What many lawmakers need to understand, however, is that years of
indifference and inaction by members of Congress partly explain why the
nonprofit world has experienced major accountability problems and why it
is under such heavy public scrutiny today. For years, lawmakers have
refused to give the Internal Revenue Service the proper resources it
needs to oversee and police charities and foundations.
Even if the IRS had more money, more staff members, and better
computers to track nonprofit organizations, it has not received much
encouragement from Congress to be a tough regulator. Instead, lawmakers
have permitted the agency to be permissive and lax in its oversight
functions, more interested in protecting wealthy donors and foundations
than in assuring that philanthropy is doing what it should to help the
nation. What's more, Senate hearings that attacked the IRS for not being
consumer-friendly enough did plenty of damage, as the most experienced
and highly skilled tax regulators left the agency in frustration or as
the result of reorganization brought about by the pressure from
lawmakers.
Congress could do a lot to bring greater accountability and integrity
to the nation's foundations and nonprofit organizations. Following are
the top priorities for lawmakers to act on soon:
- Allocate a significant portion of the revenue from the annual
excise tax that private foundations must pay on their net investment
assets for use by the IRS and state attorneys general to crack down on
abuses by nonprofit organizations and donors.
While the 1969 Tax Reform Act established the excise tax specifically
to pay for federal oversight of nonprofit organizations, the revenue has
never been used for this purpose. Instead, the money has gone into the
general treasury. At least $250-million -- if not more -- of the
$550-million or more derived annually from the tax should be given to
the IRS for nonprofit-enforcement activities, with $75-million earmarked
for the tax agency to give to the state attorneys general.
At least $25-million should be reserved for conducting research on
charities and foundations and to underwrite nonprofit efforts to put IRS
reports and information online, such as is done on the GuideStar Web
site.
- Place an $8,000 limit on the total compensation any trustee can
receive from a foundation. That limit would include fees both for
serving on a board and for providing other services rendered to the
foundation, such as investment counsel and legal and accounting
services.
Trustees on many foundation boards receive compensation. It makes no
sense to pay the wealthiest and most highly paid professionals in the
United States for the time they contribute to serving on foundation
boards, when board members of nonprofit organizations, often low-income,
working-class people, receive no compensation for their services.
Allowing foundations to pay minimal trustee fees, however, would be
useful. That would permit foundations to recruit low-income and
middle-income board members who cannot afford to take time off from work
for trustee service, thereby encouraging greater diversity on foundation
boards.
A ceiling on trustee pay would also prevent trustees from
"self-dealing," or reaping undue financial gains from their association
with a foundation. The self-dealing provisions of the IRS code are so
vague and full of loopholes that they have not only become useless in
preventing abuses but actually tend to encourage them. The limits would
also put an end to the large number of foundations that appoint trustees
who are lawyers, accountants, or other professionals. Trustees cannot
both provide services and insure that such services are proper and
effective.
- Trustee compensation of any kind should be excluded from the
calculation of foundations' payout requirements. Under current law,
such payments can be included when grant makers determine whether they
have met the federal requirement to distribute at least 5 percent of
their assets for charitable purposes.
By excluding trustee compensation from this calculation, foundations
would have less incentive to pay board members. They would also have
more money to distribute to nonprofit groups.
- Prohibit family members of family foundations from receiving any
compensation either as board members or staff members of their
foundations.
Family members can always serve on the staff of their foundations as
unpaid volunteers, but they should not be paid for their charitable
contribution to their own family's philanthropy. That is double dipping,
since donors get sizeable tax breaks for putting money into a foundation
and should not get any additional financial benefits for their
donations.
- All foundations with $1-million or more in assets should be
required to issue an annual or, at least, a biennial report to the
public. All nonprofit organizations with a budget of $100,000 or more
should also be required to issue such reports.
The Form 990 reports submitted to the IRS each year by both nonprofit
groups and foundations are not user-friendly, don't provide much
information on programs or their impact, and don't shed much light on
governance issues.
In the interest of transparency and accountability, charities and
foundations should provide regular reports on their activities. The
Council on Foundations has been urging foundations to issue such
reports, but to date only approximately 2,200 do so. Donors and
taxpayers need to know more about how their money is being used.
- Authorize revisions to the Form 990's to provide more information
about potential conflicts of interest, special perks such as loans to
trustees and staff members, and other inappropriate expenditures.
Currently, foundations are not asked to state the relationship
between trustees and the contractors they have hired or the grantees
they have supported, nor do they have to provide details about travel,
board, and other costs. All nonprofit groups should be required to
provide such information.
- Instruct the IRS not to grant charity status to organizations
whose mission is to provide political favors and engage in political
activity. The tax agency should be especially careful in reviewing
applications from organizations created by elected officials, since
the potential for donors to expect favors is great.
Just in the past year, two prominent examples show the potential for
abuse.
House Majority Leader Tom DeLay, a Texas Republican, and his wife
created Celebrations for Children, a charity that will host parties and
outings for lawmakers at this summer's Republication National Convention
in New York and channel the money to the DeLay Foundation, which
supports programs to help abused and neglected children. Setting up
charity events at a political convention suggests that the charity is
more concerned about influence peddling than helping young people.
In Maryland, Gov. Robert L. Ehrlich, a Republican, has set up at
least four nonprofit groups to promote the governor, his agenda, or his
administration, The Washington Post reports.
- To prevent conflicts of interest, foundations should not invest in
businesses in which any trustee has more than a 5-percent ownership
interest.
Abuses by grant makers and other nonprofit organizations have shaken
the public's confidence in our civil-society institutions. The news
media, no doubt, will uncover more examples during the coming months.
Leaders of charities and foundations must act now to demand legislative
and regulatory changes. Congress must not squander its opportunity to
clean up the nonprofit world.