The Ones Who Walk Away from the Moldovan Nonprofit Sector: Why pushing nonprofits to carry out partisan(party)-political activities?[EN]
The Ones Who Walk Away from the Moldovan Nonprofit Sector: Why pushing nonprofits to carry out partisan(party)-political activities?[RO]
The Ones Who Walk Away from the Moldovan Nonprofit Sector: Why pushing nonprofits to carry out partisan(party)-political activities?[RU]
Objective. This paper deconstructs the substance of the draft law with the repeated attempts to enact legislation that, inter alia, pushes for the partisan(party)-political activities to be carried out by the nonprofits. The respective provisions of the draft laws approved by the Government in 2018, fills in created void in understanding of the adverse consequences on the nonprofit sector.
The analysis is directed at the reader that is dedicated and wishes to form an educated and informed opinion about the nonprofit sector. Despite existing legal requirements, the proposed draft laws have not been subject of formal and standard ex-post analysis of the current legislation nor there have been authoritative evaluations to point at the regulatory and legal shortcomings and constraints to legitimize the overhaul of the existing laws. Therefore, critical review of the draft law is advisable at least at this stage.
The term political activities generically refer to a continuum of activities that include a spectrum of the activities. We clarify distinction between public-political activities that are allowed and partisan(party)-political activities that are not allowed. This approach reflects the existing practice in most jurisdictions and codifies international soft-law references.
Conclusions. The current law bans partisan(party)-political engagement of the nonprofit organizations and encourages the public-political activities conditioned on the use of some internal and external financial means. The application of the Fiscal Code and of the law on public association does not return restrictions in carrying out public-political activities, there is a status quo of the acceptance of these activities as a standard one. The public utility status requires a total ban in partisan(party)-political activities as well as ban to use any financial assets to this scope and a specific provision for that in the organization by-laws.
The draft law I is in direct contradiction with the provisions of the Fiscal Code that is not subject of proposed legislative changes. The draft law I allows and encourages partisan(party)-political support and the use of the all types of private internal and external money (exception of state money and tax-exempted donations) to achieve these goals. The public utility status is not compatible with the partisan(party)-political activity as well as the use of state subventions and tax-exempted donations.
A comparative analysis of the draft law I and draft law II shows that the later changed the former by narrowing partisan(party)-political engagement with the paid contracts only and by the provision of the services (could include anything) during and outside the electoral campaign. However, this narrowing down is not far from the substance of the direct support to political parties prescribed in the draft law I. The public utility status requires ban on partisan(party)-political activities as well as the use of state subventions and tax-exempted donations to this scope.
Public-political activities that are allowed to be carried out by nonprofits:
- Review, analysis, evaluation, public calls on the draft laws, policies, programs, etc,
- Information, education, debates for political parties, decision-makers, etc
- Information, education, debates for wider audiences, citizens,
- Media appearance on critical issues, policies, advocacy calls, joint statements,
- Lobbying activities, influencing directly legislation, building up support at the grass-root level for the law,
- Organization of assemblies, demonstrations, gatherings for and against draft law, government or political party policy,
- Organization of social events, celebrations, networking, honoring, or donations collection event.
Partisan(party)-political activities that are prohibited for nonprofits:
- Support of a political party, competitor via transfer of technology, knowledge,
- Direct endorsement or call for a vote for or against,
- Supplying, transferring, collecting financial means in behalf of political party.
The review shows that the international soft-law standards: CM/Rec, OSCE/ODIHR, Venice Commission, WANGO, and GRECO prove that in large all permitted activities fall under the public-political activities. At the same time principles adopted by WANGO nonprofit sector umbrella organization set at a compliance with the nonpolitical affiliation, integrity and evidence-based public actions, including change agenda.
Carrying out of the public-political activities are allowed with the funds from the financial sources of:
ü Tax non-exempted donations (physical, juridical non-exempted),
ü Service contracts (private),
ü Service contracts voluntary bases or unrestricted funds.
ü And are allowed to be carried in some specific conditions specified from the sources:
ü International private grant (restricted contract),
ü International public funds, grants (restricted contract),
ü Foreign states grant, service (registration, restricted by contract).
And are prohibited to be carried using the financial means from the following sources:
- State grants, subsidies, service (accreditation, public utility status, restricted),
- Tax exempted donation, 2% law type (public utility status, nonpolitical),
- Service contracts (political parties).
Nonprofits if engaged in partisan(party)-political activity, have to disclose fully and comply with the political party financing and election financing requirements to avoid circumvention of the rules on political party funding, vehicle for the money laundering or circumvention of the party funding. FATF-GAFI outlines possible vulnerabilities of the nonprofits in similar regard of the money laundering as the means for possible circumvention of party funding.
Both draft law provisions are not compatible with the WANGO standards of the partisan(party)-activity nonprofit sector that develop and cultivate the perception of the party determined ngo sector. Concerns regarding the proper accountability and use of financial resources emerge from the FATF recommendations and GRECO requirements for the transparency of the political financial means reporting. The draft laws provisions contain a number of activities that are clearly partisan(party)-political, that diffuse the difference between the sectors, merge the political culture and technology upon the nonprofit sector and effectively capture the nonprofit sector.
The paper recommends maintaining current regulation for the merits explained. The current legislation contains some deficiencies. Practical application of the legislation is not always consistent enough as reality shows cases with nonprofits extending its activities into the prohibited partisan(party)-political activities.
Despite these deficiencies, the proper way forward is to consolidate the nonprofit sector rather than to dilute or allow its capture by the political parties’ culture and practices. The draft laws push the change in the wrong direction, with unclear benefits and advantages for the sector. The draft law opens up hypothesis for speculation that the proposed draft attempt to draw nonprofit sector into means and vehicles of channeling financial resources with the political aim, circumventing the weak transparency and accountability in financial terms of the political parties and electoral candidates, and other possible speculations.
Follow-up actions. We believe the draft law has no added value for the nonprofit sector and the priorities for the regulatory provisions lie elsewhere, namely:
- Simplifying procedures for the registration of NGOs, including local by using informational technologies via the notification process,
- Consolidation of the nonprofit organization’s status as autonomous and politically independent entity with nonpartisan affiliation,
- Guaranteeing the rights of unregistered nonprofit organizations including their political activities,
- Guaranteeing the rights of the local organizations (registration, accreditation and access to public tenders),
- Strengthening procedural rights of the nonprofit representatives in the public collegial bodies,
- Continuation of the simplification of the financial and activity reporting, particularly for small organizations.
Methodology. The paper uses the analysis of the substantial provisions of the draft laws by comparing it to the current legal provisions of the specific law on public associations and the provisions of the Fiscal Code. It reviews existing practice in a number of country jurisdictions (USA, UK, France, Germany, Slovakia, etc) on the matter and looks into the relevant references produced by a number of the international bodies and organizations. Collected relevant legal provisions are being interpreted given their meaning and practice of the application in the last 20 years since the adoption of the current laws. We follow with the analysis of the systemized collected information via the standard comparative legal analysis as the method of the investigation to arrive at the conclusions.
Additionally, we develop a classification of the various type of the public-partisan(party)-political continuum of the activities that deconstruct and provide a vehicle for the understanding what a generic word “political activities” might mean. We consider that detailing and exposing the whole spectrum of the possible public-partisan(party)-political continuum of the activities is a much better approach used in some jurisdictions (US, Canada, UK, etc) to arrive to an educated and informed opinion about the draft law provisions. We also introduce a complimentary variable – type of income – to analysis its variable possible restrictions on the type of public-partisan(party)-political continuum of activities. The latter is the lesson learned by the author from extensive reviews of the secondary sources that point at this consideration without making the extensive relevant research.
We do not carry out an extensive ex-ante evaluation of the discussed provision of the draft laws, although recommended, given the short time available for the exercise. At the same time we have carried out a comprehensive legal comparative analysis of the current legal norms (Fiscal Code and Law on public associations) and the both draft laws and conclusions have been incorporate into this paper. Initial ex-ante scoping assessment returns substantial adverse effects on the state of the sector that does obviously more harm than delivers any meaningful good for the sector. The paper does not deal with on the evolution and the process involving this issue on the public agenda and actions to place it on the institutional agenda, influences and relevant actors to push the subject on the decision-making agenda as well as related speculations among and within certain circles of internal and external actors. This exercise falls outside of the scope of the paper, even though the actors, processes and motives have become apparent throughout that period of time.
The methodology does not involve the analysis of the big picture at the whole society level and is limited to identify the impacts to only nonprofit sector and does not look at the possible gains and benefits of other sectors, as for instance political parties or private sector. In practical terms some actors could be directly interested to make political gains at the expense of the nonprofit sector by using nonprofit organizations to aid and advance political parties’ interests – a hypothesis worthwhile to be systematically assessed.
Roadmap. This paper is structured into several chapters. Its starts (chapter 2) with the review of what it means political activities, deconstructing and opening up this term to elaborate on the analysis of the issue. In chapter 3 it continues to provide details of the existing legislation and the two attempts to change it in 2017 and 2018 with the corresponding interpretation of the laws and the respective comparative legal analysis. In chapter 4 we make a comprehensive account of the legislation and practice regarding the public-partisan-political activities in some selected jurisdictions that set the trend and review the international principles. In chapter 5 we recourse to the same explanation by type of income. In the final chapter 6 contains analysis and conclusions. As the paper is a short one, it includes all the references directly in the text.
 Comparative legal analysis of the current law (Fiscal Code and Law on public associations) and the draft laws, 70 pages, 2017, Romanian