Statement of Nanine Meiklejohn, Legislative Affairs Specialist,
Department of Legislation, American Federation of State,
County and Municipal Employees

Testimony Before the Subcommittee on Human Resources
Subcommittee on Select Revenue Measures of the House Committee on Ways and Means

Hearing on H.R. 7, the "Community Solutions Act of 2001"

June 14, 2001

Mr. Chairman, my name is Nanine Meiklejohn, Legislative Affairs Specialist, Department of Legislation,  at the American Federation of State, County and Municipal Employees (AFSCME). AFSCME represents 1.3 million employees who work for federal, state and local governments, health care institutions, and nonprofit agencies. We appreciate the opportunity to testify on H.R. 7, the Community Solutions Act, and in particular, on the charitable choice provisions in the bill.

AFSCME supports and values the good work of religious organizations, especially the current partnerships which government maintains with faith-based organizations through secular religiously-affiliated nonprofit organizations, such as Catholic Charities and United Jewish Federations. Our own members are active in their congregations and in their communities. They are no strangers to the pressing needs of vulnerable individuals and poor communities. Indeed, hundreds of thousands of them work day in and day out in these neighborhoods, and they do so in the face of steady criticism from public officials who seek political advantage by condemning government while depriving public agencies of the resources and leadership necessary to provide quality services.

AFSCME strongly believes, however, that charitable choice is the wrong way to do right. We do not believe that charitable choice is good for religion or for the government-supported social services infrastructure that originally began in the 1930s as private charities were overwhelmed by the Great Depression. Already charitable choice has opened up divisions in our society based on religious differences and prejudices. It has distracted attention from the real issue of providing adequate resources to address the problems of poverty. It will permit religious discrimination in taxpayer-funded programs and has the effect of removing employees in federally-funded programs from several key labor and benefit protections. It will spawn litigation that will put state and local officials in an untenable political and legal position.

H.R. 7 cannot be judged adequately without considering the Administration's overall budget and tax policies, which envisions far fewer resources for many of the federal programs operated by public and non-profit agencies that assist poor neighborhoods and families. We take no position on the merits of the five tax relief provisions in H.R. 7. However, we are very concerned that, without tax offsets, the $100 billion 10-year cost will contribute further to an erosion of the government-funded social services system.

The Administration appears committed to shifting social services policy away from direct spending to tax credits and deductions. Its proposal to allow Temporary Assistance for Needy Families (TANF) funds to be used to reimburse states for revenue losses attributable to a state tax credit for donations to "qualified" charities most graphically demonstrates this point. It explicitly converts a program of direct spending to public and private agencies into tax cuts for private charities.

The difference between direct spending and tax incentives is profound. The first uses the superior capacity of the federal government to maintain a comprehensive infrastructure. The second depends on the uncertain actions of private individuals and organizations, who are least able to give when times are bad. The likelihood that the resources of state and local governments and private charities will be overwhelmed when times are bad is great.

When charitable choice is combined with the Administration's budget and tax plan, it will pit religious, secular nonprofit and public agencies against each other for a declining share of federal funds and will divert taxpayer funds away from public agencies and current nonprofit providers. It will create the false illusion of "doing more with less."

Charitable choice advocates contend that the bill is needed to change current policies that discriminate against faith-based organizations in the awarding of government grants. In fact, there is no discrimination. Many religious organizations receive funds through separate secular nonprofit organizations, and many small community-based organizations face the same administrative obstacles applying for funds as do small churches.

In fact, charitable choice actually would give preferential treatment to sectarian organizations. Under H.R. 7, houses of worship could retain certain exemptions to rules that all other grantees must follow even though they too would be government grantees providing publicly-funded services.

The charitable choice provisions in H.R. 7 allow houses of worship to retain special exemptions from federal civil rights and worker protection rules in recognition of the fact that religious speech and practice are different. Under current law, houses of worship can base their hiring and personnel policies on the tenants of their faith. As a result, they can refuse to hire or take adverse action against individuals because of their religion or because of personal behavior, such as sexual preference or contraceptive practices, that does not comport with their religious beliefs. From our perspective, this means that experienced and qualified employees of public agencies who lose their jobs will not be eligible for employment with a sectarian-based organization if they practice the "wrong" religion.

In addition, the effect of charitable choice is to expand to government-funded programs certain exemptions from worker protection laws. Federal court and National Labor Relations Board (NLRB) cases show that if entities promulgate, propagate, or indoctrinate a religious faith, they would not come under the jurisdiction of the NLRB and their workers could not organize and bargain collectively. Federal law also exempts employees of churches from the unemployment insurance program.

The current exemptions for houses of worship exist in order to protect religion from state intrusion and were intended to apply to these organizations only as private sectarian-based entities. If such organizations become providers of taxpayer-funded government services, the rationale for their special status diminishes and the rationale for treating them as any other government grantee is strengthened.

H.R. 7 goes even further, however, by adding a significant new right for sectarian-based organizations not enjoyed by other grant applicants. It gives them standing to file a lawsuit against a federal, state or local official or agency alleging that they have been denied a grant on the basis of their religious character. Since no other grant applicant has a similar right to file a lawsuit challenging a grant or contract award, H.R. 7 goes well beyond "leveling the playing field."

Implementing charitable choice also appears to provide sectarian-based organizations with other special advantages in applying for federal funds. For example, in the fall of 1998, then-Governor Tommy Thompson's administration in Wisconsin announced that welfare agencies hiring church groups as partners would improve their chances of winning TANF contract renewals and of earning financial bonuses. Such an entity, FaithWorks in Milwaukee, subsequently received $670,000 to run an addiction recovery program that uses a so-called "faith-enhanced" 12-step program and Bible study. It is now the subject of a lawsuit.

Such policies and practices will undermine and distort longstanding state and local government practices such as competitive bidding which are designed to ensure the selection of the most competent and effective providers. They will put public officials in a no-win situation. For example, if a mayor receives two applications from secular non-profit organizations and three from faith-based organizations representing different religions, he or she may fear that choosing the secular organization could lead to a lawsuit by a rejected sectarian-based applicant and that selecting one sectarian-based applicant could provoke a lawsuit from another. Religion could take precedence over proven experience and effective service delivery and capacity; and some religions may receive more favorable consideration for federal funds than others.

We also are concerned that H.R.7 may lead to religious-based discrimination against individuals eligible for federal childcare, job training, welfare, and housing programs or result in their involuntary acquiescence to religious instruction in exchange for assistance. The bill allows federal funding of programs that are religious in character as long as private funds pay for the religious portions of the program. This is the reason for the inclusion of the secular alternative requirement.

However, the secular alternative requirement has very real practical limitations. As noted previously, federal direct spending is expected to decline even though social services programs have a huge backlog of unmet needs. The bill does not specify whether the federal, state or local government is responsible for the guarantee of a secular alternative program. It also is silent on the right of an individual to file a lawsuit if the secular alternative is not available.

Since there appears no meaningful way to ensure the availability of the secular alternative in all cases, the promise of one is empty, and some very real dilemmas could arise as charitable choice is implemented more aggressively. For example, welfare recipients are subject to strict work requirements. If the only available and conveniently located program is a faith-based program with which the individual is uncomfortable, will he or she be sanctioned for refusing to participate? H.R 7 does not address this issue directly.

No doubt there are other such instances in which indiscriminately inserting charitable choice provisions into a government program will have unintended and undesirable consequences. This is because charitable choice attempts to mix government and religion even though they are fundamentally different.

Sectarian-based organizations need to maintain their independence and religious character and remain free from government scrutiny and rules. Maintaining this independence is precisely what has protected the spiritual integrity of houses of worship and religious freedom for all of us.

Government needs to be accountable to the taxpayers and voters. Taxpayers appropriately expect a proper accounting for use of their tax dollars and remedial action in the case of misspent funds, fraud, or poor performance. Congress seeks to achieve certain policy objectives through provisions creating performance standards, licensing rules, auditing requirements, due process protections, equal representation of diverse interests in the administration of many federal programs, and other program requirements.

The notion of charitable choice is at odds with one of the fundamental principles on which the nation was founded: that both the citizens and religion are best protected when government and religion are kept separate. It does not, because it cannot, reconcile the two in any satisfactory way. Indeed, charitable choice is an idea with strong initial appeal that holds up less and less the more public scrutiny it receives.

Many of our ancestors fled to this country seeking religious freedom, and we have been successful in protecting their vision. It is no accident that religious freedom has flourished and that religious bigotry has not been tolerated. By keeping government out of religion and religion out of government, we have protected each person's religious beliefs while also protecting the government's duty to advance society's interests as each generation sees fit. Charitable choice is an unwise departure from this tradition and should be rejected.