Monday, September 22, 2008

Is IPOPA Hypocritical? A Response to Advance Indiana

One of many problems with politics these days is group-based generalizations. Everybody gets grouped into one thing, and all views, actions, and inactions are then attributed to a group regardless of the connection. This crystallized for me when Advance Indiana referred to the hypocrisy of Democrats over non-profit entities. Here’s the deal.

Sharon Pierce, the CEO of the Villages, Inc., and its auxiliary organization, Prevent Child Abuse Indiana (both of which go some good work), appeared last night during 60 Minutes in a campaign ad that speaks glowingly of Governor Daniels. The problem is that both of these organizations are 501(c)(3) non-profits, which means that they enjoy tax exempt status, but they must refrain from engaging in political advocacy.

At the outset, let me say that I am not a tax lawyer, nor do I play one on TV. But I’ve read the IRS provision restricting 501(c)(3)'s from engaging in politics, and I do not see how having the CEO of two specifically identified organizations gush about a candidate complies with the law.

So I wrote Ms. Pierce a letter today encouraging her to have Daniels pull the ad and to establish a policy to prohibit any officer or board member of either The Villages, Inc. or Prevent Child Abuse Indiana from appearing in future political ads with organizational attribution. Not only does such activity risk tax-exempt status, it risks ill-will among celebrity endorsers and politically active potential donors. In my letter, I noted that Colts coach, Tony Dungee, had been in a public service announcement for Prevent Child Abuse Indiana. I do not personally know Dungee’s politics, but I offered that he might be put in the awkward position of having to explain why he just did an ad for an organization that endorsed a campaign he might oppose. Moreover, any 501(c)(3) that plays politics risks alienating donors who might otherwise agree with the agency's mission but not its politics.

Anyway, within minutes of my letter being sent, Jim Shella blogged on it, which prompted Advance Indiana to note:

It’s funny that Marion County Democrats didn’t see anything wrong with Andre Carson’s campaign using Forest Manor Multi-Service Center to stage press conferences to promote his campaign at the center. And didn’t one or more not-for-profit employees appear in ads for Carson’s campaign?

First, notice how Advance Indiana says that “Marion County Democrats” didn’t see anything wrong. To have hypocrisy, you need person A (Chris Worden) calling into question a practice that person A (again, Chris Worden) has sanctioned in the past.

Respectfully, we cannot say what “Marion County Democrats” thought about the “Forest Manor situation” because we haven’t polled them to see if they even knew about it. But we can say what Chris Worden thought about it. He didn’t know about it at the time and still is not sure of the specifics.

If any individual, organization, or candidate can use the facility without cost, I’m not sure letting Carson do so constitutes advocacy. It seems more akin to an “open door” policy. If, however, there is normally a cost to use the center for a brief period, and the Congressman didn’t pay it, he should do so immediately. No 501(c)(3) organization should provide any service to a political campaign without charging the “market rate.” If I learn of a facility that does this, I’ll call them out on it as well as the candidate, be they Democrat, Republican, or Libertarian.

With respect to employees of Forest Manor appearing in a Carson ad, though, this is a trickier issue. I’m a firm proponent of individuals being able to support a candidate as individuals. If Ms. Pierce and her boards want to write checks to Governor Daniels, they can (and many have). But when it comes to political ads, the only way employees should appear is without organizational identification.

Accordingly, Forest Manor would have only acted improperly had it given its employees permission to appear in an Andre Carson ad specifically either with identification as Forest Manor employees or on regular work time. Absent that imprimatur, the employees appear only as individuals.

Admittedly, some leaders of organizations are so recognizable that even appearing without attribution will have the feel of an organizational endorsement. Quite frankly, this is something with which we’ll have to live because we honor the 1st Amendment. But the Daniels ad isn’t one of those situations.

To do right in this situation, all the Boards for The Villages and Prevent Child Abuse had to ask was this question:

“Is Ms. Pierce’s individual presence in the TV commercial made even remotely more advantageous for Governor Daniels by virtue of her identification as CEO of The Villages and Prevent Child Abuse Indiana?”

The answer is, “Of course, it was!” In fact, precisely what makes the ad powerful is that Ms. Pierce is speaking from organizational knowledge that she would not have but for her role as head of these not-for-profits. It seems impossible to assert that these organizations have not handed their PR heft, public good will, and organizational knowledge to Governor Daniels for his political benefit.

I am not interested in revoking the 501(c)(3) tax status of The Villages, Prevent Child Abuse Indiana, or any similar organization. I just want them to stop playing politics. When these organizations receive dollars, be they from grants, donors, or fees for services, they grow in the public’s esteem by virtue of not paying taxes. The tax exemption frees dollars that are used to spread the organization’s mission and good name in the community. To then turn that name over for the benefit of a particular party or individual candidate is just inappropriate, in my opinion.

So now everybody is on notice. Play politics as a 501(c)(3) entity, get chastised by Chris Worden. (I'm sure you're all terrified). Now, where is the hypocrisy again?!?

As a final note, Jim Shella’s blog identified me as a “public defender.” That is not an adequate description, as it (ironically) might convey that I am speaking for an agency. It is correct that I am currently a contract public defender, but my words were not written as a full-time employee for the Marion County Public Defender Agency. I would never want anyone to think I’m speaking for that agency when I’m not. This was simply me, as an individual, exercising my 1st Amendment rights by writing a letter on an individual lawyer’s private stationery.



Anonymous said...

Chris: I have a few questions, that were not answered by either the original Advance Indiana blog or your response. I'd begin with the caveat that I haven't seen the advertisement. Did the ad identify the speaker in her capacity as an employee of the Villages? I'm assuming from your post that it did, and did so in such as a way as to indicate some form of endorsement. Second, was she stating a political opinion or a verifiable fact. I think this would go to the question of political advocacy. If she was stating a statistic which would be uniquely within her purview, I don't see that as a political endorsement.

Finally, would you be willing to post the letter for others to make a determination of its content and intent. I would not indicate that you were in any way sending the letter on behalf of the agency to which you are contracted, but don't you feel some responsibility as an attorney, particularly one that would deal with the Villages in your capacity in the juvenile and family law arena, to avoid the appearance of legal threat when contacting this person. I haven't read the letter so I am not informed enough to assess your tone or intent in the letter, but it would seem that by putting it on your professional letterhead that you are implying the intent of legal action should the activity in question not cease and desist. This implication, if not being equally thrown toward any 501(C)(3) not following the letter of the rules, would seem, to me, to be hypocritical. I won't take it as far as AI, in that I don't think your actions can be attributable to the Marion County Democratic Party, unless of course it was done at the behest of a member of that party (which is something about which I have no evidence).

Those are my questions three, I look forward to your response.

Chris Worden said...


You raise some GREAT issues.

First, the ad did identify Ms. Pierce as the CEO of both The Villages and Prevent Child Abuse Indiana.

Second, Ms.Pierce did not just state facts. Here are her lines from the commercial:

- "It was heartbreaking because case workers were desperate to help children."

- "The magnitude of the change that has occurred since Governor Daniels took office is really almost unbelievable."

- "The tragedy of working in the child welfare system is that there will always be children who are abused or neglected. But he’s so committed."

Third, in my own mind, I knew that all I would do if the ad stayed on the air was speak publicly on my blog. But I didn't tell Ms. Pierce that, so she certainly could have viewed my letter as a threat because I was adamant that it come off the air. (I will post the letter as soon as a figure out how to put up a scanned doc on blogger).

But you seem to raise something that I hadn't thought of, which is the potential of me gaining an advantage for a client by virtue of a blackmail effect.

But ANYBODY who saw the ad and who knows either of these organizations (including all of their board members) knows this ad was wrong. I'm just the only one who you KNOW OF that cared enough to say something that got out in public. (I'm told quite a few child service providers took note as well, and they may have talked with Ms. Pierce without getting the spotlight shined on them).

My point is that blackmail value comes from the secrecy associated with a fact. This was a public communication seen by millions. Making a threat on it would be like telling a convicted sex offender with a "sex offender" sign already posted in his yard that you're going to tell his neighbors about the conviction.

But even playing devil's advocate against myself as deviously as possible, I can't connect the dots under any scenario. I made no request for anything for any of my clients, only one of whom (I think) currenty has ongoing contact with the Villages. Nor does Ms. Pierce even know on what cases of mine any of her employees serve. But let's say she could identify them. She's going to tell her people to go into court and say a parent I represent should have his kid back because the kid is safe when he really isn't?!? She would have no guarantee that I wouldn't still disclose her widely-known "secret."

In short, this is why I never gave thought to any alleged "blackmail" threat. There was no way in my mind such a thing could ever happen unless Ms. Pierce was a complete imbecile who thought she could buy my silence by endangering children.

Does she strike you as someone who would play that game? Not by a long shot. I'll tell anybody who listens that she leads a good shop and performs a valuable service for our state. She just got this decision terribly, terribly wrong.