Fundraisers Are Going After States

January 1, 2009       Mark Hrywna      

Armed with precedents from court victories against fundraising registration rules in Pinellas County, Fla., American Charities for Reasonable Fundraising Regulation (ACFRFR) is starting to take on more states.

ACFRFR has written to attorneys general in Kentucky, Michigan, West Virginia, Utah, Arkansas and North Carolina asking that national professional fundraising consultants not have to register with the states to provide national marketing and fundraising advice to registered charity clients, including list recommendations that don’t specifically target a state’s citizens.

The Pinellas case, which the fundraisers initially lost but won on appeal during 2001 and 2002, went all the way to the U.S. Circuit Court of Appeals and eventually applied to all courts in the same circuit. ACFRFR plans to file lawsuits in different circuit courts, where a decision then would cover an entire circuit, which sometimes represent several states in a region, said Geoffrey Peters, pro bono counsel to the coalition and president of Bowie, Md.-based CDR Fundraising Group.

Joined by Rainbow Direct Marketing (RDM), ACFRFR filed suit in U.S. District Court in Utah, Central Division, this past November alleging what it calls burdensome registration requirements. Named as a defendant is Kevin Olsen, director of the Utah Division of Consumer Protection within the state Department of Commerce. ACFRFR is seeking a permanent injunction, attorneys’ fees and costs. A spokeswoman for Utah’s Division of Consumer Protection said it had not seen the lawsuit, but also does not typically comment on pending litigation.

The coalition of fundraisers also was expected to file suit in December against Kentucky, after this issue of The NonProfit Times went to press. Negotiations were ongoing with West Virginia and North Carolina, Peters said, and lawsuits would be filed by January if they proved unsuccessful. Some states have conceded — such as Oregon and North Dakota — and are not going to enforce the registration requirements for fundraisers who do no direct business in the state. Kentucky, West Virginia and Michigan have replied that RDM does not have to register, however, they “failed to explicitly extend that policy to similarly situated fundraising consultants,” Peters said.

The coalition is waiting to see whether other states’ officials change their view before going to court. “Sometimes when they’re on the verge of getting sued, they change their mind,” Peters said. “Because it’s expensive to litigate, no one really wants to do that but when you can’t get them to listen any other way, you don’t really have a choice,” he said. “We want to give them a chance to change their mind.”

Financially, the coalition can only sustain three lawsuits at a time, though it depends on how far a case goes and whether it is appealed. “We don’t know how hard they’ll fight. If they give up right away, obviously it is not so expensive,” he said.

Peters said that he expects to see more fundraising efforts from nonprofits and fundraisers “to do more of this kind of thing because some of the states aren’t listening.”

Highland, N.Y.-based RDM was required to register in Utah because its client, Straight Women in Support of Homos, Inc. (SWiSH), registered to solicit in the state. RDM planned to make list recommendations to SWiSH but never actually knew where donors or prospective donors were located, President Amy Tripi swore in an affidavit.

Despite RDM not having any clients or any connection to Utah or soliciting in the state, the Division of Consumer Protection still required registration. If RDM failed to register, the division would take “administrative action” against it when SWiSH renews its registration, according to court documents. The firm has been forced to refrain from providing consulting services to SWiSH.

Because RDM will not determine where SWiSH will solicit and because RDM could not be assured that no charitable solicitation material on which it consulted would not eventually be mailed to Utah, the firm had to refrain from providing fundraising services to SWiSH until the situation could be resolved, Tripi swore in the court papers.

Plaintiffs argue that registering with the Division of Consumer Protection is an unconstitutional restriction on interstate commerce and creates an undue burden on commerce in the form of multiple registration and licensing requirements by several states. The multiple requirements can stifle the flow of free speech, the suit alleges, and the information required by charities already is disclosed elsewhere and places the burden of review on the charity instead of the state, according to court papers filed by the plaintiffs.

Similar arguments were made in two cases against Pinellas County, one filed by fundraisers (Pinellas I) and another by charities (Pinellas II), that registration requirements were too burdensome and required filings and fees despite entities not having a presence in Florida. The mandate that personal fundraising counsel register and pay a fee, even though information already is available to the public because of federal law and regulations, places an undue burden on plaintiffs and their charity-clients’ First Amendment rights.

Utah requires charities to register each year with its Division of Consumer Protection. The eight-page application requires several documents, including by-laws, financial reports and federal tax forms, along with an annual application fee of $100. The annual application fee for fundraisers is $250.

In Fiscal Year 2008, 2,767 charities registered with the state, up almost 9 percent from the 2,549 during the previous year. It was unclear how many of those were new and how many were renewals. The number of professional fundraising counsel, consultants and professional fundraisers registered with Utah was 252 last year, up from 200 in FY 2007. Application fees for charities and fundraisers generated almost $340,000 in fee revenues last year. The Division of Consumer Protection accounted for $1.2 million of the Commerce Department’s $21.8-million budget last year. NPT