Aggressive Litigation

May 1, 2010       Mark Hrywna      

In Marc Maurer’s opinion, the National Federation of the Blind (NFB) pursues cases where there isn’t much of a downside. Take the landmark 1988 U.S. Supreme Court decision Riley v. NFB of North Carolina. “We were being regulated such that we couldn’t do the kind of work we wanted to do and if we won the case, then we could, and if we lost, we’d be stuck with the same regulation that was already there,” said Maurer, president of the NFB.

But, even Maurer admits there usually is some downside. “You do have to pay the lawyer. They always cost a lot of money,” he said.

The Riley case, decided 7-2 by the U.S. Supreme Court, challenged a North Carolina law that instituted a “reasonable fee” on professional fundraisers.

An advocacy and lobbying organization, the Baltimore, Md.-based NFB has continued to challenge new measures on charitable solicitations and registration requirements, among other legal spats in recent years.

Just this year, the NFB’s Texas chapter won a round in U.S. District Court regarding a law that made professional resellers reveal their identity, disclose that items donated would be sold for profit, and the percentage of proceeds or fees that would go to charity. The state Attorney General’s office is appealing the decision to the 5th Circuit Court of Appeals. Several years ago, NFB took Target Corporation to court, alleging the retailer’s Web site was not accessible to blind consumers.

“Our objective is to help blind people get access. This means we have to be fairly confrontational from time-to-time,” said Maurer. “Sometimes people are glad to have blind people involved, and sometimes they aren’t. When we talk to employers, they’re sympathetic, but they can never think of anything blind people can do. They start with the assumption that blind people can’t do anything,” he said. “We have to teach them (the general public). To be capable of thinking in those terms is part of the reason we have 1st Amendment cases. We have 1st Amendment cases because we want access,” he said.

Maurer describes the NFB as perhaps the most registered nonprofit in the country when it comes to state charity solicitation bureaus. “Registration is an expense of doing business. We are an organization that tries to change things and because of that we are sometimes welcomed but often not in one place or another. Although when people come to understand us, we’re almost universally welcomed,” he said. As an example, Maurer said it’s legal in the U.S. to pay disabled workers less than minimum wage. “We fight that whenever and wherever we can, and the people who are paying less than the minimum wage don’t much care for us. This doesn’t bother us. We go and fight them anyway. But if we’re going to do that, we have to be registered,” he said. “People look for things to challenge us on, so we register everywhere.”

NFB has 52 affiliates, one in each state, Puerto Rico and Washington, D.C. There are some 700 local chapters. The federation model helps when monitoring nonprofit regulation at various levels of government. “Our members keep track, tell us when the things are happening in the states,” said Maurer.

As much as NFB keeps track of its registration requirements, it also monitors laws throughout the U.S. as it plans fundraising projects. “That means that we spend a lot of time looking at fundraising law and regulation, and that we interact with various regulatory bodies about the nature of fundraising and what is reasonable in the nonprofit world. That’s how we know what’s going on,” Maurer said.

The organization has two staff members who monitor regulatory policies and another two who collect information and paperwork for registrations and incorporations. In all, NFB has approximately 94 staff at its Baltimore headquarters and the national organization runs an annual budget of anywhere from $18 million to $23 million, depending on the year. It spent $1.3 million on outside counsel, according to its most recent federal Form 990. Most of NFB’s budget is raised through private donations, almost all through direct mail, Maurer said.

Litigation can be very expensive, and often times a winning case merely gives the organization the “right to do what you were hoping to do anyway,” rather than expanding what can do you, Maurer said. Every substantial case will cost a minimum of $50,000 while more hard-fought cases are likely to spill into the hundreds of thousands of dollars. The past couple of years, NFB spent nearly $1 million on a case involving technology access for the blind. “We don’t spend that much on them very often, but every now and then,” Maurer said.

Errol Copilevitz, senior partner at Copilevitz and Canter in Kansas City, Mo., is one of the attorneys with experience representing the organization. He was lead counsel in the Riley case and represents NFB of Texas in the current dispute. Copilevitz credits NFB’s success to its tenacity in fighting for the rights of blind people, whether it’s by litigation or other means, including picketing or lobbying. “Their willingness to step up,” he said is what separates NFB from other advocacy organizations.

“They’ve always been a well considered, well-run organization that has high recognition of social and advocacy positions that affect those that they serve, and those that they serve they serve well,” Copilevitz said.

As to NFB’s record in the courts, he said: “Part of the strategy of winning these kinds of cases is to pick the right cases.”

Maurer said Citizens United v. FEC, the landmark U.S. Supreme Court case decided this past January, could have some effect on his organization. “We probably won’t change the nature of how we spend our money at all, but it does occur to a person that you’re authorized to spend your money at nonprofit organizations on things that seemed like lobbying before,” he said.

At one time, lobbying was completely prohibited to nonprofits. “We’re not going to be doing in a traditional partisan sense any kind of lobbying but we will present information on positions we believe government should adopt,” Maurer said.

The Citizens United decision “probably means we’re a little safer in doing it than sometimes people who wondered,” Maurer said. “That means that we could spend our money on ways we never expected to be able to spend it,” he said. “Our business is to influence public policy so that blind people have the greatest opportunity possible and influencing public policy is much of what we do. It is not all what we do but it’s part of what we do,” he said.

Sometimes that means NFB heads to court, but other times it might be taking the battle to Capitol Hill or state capitals.

“We’re different from a lot of nonprofits in that we’re not merely a charitable organization. We’re a grassroots, volunteer organization and one of our goals is to change the understanding of blindness among lawmakers and the general public,” said Chris Danielson, NFB’s director of public relations. “A lot of times people look at us and think this must be a blindness-related charity and that’s not what we are. We certainly do things to help and support blind people but we are dedicated to changing the way blind people are perceived and treated. We’re a civil rights organization and so that’s why I would say we’re more involved in public policy,” he said.

Not all of NFB’s battles go all the way to the Supreme Court. The organization took on the nation’s largest deployer of ATM machines regarding a long-ignored law that requires the machines be usable non-visually. “Although they’re built to make them that way, they don’t turn on the programming for non-visual access to the machine,” Maurer said. By July 1 of this year, all ATMs operated by Cardtronics in Houston, Texas — which are many of the free-standing machines in convenience stores and other locations — will be required to be accessible to the blind.

For an ATM to be fully accessible it must have an audio jack for headphones and software that will activate spoken guidance with prompts by text-to-speech or a recorded human voice. “It’s unfortunately still not uncommon to find an ATM that has an audio jack but which doesn’t work once a set of headphones or ear buds is plugged in because the machine isn’t equipped with software to generate the voice prompts and allow the blind user to respond through the keypad,” Danielson said.

“The law requires they be useable non-visually but deployers often ignore that,” Maurer said. “Although they’re built to make them that way, they don’t turn on the programming for non-visual access to the machine,” he added. After several years of litigation, the settlement, which cost the organization about $900,000 in legal fees, was reached in 2007 between the company and the Massachusetts Attorney General’s office, which filed the class action suit with NFB against Cardtronics.

Each year, NFB also has issues it takes to Congress, Maurer said. For instance, the organization lobbies to keep automobile manufacturers producing cars that make noise, as over the years newer cars are ever more silent. “This will help the blind because blind people have to listen to the world instead of look at it, but it will also help other pedestrians, children and cyclists and runners, and so on,” he said. With touch pads becoming popular, NFB also pushes home and office product manufacturers to make items that can be used non-visually as well.

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