When Virginia’s attorney general issued an opinion in January stating that the state’s constitution prohibited the appropriation of public funds to private charities, the non-profit sector was stunned. Within days the money stopped flowing to dozens of charities, many already cash-strapped. The political sector, including the governor (whose favored charities had been cut off), pointed fingers. Then began the study of the state’s constitution. The surprise to many, including me, was that the constitutional language did not require much interpretation. Its plain words banned any “appropriation to any charitable institution which is not owned or controlled” by the state. Other surprises were that Virginia isn’t alone on this issue and that such state bans are a very old idea. But in an era of billions of dollars in public monies being funneled to private charities, it is odd to learn that many states are constitutionally banned from the practice.
In 1914 a social work-oriented group published a survey of state constitutions on this very point. Out of 46 states responding to the survey, six had absolute bans on giving public funds to charities: Colorado, Illinois, Louisiana, Montana, Texas and Wyoming. Six others required a two-thirds vote of the legislature before funds could go to a charity: Alabama, Arkansas, Mississippi, Pennsylvania, Rhode Island and South Dakota. California, New York and Virginia had absolute bans but permitted some specific charities to receive funds. The remaining states had no form of such constitutional bans. There have been changes since 1914, but not many.
But what was so offensive about private charities that caused some states to literally write them out of their laws?
It wasn’t that the charities were offensive.It was the politics of giving to charities that was offensive, according to the 1914 survey report. State officials, it appears, used the comprehensive authority of their constitutions to insulate themselves from what they knew would be the unrelenting demands for help from private charities across their states. Total insulation was difficult to get as evidenced by states that required super majority votes for a charity’s appropriation. One gets the feeling they would have preferred a total ban, but the political forces were too strong to overcome. The political dynamics of a constitutional provision to support only specified private charities—the Soldiers’ Home in Massachusetts, for example—must have been fascinating during the constitution-drafting process. Why soldiers and not, say, sailors?
Another theme running through the survey report was the “generally conceded rule of state policy that the state shall first care for those … for whom it is best able to care … the insane, the inebriate, the vagrant, and … the feebleminded.” Funds given to private charities would take away from the state-managed agencies aimed at these populations. The solution was to use the constitution to keep a legislature’s focus on its “natural” obligations as opposed to those promoted by private charities. This approach kept a distinction between state and private philanthropy and helped a state maintain a “constructive policy for the prevention of dependency.”
The survey report did not suggest why many state constitutions were completely silent on appropriating funds to private charities. Its focus seemed to be on the role of social workers as guides for states toward a policy that “insists that state money support state wards,” particularly as about a dozen states would be holding constitutional conventions in the years following the report.
Regardless of how the states acted then, all states now manage to spend public money on private charity. If their constitutions say the legislature can’t do it, they figure out how to do it indirectly through state agencies, as Virginia has.
Bruce D. Collins is corporate vice president and general counsel of C-SPAN, based in Washington, D.C. E-mail him at email@example.com.