Are NGO & civil society regulations the development version of 20th century copyright laws?

In a comment a while ago I compared traditional, large development organizations to the music industry, suggesting that they risk of becoming the equivalent of CDs in the digital age if they do not embrace digital innovations.

But current developments in Canada, the UK, the USA and elsewhere suggest that something more serious is happening and that governments seem to rely on outdated, 20th century rules, legislation and understandings of ‘civil society’ that can have a serious impact on global development organizations and their capacities to embrace innovation and new global challenges.

In Canada, a group of NGOs and Think Tanks recently wrote an open letter to the government:

The "public good" letter was initiated by Environmental Defence executive director Tim Gray. It asks all political parties to sign on to "new legal and policy direction that enhances and protects the ability of registered charities to participate in public policy debates," without fearing government retaliation.
"I think this is a way to put all the parties on notice that it’s time to make some changes," said Canadian Centre for Policy Alternatives executive director Bruce Campbell.

Even though critical domestic environmental organizations have been the primary target, the repercussions are felt in the development sector as well as an opposition politician outlined last year:

(Minister Paradis’) message does not reconcile with the Harper government's methodical actions to silence progressive civil society organizations with a disturbing combination of funding cuts, reputation assassination and appropriation of government agencies for their intimidation scheme. The International cooperation sector provides an illustrative case in point. Thanks to the Conservative government's denial of funding requests, dozens of Canadian NGOs working in international development have been forced to shutter their doors and lay off staff.

And many of us remember last year’s debate around Oxfam UK’s ‘Perfect Storm’ campaign criticizing British austerity measures. Not surprisingly the Conservatives did not like the campaign at all:

Most of us operated under the illusion that Oxfam's focus was on the relief of poverty and famine overseas. I cannot see how using funds donated to charity to campaign politically can be in accord with Oxfam's charitable status.
"For that reason I have asked the Chairman of the Charity Commission to investigate Oxfam as a matter of urgency."

And Reform’s latest tweet indicates that outdated charity regulations have the potential to silence development and other political commentary during the UK’s election campaign - as if Thinks Tanks and NGOs would pose a ‘threat’ to free and fair elections!

In accordance with charity regulations, Reform will return to the public debate after the General Election on 7 May.
— Reform (@reformthinktank) April 2, 2015

Meanwhile in France, Bertrand Brequeville describes the challenges of French (humanitarian) NGO governance and administration in a new IRIS working paper:

The annual General Assembly of a French humanitarian association is purely a statutory meeting, it too, institutionalized, formal, smooth running, set like clockwork, during which the votes on the year’s activities and financial statements are mere formalities, and where its members, being unfamiliar with the issues, elect candidates—with luck, there are more than one—whom they believe or have been led to believe are the best qualified. Administrators of large so‐called humanitarian NGOs are actually elected aristocrats, and the appeal to some people of becoming, say, president of their NGO, only adds more credence to this. The members’ lack of knowledge on current issues, aside from their level of commitment and thus the level of interest that naturally differs among them, is actually planned and expected. What I mean is that humanitarian organizations devote too few resources to educating their members and to providing them with updated information. After all, why should money be spent to educate and inform people whose political impotence is carved in stone in the statutes and/or regulations?

Meanwhile in the USA a debate just started whether new IRS rules could gut think tanks and the Rockefeller foundation, a well-known player in international development as well, comments on new proposed legislation:

The Rockefeller Brothers Fund, an international philanthropic organization that gives to a variety of nonprofits, including think tanks, said that while it supports the intent, the rule “does little to address the corrupting influence of money in politics.”
It is concerned about the scope of what would constitute political activity and “the impact the proposed rule could have on groups such as our grantees, and more generally, on democratic practice in the United States.”
(…)
So how could the rules change the way think tanks behave?
Significantly, it could prohibit them from mentioning candidates on their websites or other public forums during election seasons. It’s not hard to imagine how this would make it difficult to publish papers seeking to influence public policy and discourse.

And finally, in recent discussions with Danish colleagues I learned that a new proposed volunteering scheme in Denmark may be supported by large NGOs partially because NGO funding allocations are linked to actual membership figures of NGOs to ensure that they are ‘rooted’ in society. The volunteering program could be an excellent recruiting tool for new, young, long-term members for the small group of large NGOs regardless of its actual benefit for partner organization in the global South.

These are just a few examples of current governance challenges-all of which could have or already have an impact on development charities, NGOs and thinks tanks.

One key commonality is that these regulations interpret charity and ‘political work’ in the most traditional, conservative and often party-political Conservative way-which is dangerous for the development sector.

Traditional rules and regulations can undermine the development sector’s legitimacy & innovative capacity
What these debate highlight is an inherent challenge for many NGOs – they are increasingly criticized for working abroad when issues around poverty and inequality are very much a reality ‘at home’ as well (Why are so many people using food banks? asks the New Statesman in an important long-read) - or they are reduced to old-fashioned development models around ‘famine relief’ and transferring donations from the ‘North’ to the ‘South’.
It is important to recognize that this is not simply the inability of such organizations to embrace change and the modern age, but to some extent owned to outdated rules and regulations that can have severe financial repercussions if violated.
There needs to be more flexibility to ensure that laws and regulations reflect the realities of the development sector and encourage innovation into what charities can do and how to engage with society, but conservative elements are obviously quite happy to stick to old regulations if they suit their political agenda.

Resisting the 21st, digital century one tax law at the time
Everybody knows the story of how Al Capone was in the end brought down by tax charges and we tend to underestimate the power of broader governance frameworks that were conceived many decades ago.
Every time you struggle to get legal access to the latest season of Game of Thrones you are reminded that regulatory authorities, large companies and lobbyists are resisting digital change. It is 2015 and media companies are still getting away with a lot-so I would not expect any swift changes. The development sector is small, its critical political relevance only evident to a minority of citizens and most organizations pretty much have a niche existence. There is also no powerful, lawyer-fueled lobby in sight that can put pressure on Washington, Brussels or national policy makers. Right now, I am not optimistic about charity governance leapfrogging into the 21st century.

‘Development’ as a global, critical solidarity movement
The reason why development think tanks and organizations have been scrutinized through tax audits actually speaks to their quality as ‘non-governmental’ voices that are pointing out global and domestic inequalities, poverty, the darker side of neoliberal politics and development policies and practices that are market- and business-driven. It is no surprise that Australia, Canada and Denmark ‘integrated’ their development agencies into foreign and trade policy departments. When big business and big politics rub shoulders the need for critical commentary from civil society is more important than ever.
Similar to the copyright debate, outdated NGO regulations do not benefit the organizations or the public at large, but serve as legal and political sticks to ensure that the large companies of the music industry enjoy revenues and the conservative political establishment enjoys unchallenged power-especially when it involves unsustainable development initiatives at home or abroad.

These intimidation tactics need to be pointed out and criticized as we demand the transition into the 21st century and truly global solidarity movements that can invigorate a development vision for our digital times!