Saturday, June 12, 2010

Challenges to Transparency and Accountability, Part 3


For the last 30 years I have been considering these questions: Do we need NPO accountability, and if so, is it achievable? It all seems so simple, doesn’t it, because everyone thinks we need accountability? So, the first challenge is simply the challenge of language and definition. And, specifically what accountability is all about.

Part of my interest has just been in language. We have become careless about language. Language is the means whereby our rationality and relationality are enabled simultaneously. These are the attributes that distinguish us as human persons from other forms of animal life. Language is the means by which we know and name things and we know ourselves and each other by sharing what we know.

German philosopher, Josef Peeper observed that words first convey reality, that something is real, and then, secondly, identify it for someone else which denotes the interpersonal nature of human speech. Since language sustains our engagement with reality and with one another, when words become corrupted, human existence itself will not remain unaffected.

In the sphere of politics, inattentive speaking and listening can have grave consequences. Jargon and cliché, according to author George Orwell, are deadly enemies of healthy political life, and I would add, of the civil society movement. As he pointed out, in 1940s Europe, political language was characterized by “euphemism, question-begging, and sheer cloudy vagueness.” Orwell sensed a mechanistic quality to hackneyed language. But, we hear the same thing today, as government leaders talk endlessly of open government, of transparency of, and accountability by government agencies and institutions, and corporations, and charitable organizations.

And yet as reported in The International Journal of Not-for-Profit Law article on The Power Shift and the NGO Credibility Crisis:

In an increasingly interdependent and information-rich world, governments, policy makers, and citizens face the common problem of bringing expert knowledge to bear on decision making. Policy makers need basic information about the societies they govern – about how current policies are working, possible alternatives, and their likely costs and consequences. Citizens increasingly demand the same, and NGOs have grown to be an integral part of the response to this increased demand for information.
Both policy makers and the general public, however, are often besieged by more information than they can possible use. The problem is that this information can be unsystematic, unreliable, and/or tainted by the interests of those who are disseminating it.
Even when providing reliable information, however, NGOs are hardly neutral on issues of policy formation. Due to their varied nature, NGOs often play the interesting dual role of providing information and acting as an agent of political pressure on the government, leading to potential conflicts of interest. Transparency and the disclosure of interests and funding sources here are critically important, but there are often few mechanisms to ensure compliance, especially on an international scale.

I sense that the vague use of language with its use of euphemism, jargon, cliché, question-begging, is the case in areas outside of politics, especially when we deal with the NPO and NGO sector. We are unclear just what we mean by our more common euphemisms and cloudy vague terms. When one listens to someone on a platform mechanically repeating a series of hackneyed and vague terms, one may wonder, whether the speaker really knows what he or she is talking about. We keep hearing terms like: “we need charities to be accountable,” “we need to have more monitoring of charities,” without really understanding what we mean by “accountability,” and what we really mean by monitoring, and by whom. Or “we need to give wisely,” “we need to watch our fundraising and administration cost ratios to make sure that they don’t exceed 25 percent." “We need better attention by our watchdog agencies to make sure our NPOs are transparent.” “We need integrity in the public benefit and civil society sector.”

So, it goes. And, all of this is in the midst of the overload of information that can be unsystematic, unreliable, and tainted by the interests of those disseminating it. Can much of this communication be any farther from reality? When words are robbed of any meaning, the possibility of trust between those involved in the communication is lost.

It is interesting that two of the most searched words or phrases on Google are “transparency” and “accountability” either alone or in combination with each other. A recent search on Google of the word, “transparency,” resulted in approximately 24 million hits, and the search for the word, “accountability,” resulted in approximately 27 million hits.

And then comes along some crisis, such as, a massive tsunami in South Central Asia, devastating earthquakes, such as in Pakistan, or China, or Haiti, or Chile, or the eruption of a volcano in Iceland that disrupts international air travel, with the attendant hardships surrounding that event. We solicit donations to alleviate the impact of these disasters, and as Westerners, feel good about what we think we are doing by our giving. Whether or not we give lip service to transparency or accountability, the fact is that we seldom require it when we give to telethons sponsored by celebrities, or as a result of the appeals the that come from the performance of movie and television stars with background pictures from the affected areas. We give by text messages in response to appeals we hear on the radio or television, by online donations to Internet portals when we see an appeal on television or the Internet during web surfing, or on the telephone in response to a telephone solicitation without any thought of what kind of due diligence we might conduct to determine whether our donations are going to a legitimate charity, and will really be used effectively for the cause for which they were solicited and for which we gave.

One could be forgiven for thinking he or she is not watching or hearing a live human being, but some dummy wound up to spit out the familiar phrases. Orwell argued in an essay that many of the words central in a speech have lost their meanings and were, indeed, devoid of any agreed upon meaning.

He picked up this theme in his novel, 1984, when he argued the central importance of language to human thought because it structures and limits the ideas that individuals are capable of formulating and expressing. If control of language is centralized in a political agency, Orwell argued that this could alter the very structure of language to make it impossible to even conceive of disobedience or rebellious thoughts because there would be no words with which to think them. Could this adversely affect the existence and role of CSOs in society, and whether or not we should give our money or volunteer our time to them, or how we should relate to CSOs?

I think the word “accountability” may be one of the words that has become, or is becoming devoid of any meaning. So, for example, “accountability” may have no agreed upon meaning and may simply signify something desirable. Words, such as, “justice” “equality,” “equal opportunity,” “fairness,” may have several meaning, often in conflict with each other and come to mind, but they all sound like characteristics to be desired. The question is why that is the case if there are no moral standards by which the concepts have meaning and application.

For example, in the case of “accountability,” there may not be an agreed upon definition, but there is also a resistance to an attempt to have one. An NPO which we say is accountable, is one to be praised, even though we don’t know by which standards it is to be praised, or indeed, if “accountability” is even a moral virtue.

The second challenge is that of postmodernity. What I am addressing here is the consequences or effect of postmodernity. Postmodernity is a post-traditional order, but not one which replaces the sureties of tradition and habit with the certitude of rational thought and knowledge as suggested by the Enlightenment. Rather, doubt is a pervasive feature of modern critical reason, permeating into everyday life as well as consciousness and forming a general existential dimension of contemporary social order.

To be more specific, postmodernity institutionalizes the principle of radical doubt and skepticism, and insists that all knowledge take the form of hypotheses. Claims, which may be true, are always open to revision and may have to be abandoned at some point. Relationships exist solely for whatever rewards that relationship can deliver. Trust can no longer be anchored in criteria outside the relationship itself, such as criteria of kinship, social duty, or traditional obligation.

How does “accountability” work in the context of radical doubt and tentative hypotheses that can be revised or abandoned at any time? Science, technology, and expertise more generally play fundamental roles in what has been called the sequestration of experience. Systems of accumulated expertise represent multiple sources of authority, frequently internally inconsistent and divergent in their implications. In the information age with instant availability of data and the explosion of knowledge, there is a belief that harnessing the knowledge explosion offers the key to instant, total information. The goal is to know everything in order to predict everything, in order to control everything. But, is that even possible with our limited knowledge and in an existential age of skepticism?

With all of this, there is a growing importance of a “new thinking class,” where everything is segmented and sequestered to a variety of experts who tell us how to run everything, including our nonprofit organizations. Again, how does an organization become accountable to anyone, including the State or an independent monitoring agency, when so much of what is done by that NPO is done by experts plotting mission strategy, communication strategy, fundraising techniques, accounting practices, and reporting policies, financial information, and effectiveness impact on a utilitarian and pragmatic basis, when they may not be communicating with each other or with management or the Board about anything other than information, or analysis of information, from their respective areas of expertise? We basically live and operate in a cultural setting that sets the rules and magnifies the role of administration and management by the experts, sequestered from each other, rather than principled leadership.

Where there is no truth, except the statement that there is no truth, and where ideas of an individual may be in flux, interesting, creative, and important for that individual, they can no longer be rejected on the basis of some exclusive truth. How does accountability square with any sense of reality?

What we have here is the existentialism of Søren Kierkegaard, Frederich Nietzsche, and Jean-Paul Sartre, born largely out of the failure of the Enlightenment experience.

There are two trends in postmodernity. The first is privatization, which produces a cleavage between private and public spheres of life, and focuses on the private sphere as a special area for expression of individual freedom and fulfillment. Its benefits include opportunity for individual freedom, to acquire more things, and to travel more, free from the constraints of community, tradition, and geographically based rules. However, privatization is also limiting. For example, concepts of ethics and morality are confined to private, personal preference, and private association, but have no binding affect beyond that. Under these conditions, how can a regime for accountability based on Standards of Accountability be binding on NPOs, NGOs, or CSOs whether or not they subscribe to such a regime of accountability and monitoring?

The second trend is pluralization, that is, the process whereby the number of options in the private sphere multiplies at all levels, especially with regard to worldviews and matters of ethics and morality. This is beneficial because of the richness of life and life experiences, and the openness it offers to different traditions and life experiences. But, because of the increases in choices and change, there is almost an automatic decrease in commitment, continuity, and conviction in relationships, ideas, worldviews, and morality and ethics. With the all the alternatives offered by this pluralization, especially as we discover what goes on in the rest of the world, and over the course of human history, there is a loss of certainty about what is right and wrong, why we should be transparent and accountable, and the focus is placed on what works and what we can do to get away with a particular course of action. Can there be true transparency and real accountability when commitment, continuity, and conviction in relationships, ideas, worldviews, and morality are missing?

How do we define and encourage accountability when concepts of morality and ethics are confined to the private domain of personal preference and opinion, and when decisions and conduct occur far away from the central management authority and the community in which the leadership, including management and board is known? This is especially problematic in the case of the large and major INGOs, and the level of moral control that the headquarters have over the various subsidiaries and affiliates. Moreover, how can accountability be regarded as a virtue, or something good, if there is an absence of agreement on what principles of morality and ethics apply to the sector in every situation, every time, and every place? In other words, why should we even care about accountability?

A third challenge to understanding the idea and consequences of accountability is what I would call the challenge of the appearance of impropriety. Over the last 20 to 30 years, society has been engaged in a far-reaching effort to increase public confidence in institutions through the use of ethical rules. We have rules dealing with legal ethics, judicial ethics, medical ethics, business ethics, and ethics for almost every possible conceivable profession or vocation.

Although many of these kinds of rules and principles have been around for a long time, what is unique in the last 20 to 30 years, has been the fact that these rules stress appearances and procedures, rather than matters of substantive morality and ethics. The main effects derived from this outburst of ethics have been the proliferation of bureaucracies to enforce them, journalists to report on the apparent failure to comply with some principle of ethics, ethics consultants to advise organizations how to comply or circumvent rules imposed externally to the organization, and political operatives focusing on what is now the cottage industry of appearances of impropriety. To an unprecedented degree, ethics legislation and rules focused on appearances – both on the appearance of proper or improper conduct on the part of public officials, professionals, and executives, and on the appearance of enforcement by authorities.

How does accountability thrive in the context where the true facts of ethical or unethical conduct are hidden, but the story relating to ethical conduct can be manipulated by good public relations experts? What we have here is accountability by spin where reality may be hidden and what is disclosed can give a false impression of the true facts.

After all, both as a human being disclosing an account of one’s actions or failure to act, and as human beings receiving that information, subject to all the human frailties in human communication, we will never really understand perfectly just what the true facts are or were with respect to decisions made and the conduct which implements those decisions.

The fourth challenge is the assumption that accountability represents some moral virtue. In this respect, my argument is this: contrary to public understanding, including that within the third sector, “accountability is not a moral virtue.” Rather, it is simply the language used by certain “experts” to describe and evaluate the process of whether money was treated in accordance with certain specified rules.

Thus, if the government prescribes rules of accounting, governance, fundraising, or some operational practices, accountability may require the NPO to report, explain, or justify its actions as being in compliance with those rules to the government and to the public if the government prescribes laws that require such public disclosure.

The challenge is this: if the ultimate goal is ethical conduct in the raising of funds, the management of those funds for the public benefit purposes that define the particular NPO, the conduct of operations consistent with accepted norms of morality, and ethical and responsible governance, i.e., stewardship, then accountability does not define the moral virtue. Rather it merely reports what is minimally required to be disclosed by law, regulations, or some “Ethical Standards of Accountability” promulgated by some monitoring agency.

It would seem, therefore, that the concept of true “accountability” cannot exist alone and without some external reference or moral principle other than simply responding to minimal disclosure requirements. Moreover, if there is to be true accountability, then the individual or the organization must be “transparent.” That is, there must be open, frank, honest, and candid communication, so that what is behind the scene, whether agenda, decisionmaking, financial integrity, or responsible governance, can be recognized and detected by those outside the immediate organization. How this is done may be based on how an organization takes the initiative in the publication of its solicitation for funds or reports on its activities on the one hand, or responds to external inquiries on the other.

The fifth challenge is the challenge of understanding the nature and role of government with regard to civil society and accountability, and threats to accountability. One might think that the only threat to “accountability” is the assertion of freedom, the protection of trade or business secrets, or of the importance of success, whether it be in fundraising or beating out the competition in achieving favorable notice in the press, or maybe even on some public benefit basis, such as reducing poverty, alleviating homelessness and hunger, conquering cancer or heart disease, or reducing the incidence of HIV/AIDS.

Were we to look back to Plato and Aristotle for thinking in the political arena, and political philosophers up to the recent past, we would find that they were unanimous in assuming that the quality of government and governance was related to the virtues, manners, and mores of the governing officials and of the people governed. In other words, it was dependent upon citizens who governed their passions.

Consider the warnings of Alexis de Tocqueville as he considered his native France as a growing and centralized state, coddling an increasingly individualistic and undisciplined populous with more emphasis on pleasure and equality than virtue.

I see an enumerable multitude of men, alike and equal, who turn about without repose, in order to procure for themselves, petty and vulgar pleasures with which they fill their souls. Each of them when drawn apart is a virtual stranger, unaware of the fate of others. His children and his particular friends form the entirety of the human race.

As for his fellow citizens, he is beside them, but he sees them not. He touches them and senses them not. He exists only in himself and for himself alone. And if he has a family, one could say at least that he no longer has a fatherland.

Over these is elevated an immense tutelary power which takes sole charge of assuring their enjoyment and of watching over their fate. It is absolute, attentive to detail, regular, provident, and gentle. It would resemble the paternal power if like that that power it had as its object, to prepare men for manhood. But it seeks to the contrary, to keep them irrevocably fixed in childhood. It loves the fact that the citizens enjoy themselves, provided that they dream solely of their own enjoyment and happiness, but it wishes to be their only agent and sole arbiter of that happiness. It provides for their security, foresees and supplies their needs, guides them in the principal affairs, directs their industry, divides their inheritances. Can it not relieve them entirely of the trouble of thinking and of the effort associated with living?

In this fashion, every day it renders the employment of free will less useful and more rare. It confines the action of the will within a smaller space and bit by bit, it steals from each citizen the use of that which is his own. Equality has prepared men for all of these things.

After having taken each individual in this fashion by turns, into its powerful hands, and have having kneaded him in accord with his desires, the sovereign extends its arms about society as a whole. It covers its surface with a network of petty regulations – complicated, minute, and uniform – through which even the most original minds and the most vigorous souls know not how to make their way past the crowd and emerge into the light of day. It does not break wills; it softens them, bends them and directs them. Rarely does it force one to act, but it constantly opposes itself to one’s acting on one’s own. It does not destroy, it prevents things from being born, it extinguishes, it stupefies and finally, it will reduce each nation to nothing more than a herd of timid, industrious animals of which the government is the shepherd.”

Some of these very themes were picked up by George Orwell in his novel, 1984. Although the events predicted in 1949 to occur in 1984 did not occur as broadly as described by 1984, the novel remains an important treatise, in part, because it sounds the alarm against the abusive nature of authoritarian governments, but also because it is a penetrating analysis of the psychology of power and the ways that manipulation of language and history can be used as mechanisms of control.

Orwell portrays a state in which government monitors and controls every aspect of human life, even to the extent that a disloyal thought is against the law. The government controls every source of information, managing and rewriting the content of newspapers and television and radio programs and histories for its own ends. Memories become fuzzy and unreliable, and citizens, and by extension, NPOs, become perfectly willing to believe what the government says and requires of them.

By means of technology, the government is able to monitor members and organizations to exert large-scale control over the economic life of the country. Remember, 1984 was written before computers were invented and widely used. Throughout the novel, we are presented with a place in which there is no darkness. Existence is merely a prison cell in which the light is never turned off, symbolizing the main character’s approach to the future and extreme fatalism in which no matter what he does, he is faced with trusting the government for everything. This level of intrusive accountability forced on the citizen deprives the citizen of any moral character or act of will.

This extended quote of Tocqueville, and discussion of Orwell’s novel, 1984, point to an interesting transition in my thinking about civil society and of accountability as it affects the civil society movement. My first concern and interest is the question of roles of government in addressing the public benefit interests of a society and of the civil society concept in addressing the same or similar public benefit issues. Consider Tocqueville’s description of the effects of government provisions for all human needs of a society versus how NPOs address human needs and the nature of its effect on human will and activity.

While this first concern is beyond the scope of this essay, there are a few things that should be said. The definitions of “third sector,” “civil society,” “public benefit,” “charity,” and “voluntary associations” tend to be rather broad and vague. Moreover, it is impossible to have a conversation about politics and public policy today, especially in a international context, without talking about civil society and the role of CSOs or NGOs, and the roles of government, the commercial sector, and the third sector.

Probably the most commonly understood idea today is that civil society represents the emergence of non-governmental organizations that are regarded as a third sector apart from government and commerce, or the commercial, business sector. In other words, the public sphere set apart from the State and the market. What Tocqueville was suggesting in the extended quote was that the civil society sector could be in danger and the role of government could grow in its influence, power, and control of so much of society, so that all freedoms, acts of will and charity could be snuffed out.

My second concern is closely related to my first concern, that in the context of accountability, governments could set the terms of accountability by the regulation of the sector in lines with what I described earlier. What I am thinking of here is redefinition of public benefit according to some perceived public policy, frequent and periodic applications for reviews of the tax-exempt status of an organization, establishment of standards for government reviews of organizational functions, operations, and documents describing the decisionmaking process and decisions, demands for increased data in informational tax returns, penalties for failure to file timely returns or minor clerical errors in the returns, detailed policies regarding the make-up and governance practices of the governing board, and delegations of enforcement practices to other authorities, to include increase in exposure to civil and criminal litigation.

Indeed, as reported in Global Trends in NGO Law (March 2009), of the International Center for Not-for-Profit Law:

In recent years civil society organizations around the world have had to confront new and serious threats to their survival as a backlash against the spread of democracy has intensified and grown. Many observers have reported on this phenomenon, one that is “characterized by a profound shift from outright repression of democracy, human rights, and civil society activists and groups to more subtle government efforts to restrict the space in which civil society organizations . . . operate.”

NGO framework laws – that is, laws that attempt to address all of the issues that arise over the “lifecycle” of a non-governmental organization – have been considered, adopted, or amended in at least a dozen countries in the last two years, including Bahrain, Cambodia, China, Ecuador, Egypt, Jordan, Kosovo, Rwanda, Sierra Leone, Sri Lanka, Tajikistan, Uganda, and Yemen. NGO framework laws can be an important contributor to the development and sustainability of civil society by providing legal protections for NGOs and their volunteers and employees. However, framework laws can also be misused (as in the case of the Ethiopian Proclamation) to reinforce the backlash against civil society.

Despite the increasing attention paid to the backlash against civil society and democracy, many governments continue to use the legislative tools at their disposal to control and restrict NGOs. A number of laws considered or enacted in the past two years have raised serious questions as to their compliance with international norms governing the right to free association as well as the practical obstacles that they raise to NGO operations. Among other issues, some of these laws imposed restrictions on the ability of NGOs to form and become legal entities, and carry out activities without undue government interference. Others provide governments with broad discretion to shut down NGOs.

The real question, it seems to me, is how is a charity, or some other NGO or CSO going to live and function with integrity in a society and in an era in which these challenges drive most of the thinking and acting in the world today? And recognizing that organizations are simply legal entities, how are we as leaders in the sector, including leaders of NGOs and CSOs, as well as of charity monitoring organizations, going to lead with integrity when there is so much that works against us. Moreover, does a focus on transparency and accountability when those terms of devoid of any meaningful substance and understanding, undermine our consideration of what is really important in terms of ethical conduct in how an organization is governed, led, and managed?

Wednesday, June 2, 2010

Challenges to Transparency and Accountability (Part 2)


A friend told a story about coming home from a business trip and finding a horrible odor in the house. He searched the house, checked the plumbing and bathrooms, but could not find the cause. The closer he got to the master bedroom, the stronger the odor. He finally went to sleep in a chair in his library, but still was bothered by the odor. In the morning he called his son, and together they searched for the source of the smell. They found the cause, a dead opossum in the attic. The opossum had burst open as a result of the summer California heat in the attic.

This occurred during a time in the United States when there were a number of scandals rocking the nonprofit sector.

Too often, the stench of the scandal is present in the air, but we just aren’t able to pinpoint its cause, unless it is so obvious, and then the cause we discover, tends to be a symptom of the problem, not the real problem.

Almost invariably, the first thing that happens in these situations is that the State, through its legislature, or regulatory bodies, tries to regulate the sector made up of nonprofit organizations (NPO), nongovernment organizations (NGO), large international NGOs (INGOs), or civil society organizations (CSO). The news media and commentators begin to write and urge governmental action to curb these kinds of scandal, as if the problem is systemic rather than due to some moral or ethical failure on the part of some individual or organization. It is as if some vague sense of accountability would have prevented the problem in the first place.

The proposed statutory scheme or regulation may take the form of prescribing rules that include:

a. Periodic and regular reviews of the tax exempt status of the charity;
b. Revocation of tax exempt status for accommodation to tax shelters;
c. Increased sanctions for self-dealing and for jeopardizing investments;
d. Established standards for government review of conversions of tax-exempt organizations to for profit organizations;
e. Providing states or provincial authorities with the authority to pursue federal actions against exempt organizations for violating federal laws;
f. Improved quality and scope of financial statements and informational tax returns, and which require the signature of the Chief Executive Officer, or equivalent, and other officials of the nonprofit organization, on certifications in which the information in the informational tax return is certified to be accurate, complete, and current under penalty of perjury should that not be the case;
g. Penalties for failure to file informational tax return, or for failure to prepare the form in accordance with the regulations, or for filing the form, requirements for independent audit of the financial statement that include reconciliation with the informational tax return;
h. Required disclosures in the tax return of related party and insider transactions, and the accomplishment of performance goals and activities;
i. Required disclosure of financial statements, including requirements for posting on the organization’s website the application for tax exemption, the determination letter by the tax authorities, and the organization’s financial statements for the last specified number of years;

j. Detailed specification of governance policies, including board make-up, frequency of board meetings, and board member duties; and

k. Prescribed accreditation policies, procedures, and the like.

All because someone smelled a dead opossum in someone’s attic. Incidentally, I am not making this up. These listed regulatory proposals were actually considered by a committee of the United States Senate. While few of them were enacted into law, the danger of this kind of regulatory scheme is still present, perhaps more so today. Indeed, from time-to-time we see elements of these kinds of schemes in countries around the world, especially those in North America and Europe. In many countries, the role of nonprofit, civil society organizations is not well developed, with governments assuming the roles often played by the charity sector in other countries.

The International Journal of Not-for Profit Law, contained an article in its January 2006 issue, The Power Shift and the NGO Credibility Crisis, that described how world politics has undergone a radical and often-overlooked transformation resulting from the unprecedented growth of non-government organizations around the globe. The scope of the power and influence of NGOs or CSOs, which have moved from backstage to center stage in world politics, affect every aspect of international relations and policy making.

INGOs have been a positive force in domestic and international affairs, working to alleviate poverty, protect human rights, preserved the environment, and provide relief and development worldwide. Clearly, many of these NGOs and CSOs, especially the large international NGOs and CSOs, advocate policies and take actions that would be contrary to the stated policies and programs in many countries, thereby resulting in conflicts between the NGOs and the governments of the countries in which they may carry on their most critical programs, such as large scale protests which gain notoriety due to the violence and disruption they cause.

This article continued, pointing out that:

After 9/11, however, the specter of terrorist using NGOs as a front for their operations and some highly publicized cases of abuse have made this a critical issue that needs to be addressed by the NGO community. In addition, the increasing power of NGOs has prompted scholars, governments, and the media to raise questions about the roles and responsibilities of these new global, non-state actors. Fundamental questions include: how many NGOs actually exist, and what are their agendas? Who runs these groups? Who funds them? And, perhaps most significantly, to whom are NGOs accountable, and how and what influence do they actually have on world politics?

As reported in this issue of The International Journal of Not-for-Profit Law, and elsewhere, we are unable to accurately gauge the size and range of this sector. There are a number of reasons for this, including the scope of the types of organizations and activities undertaken, the problem of definition, the lack of attention to this sector, the dramatic growth of the sector in the last 20 years, and the fact that many operate in some level of obscurity, just to name a few.

Data for the number of national NGOs and locally based and operated NGOs around the world is much more difficult to develop, in part because of the definitional problems and the aims and legal structures recognized for CSOs, such as charities, public benefit associations, voluntary associations, etc.

The changes in technology, and especially the technology of communication and new media, have helped transform the world of NGOs. Improvement in information and telecommunications systems, plus the “near-ubiquity” of electronic facsimile machines in the early 1990s, as well as improved use of the Internet through electronic mail, websites, blogs, and social networks have made it possible to transmit documents almost instantaneously to virtually anywhere in the world, to raise money through Internet portals and mobile phone text messaging, and to effect “instant, inexpensive, and almost entirely unregulated flow of information.”

Moreover, as argued in the article in The International Journal of Not-for-Profit Law, “the real story is not the proliferation of NGOs, but how these organizations have effectively networked and mobilized members to reshape world politics.” This may be true, at least with respect to shaping world politics for larger international groups. The networking of charitable organizations can be quite effective in mobilizing NGOs to perform needed services and meet natural disasters and other crises.

But, the real story, it seems to me, is what has been called in the literature, “a crisis of transparency and accountability.” What the authors of the article in The International Journal of Not-for-Profit Law argue is that “NGOs as an international community lack transparency and accountability in terms of finances, agenda, and governance necessary to effectively perform their crucial role in democratic civil society.” And here, it is not just a crisis of transparency and accountability that is limited to the third sector, or even is primarily directed to the third sector. I address this in the next section, “SO, HOW THEN SHALL WE LIVE WITH THESE CHALLENGES?” Nevertheless, for purposes of this post, my primary interest is limited to transparency and accountability in the third sector, which is the one of the most significant and important agenda matters of the International Committee on Fundraising Organizations (ICFO) and its member organizations.

But, even when the sector has an important place in society, many regulatory schemes imposed by governments tend to work against the very purpose for the the existence and work of participants in the sector, or against the effectiveness of particular charities. Administrative expenses increase as these organizations retain the services of accountants, lawyers, and direct mail fundraising or public relations consultants.

While the use of experts external to the organization may be useful and appropriate, as legal requirements and accounting practices and disclosure requirements become more complex, nonprofit organizations find that it is necessary to increase the level of outside legal and accounting services in order to assure compliance with these statutory and regulatory requirements and to insure protection from prosecution or the imposition of sanctions. This simply increases the administrative cost pool for nonprofit organizations, thereby adversely affecting the ratios with the potential of limiting the funds available for mission objectives. Yet, few of these statutory and regulatory schemes address the issue of transparency and accountability.

In the inaugural issue of The International Center for Not-for-Profit Law’s review of Global Trends in NGO Law, the Center provided an overview of five major themes that have emerged with respect to laws affecting NGOs during the period of 2007 – 2009. These include: (1) Restrictions on the formation, operation, and activities of NGOs; (2) Increased restrictions on foreign funding to NGOs (although the Persche v. Finanzamt Lüdenscheid decision of the European Court of Justice has some impact on this point within the European Union); (3) International cooperation laws that place prohibition on NGOs exchanges of knowledge, capacity, and expertise across borders; (4) Implications of government funds to support civil society; and (5) Use of tax incentives to support government policy toward civil society.

Therefore, the thesis with which I have been working is this: The present model for NPO accountability is not a sustainable model if real transparency and accountability to the public and to potential and actual donors is going to occur or obtain.

The model is this: In the first instance, there may be only minimal accountability through the registration process for nonprofit organizations in connection with obtaining either authority to operate and/or tax exempt status, if granted. Even in countries where registration if voluntary, the process of registration may be difficult and time-consuming, and may impose bureaucratic hurdles that can discourage groups from even applying to the register in the first place.

In many countries, some framework laws include provisions requiring NGOs to re-register every year or every other year, giving government officials repeated opportunities to deny disfavored groups the right to operate. Nevertheless, for the most part, this accountability is only to the government which granted the authority to exist, raise funds, and receive a tax exemption status. This is the only requirement for the vast majority of nonprofit or civil society organizations, with no other requirements for any form of accreditation or oversight. The rules in this case are minimal. The only apparent accountability is the accountability to donors or the general public that the tax exempt status has been granted by the government, and some possible disclosure of financial information, which may not be required other than for pragmatic public relations reasons. Most of us would not be consider these minimal disclosures as advancing any idea of transparency or accountability.

However, a model in some countries also provides that some authoritative body, such as the State or an independent monitoring organization, although rarely in existence, establishes rules regarding what type of information must be disclosed. The information required to be disclosed is based on the State’s value set and not on any universally binding moral principles. Secondly, accountability requires disclosure of this specified information to designated individuals or entities, such as the State, the public, or some independent monitoring agency or entity. Third, for the most part, accountability is confined to providing information regarding the process of accounting for funds and whether the NPO complied with certain processes or procedures in accumulating and reporting the funds received and expended.

Except with respect to certain tax related information, there is limited accountability, if any, required of any organization. There may be an exception to this conclusion in the case of NPOs, NGOs, or CSOs which agree to submit themselves to accountability and monitoring pursuant to either a state imposed regime which may not mandatory, or an independent monitoring organization and some form of self regulation, such as that represented by ICFO members.

However, very few charities seek any level of independent accreditation or monitoring, leaving the vast majority of charities without any meaningful monitoring. Moreover, there are few independent or self-regulatory monitoring organizations around the world. As we have discovered in ICFO, the concept of independent monitoring by foundations or similar organizations established for the purpose of promulgating and enforcing Standards of Accountability is for the most part nonexistent in most parts of the world, although there is an emerging interest in this in many countries. Indeed, One World Trust ( has mapped self-regulatory initiatives around the world.

In the United States, the filing requirements for informational tax returns leave many charities exempt from such filing requirements. And in the case of those which are required to file informational tax returns, failure to file these returns in any timely manner, or not at all, may not affect the tax exempt status of the noncompliant organization, and may not subject that charity to any meaningful sanction. This is in the process of some change in light of some regulatory reforms. Nevertheless, I suspect that lack of meaningful sanctions as a result of failure to file informational tax returns in a timely manner may be the case in many countries.

For reasons which I will explain, I do not think that this model is sustainable if the goal is to have transparency and accountability across the sector. The question is whether there is another model which would more adequately address the weaknesses in the current model, or if in the end, we decide that this is as good as it is going to get and we better just learn to live with its limitations.

It may well be that because of the large number of nonprofit organizations and increasing size of the sector worldwide, there will never be an adequate way to monitor transparency and accountability across the sector assuming that these are good goals to obtain. The difficulty of achieving these goals rises to the level of impossibility or near impossibility as the INGOs become larger and more complex in their organizational structures which extend across many countries with subsidiaries and affiliates operating in those countries, either raising funds or actually performing the public benefit purpose for which they are organized.