Effective fundraising has never been more important to the success of a nonprofit organization than it is today. But national- and state-level legislative and administrative control over charitable fundraising is expanding quickly.
In the newly revised Sixth Edition of The Law of Fundraising, distinguished lawyers and tax-exempt organization experts deliver a comprehensive and authoritative blueprint of the increasingly complex tangle of federal and state regulations and legislation that govern charitable fundraising in the United States. The authors explore the administrative, tax, and constitutional implications of the latest legislation, regulation, IRS pronouncements, private letter rulings, and technical advice memoranda. The book also includes: - In-depth explorations of the anatomy of charitable fundraising, including different methods of fundraising and the roles of accountants and lawyers in the fundraising process - Comprehensive examinations of federal and state regulation of fundraising, including the proper delegation of legislative authority and the treatment of fundraising disclosures - Regulatory developments on the horizon, including major legislative proposals and new regulatory issues in areas including Internet fundraising
An indispensable resource for tax-exempt board members, executives, managers, fundraisers, and other leaders, the latest edition of The Law of Fundraising will earn a place in the libraries of the accountants, lawyers, and other regulated professionals who serve nonprofit organizations.
Table of Contents
A Letter to the Reader ix
Preface xi
1 Government Regulation of Fundraising for Charity 1
§ 1.1 Charitable Sector and American Political Philosophy 2
§ 1.2 Charitable Fundraising: A Portrait 8
§ 1.3 Brief History of Government Regulation of Fundraising 12
§ 1.4 Contemporary Regulatory Climate 22
2 Anatomy of Charitable Fundraising 29
§ 2.1 Scope of Term Charitable Organization 30
§ 2.2 Methods of Fundraising 33
§ 2.3 Role of a Fundraising Professional 44
§ 2.4 Role of an Accountant 48
§ 2.5 Role of a Lawyer 50
§ 2.6 Viewpoint of Regulators 51
§ 2.7 Viewpoint of a Regulated Professional 52
§ 2.8 Coping with Regulation: A System for the Fundraising Charity 54
3 States’ Charitable Solicitation Acts 57
§ 3.1 Summary 58
§ 3.2 Definitions 58
§ 3.3 Preapproval 68
§ 3.4 Annual Reporting 72
§ 3.5 Exemptions 73
§ 3.6 Regulation of Professional Fundraisers 80
§ 3.7 Regulation of Professional Solicitors 81
§ 3.8 Regulation of Commercial Coventurers 81
§ 3.9 Limitations on Fundraising Costs 82
§ 3.10 Availability of Records 84
§ 3.11 Contracts 85
§ 3.12 Registered Agent Requirements 86
§ 3.13 Prohibited Acts 86
§ 3.14 Regulatory Prohibitions 88
§ 3.15 Disclosure Statements and Legends 88
§ 3.16 Reciprocal Agreements 89
§ 3.17 Solicitation Notice Requirements 90
§ 3.18 Fiduciary Relationships 91
§ 3.19 Powers of Attorney General 91
§ 3.20 Miscellaneous Provisions 92
§ 3.21 Sanctions 93
§ 3.22 Unified Registration 93
§ 3.23 Other Laws 94
§ 3.24 Prospect of Law Changes 96
4 State Regulation of Fundraising 99
§ 4.1 Regulation of Fundraising Costs 100
§ 4.2 Police Power 122
§ 4.3 Registration and Licensing Requirements 128
§ 4.4 Charitable Purposes Revisited 129
§ 4.5 Fundraising as Free Speech 130
§ 4.6 Due Process Rights 177
§ 4.7 Equal Protection Rights 179
§ 4.8 Delegation of Legislative Authority 183
§ 4.9 Treatment of Religious Organizations 188
§ 4.10 Other Constitutional Law Issues 199
§ 4.11 Exemption for Membership Organizations 200
§ 4.12 Defining Professional Fundraiser and Professional Solicitor 202
§ 4.13 Direct-Mail Fundraising Guidelines 204
§ 4.14 Registration Fees 208
§ 4.15 Fundraising by Means of the Internet 211
§ 4.16 Conclusions 223
5 Federal Regulation of Fundraising: Administrative Matters 225
§ 5.1 Federal Regulation of Fundraising: How It Began 227
§ 5.2 Fundraising Disclosure by Charitable Organizations 234
§ 5.3 Record-Keeping Law 237
§ 5.4 Charitable Gift Substantiation Law 238
§ 5.5 Quid Pro Quo Contribution Law 251
§ 5.6 Fundraising Disclosure by Noncharitable Organizations 255
§ 5.7 Excess Benefit Transactions Law 259
§ 5.8 Unrelated Business Law 272
§ 5.9 Commensurate Test 315
§ 5.10 Appraisal Law 320
§ 5.11 Reporting Law 331
§ 5.12 Federal Tax Penalties 334
6 Federal Regulation of Fundraising: Other Law Matters 347
§ 6.1 Private Benefit Doctrine 348
§ 6.2 Exemption Application Process 350
§ 6.3 Lobbying Restrictions Law 356
§ 6.4 Public Charity Classifications 360
§ 6.5 School Record-Retention Law 366
§ 6.6 Fundraising Compensation Law 369
§ 6.7 Charitable Deduction Law 377
§ 6.8 Special Events and Corporate Sponsorships 395
§ 6.9 Postal Laws 399
§ 6.10 Antitrust Laws 411
§ 6.11 Securities Laws 413
§ 6.12 FTC Telemarketing Rules 415
§ 6.13 Internet Communications 422
§ 6.14 Health Insurance Portability and Accountability Act Law 427
§ 6.15 Political Campaign Financing 428
§ 6.16 Charitable Fundraising Organizations 457
§ 6.17 House of Representatives Memorandum 468
7 Import of Form 990 469
§ 7.1 Form 990 Series Basics 470
§ 7.2 IRS Guiding Principles 474
§ 7.3 Import of Form 990 475
§ 7.4 Summary of Parts of Form 990 475
§ 7.5 Preparation of Form 990, Part I 479
§ 7.6 Summary of Form 990 Schedules 480
§ 7.7 Form 990-EZ 484
§ 7.8 Instructions 485
§ 7.9 Federal and State Regulation of Gaming 486
§ 7.10 Schedule B 487
§ 7.11 Preparation of Form 990 Schedule G 495
§ 7.12 Preparation of Other Parts of Form 990 503
§ 7.13 Preparation of Form 990 Schedule M 505
§ 7.14 Annual Filing Requirement and Tax-Exempt Status 512
8 Prospective Federal Regulation of Fundraising: Proposals and Issues 513
§ 8.1 Introduction 514
§ 8.2 Major Legislative Proposals 516
§ 8.3 Regulatory Issues 522
§ 8.4 Contemporary Developments and Prospects 538
9 Standards Setting and Enforcement by Watchdog Agencies 545
§ 9.1 Overview of Nongovernmental Regulation 546
§ 9.2 Role of an Independent Monitoring Organization 547
§ 9.3 Standards Applied by Watchdog Agencies 551
§ 9.4 Philanthropic Advisory Service Standards 553
§ 9.5 BBB Wise Giving Alliance Standards 555
§ 9.6 Evangelical Council for Financial Accountability Standards 557
§ 9.7 Standards for Excellence Institute Standards 558
§ 9.8 Panel on Nonprofit Sector Fundraising Principles 560
§ 9.9 Charity Navigator Standards 561
§ 9.10 Charitywatch Standards 563
§ 9.11 Standards Enforcement 565
§ 9.12 Commentary 570
§ 9.13 A Watchdog Agency’s Response to Commentary 577
§ 9.14 Reply to Response 579
§ 9.15 Rating the Raters 580
10 Overviews, Perspectives, and Commentaries 585
§ 10.1 Charitable Fundraising and the Law 586
§ 10.2 Defining a Fundraising Professional 599
§ 10.3 Professional Solicitors: Role of Telemarketing 604
§ 10.4 Charitable Sales Promotions 606
§ 10.5 Regulation Unlimited: Prohibited Acts 612
§ 10.6 Fundraiser’s Contract 616
§ 10.7 A Model Law 622
§ 10.8 Charity Auctions 628
§ 10.9 Court Opinion Concerning Sliding-Scale Registration Fees 634
§ 10.10 Charitable Solicitations and the Internet 637
§ 10.11 Charitable Solicitations and Fraud 639
§ 10.12 Charitable Solicitations and Substantiation 641
§ 10.13 Unconstitutionality of State Donor Identity Disclosure 646
§ 10.14 Fundraising and Donor-Advised Funds 649
§ 10.15 Some Proposals for Relief 654
§ 10.16 A Look Ahead 657
About the Authors 663
Online Resources 665
Index 667
