How a Nonprofit Can Attract A Regulatory Probe … Fast
06.08.2023 | Linda J. Rosenthal, JD
There’s been nothing “business-as-usual” in the United States since Election Day 2016. That seismic event – although political in nature – has had a profound effect nationwide, including on sectors that are, ordinarily, non-political.
It spawned a phenomenon dubbed “rage giving” (also sometimes referred to as “rage donations” or “rage philanthropy”): a visceral reaction in the general public that unleashes a deluge of contributions to political causes as well as to nonprofit organizations.
American donors turned in droves to well-known groups including the American Civil Liberties Union, Planned Parenthood, the Southern Poverty Law Center, and the Environmental Defense Fund.
So what happens when the skies open up and rain down money? What’s the formula for success for receiving and putting to good use these rage donations? Now, eighteen months in, it appears that the American Civil Liberties Union has set a good example that other organizations may want to learn from and follow.
The A.C.L.U., founded in 1920, has been “less an institution that believed in the power of litigation than an activist group fighting on behalf of workers trying to unionize and ‘radicals’ being arrested without warrants and deported by a government in the grip of anti-communist fever.”
The group started filing lawsuits here and there, not expecting to win in the judicial climate of the time. But it began winning a case here and a case there, taking incrementalist positions. “This really is the birth of civil liberties litigation, which is pretty much the only thing [the organization] did for the next 90-something years. Until now.”
The A.C.L.U. was known for “free-speech purism” when it defended Nazis marching through a largely Jewish neighborhood in suburban Chicago, and was caricatured as ultra-left-wing and subversive when opponents described supporters as “card-carrying members” of the A.C.L.U. – an obvious allusion to Communist sympathizers. “Slightly less cartoonishly, the group has long been seen by those who are vaguely aware of its work as a collective of well-intentioned defenders of the Constitution, running their cases year after year and sending out newsletters to a membership made up largely of aging former hippies.”
In the summer of 2016, when Americans were focused on the national party conventions, the A.C.L.U. was busy “preparing for the new administration” which it – and almost everyone else – expected to be a Clinton presidency with a renewed nomination and confirmation of Merrick Garland, resulting in a 5-4 liberal majority.
When A.C.L.U. Executive Director Anthony Romero asked his staff lawyers to create reports on both candidates’ records on civil liberties, he got some pushback from some of them who believed it was a waste of valuable time to research and prepare legal strategies to oppose a GOP president’s policies.
But Romero forced the issue, and that’s “what allowed [the A.C.L.U. staff] to come out of the gate right away” on the morning after the election. He grabbed the opposition memo, then wrote a press release and copy for a full-page ad in the New York Times, “detailing the ways in which Trump was a threat to the Constitution and declaring, ‘You will have to contend with the full firepower of the A.C.L.U. at your every step.’”
“On November 9, 2016, millions of voters woke desperate for something that might quell their anxiety that this was the beginning of the end of democracy in America. Overwhelmingly, the place they turned to was the A.C.L.U.” And the American Civil Liberties Union was set to go.
Within ten days of the Inauguration, the first Muslim immigration ban was ordered. “The A.C.L.U’s response … had been immediate and wide-ranging,” filing its own lawsuit challenging the Order’s constitutionality and also circulating a “template for habeas petitions to all the attorneys who had rushed to airports around the country offering assistance.” In a single weekend in late January 2017, rage giving to the A.C.L.U. totaled $24 million.”
Stopping this first Muslim ban was a high profile success for the group; in the next three months, a total of $79 million was donated.
The American Civil Liberties Union in the first eighteen months of this Administration “has taken 170 ‘Trump-related legal actions’” – supplemented by “formal calls for investigation, administrative and ethics complaints” and Freedom of Information Act document requests. Also, “[t]here have … been 83 lawsuits, more than at any other equivalent time in its history — in defense of immigrants and transgender people and abortion rights and free speech and voting rights and access to birth control.”
“Early on, Romero knew that the public’s investment of faith and money required something bigger from them than what they could achieve in a courtroom.” In March 2017, the organization announced a new platform called PeoplePower.org, designed to mobilize citizens around the nation on specific action items. In October 2017, the A.C.L.U. launched “Let People Vote,” a nationwide voting rights campaign.
“In the 15 months that followed the election, the A.C.L.U.’s membership went from 400,000 to 1.84 million. Online donations in the years before averaged between $3 and $5 million annually. Since then, it has raised just shy of $120 million.” Before the November 2016 election, according to Anthony Romero, “most of [the A.C.L.U.’s] support came from people who” had been with them since they “challenged Nixon.” Now, this Executive Director says, “we’re kind of cool. Cool’s not a word generally associated with us.”
There are several reasons why the American Civil Liberties Union was able to attract and sustain enormous amounts of rage donations and also to turn these donors into member-supporters.
First, the organization – almost 100 years old at the time of the November 2016 election – was a well-established group with an institutional tradition and memory of change and flexibility over the decades. When times and circumstances changed, activities and tactics were reevaluated.
Second, the A.C.L.U.’s strategic planning in advance of the election paid off well. They considered and planned for contingencies that were considered unlikely but still possible. The day after the election, the A.C.L.U. was set to go, announcing boldly in its New York Times full-page ad, that it had the ideas and capabilities to take a key leading role in the resistance.
Third, they did a good job of scaling upward quickly and efficiently. “A big chunk of the money that the A.C.L.U. has raised has gone toward hiring more lawyers, both in the national office and throughout its network of 54 affiliates.”
Executive Director Romero wants to use much of the money flowing in to reach 500 staff lawyers by 2019. “That’s bigger than we’ve ever been. But let’s not lose sight of reality: There are 11,000 lawyers in the Department of Justice” and another 7,000 in other federal agencies that the A.C.L.U. battles regularly. “We’re the biggest of the advocacy groups, but even if we go from 300 to 500 lawyers, we are still tiny” compared to the “power of the federal government….”
Money falling out of the sky does not always come free of charge; there are predictable pitfalls and complications.
If an organization can’t scale up quickly and smartly to deal with the emergency event as well as the sudden flow of resources, there will be bad press and criticism which will not only slow down or stop the rage donations but also create negative publicity from which the organization may never recover.
— Linda J. Rosenthal, J.D., FPLG Information & Research Director
05.31.2023 | Linda J. Rosenthal, JD