The Law of Fundraising. Bruce R. Hopkins

of nonprofit organizations is a principle that is larger than the Internal Revenue Code. Citizens combating problems and reaching solutions on a collective basis—in “association”—are inherent in the very nature of American societal structure. Nonprofit associations are traditional in the United States, and their role and responsibility are not diminished in modern society. Rather, some contend that the need for the efforts of nonprofit organizations is greater today than previously, in view of the growing complexity and inefficiency of government. To tax these entities would be to flatly repudiate and contravene this doctrine that is so much a part of the nation's heritage.

      This view of nonprofit associations operating in the United States has been most eloquently stated by Alexis de Tocqueville. He, too, espoused the principle of pluralism, as expressed in his Democracy in America:

Feelings and opinions are required, the heart is enlarged, and the human mind is developed only by the reciprocal influence of men upon one another. I have shown that these influences are almost null in democratic countries; they must therefore be artificially created, and this can only be accomplished by associations.… A government can no more be competent to keep alive and to renew the circulation of opinions and feelings among a great people than to manage all the speculations of productive industry. No sooner does a government attempt to go beyond its political sphere and to enter upon this new track than it exercises, even unintentionally, an insupportable tyranny; for a government can only dictate strict rules, the opinions which it favors are rigidly enforced, and it is never easy to discriminate between its advice and its commands. Worse still will be the case if the government really believes itself interested in preventing all circulation of ideas: it will then stand motionless and oppressed by the heaviness of voluntary torpor. Governments, therefore, should not be the only active powers; associations ought, in democratic nations, to stand in lieu of those powerful private individuals whom the equality of conditions has swept away.

      But de Tocqueville's classic formulation on this subject came in his portrayal of the use by Americans of “public associations” in civil life:

      Americans of all ages, all conditions, and all dispositions constantly form associations. They have not only commercial and manufacturing companies, in which all take part, but associations of a thousand other kinds, religious, moral, serious, futile, general or restricted, enormous or diminutive. The Americans make associations to give entertainments, to found seminaries, to build inns, to construct churches, to diffuse books, to send missionaries to the antipodes; in this manner they found hospitals, prisons, and schools. It is proposed to inculcate some truth or to foster some feeling by the encouragement of a great example, they form a society. Wherever at the head of some new undertaking you see the government in France, or a man of rank in England, in the United States you will be sure to find an association.

One distinguished philanthropist believed that if the leadership of the government and business sectors of U.S. society were to assume the responsibility for support of the private sector, “[w]e would surprise ourselves and the world, because American democracy, which all too many observers believe is on a downward slide, would come alive with unimagined creativity and energy.”²²

      Contemporary writing is replete with examples of these fundamental principles. Those who have addressed the subject include:

      … the associative impulse is strong in American life; no other civilization can show as many secret fraternal orders, businessmen's “service clubs,” trade and occupational associations, social clubs, garden clubs, women's clubs, church clubs, theater groups, political and reform associations, veterans' groups, ethnic societies, and other clusterings of trivial or substantial importance. —Max Lerner

      … in America, even in modern times, communities existed before governments were here to care for public needs. —Daniel J. Boorstin

      … voluntary association with others in common causes has been thought to be strikingly characteristic of American life. —Merle Curti

      We have been unique because another sector, clearly distinct from the other two [business and government], has, in the past, borne a heavy load of public responsibility. —Richard C. Cornuelle

      The third sector is … the seedbed for organized efforts to deal with social problems. —John D. Rockefeller

… the ultimate contribution of the Third Sector to our national life—namely, what it does to ensure the continuing responsiveness, creativity and self-renewal of our democratic society.… —Waldemar A. Neilsen

      … an array of its [the independent sector's] virtues that is by now fairly familiar: its contributions to pluralism and diversity, its tendency to enable individuals to participate in civil life in ways that make sense to them and help to combat that corrosive feeling of powerlessness that is among the dread social diseases of our era, its encouragement of innovation and its capacity to act as a check on the inadequacies of government. —Richard W. Lyman

The problems of contemporary society are more complex, the solutions more involved and the satisfactions more obscure, but the basic ingredients are still the caring and the resolve to make things better. —Brian O'Connell²³

      Tax exemption for charities and the charitable contribution deduction, therefore, are not anachronisms, nor are they loopholes. Rather, they are a bulwark against overdomination by government and a hallmark of a free society. These elements of tax law help nourish the voluntary sector of this nation, preserve individual initiative, and reflect the pluralistic philosophy that has been the guiding spirit of democratic America. The charitable deduction has been proven to be fair and efficient, and without it the philanthropic sector of U.S. society would be rendered unrecognizable by present standards.

      In sum, the charitable deduction and exemption are predicated on principles that are more fundamental than tax doctrines and are larger than technical considerations of the federal tax law. The federal tax provisions that enhance charity exist as a reflection of the affirmative national policy of not inhibiting by taxation the beneficial activities of qualified organizations striving to advance the quality of the American social order.

      Likewise, in the zeal to regulate charitable solicitations, government must take care not to destroy the very institutions that compose the essence of the American societal fabric.

§ 1.2 CHARITABLE FUNDRAISING: A PORTRAIT

      From the standpoint of the law of charitable fundraising, two aspects of the portrait of charitable giving in the United States are important: the extent of charitable giving in general and the increasing use of the Internet for the purpose of soliciting charitable contributions.

(a) Scope of Charitable Giving in General

Charitable giving in the United States in 2020 is estimated to have totaled $471.44 billion.²⁴ Total charitable giving grew 5.1 percent measured in current dollars over the revised total of $448.66 billion contributed in 2019. Adjusted for inflation, total charitable giving in 2020 increased 3.8 percent.

      Charitable giving by individuals in 2020 amounted to an estimated $324.1 billion; this level of giving constituted 69 percent of all charitable giving for the year. Grantmaking by private foundations was an estimated $88.5 billion (19 percent of total funding). Gifts in the form of bequests in 2020 were estimated to be $41.19 billion (9 percent of total giving). Gifts from corporations in 2020 totaled $16.88 billion (4 percent of total giving for that year).

      Contributions to religious organizations in 2020 totaled $131.08 billion (28 percent of giving that year). Gifts to educational organizations amounted to $71.34 billion (15 percent); to human service entities, $65.14 billion (14 percent); to foundations, $58.17 billion (12 percent); to public/society benefit organizations, $48 billion (10 percent); to health