The Volokh Conspiracy - Charity's Duty to Disclose Racist Distribution of Raised Funds:

I now have more details on the Missouri Attorney General's lawsuit against the racist post-Katrina fundraisers, which I earlier blogged about here. I've put up the complaint (see the previous link); here's the essence of the AG's argument:

Defendants . . . have engaged in methods, acts, uses and practices of deception, fraud, false pretenses, false promise, misrepresentation, unfair practice, and the concealment, suppression and omission of material facts in connection with the advertisement charitable solicitations, all in violation of [sec.] 407.020, [Rev. Stat. Missouri], for reasons including, but not limited to, the following:

a. The concealment, suppression, and omission of the material fact that Defendants are not properly registered as tax exempt entities and hold no tax exempt status.

b. The concealment, suppression, and omission of the material fact that consumers' donations made to Defendants are not tax deductible.

c. The concealment, suppression, and omission of the material fact that Defendants do not intend to utilize any of the moneys received through charitable solicitations for the benefit of non-white victims of Hurricane Katrina.

d. The concealment, suppression, and omission of the material fact that Defendants that the charitable donations will be used for hurricane relief for white victims only.

e. Engaging in the unfair practice of soliciting charitable donations which will be used for hurricane relief for white victims only.

A few questions: (1) Should objections (a) and (b) be treated as different, for legal purposes, from objections (c) and (d)?

(2) Charities often choose whom to give money to — sometimes they prefer poor people over rich people, people with children over people without children, women over men, blacks over whites, fellow Baptists over others, or whatever else; sometimes they do this categorically and sometimes they consider various attributes together with other factors. Are charities required to disclose all of these criteria, none of these criteria, or only some of these criteria — and, if the latter, which ones?

(3) In Riley v. National Federation of the Blind (1989), the Court struck down a requirement that fundraisers disclose in their pitches what fraction of the donations are used for fundraising expenses. Though the government argued that such a requirement was needed so that people wouldn't be misled into believing that most of their money was going to help the needy — when in reality 90% might end up being used up for expenses — the Court concluded that such a requirement was nonetheless unconstitutional. Given this, would it be constitutional to have a legal rule that requires disclosure of (a & b) non-tax-exempt status or (c & d) racial targeting of the aid?

(4) The Missouri AG seems to suggest that it's per se unfair — and thus forbidden by state law — to solicit charitable donations that will benefit only whites, regardless of whether the charity discloses this, see objection (e). Is that really dictated by state law? Is it constitutional? If it is, would it be constitutional for Missouri law to allow fundraising to help blacks or Hispanics or Jews (including secular Jews, to make this an ethnic criterion and not a religious one) and to forbid fundraising to help whites? (I'm not sure whether Missouri law does this, but I'm asking this question hypothetically.)

	[Eugene Volokh, September 13, 2005 at 7:36pm] Trackbacks Charity's Duty to Disclose Racist Distribution of Raised Funds: I now have more details on the Missouri Attorney General's lawsuit against the racist post-Katrina fundraisers, which I earlier blogged about here. I've put up the complaint (see the previous link); here's the essence of the AG's argument: Defendants . . . have engaged in methods, acts, uses and practices of deception, fraud, false pretenses, false promise, misrepresentation, unfair practice, and the concealment, suppression and omission of material facts in connection with the advertisement charitable solicitations, all in violation of [sec.] 407.020, [Rev. Stat. Missouri], for reasons including, but not limited to, the following: a. The concealment, suppression, and omission of the material fact that Defendants are not properly registered as tax exempt entities and hold no tax exempt status. b. The concealment, suppression, and omission of the material fact that consumers' donations made to Defendants are not tax deductible. c. The concealment, suppression, and omission of the material fact that Defendants do not intend to utilize any of the moneys received through charitable solicitations for the benefit of non-white victims of Hurricane Katrina. d. The concealment, suppression, and omission of the material fact that Defendants that the charitable donations will be used for hurricane relief for white victims only. e. Engaging in the unfair practice of soliciting charitable donations which will be used for hurricane relief for white victims only. A few questions: (1) Should objections (a) and (b) be treated as different, for legal purposes, from objections (c) and (d)? (2) Charities often choose whom to give money to — sometimes they prefer poor people over rich people, people with children over people without children, women over men, blacks over whites, fellow Baptists over others, or whatever else; sometimes they do this categorically and sometimes they consider various attributes together with other factors. Are charities required to disclose all of these criteria, none of these criteria, or only some of these criteria — and, if the latter, which ones? (3) In Riley v. National Federation of the Blind (1989), the Court struck down a requirement that fundraisers disclose in their pitches what fraction of the donations are used for fundraising expenses. Though the government argued that such a requirement was needed so that people wouldn't be misled into believing that most of their money was going to help the needy — when in reality 90% might end up being used up for expenses — the Court concluded that such a requirement was nonetheless unconstitutional. Given this, would it be constitutional to have a legal rule that requires disclosure of (a & b) non-tax-exempt status or (c & d) racial targeting of the aid? (4) The Missouri AG seems to suggest that it's per se unfair — and thus forbidden by state law — to solicit charitable donations that will benefit only whites, regardless of whether the charity discloses this, see objection (e). Is that really dictated by state law? Is it constitutional? If it is, would it be constitutional for Missouri law to allow fundraising to help blacks or Hispanics or Jews (including secular Jews, to make this an ethnic criterion and not a religious one) and to forbid fundraising to help whites? (I'm not sure whether Missouri law does this, but I'm asking this question hypothetically.)