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The International Journal
of Not-for-Profit Law

Volume 8, Issue 4, August 2006

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Accountability, Effectiveness, and Independence — Striking the Proper Balance

Where Do Your Pennies Go? Disclosing Commissions for Charitable Fundraising
Haim Sandberg

Government Financing of NGOs in Kazakhstan: Overview of a Controversial Experience
Vsevolod Ovcharenko

Tax Incentives and Transparency of NGOs in Indonesia
Pahala Nainggolan

Tracking the Implementation of Voluntary Sector-Government Policy Agreements: Is the Voluntary and Community Sector in the Frame?
Peter R. Elson

Democratization and the Dilemmas of Media Independence
Craig LaMay

Articles

Recent Laws and Legislative Proposals to Restrict Civil Society and Civil Society Organizations
International Center for Not-for-Profit Law

Curbing State Interference in Workers' Freedom of Association in Nigeria
Ovunda V.C. Okene

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Where Do Your Pennies Go? Disclosing Commissions for Charitable Fundraising

By Haim Sandberg *

Many nonprofit organizations use commercial fundraising companies for telemarketing. The cost of such services can consume a high percentage of the funds collected from the public. The U.S. Supreme Court has held that a high fundraising commission is not, per se, a fraud on the donor. Yet it seems likely that most donors would see a high fundraising commission as unreasonable and illogical irrespective of its economic rationale. If fully informed, many donors would probably refuse to contribute. This fact gives rise to what I call "the disclosure paradox." On the face of it, the charitable sector ought to benefit from public scrutiny of fundraising commissions, because it would reduce the prices charged by commercial fundraisers. However, these organizations generally oppose restrictions on their ability to hire commercial fundraisers, including restrictions that merely require fundraisers to tell potential donors about the commissions. Nonprofit organizations fear that such restrictions would diminish donations more than commissions. In my view, Supreme Court decisions reflect this fear. The late Chief Justice William Rehnquist, by contrast, believed that full disclosure would raise public confidence in the third sector and thereby strengthen its capacity to raise funds. A similar view is held by the U.K. Charities Commission. In my opinion, this is the correct view. Third sector organizations following a policy of concealment are likely to lose out in the long run.

A. Introduction

Raising funds from the public has always been an important element of financing philanthropic activities. The three monotheistic religions cherish philanthropy both as a moral virtue and as a practical mechanism for supplying the needs of society.1 Donations are an important component of financing for organizations that seek to promote philanthropic goals, commonly termed the "third sector."2 One characteristic of the modern third sector is fundraising among the general public,3 as opposed to depending exclusively on large one-time donations.4

During the final decades of the 20th century, far-reaching changes took place in the manner in which fundraising is carried out among the general public. Nonprofit organizations are no longer satisfied with charity boxes, anonymous gifts, charitable dinners, or hunting for donations door to door, but make use of all available technological innovations and modern marketing methods in order to open the wallet of the donor, including direct mailing, telemarketing, Internet marketing, collaborating with commercial companies, and advertising on mass communication media.5 The financial potential of these methods, in particular fundraising over the telephone, is huge. About 70% of households in the United States donate for philanthropic purposes every year.6 The telephone allows the fundraiser to reach nearly every potential donor.7

Volunteers play a relatively modest role in philanthropic fundraising today. Data published in the United States, based on reports made by nonprofit organizations to federal tax authorities, show that volunteers raised just 11% of donations in the year 2000. Most organizations do not employ full-time salaried workers for this purpose, either, evidently deeming it too costly.8 Instead, organizations frequently outsource. Philanthropic bodies obtain the assistance of commercial entities that specialize in marketing – the same sort of entities that serve companies operating for profit.9

Charitable fundraising, in short, has become a profession.10 The outside specialist "sells" the philanthropic organization to the consumer (i.e., its aims, activities, achievements, plans for funds raised, and the like) and collects a donation, which can be viewed as the donor's "consideration" for the charity's promise to continue working for the same purposes.

There is of course a price to pay for marketing through commercial bodies. This price is both monetary and image-related.

The fact that there is a fiscal cost involved in philanthropic activity is not unusual. Philanthropic organizations generally have operating costs, which may include internal costs such as salaries, equipment, and permanent inventories, as well as external costs such as the fees of contractors and service providers. Without these expenses it probably would not be possible to perform the philanthropic body's activities. Therefore it may be said that, in general, the expenses of a philanthropic body are devoted to the general purposes that the body aims to promote. At the same time, the higher the expenses compared to income, the greater the skepticism as to whether the purposes of the nonprofit body are being well served. High expenses may suggest that someone is seeking personal gain, or simply that the organization is inefficiently run. Either way, the revenues of the philanthropic body are not advancing the organization's purposes – the purposes for which the funds were donated – as fully as they could be.

The scope of expenses and their connection to the organization's purposes must of course concern its managers, who have a prima facie interest in directing revenue toward the organization's objectives. Those financing the philanthropic body have equal grounds for concern; they naturally wish their money to advance the goals for which it was given. Yet these two parties to the transaction, the donor and the donee, do not always share the same interests in this realm, partly because the donee may be managed by individuals acting for personal gain,11 and partly because of other factors that will be analyzed below.

To be sure, a substantial proportion of the revenue of philanthropic bodies in some countries is derived from government budgets, either directly or through tax benefits, and the government shows particular interest in the expenses of those bodies.12 Donations account for a relatively small proportion of the third sector's financing in those countries. Fundraising commissions are thus only a relatively small aspect of a broad issue, the connection between the expenses of nonprofit organizations and their purposes.

Nonetheless, participants in mass donation campaigns also have an interest in ensuring that their contributions are devoted to the purposes for which they were given and not to extraneous, commercial, or other purposes. This is true concerning a nonprofit organization's expenses in general and its payment of fundraising commissions in particular. Information about a philanthropic organization's expenses is important to someone deciding whether to make a donation. When two different philanthropic bodies pursue the same goals, we may assume that donors will favor the more efficient one, the one with a smaller expense-revenue ratio. When a philanthropic body's expenses are very high, and certainly when the lion's share of revenue is devoted to fundraising, people will tend to contribute their money elsewhere.

In this article, I focus solely on the special concerns raised by the cost of commercial fundraising. I ask whether commercial fundraising entailing very high costs is appropriate and whether governments should prohibit such activity, oversee it, or, at least, ensure that potential donors are fully informed.

I first describe the phenomenon of very high fundraising commissions, which has primarily been documented in the United States, though there are indications that it also exists in other countries. Thereafter I analyze whether high fundraising commissions are improper. In this context, I examine both the possibility that high fundraising commissions are inappropriate per se and the possibility that the impropriety ensues from nondisclosure to donors. I also outline the damage to the image of the third sector that may arise from the level of commissions as well as from the very use of commercial agents to raise the funds. In presenting these issues, I use various comparative sources, including U.S. Supreme Court cases on the constitutionality of attempts to limit fundraising commissions.

B. The Cost of Commercial Fundraising

Commercial fundraising has a monetary cost. This is generally offset by the donated funds, but not always – the cost sometimes exceeds the actual funds raised. Data on this matter are sketchy. In the United States, a field study using reports to the Internal Revenue Service found that over half of nonprofit organizations did not audit the costs of their fundraising at all.13 Moreover, 37% of nonprofit organizations that reported donations exceeding $50,000 per annum (more than 74,000 associations) did not report any costs associated with the donations.14 As the researchers note, one must question the truthfulness of the reports.15 A quarter of the organizations that did list fundraising costs reported spending $1 per $15 donated (i.e., a fundraising cost of 6%), but a further quarter reported spending $1 for no more than $2 donated (i.e., a fundraising cost of more than 50%). The average was $1 per $5.40 donated (i.e., a fundraising cost of about 18.5%).16

Other evidence indicates that organizations incur especially high expenses for fundraising when they outsource it to a telemarketing company. According to a report by the Attorney General of New York, 592 telemarketing campaigns conducted during 2003 raised $187.4 million, of which only a third – $63 million, or 33.7% – reached charitable institutions.17 The Attorney General published almost identical findings for 2002 (31.1%),18 2001 (31.9%),19 and 2000 (31.5%),20 and similar findings for previous years going back to 1994.21 In California, of the $233.17 million that the public donated through telemarketers in 2003, only $100.02 million (42.9%) reached the bodies for which the monies were raised.22 Less than half of funds raised by commercial telemarketers reached the intended beneficiaries in Connecticut (35.2% in 2003),23 Massachusetts (47% in 2003),24 and Tennessee (45% in 2003, and only 15% in 2001).25 Ohio barely exceeded one-half in 2003, with 52% of telemarketer-solicited donations reaching their intended destinations.26

The World Trade Center attack of 2001 produced more positive results, according to the Attorney General of New York.27 This disaster instilled a profound patriotic spirit in the hearts of Americans. This spirit was fully exploited by the fundraising industry, though not always in an honest fashion.28 In New York state, more than $2.2 billion was donated, the bulk within 60 days following the attack. The Attorney General's report concentrates on the 52 organizations that raised more than 90% of the total donations. Not one of these bodies reported fundraising costs exceeding 10% of funds raised, and most reported costs of less than 1%.29 It must be noted, however, that these 52 organizations account for only a quarter of the organizations engaged in post-9/11 fundraising in the state. The situation may have differed in the other organizations, which raised only 10% of donations but made up three-quarters of the organizations raising funds.30

U.S. Supreme Court cases offer additional examples of high fundraising commissions. The Riley case31 states that prominent professional fundraisers in North Carolina pocketed over 50% of the funds they raised between 1980 and 1985.32 The Munson case33 cites at least ten instances in which the Secretary of State of Maryland was asked to authorize professional fundraising at a cost of between 70 and 80% of revenue.34 The Madigan case35 concerns Illinois telemarketing companies that retained 85% of the funds they raised between 1987 and 1995.36

The phenomenon of high fundraising costs has also been reported in England. In 1985 the National Council for Voluntary Organisations (NCVO) conducted a field study on fundraising. It revealed a range of problems, of which the most serious were excessive remuneration of fundraisers, transfer of too small a portion of donations to charitable purposes (10 to 20%), and fundraising in the names of trusts without the knowledge of the competent persons in the trusts.37

On the basis of the data available, it seems safe to assume that many nonprofit organizations use commercial services to raise funds from the public, and that the cost sometimes consumes a high percentage of the funds collected.

C. Is Commercial Fundraising Wrong?

1. High hidden commission as fraud

Does high-cost fundraising defraud donors? The answer depends on a donor's expectations, which are influenced both by the fundraiser's declarations and by the donor's knowledge of the fundraising process in general. When the fundraiser expressly states that all funds donated or the major part of them will be used to advance the philanthropic organization's objectives, it would prima facie seem that directing a substantial portion of the money to the collection process amounts to a fraud. The U.S. Supreme Court reached this conclusion in the Madigan case, which concerned a fraud claim instituted by the Attorney General of Illinois against a telemarketing firm that raised money for a philanthropic organization in return for 85% of the funds collected.38 Writing for a unanimous Court, Justice Ruth Bader Ginsburg held that there was indeed foundation for a claim for fraud. The fraud stemmed not from the high price itself but rather from the conflict between this price and the telemarketing firm's declarations that a considerable portion of donations would reach the nonprofit beneficiary.39 Indeed, according to the rules established by the Federal Trade Commission ("FTC"), when a telephone solicitor misrepresents, directly or by implication, the proportion of sums donated that is expected to reach the charitable objective, this is a fraud.40

Even in the absence of explicit or implicit representations, it may be assumed that every donor expects that the major part of his donation will reach the charitable destination and not be retained by the commercial fundraiser. If so, then failing to disclose the high level of collection costs is fraud, at least from the donor's point of view.

In keeping with this approach, various states in the United States set ceilings on the fees of commercial fundraisers. As I elaborate below, the U.S. Supreme Court invalidated these laws, holding that they abridged nonprofit organizations' freedom of speech and thereby contravened the First and Fourteenth Amendments to the Constitution.41 (Chief Justice William H. Rehnquist consistently dissented.42) The Schaumburg case43 invalidated city bylaws that denied fundraising licenses whenever the commission would exceed 25%. The Munson case44 struck down Maryland legislation that similarly prohibited most fundraising commissions exceeding 25%. The Riley case45 invalidated North Carolina legislation that denied licenses to commercial fundraisers if they collected unreasonable commissions, defined as commissions greater than 20% (subject to exceptions). The law also required commercial fundraisers to tell each potential donor the average proportion of donations that they transferred to charitable institutions in the year preceding the solicitation.

Dissenting in all three cases, Chief Justice Rehnquist viewed each law as permissible economic regulation and not a violation of free speech.46 He argued, in fact, that fraud arises whenever the high cost of fundraising is not disclosed to the donor: "There is an element of 'fraud' in soliciting money 'for' a charity when in reality that charity will see only a small fraction of the funds collected."47 "[A] high fundraising fee itself betrays the expectations of the donor who thinks that his money will be used to benefit the charitable purpose in the name of which the money was solicited."48

To be sure, one can assume, as most justices on the U.S. Supreme Court apparently do, that reasonable donors expect high fundraising expenses. In this view, the donor knows that fundraising, like most other aspects of operating the philanthropic body, entails a cost. Thus, the average donor knows and agrees that the donated funds will also help finance the cost of collection in the absence of a contrary express promise, and even when there is a general promise to the effect that the funds will help advance the purposes of the charitable organization.49 If the high cost of collection is publicly known, one can assume that the donor sees it as a necessary albeit unfortunate element of charitable operations.50 A donor customarily leaves the use of his donation to the nonprofit organization's general discretion. In this view, payment of particularly high fundraising commissions does not amount to an abuse of that discretion.

There are many legitimate reasons for assuming that even high-cost fundraising faithfully serves a nonprofit organization's purposes. For example, costs might be high because they include advertising and public relations services to help make the case for the philanthropic body.51 A high cost might stem from the fact that the organization seeks to advance an unpopular cause, or that it is a small entity that most potential donors have never heard of.52 A high cost might well reflect the sacrifice of short-term goals (raising money) for the sake of more distant ones (raising the organization's public profile, for instance).53 And a campaign might generate more funds for the nonprofit organization, even after paying high commissions, than any alternative.54

For a combination of these reasons, the U.S. Supreme Court concludes that a high fundraising commission is not, per se, a fraud on the donor. This view was eloquently expressed by Justice Antonin Scalia in the Madigan case:

[S]ince there is such wide disparity in the legitimate expenses borne by charities, it is not possible to establish a maximum percentage that is reasonable. It also follows from that premise that there can in general be no reasonable expectation on the part of donors as to what fraction of the gross proceeds goes to expenses. When that proposition is combined with the unquestionable fact that one who is promised, without further specification, that his charitable contribution will go to a particular cause must reasonably understand that it will go there after the deduction of legitimate expenses, the conclusion must be that the promise is not broken (and hence fraud is not committed) by the mere fact that expenses are very high.55

2. Is there an unconscionable cost of fundraising?

The different views on the U.S. Supreme Court stem, inter alia, from different underlying assumptions. Most justices seem to believe that a high fundraising cost generally reflects both the market price of the service and the exercise of legitimate economic discretion on the part of the nonprofit organization.56 In Chief Justice Rehnquist's view, by contrast, the high cost may not be economically justified and may reflect weakness on the part of the philanthropic body.57 Is there a conceptual or empirical basis for choosing between these positions?

Some support for the view that a philanthropic body occupies the weaker bargaining position arises from its distinctive character. Donors may believe that nonprofit organizations generally provide high-quality service at a low price, and thereby act efficiently to advance the public interest,58 because they do not seek to profit, unlike commercial bodies. Immunity to the negative effects of profit-seeking is, in fact, a substantial portion of a nonprofit organization's reason for being.59 At the same time, though, nonprofit organizations can be insulated from more positive effects of profit-seeking too, such as the desire to increase profits by reducing costs and thereby achieving greater efficiency. Indeed, alongside empirical studies showing that managers of nonprofit organizations generally earn less than managers of commercial bodies, it is widely assumed that nonprofit organizations are not managed in a particularly efficient manner.60 Consequently, managers of nonprofit organizations may have less incentive and less ability to negotiate the best possible arrangements with commercial fundraisers.

Another possible explanation for why philanthropic bodies incur excessively high fundraising costs lies in the fact that these bodies constitute a relatively small proportion of the telemarketing market. Accordingly, they have less bargaining power and less influence on market prices than commercial entities do.61

In addition to the laws invalidated by the U.S. Supreme Court (discussed earlier), several voluntary and government bodies have proffered what they consider appropriate limits on fundraising costs. For example, the Better Business Bureau's Wise Giving Alliance – an umbrella organization for many nonprofit organizations62 that seeks to establish, with the help of professionals in the field, standards for fundraising63 – holds that fundraising costs should not exceed 35% of the revenue from contributions.64 Another voluntary body, the Maryland Association of Nonprofit Organizations, states that an organization's average fundraising cost over a five-year period should not exceed 33%.65

By contrast, the recommendations of the Charity Commission in England do not stipulate a particular limit but simply note that high commissions are likely to produce "adverse publicity."66 This suggests that, even without an unequivocal theoretical basis for proving that nonprofit organizations pay higher-than-market prices for marketing or telemarketing services, the donating public is likely to view a high fundraising commission as unreasonable and illogical irrespective of the economic rationale. To some extent, this assumption supports Chief Justice Rehnquist's position that a very high commission always indicates an element of fraud. It also explains why the American professional organization of fundraisers recommends that members set their fees on some basis other than a percentage of contributions.67

3. Proper disclosure of fundraising costs: The paradox of disclosure, freedom of speech, and the image of the third sector

The doubt that high commission costs can create in the mind of a potential donor might prima facie be avoided if the fundraising entity told him the commission rate before he decided to donate. But the manner in which commercial solicitations to the public are carried out, particularly telephone solicitations, does not allow in-depth explanations. Disclosing the information is likely to result in an intuitive refusal to contribute.68 This fact gives rise to a paradox, which I term "the disclosure paradox." On the face of it, nonprofit organizations ought to benefit from any public scrutiny that lowers the price of commercial fundraising. However, the American experience shows that the organizations generally oppose mandatory disclosure of fundraising commissions.69 They fear that they would lose more in donations than they would gain from lower commissions. Sharing this fear, the U.S. Supreme Court struck down a law requiring fundraisers to disclose their commissions.70 The Court said that mandatory disclosure might impair nonprofit organizations' ability to raise funds – and it was but a short step from there to the conclusion that a disclosure duty violates the constitutional right to free speech.71 (The stringent protection of these organizations' speech rights likewise led the Court to invalidate legislation setting a ceiling on fundraising commissions, even when the law permitted nonprofit organizations to exceed the ceiling if it endangered their ability to raise funds or if they provided a reasonable explanation for the high cost.72)

When confronting the disclosure paradox, in my opinion, the U.S. Supreme Court sides with donees over donors. The Court favors the freedom of speech of nonprofit organizations over the consumer interests of the contributing public. The Court assumes that donors are not significantly injured in light of legitimate alternatives for protecting them73 (including self-protection, by learning about commissions before donating74). In this context, many states in the United States require telephone fundraisers to disclose whether they receive fees for their work, or how potential donors can find out about such fees.75 Proposals have been made to amend FTC rules to this effect as well.76 The Supreme Court has allowed states to require that commission costs be reported to governmental bodies, which in turn publicize the information.77 The Court has also acknowledged the legitimacy of using state power against entities that make expressly fraudulent declarations.78 However, these mechanisms do not reliably supply the pertinent information when a potential donor decides to open his wallet.

To be sure, free speech holds special status in American constitutional law, and it cannot generally be restricted based on the content of the speech.79 At the same time, judgments in this area attest to the great importance that the Supreme Court places on the third sector. The Court views the transaction as the third sector addressing the public, rather than the public writing checks to the third sector; and it declines to draw a constitutional

line between the two.80 The Court also endorses the third sector's argument that mandatory disclosure would diminish its revenue stream. The result is greater constitutional protection for the third sector than for the commercial sector81 – i.e., the justices apply a stricter test to laws regulating the speech of nonprofit organizations (and their commercial hirelings) than to laws regulating the speech of for-profit entities.82 When a telemarketer asks for a check to buy bread, for example, the level of permissible state regulation depends on whether the bread will be distributed to the homeless or shipped to the check-writer.

The German courts in recent decades have adopted a similar approach. Since 1966, various states in Germany have regulated fundraising solicitations. Regulations commonly require the fundraiser to apply for a permit beforehand, state the purposes for which the funds are being raised, and guarantee that funds will be solicited and collected properly and without disrupting the public order, that they will be transferred to the represented organization, and that they will ultimately be devoted to the purposes for which they were collected. Like the American Supreme Court, the German courts have restricted the government's oversight powers. For example, German judges have indicated that licensing authorities should not ask whether a fundraising campaign is necessary (for example, by examining the frequency of the organization's campaigns) or whether the campaign seeks to alleviate a genuine public need.83 The regulations do not set a ceiling on the administrative costs of fundraising campaigns, though the government can examine them. In the Nurnberg District in 1991, it was held that a 15% fundraising campaign cost was reasonable.84

4. A different approach: Proper disclosure bolsters the image of the third sector

As noted, Chief Justice Rehnquist consistently dissented from Supreme Court rulings in this area. He would have permitted the states to regulate telemarketing for nonprofit organizations. One can view the Rehnquist approach as focusing on the consumer's interests. In this view, the third sector is like any other entity asking for money, and the fundraising commissions it pays should be subject to the same level of regulation as other prices – housing prices, say, or employees' salaries.85 Fundraising is simply a business transaction,86 and the duty to disclose the commission rate is no different from the duty of disclosure imposed, for example, on a securities transaction.87 In this view, the solution to the disclosure paradox is a commercial-economic approach. Full disclosure, further, will not harm the capacity of the third sector to raise funds. On the contrary, disclosure will strengthen it by bolstering potential donors' confidence: "In the process, they encourage the public to give by allowing the public to give with confidence that money designed for a charity will be spent on charitable purposes."88

A similar view is reflected in the motto of the U.K. Charities Commission, the most efficient and powerful body in the world in this sphere: "Giving the public confidence in the integrity of charity."89 The U.K., like Chief Justice Rehnquist, adopts a consumer-oriented solution to the disclosure paradox. The Woodfield Committee proposed a statute, with ancillary criminal sanctions, prohibiting a fundraiser from deducting any fee from donations, unless he could prove that the intention to do so was expressly stated to the donor.90 Some of the Woodfield Committee's recommendations were eventually developed into the Charities Act 1992, which devotes an entire chapter to fundraising.91 The Act requires anyone who professionally solicits money, whether on behalf of a charitable trust (a professional fundraiser) or a commercial body (a commercial participator), not to engage in fundraising without an express written agreement with the organization that will benefit from the work. Such an agreement must contain provisions set out in the law and the regulations promulgated under it.92 The agreement must state, inter alia, the identity of the body for which funds are being raised, the purpose of the fundraising campaign, and the manner in which the funds will be transferred to the philanthropic body. It must also state that donors will be told what proportion of revenue the fundraiser will retain as a fee.93 An agreement that does not meet these requirements is not enforceable, and the fundraiser cannot take a fee from the funds collected without the court's permission.94 Under the 1992 Act, further, donors have the right to renege on donations exceeding 50 pounds sterling given as part of a telephone or broadcastfundraising campaign, and the fundraiser must explain this right explicitly at the time of solicitation.95

Compared to the approach of the U.S. Supreme Court, this approach seems to me more beneficial to the third sector in the long run. High commercial commissions cannot be concealed from the public for long, and, because they conflict with donor expectations, they require an explanation. A donor reasonably wants to know why so much of his contribution aids a for-profit fundraising company rather than, for example, the victims of a natural disaster whom he intended to aid.If there is a satisfactory answer – e.g., in particular circumstances and markets, using contractors to solicit by telephone is ultimately more efficient than relying on fundraising by employees or volunteers – the donor will understand. If the answer is unsatisfactory, then the organization ought to seek a cheaper means of fundraising. In this connection, it should be noted that only one in eight nonprofit organizations in the United States solicits funds from the general public by telephone, placing it among the less popular modes of fundraising.96 A partial explanation for this relative rarity is no doubt the high commissions charged by commercial fundraisers.

5. Commercialization of the fundraising process and the image of the third sector

The use of commercial fundraisers has negative effects apart from those created by high commissions. By hiring a commercial body to raise funds for its non-commercial purposes, a nonprofit organization may taint its image and its agenda. The commercial body does not necessarily market the nonprofit organization in the most appropriate manner. With an overzealous desire to raise funds and deduct its commission, for example, the commercial body may convey an impression of greed, thereby deterring potential donors and tarnishing the nonprofit organization's image.

Moreover, commercial bodies tend to concentrate on potential donors who will generate the greatest profit, without considering how well a fundraising campaign conveys the philanthropic body's message to the public. Telemarketing in general suffers from the familiar problem of overexploitation of a resource available to all but limited in scope (the tragedy of the commons)97 – here, the time and attention of consumers and, in our case, potential donors.98 This phenomenon causes the same donors to be pestered frequently ("overfishing").99 The long-term results include more consumers hanging up on telemarketers100 and more unlisted telephone numbers.101

Ultimately, this led to the creation of a "do-not-call list" of phone numbers that telemarketing companies are prohibited from calling; it operates at the level of the telephone companies, the state level,102 and the national level.103 True, this restriction does not apply to most solicitations for charitable donations.104 Studies indicate that consumers feel more antagonistic toward commercial calls than toward calls seeking charitable donations.105 Probably more important, lawmakers, like the majority of Supreme Court justices, feared that such a ban would harm the third sector.106Even so, overfishing continues to occur in solicitations for charitable donations,107 and it does not bolster the image of the third sector in the eyes of potential donors. Those with caller-identification displays may stop answering calls from strangers; others may simply disconnect their telephones.108

In England too, criticism has been voiced that commercial fundraisers can be "too emotive, over-aggressive, poorly controlled or badly managed, and … give charity as a whole a bad name."109 The government has so far refrained from regulating this field, preferring voluntary self-regulation alongside the legal duty to disclose commissions.110 The 1992 Act accorded philanthropic bodies the right to seek a court injunction, subject to giving prior notice, against a fundraiser whose methods or fitness to accomplish the task are called in question.111 Commission guidelines emphasize the potential impact of fundraising methods: "Charities need to be alert and sensitive to public opinion and criticism. Fund-raising methods which meet with disapproval can damage the charity and reduce public confidence in the sector as a whole."112

The "commercialization effect" must therefore join the high cost of commercial fundraising as factors that harm the image of the third sector, and, certainly in the long run, diminish its revenues.

D. Conclusion

In my opinion, it is wrong for nonprofit organizations to conceal information that would influence a potential donor's decision. It is wrong to conceal the fact that a commercial body is providing the fundraising services. It wrong to conceal the existence and size of a commission.

Third sector organizations that successfully oppose disclosure laws are likely to lose out in the end. The inevitable result will be a gradual erosion of the public's motivation to give. In the absence of full disclosure, moreover, suspicions may arise concerning exploitation of third sector organizations by the service providers; the government and the third sector together ought to expose any such abuses.

For these reasons, the government and the third sector ought to establish routine reporting mechanisms for fundraising commissions and ensure that the information reaches a potential donor before he decides to open his wallet. Until such mechanisms are in place, a potential donor ought to find out, on his own initiative, where every penny of a donation will go.

Notes

* Senior Lecturer, The College of Management Academic Studies, School of Law, Israel, hsandbrg@netvision.net.il . LL.B. 1991; LL.M. 1995; LL.D. 1999, The Hebrew University of Jerusalem. The research was supported by a grant from the Research Foundation of the School of Law, the College of Management Academic Studies, Israel.

1 For an historical review of the development of the institution of philanthropy in various religions and societies, see RUSS A. P RINCE & KAREN M. FILE, THE SEVEN F ACES OF PHILANTHROPY - A NEW APPROACH TO CULTIVATING MAJOR DONORS 4-5, 31-42 (1994).

2 For the development of the concepts of the "third sector" and "civil society," see BENJAMIN GIDRON & MICHAL BAR & HAGAI KATZ, THE ISRAELI THIRD SECTOR: BETWEEN WELFARE STATE AND CIVIL SOCIETY 73-115, 141-162 ( 2004 ). The adjective "third" seeks to distinguish this sector from the public and private-business sectors.

3 In a survey, conducted among a representative sample of the adult Israeli population to examine the public's philanthropic behavior, three out of every four Israeli donated money to third sector organizations in 1997. For the patterns of monetary donations among the Israeli public, see id. at 18-21. For the growing weight of donations from the general public in England, see MICHAEL R. CHESTERMAN, CHARITIES, TRUSTS AND SOCIAL WELFARE 94 (1979). For the patterns of monetary donations among the American public, see MICHAEL O'NEILL, NONPROFIT NATION: A NEW LOOK AT THE THIRD AMERICA 23-32 (2nd ed. 2002); CHARLES T. CLOTFELTER & THOMAS EHRLICH, PHILANTHROPY AND THE NONPROFIT SECTOR IN A CHANGING AMERICA 212-217 (1999).

4 See id. Chesterman , at 374.

5 For a description of the increased use of fundraising over the Internet and the special difficulties characterizing legislation to regulate it, such as "forum convenient" from the point of view of local jurisdiction, see Melissa G. Liazos, Can States Impose Registration Requirements on Online Charitable Solicitors?, 67 U. CHI. L. REV. 1379, 1379-1380 (2000).

6See Augusta Me a cham, To Call or Not to Call? An Analysis of Current Charitable Telemarketing Regulations, 12 COMMLAW CONSPECTUS 61, 62 n. 25 (2004).

7 The number of telemarketing companies in the United States was estimated to reach about 140,000 in the year 2000. Differing estimates have been given concerning the total number of telephone solicitations to every home. According to one estimate, the number of telephone solicitations carried out on average to each household in the United States (for both commercial and non-commercial purposes) is about 0.8 calls per day. There are sectors which report 3 to 5 calls per day, see Ian Ayres & Matthew Funk, Marketing Privacy, 20 YALE J. ON REG. 77, 86-87 n. 25-28 (2003). According to estimates of the telemarketing companies, as of 2003 each household was exposed to 2.64 telephone solicitations per week and 137 solicitations per year, and the total number of telephone solicitations multiplied fivefold between 1991 and 2003, see 68 Fed. Reg. 44144, at 44152-44153, also quoted in Mainstream Marketing Services, Inc. v. Federal Trade Commission, 358 F.3d 1228, 1240 (2004) [ hereinafter theMainstream case].

8 Full-time salaried fundraisers were employed by 28% of organizations that raised between $50,000 and $250,000, and by 45% of organizations that raised between $250,000 and $1,000,000. See Center on Non-Profits and Philanthropy, Urban Institute Center on Philanthropy, Indiana University , What We Know a bout Overhead Costs in t he Nonprofit Sector , NONPROFIT OVERHEAD COST PROJECT (Brief No. 1) 1 (2004) , http://www.urban.org/UploadedPDF/310930_nonprofit_overhead1.pdf (last visited July 27, 2005) [ hereinafter the Nonprofit Overhead Cost Project ] .

9 According to one estimate, between 60 and 70% of nonprofit organizations operating in the United States use professional fundraisers, see Meacham, supra note 6 , at 62 n. 34.

10 In the United States these professionals are organized in the Association of Fundraising Professionals (AFP), http://www.nsfre.org (last visited July 27, 2005).

11 For a discussion of the "Agency Costs" as a ground for public oversight of nonprofit organizations, see RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 409 (6th ed . 2003).

12 About 64% of the financing of the third sector in Israel comes from public financing. This proportion is higher than in Holland (59%), France (57%), or the average in the European Union (55%), but lower than in Ireland (75%), Belgium (77%), and Germany (65%). Seesupra note 2, at 18; see also Chesterman, supra note 3, at 97.

13 The study was based on all the reports of nonprofit organizations to the U.S. Internal Revenue Service (IRS) in the year 2000 (namely, 126,956 organizations), Nonprofit Overhead Cost Project, supra note 8, at 1 .

14 Ibid.

15 Ibid.

16 Ibid.

17 New York State Department of Law, Charities Bureau , Pennies for Charity: Where Your Money Goes: Telemarketing by Professional Fund Raisers (December 2004), http://www.oag.state.ny.us/charities/pennies04/penintro.html (last visited July 27, 2005).

18 New York State Department of Law, Charities Bureau, Pennies for Charity: Where Your Money Goes: Telemarketing by Professional Fund Raisers (December 2003), http://www.oag.state.ny.us/charities/pennies03/penintro.html (last visited July 27, 2005).

19 New York State Department of Law, Charities Bureau, Pennies for Charity: Where Your Money Goes Telemarketing by Professional Fund Raisers (December 2002), http://www.oag.state.ny.us/charities/pennies02/penintro.html (last visited July 27, 2005 ).

20 New York State Department of Law, Charities Bureau, Pennies for Charity: Where Your Money Goes Telemarketing by Professional Fund Raisers (December 2001), http://www.oag.state.ny.us/charities/pennies01/penintro.html (last visited July 27, 2005 ).

21 The proportion of funds transferred to charity ranged from between 38.1% (in 1995) and 24.7% (in 1997). Ibid .

22 Office of the Attorney General State of California, Attorney General Lockyer Announces Average Charity Netted 41 Percent from Commercial Fundraising in 2003, Releases Annual Fundraising Reports, Publishes Donor Guide On Solicitation (July 21, 2005), http://ag.ca.gov/newsalerts/release.php?id=1190 (last visited Aug. 16, 2005).

23 It should be noted that this was Connecticut's highest rate since recordkeeping began. See The Attorney General & Commissioner of Consumer Protection, 2003 Annual Report Professional Telephone Soliciting for Charities, Police and Firefighter Groups,http://www.cslib.org/attygenl/mainlinks/tabindex8.htm (last visited Aug. 16, 2005) .

24 The Commonwealth of Massachusetts Office of The Attorney General, Attorney General's Report on Telemarketing for Charity (November 2004), http://www.ago.state.ma.us/filelibrary/telrep03.pdf (last visited Aug. 16, 2005).

25 State of Tennessee, Office of the Secretary of State, 2003 Annual Report on Charitable Fund Raising, 358, http://www.state.tn.us/sos/charity/annualrpt-03.pdf (last visited Aug. 4, 2005); as well as State of Tennessee, Office of the Secretary of State, 2001 Annual Report on Charitable Fund Raising, 243.

26 State of Ohio Attorney General, Charitable Fund Raising in Ohio by Professional Solicitors 2003 REPORT, http://www.ag.state.oh.us/online_publications/charitable_law/2003/charitable_annual_rpt2003-72.pdf (last visited Aug. 20, 2005). See Ayres & Funk, supra note 7 at 121 n. 143.

27 New York State Attorney General, S eptember 11th Charitable Relief: An Overview at One Year – Report of New York State Attorney General Eliot Spitzer (September 2002), http://www.oag.state.ny.us/charities/september11_charitable_report/sept11_report.html (last visited July 27, 2005) [hereinafter September 11th Charitable Relief].

28 The Federal Trade Commission, Prepared Statement of the Federal Trade Commission on Charitable Solicitation Fraud, Before the Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce, United States House of Representatives (Nov. 6, 2001), http://www.ftc.gov/opa/2001/11/charitablesolicitationfraud.htm (last visited Aug. 20, 2005).

29 September 11th Charitable Relief, supra note 27.

30 In this context see the general results for the year 2001, supra note 19.

31 Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781 (1988) [hereinafter Riley case].

32 Ibid, at 783.

33 Secretary of State of Maryland v. J.H. Munson Co., 467 U.S. 947 (1984) [hereinafter Munson case].

34 Ibid, at 965 n. 15.

35 Illinois ex rel. Madigan, Attorney General of Illinois v. Telemarketing Associates, Inc., 538 U.S. 600 (2003) [hereinafter Madigan case].

36 Ibid, at 605.

37 See Sir Ph. Woodfield et al., Efficiency Scrutiny of the Supervision of Charities: Report to the Home Secretary and the Economic Secretary to the Treasury 45 (1987) [hereinafter theWoodfield Report]; SECRETARY OF STATE, CHARITIES: A FRAMEWORK FOR THE FUTURE § 10.16 (1989) [hereinafter theWhite Paper].

38 Madigan case, supra note 35.

39 Ibid, at 619.

40 16 C.F.R. § 310.3(d)(4) (2003).

41 There are three leading judgments: Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980) [hereinafter Schaumburg case]; Munson case, supra note 33; Riley case, supra note 31 .

42 Rehnquist wrote a dissenting opinion in the three judgments. Schaumburg case, ibid, at 639-645; Munson case, supra note 33, at 975-985; Riley case, supra note 31, at 804-812 (Justice Sandra Day O'Connor concurred with his opinion). Rehnquist was an associate justice during the Riley case and chief justice during the two later cases; I refer to him as chief justice throughout for simplicity's sake.

43 Schaumburg case, supra note 41, at 624.

44 Munson case, supra note 33, at 951.

45 Riley case, supra note 31, at 785-786.

46 Munson case, supra note 33, at 980 ; Riley case, supra note 31, at 807.

47 Munson case, supra note 33, at 980 .

48 Ibid, n. 2 .

49 Riley case, supra note 31, at 799 n. 11 (per Justice William Brennan).

50 Schaumburg case, supra note 41, at 637 n. 10 (per Justice Byron White).

51 Munson case, supra note 33, at 961 (per Justice Harry Blackman); Riley case, supra note 31, at 798 (per Justice Brennan) .

52 Munson case, supra note 33, at 967; Riley case, supra note 31, at 780.

53 Riley case, supra note 31, at 792.

54 Ibid, at 791-792.

55 Madigan case, supra note 35, at 625.

56 Riley case, supra note 31, at 790 (per Justice Brennan): "There is no reason to believe that charities have been thwarted in their attempts to speak or that they consider the contracts in which they enter to be anything less than equitable."

57 Munson case, supra note 33, at 980: "But even if a fundraiser were to fully disclose to every donor that half of the money collected would be used for 'expenses,' so that there could be no question of 'fraud' in the common-law sense of that word, the State's interest is not at an end. The statute, as the Court concedes, is also directed against the incurring of excessive costs in charitable solicitation even where the costs are fully disclosed to both potential donors and the charity. Such a law protects the charities themselves from being overcharged by unscrupulous professional fundraisers."

58 Henry B. Hansmann, The Role of Nonprofit Enterprise, 89 YALE L.J. 835 (1980).

59 Ibid, at 837, 842-844.

60 Michael Lipsky & Steven R. Smith, Nonprofit Organization, Government and the Welfare State, 104 POL . SCI . Q. 625, 633, 635-636 (1989-1990); Victor B. Flatt, Notice and Comment for Nonprofit Organizations, 55 RUTGERS L. REV . 65 (2002) .

61 For the third sector's small market share in the telemarketing arena in the United States, seeMainstreamcase, supra note 7, at 1240. The small market share, inter alia, provided justification for the fact that the restrictions imposed by the FTC on telephone solicitations to persons asking to be included in the "do-not-call registry" did not apply to "solicitations to induce charitable contributions via outbound telephone calls," ibid, at 1234, as well as 16 C.F.R. § 310.6(a) (2003) .

62 See BBB Wise Giving Alliance, About the BBB Wise Giving Alliance, http://www.give.org/about/index.asp (last visited Aug. 22, 2005). In 2001 this body merged the National Charities Information Bureau and the Council of Better Business Bureaus Foundation .

63 BBB Wise Giving Alliance, BBB Wise Giving Alliance Standards for Charity Accountability, http://www.give.org/standards/newcbbbstds.asp (last visited Aug. 4, 2005) [hereinafter theNew Standards]. These rules, published in 2003, are an improved and more concise version of the previous rules [hereinafter the Previous Standards], see BBB Wise Giving Alliance, PreviousStandards: CBBB Standards for Charitable Solicitation, http://www.give.org/standards/cbbbstds.asp (last visited Aug. 22, 2005).

64 The New Standards, ibid, at Rule 9; The Previous Standards, ibid, at Rule B4 .

65 Maryland Nonprofits, Standards for Excellence: an Ethics and Accountability Code for the Nonprofit Sector, http://www.marylandnonprofits.org/html/standards/04_02.asp (last visited Aug. 22, 2005 ).

66 Charity Commission for England and Wales, CC20-Charities and Fund-Raising Annex B -checklists (July 2002), www.charity-commission.gov.uk/publications/cc20.asp (last visited Aug. 22, 2005) [hereinafter the Charity Commission].

67 See Association of Fundraising Professionals, Code of Ethical Principles and Standards of Professional Practice, Arts. 16-18, http://www.afpnet.org/ethics/guidelines_code_standards (last visited Aug. 22, 2005).

68 Riley case, supra note 31, at 799-800 (per Justice Brennan).

69 As amici curiae, nonprofit organizations opposed a law requiring commercial fundraisers to disclose, in each fundraising call, the average proportion of donations that they had transferred to charitable institutions in the preceding year. Ibid, at 783. In fighting application of the "do-not-call" regulations to them, representatives of the third sector expressed opposition to any type of restriction on their ability to solicit donors by telephone. See FTC Telemarketing Sales Rule, 68 FED. REG. § 4637 (2003). As amicus curiae in the Madigan case, nonprofit organizations went so far as to oppose prosecuting a telemarketer for fraud, despite evidence that the company had affirmatively misled potential donors about the existence and size of its commissions: Madigancase, supra note 35, at 623. Cf. Schumburg Case, supra note 41, at 621 (nonprofit organizations urged Supreme Court to invalidate law setting ceiling on commissions charged by commercial fundraisers); Munson case, supra note 33, at 949 (same, except that law permitted exceptions); Riley case, supra note 31, at 783 (same).

70Riley case, supra note 31, at 799. Justice Brennan: "[T]he compelled disclosure will almost certainly hamper the legitimate efforts of professional fundraisers to raise money for the charities they represent."

71 Ibid.

72 The legislation that was invalidated in the Riley case permitted the commercial fundraiser to repudiate the presumption that a commission exceeding 35% of the donation was unreasonable if it could prove one of the following: (a) that the solicitation was not only intended to raise funds but also to transmit information; or (b) the ability of the philanthropic body to raise funds or to transmit information would be significantly impaired. Riley case, supra note 31, at 785. The Munson case struck down legislation that allowed organizations to exceed the 25% ceiling if they could prove that the ceiling in practice frustrated their ability to raise funds. Munson case, supra note 33, at 953.

73 Schaumburg case, supra note 41, at 636.

74 Riley case, supra note 31, at 799.

75 Karin Kunstler Goldman, In the Matter of: Telemarketing Review – Comment, FTC File No. R411001 – Comments and Recommendations National Association of State Charity Officials, Before The Federal Trade Commission Washington, D.C. 20580 (April 16, 2002) at the FTC website, http://www.ftc.gov/os/comments/dncpapercomments/04/nasco.pdf (last visited Aug. 22, 2005) .

76 Ibid. Today these rules require telemarketers only to say that the purpose of the call is to raise funds for charity and to identify the charity, 16 C.F.R. § 310.4(e) (2003). The legality of these FTC rules, some of which were established only following the events of September 11, 2001, was confirmed in National Federation of the Blind v. Federal Trade Commission , 420 F.3d 331 (4th Cir. 2005), a federal appellate case that the Supreme Court declined to review in May 2006, http://www.supremecourtus.gov/orders/courtorders/051506pzor.pdf (last visited July 30, 2006), at 2.

77 Riley case, supra note 31, at 800.

78 Ibid.

79 Ibid, at 795.

80 Justice Brennan: "Thus, where, as here, the component parts of a single speech are inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Such an endeavor would be both artificial and impractical. Therefore, we apply our test for fully protected expression." Ibid, at 796.

81 Commercial free speech is recognized in the United States; however, it enjoys a lesser level of protection than that afforded to non-commercial free speech. See Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557 (1980) [hereinafter theCentral Hudsoncase]. Chief Justice Rehnquist, in a minority opinion, opposed grantingany constitutional protection to commercial speech. Ibid at 583 See also Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985).

82 The oversight standard that American courts apply to economic legislation (the minimum rationality standard) is lower than the strict scrutiny exercised in the above cases. SeeMunson case, supra note 33, at 979; Riley case, supra note 31, at 790, 801 n.13, 808.

83 LESTER M. S ALAMON & STEFAN TOEPLER, THE INTERNATIONAL GUIDE TO NONPROFIT LAW 118, 126 (1997) .

84 Ibid, at 127 (citing S2223-278/St 21 from 1.8.1991 in Oberfinanzdirektion Nurnberg) .

85 Riley case, supra note 31, at 799.

86 Ibid, at 811.

87 Ibid.

88 Munson case, supra note 33, at 980.

89 Charity Commission for England and Wales, The Official Custodian for Charities Accounts, Annual Report 2004-05 , at the front page, http://www.charity-commission.gov.uk/Library/spr/pdfs/annrep2005pt2.pdf (last visited Aug. 30, 2005) .

90 Woodfield Report, supra note 37, at 45-46; White Paper, supra note 37, at 55, art. 10.17.

91 Charities Act 1992, www.hmso.gov.uk/acts/acts1992/Ukpga_19920041_en_1.htm (last visited Aug. 30, 2005).

92 Ibid, § 59; and The Charitable Institutions (Fund-Raising) Regulations § 64 (1994).

93 Charity Commission, supra note 66, at Section 39; Charities Act, 41 C . § 60 (1992).

94 Charities Act 1992, 41 C . § 59(3)-59(5).

95 Charity Commission, supra note 66, Annex B, at Sections 40-41. Charities Act 1992, 41 C . § 60-61.

96 Only 12% of all the organizations used this means in the year 2000, whereas over half reported fundraising from foundations or from organizing charity events. SeeNonprofit Overhead Cost Project, supra note 8, at 2.

97 Hanoch Dagan & Michael A.Heller, The Liberal Commons, 110 YALE L. J. 549, 551 (2001).

98 Ayres & Funk, supra note 7, at 87.

99 Ibid, at 120 n. 141. A similar phenomenon is the use of devices that automatically dial the customer's house and play a prerecorded message. This phenomenon was largelyterminated in the United States by the Telephone Consumer Protection Act, 1991.

100 Ayres & Funk, supra note 7, at 90.

101 Ibid, at 92.

102 For the list of states that operated a "do-not-call" list in 2001, see Janelle M. Romp, Hello, May I Interest You in a Do Not Call List? A Comment on the Federal Trade Commission's Proposal to Amend the Telemarketing Sales Rule, 71 U. CIN. L. REV. 639, 651 n. 106 (2003). For the current list of states with such lists, seehttp://www.the-dma.org/government/donotcalllists.shtml (last visited Aug. 22, 2005).

103 The national list is maintained by the Federal Trade Commission and currently contains more than 85 million telephone numbers. See the list website, http://www.ftc.gov/bcp/conline/edcams/donotcall/index.html (last visited Aug. 22, 2005), and the Federal Trade Commission for the Consumer, FTC Announces First "Do Not Call Rule" Settlements – Timeshare Sellers and their Telemarketer Will Pay More than $500,000 for Violating the Rule (Feb. 16, 2005), http://www.ftc.gov/opa/2005/02/bragliaflagship.htm (last visited Aug. 22, 2005). The prohibition against calling telephone numbers on the list and the sanction for such calls are found in the chapter on FTC Telemarketing Sales Rule, 16 C.F.R § 310.4(b)(1)(iii)(B) (2003).

104 Mainstream case, supra note 7, at 1234 ,as well as 16 C.F.R. § 310.6(a) (2003).

105 Ibid, and Ayres & Funk, supra note 7, at 120.

106 Ayres & Funk, supra note 7, at 118-119.

107 Ibid, at 120 (n. 141 and text).

108 Or as defined by Funk & Ayres: "[T]he strategies that households adopt to avoid phone solicitations (such as taking an unlisted number) can themselves produce negative extranalities that must be weighed against the third-party benefits." Ibid, at 117-118.

109 White Paper, supra note 37, at 57, Art. 10.22.

110 Ibid, Art. 10.23.

111 Charities Act, 41 C . § 62 (1992)

112 Charity Commission, supra note 66, Article 4.

 

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