Andy Kerr

Conservationist, Writer, Analyst, Operative, Agitator, Strategist, Tactitian, Schmoozer, Raconteur

The Public Lands Conservation Movement: Mis-organized for Job #1

Why is it that public lands conservation (and other environmental) issues always poll well, but our movement is regularly getting its ass kicked in Congress (and now by the administration as well)? It’s because we’re not political enough.

By political, I mean participating in either lobbying (advocacy in support of or opposition to legislation) or electioneering (supporting or opposing candidates for elective office).

Lobbying is an impure craft, and given where we’ve allowed ourselves to get, what little lobbying the conservation movement does these days is defensive lobbying—primarily trying to hold on to laws enacted in the last half of the last century. Alas, we are not on legislative offense, proactively seeking new laws for today’s environmental challenges.

Even more impure is electioneering. However, getting the right people into office and the wrong people out of office is crucial to the work of getting environmental policy enacted.

Purists don’t like to get their hands dirty. Congenitally, most conservationists would much rather keep their hands clean by engaging in administrative processes government agency than actually organize the public to effect policy change. However, sometimes one has to rise above inborn inclination and identity to get the job done—the job of saving the earth for this and future generations.

For conservation organizations, that requires actually organizing themselves in a way that enables the membership to both finance and engage in lobbying and electioneering. To understand what I’m advocating here, we have to look at the tax status of conservation organizations and the fact that keeping themselves pure as 501(c)(3) organizations so that members can get a tax deduction for contributions is hampering their effectiveness in a big way.

As executive director of the Sierra Club David Brower led the effort that prevented two dams in the Grand Canyon.  Source: Wikipedia

As executive director of the Sierra Club David Brower led the effort that prevented two dams in the Grand Canyon. Source: Wikipedia

Save a River, Lose Your Tax-Deductible Status

On June 9, 1966, the Sierra Club ran a full-page ad in the New York Times decrying two proposed Bureau of Reclamation dams in the Grand Canyon. The next day a federal marshal visited their San Francisco headquarters to deliver a letter from the Internal Revenue Service saying that contributions to the club were no longer tax deductible for the giver, pending a complete IRS investigation. The government alleged that the Sierra Club had violated a provision of the Internal Revenue Code that prohibited organizations classified as charitable and educational from making a substantial part of their activities “carrying on propaganda, or otherwise attempting, to influence legislation.” At that time, Congress was considering legislation to authorize the two damn dams. In the end, the Sierra Club lost its charitable and educational tax status, and those dams were never built. (You can read all about it in Chapter 13, “Losing While Winning,” in Robert Wyss’s book The Man Who Built the Sierra Club: A Life of David Brower.)

Revoking the Sierra Club’s charitable and educational tax status was the IRS’s greatest gift to American conservation. Technically (and importantly), the IRS revoked the Sierra Club’s charitable and educational 501(c)(3) organization status, forcing the club to operate as a social welfare 501(c)(4) organization. This made it possible for the Sierra Club to run issues campaigns that target elected officials and to have affiliated political action committees.

A Closer Look at Tax Status and Lobbying

In the 1960s and generally still, the IRS exempts entities organized under different provisions of section 501(c) of the tax code from paying taxes on their income. There are twenty-nine distinct kinds of 501(c) nonprofit organizations, ranging from federal credit unions to co-op health insurers, with unions, trade groups, veterans, cemeteries, fraternal societies, social clubs, and more in between. Of interest to public lands conservation are two variants:

• 501(c)(3)—Religious, educational, charitable, scientific, literary, testing for public safety, to foster national or international amateur sports competition, or prevention of cruelty to children or animals organizations

• 501(c)(4)—Civic leagues, social welfare organizations, and local associations of employees

Contributions to a qualified 501(c)(3) organization are tax deductible (to the extent allowed by law) for the giver, while contributions to a 501(c)(4) are not. But the latter status gives the organization more political leverage because member contributions can be used extensively to finance lobbying and electioneering—just what is exactly needed now more than ever.

Until the IRS jerked its chain in 1966, the Sierra Club, like almost all conservation organizations then (and alas, now) was a 501(c)(3). To be a 501(c)(3) and get those tax-deductible contributions from one’s donors, one has eschew a good portion of their  First Amendment rights to speech, to assembly, and to petition the government for the redress of grievances. In particular, one has to accept severe limits on seeking to influence legislation (lobbying) and a total prohibition on seeking to influence elections (electioneering). In 1966, a 501(c)(3) organization could expend no significant amount of money on political (lobbying or electioneering) activity. At the time, the Sierra Club budget was not large and a full-page ad in the nation’s most prestigious newspaper was not cheap, so the IRS found the money spent on political activity to be significant.

Fortunately, Brower had earlier formed an emergency backup 501(c)(3) organization in the form of the Sierra Club Foundation. The foundation could continue to receive tax-exempt contributions. Today, the Sierra Club Foundation gets grants and contributions from wealthy individuals to do various kinds of nonpolitical (neither lobbying nor electioneering) good work and simply contracts with the Sierra Club to do that actual work. While a 501(c)(4) organization cannot do direct electioneering in the form of supporting candidates for office, it can run “issue” campaigns that happen to target an elected official. A 501(c)(4) can also have affiliated political action committees to raise and spend money for and against candidates for office. It’s all about proper accounting of income and expenses to the IRS, the Federal Election Commission, and various secretaries of state in various states. The “soft” (tax-deductible to the giver) money can be used for good, but not the most good. “Hard” money can be used to throw the rascals out and elect good people who care about nature.

In 1976, Congress amended the Internal Revenue Code to allow 501(c)(3) organizations to “elect the 501(h) option.” By simply declaring, a 501(c)(3) can spend limited amounts of money on lobbying expenditures to influence legislation (but not elections). Most of the limited expenditures for lobbying are further limited to direct lobbying of legislative bodies. Only 5 percent of what is spent on lobbying can be spent on “grassroots lobbying,” or informing and activating the public. The actual expenditure limits are a complicated formula based on the annual expenditures of the 501(c)(3), with declining percentages based on increasing annual expenditures.

Defenders of Wildlife got upset with Rep. Richard Pombo's attacks on the Endangered Species Act, and most all other things holy, and successfully prevented his re-election. (Don't you think the above would work well as a battle flag?  Source: Defenders of Wildlife

Defenders of Wildlife got upset with Rep. Richard Pombo's attacks on the Endangered Species Act, and most all other things holy, and successfully prevented his re-election. (Don't you think the above would work well as a battle flag? Source: Defenders of Wildlife

Now THAT’S Defending Wildlife

Let’s look at an example of how a better organized conservation organization can influence political outcomes that have a direct bearing on environmental outcomes.

From 2003 through 2006, Representative Richard Pombo (R-11th-CA) chaired the House Natural Resources Committee. Pombo was an existential threat to all things public lands and wildlife and anything else within the committee’s jurisdiction. So egregious was the anti-environment stance of Pombo that the staid 501(c)(3) Defenders of Wildlife went into action and created the 501(c)(4) Defenders of Wildlife Action Fund and an affiliated political action committee with the first goal of taking out Richard Pombo. Pombo was far more conservative (and not just on environmental matters) than his congressional district.

In 2006, Pombo was defeated by Representative Jerry McNerney (D-9th-CA) by a margin of 53 percent to 47 percent. The previous 2004 match-up of the two had Pombo prevailing 61 percent to 39 percent. In any election, lots of factors affect the outcome, but the full-on engagement of Defenders of Wildlife (did I mention they are staid?) was critical—in fact, decisive.

Even though the spectacular Pombo takedown had a salutary effect on other members of Congress more anti-environment than their districts, Defenders of Wildlife put the Defenders of Wildlife Action Fund on ice for many years.

The Need for Public Lands Conservation Organizations to Take the Field

As we’ve been constantly reminded of late, elections matter. The 2018 midterm general election and the 2020 presidential general election soon after may be the most consequential elections this country has ever seen, certainly in terms of global warming, wildlife conservation, water quality, and public lands management—if not also democracy, freedom, liberty, the rule of law, and all those other things many generally hold dear.

The public lands conservation community may coincidentally benefit from an electoral backlash against the present administration and the majorities in the House of Representatives and the Senate, but unless we take our battles directly to the electoral battleground—unless we actually take the field—we will have wasted a precious opportunity.

Seizing that opportunity will require a rethinking of the way things are organized. For the most part, the public lands conservation community is fundamentally mis-organized to be effective on fields of legislative and electoral combat. Democracy, after all, is a contact sport. Most public lands conservation organizations (for example but certainly not limited to the National Audubon Society, the Wilderness Society, and the Nature Conservancy) operate only as single 501(c)(3) organizations, which severely limits their effectiveness.

While several large public lands conservation organizations (like Friends of the Earth and the National Wildlife Federation) have both 501(c)(3) and 501(c)(4) arms, in every case the 501(c)(3) is the mother ship where most of the money is raised and spent and, most important, where the members are kept. Most public lands conservation organizations that have affiliated 501(c)(4)s treat them as small appendages, perhaps used sparingly during some elections.

Most other advocacy organizations—including but not limited to the American Civil Liberties Union (ACLU), Pro Choice America (formerly known as NARAL), and the National Rifle Association (NRA)—have as their mother ship a 501(c)(4) with an affiliated 501(c)(3) organization and attendant political action committee(s) and such. In this way, they don’t place limits on the amounts of lobbying or electioneering they can do. They can directly and often tell their members who is worth voting for or against. They are limited only by the amounts of money they can raise. (While I don’t recommend that you contribute, it’s worth noting that the NRA has at least twenty-six distinct 501(c)(3) and 501(c)(4) arms and dedicated funds within them. Now that’s organization!)

Why are most conservation organizations mis-organized as 501(c)(3)-only or 501(c)(3)-dominant organizations? First, inertia, and then fear and loathing. Inertia in that change from the long-established status quo requires work and risk. Conservationists, as a class, are quite conservative when it comes to risk taking. Furthermore, most conservation leaders absolutely fear and loathe politics, be it legislative or electoral. They’d much rather participate in administrative processes with public comment opportunities and then—at least for the more aggressive among them—sue in court if it doesn’t come out right.

It’s time to recognize that it’s not enough for conservation organizations to outsource by default the political work of conservation to the few conservation organizations dedicated to electioneering. The national League of Conservation Voters (and state counterparts) is absolutely vital but is not sufficient. I would note that the League of Conservation Voters mother ship is a 501(c)(4), though they also have an affiliated 501(c)(3).

A Plea from a Recovering Executive Director to Current Executive Directors

In the mid-1990s, when I was executive director of what is now known as Oregon Wild, we created a companion 501(c)(4). It has served some useful purposes but suffers from organizational detachment (it’s just an add-on) and inadequate size. The 1996 launch was problematic in two ways. First, I had a poorly timed midlife crisis and left the job, so the driving force behind the diversification drove off. Second, before I left, I let our wonderfully competent but overly cautious director of finance persuade me to add the 501(c)(4) as a companion appendage to the existing 501(c)(3) rather than to renounce that self-crippling 501(c)(3) status and move to a non-lame 501(c)(4)—of course, after having created a new 501(c)(3) foundation to keep the foundation and big donor money coming in.

The fundamental problem is that the vast membership of thousands of dues-paying members stays with the 501(c)(3), which can lobby little and electioneer none. Good people who give as much as a few hundred bucks a year don’t care about a tax deduction—or if they do, they can give to the affiliated 501(c)(3).

The money raised for political action committees affiliated with the 501(c)(4) can come only from actual members of the 501(c)(4). The way most public lands conservation organizations are organized, all the members are in the 501(c)(3). Those in the 501(c)(4) are generally just staff members, board members, and large donors to the 501(c)(3) who have been convinced to join the 501(c)(4) so they can make non-tax-deductible political donations. It’s a highly inefficient system.

The bottom line is that a conservation organization should keep its members where their hearts, not their wallets, are. With well-established and diverse use of the federal tax code—all legal—there need not be a conflict between doing good work and paying for it.