The Inadvertent Enemies of Non-Profits and the Inherent Problem with Constitutional Literalism : UPDATED

UPDATE: Clearly, this was a poorly written, poorly reasoned, and poorly delivered post. Many errors, not the least of which is that I clearly do not understand rent seeking. (I might have to do a TTMLIS post on it.)

Bottom line: When you toss out a stinker, it doesn’t really behoove anyone to keep digging you r hole deeper. So I’m retracting the post in its entirety, but leaving it (strike-throughed) for the amusement of all for countless generations to come.

Last week over in Vikram’s threads, I made an offhand comment that got pushback from various people. In small part because of that pushback and in larger part because of who those who pushed back were (they were libertarians), it’s been niggling in my brain this past week. And so I thought I’d address it — or more precisely, I thought I’d address some of the larger underlying issues to which that pushback points.

Stay with me here, because I’m going the long way round the bend to get to my point.

In Vikram’s post, I noted that it’s pretty common for nonprofits to be threatened with lawsuits that claim the government gives nonprofits an unfair competitive advantage. Sometimes, though not often, these threats are actually realized and lawsuits are actually filed. They never go anywhere, of course. They’re (almost) always filed by people who use pro se representation, usually because no ethical lawyer will take their case. They’re all dismissed pre-trial because they have zero legal standing, in the same way that the civil rights lawsuit suit against government officials for teaching evolution in biology classes by that guy in West Virginia is never going to see the inside of a courtroom.

Still, it shouldn’t really come as that much of a surprise to anyone that this is a thing — and it especially shouldn’t come as a surprise to conservatives and libertarians. After all, it’s conservative and libertarian talking points that fuel, ignite, and drive most of these nuisance threats.

The most obvious example of these talking points is nonprofit broadcasting organizations, which have been the focus of rallying cries by conservatives and libertarians since at least the early 1990s.^[1] But it doesn’t take much to find other examples. Over the past decade few decades organizations have come under fire by conservatives and libertarians alike for simply being nonprofit — even Goodwill:

Goodwill (which has non-profit status) engages in unfair competition by selling merchandise online that they were given for free.  Online selling is ideal for people who are disabled, elderly, home-bound, housewives, unemployed, or otherwise disadvantaged in the labor market, and Goodwill hurts these people by engaging in unfair competition.  Goodwill has the unfair advantage of being a non-profit, an advantage most competing sellers do not have, damaging the livelihoods of millions of people.  Goodwill causes untold suffering for small businesses and impoverished individuals trying to sell online.  Goodwill has a very corporate structure, and aggressively expands retail stores into as many communities as possible, putting other thrift stores out of business.

That was probably a bit of linky overkill in that last paragraph, but I was attempting to illustrate why I am a bit eye-roll-y when conservatives and libertarians act like this business of some conservatives and libertarians being against nonprofits on principle is something liberals made up to make them look bad. They really should know better. The anti-non-profit argument bubbles up from their camps all the time, and it’s been doing so since at least the 1980s. In fact, if you know someone who sits on your city council, ask them about it. People using public testimony time to complain about the unfair rent sharing nonprofits engage in happens all the time when the floor is opened, even when it has nothing to do with the actual agenda. Every town has at least one guy who does this every meeting. Seriously, if you know a council person ask them. They will know exactly what I’m talking about.

Because here’s the thing: If you rail against rent seeking, you rail as well against Goodwill, the St. Jude’s Research Hospital, your city’s blues festival, and every organization in your community that cares for people with developmental disabilities — because all non-profit and charitable organizations are by their very definition rent-seekers. To be fair, whenever I note this most conservatives and libertarians I know say, “Well, maybe on some technical level, but those aren’t the kind of organizations I mean when I say ‘rent seeking.’” And of course they aren’t, which is kind of the point I’m taking the long way round to making.

That point is this:

The reason I am not a Constitutional literalist — and the reason why I think most constitutional amendments I hear pitched would fail miserably at solving the problem their advocates purport they will solve — is that when we say X should be a right or X should be made illegal, we all take it to  mean different things. Sometimes the difference in our understanding is slight; other times it is downright massive. If we’re not feeling overly charitable, or if we’re simply not all that empathetic to begin with, we assume people who interpret words differently than we might do so for only the most nefarious of reasons. After all, the words are written down right there — surely one must twist those words to interpret them differently, yes?

But the truth is we all have different stories that go on in our heads. Not just about complex cultural and legal issues, but also about what words mean. And this is especially true of words like “freedom,” “subsidy,” and “regulation.” I’m tempted to say that it might have been easier for our framers, since the pluralism of the late eighteenth century was a far smaller box than it is today. But in fact they couldn’t always agree on what their own words meant right out of the gate.

Or to put it more simply, it’s not just that I don’t think that I’m a literalist, it’s that I don’t think anyone is. Or, more precisely, I don’t think anyone is except in the sense that the word “literalist” used here is an arbitrary descriptor of a selection of pre-determined social conservative political positions. Exactly what the words in the Constitution meant wasn’t even agreed upon by Adams and Jefferson. Their lot was the same as the rest of ours: to take the amazing, brilliant, and timeless framework they’d made and use it to think, wrestle, and debate over the issues of the day to make a more prefect society.

That we continue to do that today isn’t a bug, it’s  a feature.

[1] #NotAllConservaties, of course. In her fabulous book The Freshmen, Linda Killian documents that the call to defund nonprofit broadcasters was a huge rallying cry in the 1994 election that swept Contract-for-America conservatives into office — and the attempts to actually fulfill that promise made those that actually tried incredibly unpopular with their constituents back home. As it turned out, at least in 1995 public radio and television was a thing the majority of conservatives liked to rail against and consume.

[Picture: Charity, via wikipedia.]