The Who-bodies Blocking Donor-Advised Fund Reform

Our grandson Jack is a few weeks shy of turning three, but he’s extremely verbal and bright – or at least this doting grandfather thinks so. During our July family vacation, we were walking on a beach in Maine, and my wife Pat said, “Oh! Somebody left trash on the beach!” To which Jack asked, “WHO-body?!”

Jack wanted accountability. Who-body, indeed?

I thought of Jack’s who-bodies when I recently spoke with staff members from a progressive think-tank. In their words, they wanted to know “how to unlock” the billions of dollars piled up in donor-advised funds (DAFs). They, like me, want to see the money go to actual charitable purposes.

I said, “Well, there are a lot of people who don’t want that to happen.”

They asked who. Or, in Jack-speak, they wanted to know the who-bodies who either have a vested interest in keeping DAF money from going out to charitable organizations, or are acquiescing to those who do.

So… here we go. It’s accountability time!

A Philanthropic Disaster

First, some context, which is painfully familiar to readers of my blog, and to observers of the charitable sector.

Donor-advised funds live in a gray zone of tax law. DAFs provide donors with all the tax advantages of an outright gift to an operating charity, because they are sponsored by public charities. DAFs then function much like private foundations, only without the oversight, transparency, and requirements for annual charitable distributions tax law requires of foundations.

DAFs have grown wildly in recent decades. In 2021 a record $72.6 billion went into donor-advised funds, according to the National Philanthropic Trust. That’s about ten times as much as back in 2012, when I first started writing about DAFs. As Helen Flannery writes in a recent report from Inequality.org, donor-advised funds received 22% of all charitable giving in the U.S. in 2021. These new dollars are part of a quarter trillion dollars now pooling up in DAFs. That’s a lot of money that could do a lot of good.

The  main challenge, as most of you may know, is that there is no requirement that a DAF grant its money out to charity in a particular year, or ever, and many DAF accounts are completely or largely inactive. Moreover, DAFs offer virtually no transparency: The public has no access to the activities of particular DAFs, and gifts to and from DAFs can be made anonymously. In fact, a billion dollars a year or more in DAF grants go… to other DAFs!

Meanwhile, private foundations in 2021 received 15% of total charitable donations. Added to the 22% going to DAFs, that means that 37% of all charitable gifts in 2021 went to intermediary organizations rather than operating nonprofits. By comparison, in the late-1980s, according to a report by Professors James Andreoni and Ray Madoff, intermediaries received only 6% of charitable gifts. That’s a sea change over the last 35 or so years: a more-than-six-fold increase in charitable dollars going to DAFs and private foundations. Or, more to the point, a huge reduction in the percentage of charitable dollars going to actual operating nonprofits (you know, the organizations that do charitable stuff) from 94% to only 63%.

A simple solution, blocked

In the last Congress, a reform effort called the Accelerating Charitable Efforts (ACE) Act received bipartisan sponsorship in both houses, but the bill never came close to a vote. Among many other provisions, the ACE Act would have required most – though not all* – DAFs to grant out their assets within fifteen years. The ACE Act was an important, if essentially modest and pragmatic, effort to rein in the unregulated world of donor-advised funds. There was nothing revolutionary about the proposed legislation. It was about curbing bad practices and getting money to good causes. But it never had a chance.

The list of culprits

So back to the who-bodies who are blocking common-sense reform efforts:

The first set of who-bodies are the financial services firms. We’re talking about Fidelity Investments, Schwab, Vanguard, UBS, Morgan Stanley, Goldman Sachs, and the others. Virtually every financial services firm has an associated “charitable” 501(c)(3) donor-advised fund operation. Why? For the same reason Wall Street firms do anything: profit.

How do the firms make money from DAFs? Well, most dollars held by these affiliated (though technically independent) nonprofit donor-advised fund shops are invested in mutual funds managed by their parent investment companies. Those dollars add up. I laugh (grimly) when people from the commercial DAF world assert that profit has nothing to do with their motivation, that these companies are simply trying to help their clients be philanthropic. Yep. Sure.

Fidelity Charitable had assets of $49 billion as of June 2021. Assuming an average fee of 50 basis points (that is, ½ of 1%) for investment management, that’s a haul of $245 million a year for Fidelity Investments. That’s not nothing. And, of course, the longer the money stays in the DAFs, the more Fidelity and its fellow financial firms earn in fees, year after year. There’s a financial incentive for the companies – and their affiliated donor-advised fund operations, which also draw fees on the assets – to keep the money in place, undistributed.

Now, I can already hear the caterwauling from DAF World that I’m misrepresenting the fee structure, and that I’m overstating the income. My response? I’m simply making my best guess. These firms never have and probably never will share the actual fee income from their DAF operations. Wall Street firms are notoriously opaque about their fees. If it turns out I have overestimated the haul by a few million dollars, my point remains valid. Wall Street firms are making money off of DAFs – and the longer the funds remain undistributed, the more money they make.

And, of course, the financial services industry’s lobbyists have an enormous influence in Washington.

The second set of who-bodies are financial advisors. These are the folks who interact with clients and advise them on their investments. In the old days, we would have called them stockbrokers.

Before the creation of the first commercial donor-advised fund in 1991, when clients asked their brokers to transfer highly appreciated stock to charity, they would quickly do just that, even though they (the brokers) would have been grinding their teeth. The source of their angst? The brokers largely earned their income then (and still do) by taking a fee on the assets under management. Back in 1990, if, say, a donor asked her broker to transfer $100,000 worth of IBM stock to the local Boys & Girls Club, that reduced the broker’s funds under management, and the broker would have earned less income. But the broker would have had no choice at the time, other than to say, “Yes, of course.”

Today, financial advisors who are similarly approached will likely try to redirect clients to contribute stock to the DAF within their company – or even to Fidelity, which will pay management fees to financial advisors for large donor-advised funds. So long as the assets remain in the DAF account, the management fees continue to flow into the financial advisor’s pocket as if the funds still belonged to the client, rather than to the client’s DAF.

DAFs are a cash cow for financial advisors.

The third set of who-bodies are community foundations. This breaks my heart, because community foundations are core institutions supporting and often leading their communities. Community foundation staff members by and large are great people who care about helping local charitable causes. Most of what community foundations do is important and positive. But the assets of many community foundations, particularly the younger foundations that don’t have generations of unrestricted assets, are largely comprised of donor-advised funds, and most new contributions go into DAFs. This focus on DAFs causes challenges.

Community foundations draw fees from their assets to fund their operations, a business model that drives some unhelpful behaviors. If donors with DAFs were to distribute all of their funds to charity within a few years – something that would be a boon for the community – the community foundation’s income to fund its operations would drop precipitously. All of which is to say, the community foundation business model relies on most constituent funds being invested in perpetuity, or at least for a long time.

Consequently, many community foundations openly or subtly tend to encourage donors to distribute DAF assets only a bit at a time. Community foundations speak to their donors about creating family legacies and multi-generational funds. Many offer the opportunity to endow their DAFs, which limits charitable distributions to a small percentage a year. This perhaps explains why grant distributions from community foundations are, by percentage, lower than at commercial gift funds. And this focus on long-term funds may explain why community foundations fought vociferously against the ACE Act, even though its provisions specifically excluded community foundation DAFs under a million dollars from having to spend down their assets.

The fourth set of who-bodies are the associations purporting to represent the nonprofit sector. When the Accelerating Charitable Efforts (ACE) Act was proposed in the last Congress, virtually no nonprofit associations spoke out in favor of it, even though, if passed, a huge amount of money would have been flushed out of donor-advised funds to support operating charities.

It’s hard to understand the stance of these major nonprofit associations, unless we cynically assume that they have been coopted by the DAF industry, or that they care more about donors’ privilege than charitable impact. One of the leading associations speaking against the ACE Act, Independent Sector, represents both foundations and operating nonprofits, and they have embraced the priorities of the foundation world, which is generally supportive of the DAF status quo. The National Council of Nonprofits, meanwhile, never took a stand for or against the ACE Act: They chose “to study” the issue until it died. As I’ve written before, the National Council of Nonprofits receives what seems to be significant support from the Fidelity Charitable Trustees’ Initiative, as do Independent Sector, Giving USA, and many other influencers within the field. Most state nonprofit associations were also silent, though the brave souls leading the Minnesota and California state associations of nonprofits took the lead in speaking out in favor of the ACE Act. Meanwhile, the usual opponents of DAF reform – the libertarian Philanthropy Roundtable, the Council on Foundations, and the Community Foundation Public Awareness Initiative – actively worked to torpedo the ACE Act.

While all of this was going on, the commercial DAF funds – the behemoths like Fidelity – stood by silently, inwardly smiling while the nonprofit associations and community foundations did all their lobbying work for them. Their hands remained clean; their balance sheets, healthy.

The fifth set of who-bodies are the private foundations who use DAFs to hide their activities. This is a neat and unconscionable trick.

Since 1969, private foundations have been required to dedicate five percent of their assets each year to charitable purposes. These charitable distributions are part of the public record. But what if those grants go to DAFs – the black hole of charitable reporting? When a private foundation makes a grant to a DAF, the accountability trail goes cold, and the foundation (which presumably controls the DAF) can do whatever it wants with the money, without anyone knowing. Technically, the requisite funds have gone to charity, but because DAFs have zero transparency, nobody knows if the money subsequently went to actual operating charities, and, if so, to which ones.

I drew attention to this scam eleven years ago in one of my first blog posts. More than a decade later, some of the wealthiest people in America, including Elon Musk and Larry Page, have buried hundreds of millions of putatively charitable dollars in this paper-shuffling scheme. It’s great for the privacy and influence of billionaires. It’s bad for the federal government (so much lost tax revenue!). And it’s disastrous for working nonprofits.

The sixth set of who-bodies are the nonprofits themselves. The nonprofit sector is filled with idealistic, visionary, dedicated, and hard-working individuals. I consistently stand in awe of the creativity and devotion demonstrated by my clients and so many others nonprofit leaders. But when it comes to challenging donors and funders, these same folks are far from courageous.

Let’s recognize that there is a power imbalance: Donors and grantors have the assets that nonprofits need. It’s generally not a wise idea to bite the hand that feeds you, and nonprofits do not want to offend their local community foundations or any of their DAF-holding donors by implying that the DAF model encourages the hoarding of charitable assets that are needed today. So nonprofits remain silent about the abuses, and they don’t readily advocate for DAF reform. Ideally, nonprofit associations would be speaking up for these vulnerable nonprofits – but, as I explain above, most don’t. As a result, nonprofits need to speak up for themselves – or, at the very least, they should be pressuring their associations to do the right thing.

The final set of who-bodies are the donors. For wealthy donors, there’s nothing not to like about DAFs. Donors get a full charitable deduction up front, just as if they were donating the money to a food pantry or a Boys & Girls Club; they avoid capital gains taxes on appreciated assets; they retain practical control of the distribution of grants, without any spending requirement, ever; and there’s complete privacy and zero transparency.

Donors creating donor-advised funds, in the great majority of cases, truly are driven by their charitable impulses – as well as the tax advantages. But when donors put money in a DAF and then choose to keep the funds largely bottled up, they are prioritizing their own power and priorities over society’s needs. They are effectively choosing to retain their ability to make decisions around the funds’ distribution year after year, rather than letting charitable organizations put the money to work, now.

And when donors then leave DAFs to their children, they are perpetuating that power. They are giving their kids the prestige and influence to give (or not give) to charitable causes, on into the future.

Few people ever suggest to donors with DAFs that they are effectively hoarding both money and power. We talk about their generosity – and, indeed, there’s usually a great deal of genuine charitable intent. But the fact is, undistributed charitable assets that remain in DAFs are not solving the hugely significant problems facing the world. Few donors think in these terms, because those of us in the nonprofit world (as well as their professional advisors – the attorneys, accountants, and investment advisors whom writer and activist Chuck Collins calls “the wealth-defense industry”) are trained to fawn on them. But we need to speak directly on these issues, particularly now that such a huge portion of charitable giving is going into donor-advised funds, rather than to actual charities.

Winning over the who-bodies

The who-bodies behind the unregulated and frankly terrifying growth of DAFs need to be called out. But most of them can also help turn things around.

Let’s ignore the first two groups I list above: the financial services firms and the financial advisors. They’re never going to subvert their core drive for profit and do what’s right for the community. As Upton Sinclair noted a century ago (and forgive the gendered nature of the quotation), “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

But community foundations can surely adjust their business models to be less dependent on drawing fees from permanent assets. They should urge their DAF holders to spend down their assets for the good of the community. They can and should embrace the realization that passing through as much money as possible to meet current, crying needs strengthens their communities – and  when community foundations show this kind of strategic generosity, new donations are sure to follow.

Nonprofits, for their part, should extoll donors who spend down their DAFs, or who leave DAFs to charity at death. They should be upfront in telling community foundations and donors that the notion of perpetuity for DAFs is in conflict with the interests of the community, and that creating multi-generational, non-transparent donor-advised funds mocks the intention behind charitable gift laws. Nonprofits should go on the record supporting DAF reform, and they should pressure their nonprofit associations to do the same. And those nonprofit associations should remember whose interests they were created to support — operating nonprofits and their missions — and speak out in favor of DAF reform, even if they offend some of their donors.

Those private foundations that are meeting their charitable distribution requirement by dumping money into DAFs will keep on doing just that, so long as it’s legal. It would be a relatively simple act for legislators to close the DAF loophole — but we all have to apply pressure on political leaders and regulators to make that happen. (This common-sense provision was part of the unsuccessful ACE Act.)

Meanwhile, donors – most of whom very much want to do the right thing – can be persuaded to change their behaviors. What’s needed is a change to the social norms around DAFs. I have worked throughout my career with so many generous donors, and I have deep respect and affection for them. They’re great people. Most are the furthest thing from conniving corner-cutting cheats like Elon Musk. But many donors simply haven’t been told how counterproductive their perpetual DAFs have become. I have some hope that, if the situation is explained to them, donors in larger numbers will come to realize that to have real impact — and to derive the satisfaction that comes with making a difference — they need to spend down their DAFs, or transfer them to charities at their death, and not leave them to their kids.

It’s imperative to drive the nonprofit world out of the DAF ditch. Why?

I’ll return to my grandson Jack, and his baby brother Ben, and the hundreds of millions of children around the world who will inherit this wonderful and terribly fragile and damaged world of ours. On their behalf, we have to invest in saving the planet from climate disaster now. We need to provide opportunity, healthcare, and education to the least powerful and most vulnerable people now. We need to defend democracy now. We need to tear down structural racism and sexism and bias of all kinds now. And we have to recognize that a quarter-trillion dollars sitting in “charitable” investment accounts is a tragic waste and won’t do a damned thing to fix anything.

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*The ACE Act would have exempted DAFs at community foundations with less than $1 million in assets from the 15-year spend-down rule. Moreover, the ACE Act did allow donors to create DAFs with a 50-year duration, but with those long-term DAFs the donors would not receive a charitable deduction until grants actually went out to charitable organizations.

Copyright Alan Cantor 2023. All rights reserved.