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Executive Summary

Democratic and Constitutional Perspectives on Nonprofit Advocacy contains the complete text of five papers that were presented in seminars 9 and 10 of the seminar series, Nonprofit Advocacy and the Policy Process. The seminars examined the constitutional and theoretical frameworks that shape the law and practice of nonprofit advocacy in American democracy. Papers and discussion examined interpretations of the application of First Amendment rights of speech and association to groups and the grounds and the conditions under which the expressive roles of groups are constitutionally protected. Likewise, the series reviewed the relation between nonprofit taxation and first amendment rights and asked whether limitations imposed on the political speech of exempt organizations as a condition of exemption constitute unconstitutional burdens on fundamental rights. The final two seminars also explored how elements in democratic theory about pluralism, deliberation, factionalism, and popular dissent, for example, help us interpret the role of groups in a democratic system of government and frame historical and contemporary political debates about how we govern ourselves.

Summary of Chapters

Defining the Bounds of the Right of Association
Professor Evelyn Brody, professor of law at the Chicago-Kent College of School of Law and cohost of the seminar series, looks at the conflicts that emerge between individual rights, group rights, and government regulation. The paper explores the limited constitutional right of association in American society. Professor Brody explores the social and political role that citizens have in exercising vigilance over how associations form and operate, and reviews the fundamental constitutional norms that protect the rights of organizational autonomy in governance and functioning.

How the Constitution Shapes Civil Society's Contribution to Policymaking
Mark Tushnet, of the Georgetown University Law Center, examines the relation between the Constitution and civil society's institutions. The paper points out that civil society's institutions are creatures of law, including constitutional law, and so—on the most abstract level—cannot be understood of as operating entirely outside the domain of the state. Likewise, the paper examines contemporary U.S. constitutional doctrine, primarily the law of free speech, in relation to civil society's institutions, and argues that the constitutional protections given to those institutions' efforts to influence policymaking are less robust than might be expected, consisting primarily of a ban on discrimination against particular viewpoints.

The Theory and Practice of Free Association in a Pluralist Liberal Democracy
Professor William Galston, director of the Institute for Philosophy and Public Policy at the University of Maryland and an attorney, offers an account and defense of a particular conception of freedom of association. The paper begins by exploring the historical development of the idea of limits to public power within the U.S. constitutional tradition. It then turns to the resources that political theory can offer—in particular, value pluralism, political pluralism, and expressive liberty—to characterize and justify limits to public authority. Building on this foundation, the paper examines some contemporary controversies over the definition and application of the principle of free association. It concludes with a discussion of the distinction between the negative (protective) and affirmative (promotive) role of civil associations in the political process.

How to Profit from Nonprofits: Tocqueville on Associations
Delba Winthrop, of Harvard University, is coauthor of a recent translation of Tocqueville's Democracy in America. Although Tocqueville's Democracy in America has nothing to say about "nonprofit advocacy," nowhere is more said about "associations." Professor Winthrop's paper focuses on four issues: First, what does Tocqueville mean by "association" and what purposes does he think the activity of associating serves in a liberal democracy? Second, what makes the Americans he describes as adept at associating as they are? Third, what is distinctive about his view? And finally, what is the relevance of this view today? Whether his observations and recommendations are still useful depends on whether they can be adapted to our current situation, differences of historical development and of scale notwithstanding.

Nonprofit Organizations and Democratic Theory: Toward a Theory of Continuing Mediated Consent
Professor Frances R. Hill, professor of law at the University of Miami School of Law and co-host of the seminar series, uses the concept of consent to explore the hypothesis that groups facilitate effective citizenship and government accountability and legitimacy only if groups themselves are based on meaningful participation by their members. To explore the multiple dimensions and implications of consent, the paper examines three theories of consent developed in classic democratic theory. The work of Hobbes, Locke, and Rousseau treated consent as the only basis for legitimate government. Each, however, developed a different theory of consent and a different theory of the relationship of the people to government authority. Hobbes linked consent to representation but not participation. Locke linked consent to continuing participation through elected representatives. Rousseau turned to socialization of the people to rob consent of its disruptive potential. Neither Hobbes nor Locke nor Rousseau developed a theory of groups. This paper engages in a thought experiment that asks what each theorist might have said about the role of members in groups and how this might have related to a theory of the role of groups in relation to government. Based on this thought experiment, the paper explores the role of nonprofit advocacy organization through the concept of continuing mediated consent. It suggests that many nonprofit advocacy organizations are as distrustful of continuing consent linked to participation as was Rousseau and that they are closer to Hobbes's concept of representation without participation than to Locke's link between consent and participation.

Note: This report is available in its entirety in the Portable Document Format (PDF).

The nonpartisan Urban Institute publishes studies, reports, and books on timely topics worthy of public consideration. The views expressed are those of the authors and should not be attributed to the Urban Institute, its trustees, or its funders.

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