The federal system of "dual sovereignties" guarantees that most American legal regimes tolerate jurisdictional overlap between the enforcement authority of federal and state agencies. This Article explores interjurisdictional overlap in the context of nonprofit legal supervision. Notwithstanding the common assumption that "states police mission while the IRS polices money," it is suggested here that the overlap has become much broader than generally has been supposed; that over a wide range of common misconduct among the preponderance of organizations in the nonprofit sector, either the Internal Revenue Service or state authorities could, if they wanted to and in no particular order, exercise statutory or common law authority to prosecute nonprofit charities, including their officers and directors. As a policy matter, this overlap has generally been viewed as positive by both state and federal officials, who can defer or shift the burden of supervision to avoid spending scarce resources, to avoid political difficulty, or for other reasons. In many cases, they can build on one another's work, use the legal precedent established by one another's litigation, or act in independent disregard of it. They can act first, second, or not at all. If legislation currently being considered becomes law, furthermore, it may become easier than ever for regulators to coordinate their activities and to share information; but the lines of authority will not (as a general matter) become more sharply drawn. This Article raises several disadvantages that result from the increasing breadth of overlap, including erratic and inconsistent growth in the law, unpredictable law enforcement, a lack of accountability and responsibility for supervision, and some confusion among nonprofit counselors and the organizations they advise. It offers some suggestions for new lines and for redelineating authority along historical lines.
Norman I. Silber,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol80/iss2/4