Faith-based initiative raises concern about FOIA

Tuesday, July 17, 2001

At nearly every step of debate over President Bush’s faith-based initiative, issues involving church-state separation have stood front and center, a position unlikely to change as a key charitable-choice measure comes up for vote this week on the House floor.

But some worry the initiative also could make recipients of such funding — in particular churches and private foundations — subject to state and federal freedom-of-information laws.

“Whenever the government allows feeding from the public trough, the government will want to regulate finances and see how the money is spent,” said Steve Benen, spokesman for Americans United for Separation of Church and State, a leading opponent of Bush’s faith-based initiative. “It always has, it always will.”

Groups like Americans United fear that recipients of grant money from faith-based initiatives might suddenly find themselves required to release financial records and membership lists because of requests through freedom-of-information laws.

But supporters of such faith-based initiatives as H.R. 7, the Community Solutions Act, say opposition on free-association grounds is merely another smokescreen to diminish the benefits of such legislation. The House plans to debate and possibly vote on the Community Solutions Act, the main legislative proposal for Bush’s faith-based initiative, tomorrow.

For Bush, faith-based initiatives offer more opportunities for religious groups and services to win federal grant money. Although the government has bolstered religious-oriented groups with federal program dollars in the past, Bush proposes expanding charitable choice by opening several other federal grant programs to religious groups.

Under current law, churches are exempt from laws barring discrimination in hiring. In order to compete for federal grants, however, religious groups must form separate organizations that do not promote religion or discriminate in hiring. So while a church might restrict hiring for its office staff, it would not be allowed to do so if it operated a government-funded program.

But under the Community Solutions Act, religious groups would be exempt from hiring-discrimination laws, even when the groups accept government funding for their secular programs.

Critics of Bush’s proposal argue that it would break down the wall separating church and state. Several civil-liberty groups warn that funding religious organizations with government dollars would lead to a rash of First Amendment litigation.

The Bush administration contends the plan clarifies current laws governing charitable choice by explaining that government entities cannot exclude organizations from the grant process solely because of their faith-based character.

The American Civil Liberties Union has been among the most ardent opponents of Bush’s initiative, saying the new proposal would permit religious groups to discriminate in hiring and in delivering services.

But ACLU officials aren’t sure if the new proposals, if approved, would subject the religious groups and private foundations to FOIA. Terri Schroeder, an ACLU lobbyist, said it’s not clear if the new legislation creates accountability obligations that aren’t already applicable under current law.

“What’s the trigger in the new legislation?” she asked.

But she does worry that such laws might stifle the ability or willingness of churches and other groups to organize protests because potential federal grant money might hang in the balance.

“I imagine there would be a lot of pressure to limit potential acts of organizing protests,” Schroeder said in a telephone interview.

Harry Hammitt, publisher of Access Reports, a leading newsletter on open-government issues, said he doesn’t think the proposals would automatically force new federal grant recipients to comply with FOIA.

“The law is pretty clear, at least on the federal level, that the funds don’t create enough of a link between the government and [the groups receiving them] to create a situation subject to FOIA,” Hammitt said in a telephone interview.

But that doesn’t mean similar groups haven’t faced such legal action in the past. Hammitt said he knows of a few cases in federal court.

“But these never go any place,” he said.

As for accounting, Hammitt said that many of the groups, particularly most nonprofit ones, comply with federal disclosure requirements through their tax obligations and tax records filed with the Internal Revenue Service.

Even if the groups aren’t subject to FOIA, Benen of Americans United said, they should be required to comply since they will be spending public money. And that, he said, is one reason why they shouldn’t accept government money.

“Religious groups do fine work with no strings or mandates attached,” Benen said in a telephone interview. “Faith-based initiatives are a raw deal all around.”

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