Legislation May Eliminate Advocacy by Non-Profits

Provided by the National Community Mental Healthcare Council Action Alert from August 1995

Background: On August 10, the House of Representatives approved an amendment sponsored by Reps. Ernest Istook (R-OK), David McIntosh (R-IN) and Robert Ehrlich (R-MD) that would impose new limits on free speech and advocacy by many non-profit organizations.

The sponsors of the amendment claim that new regulation of lobbying and policy advocacy by non-profits is necessary in order to prevent organizations from using taxpayer money for political activity. However, federal law already prohibits grantees from using grant money for lobbying. The Istook amendment would ban any organization that receives a federal grant from using more than 5% of its own, non-grant money for any activity loosely defined as "advocacy."

The amendment's definition of advocacy encompasses all attempts to influence public policy at the national, state, and local levels, including: direct lobbying, meeting with a public official, grassroots education, writing a letter to the editor, filing an amicus brief, testifying before an agency, or any other activity that might be intended to influence government activities. The amendment goes so far as to prohibit these activities by organizations whose core mission includes advocacy, e.g. Protection and Advocacy organizations.

Non-Profit Federal Grantees Would Be Gagged: The Istook amendment would have a far reaching impact on non-profit human service providers. For example, a non-profit community mental health organization that receives a federal grant to aid homeless persons with mental illness could be prohibited from testifying before a state agency that was considering cutting funding to local shelters. Again, it is important to remember that the organization is using its own, non-grant money for this purpose.

Enforcement of the Istook amendment is certain to be very costly for non-profit human service organizations by adding more red tape and difficult administrative procedures. In order to enforce the new rule, the Istook proposal would require every organization receiving a federal grant to keep detailed records of any activities that could be considered advocacy. In addition, every grantee would also have to keep track of, and in some cases report, the advocacy activities of every employee and every business from which it purchases goods or services.

It has been established in case law and Supreme Court decisions that this type of gag rule runs contrary to the 1st amendment free speech guarantees. Unfortunately, the House chose to ignore the case law, testimony by constitutional experts, and even a report by its own Congressional Research Service.

Copyright  NEOCH and the Homeless Grapevine published Oct. – Dec. 1995 Issue 12