 2012.

53 53. Id.

54 54. Sheeran, “John Donald Cody, Harvard Law Grad, Suspected of Running $100 Million Cross-Country Scam,” Huffington Post, October 2, 2012.

55 55. Also, “Charity Fund-Raiser, Client Target of Md. Grand Jury Probe,” Wash. Post, Dec. 12, 1991, at D1; “Solicitors Cash In on Budget Pinch Felt by Nonprofit Groups,” Wash. Post, Oct. 18, 1982 (Washington Business), at 19; “Many Charity Shows Benefit Mostly the Fundraiser,” Charlotte Observer, Mar. 22, 1981, at 1.

56 56. “Radix Malorum Est Cupiditas?” Time, Jan. 23, 1978, at 75.

57 57. “Wrist Tap,” Time, May 22, 1978, at 64.

58 58. In this matter, the Circuit Court of Cook County, Illinois, ordered fundraisers to pay $528,231.52 (including $150,000 in punitive damages) into a trust fund for widows and children of slain law enforcement officers, as the result of a fundraising effort that generated $785,731, of which the fundraisers received $622,000 for costs and compensation. One contract allowed up to 75 percent of total contributions to be consumed in fundraising expenses; the court characterized this and other contracts as authorizing “illegitimate commissions and expenses and were outrageous, unconscionable and an assault upon the public conscience in violation of public policy and Illinois law relating to charitable solicitations.” People of the State of Illinois v. Police Hall of Fame, Inc., No. 74 CH 5015 (order dated Oct. 19, 1976).