Congressionally Chartered Nonprofit Organizations (“Title 36 Corporations”): What They Are and How Congress Treats Them

The chartering by Congress of organizations with a patriotic, charitable, historical, or educational purpose is essentially a 20th century practice. There are currently some 92 nonprofit corporations listed in Title 36, Subtitle II, of the U.S. Code. These so-called “Title 36 corporations,” such as the Girl Scouts of America and the National Academy of Public Administration, are typically incorporated first under state law, then request that Congress grant them a congressional or federal charter.

Chartered corporations listed in Title 36 are not agencies of the United States, and their charters only rarely assign the corporate bodies any governmental attributes. For instance, the corporation’s debt is not guaranteed, explicitly or implicitly, by the full faith and credit of the United States. The attraction of Title 36 status for national organizations is that it tends to provide an “official” imprimatur to their activities, and to that extent it may provide them prestige and indirect financial benefit.

In recent years, some in Congress have expressed concern that the public may be misled by its chartering process into believing that somehow the U.S. government approves and supervises the corporations, when in fact this is not the case. As a consequence, the House Judiciary Committee’s subcommittee of jurisdiction instituted a moratorium on granting new charters in 1989. (The Senate generally defers to the House on chartering matters.) On several recent occasions, however, Congress has established Title 36 corporations despite the moratorium.

This report will be updated in the event of a significant development.

Congressionally Chartered Nonprofit Organizations ("Title 36 Corporations"): What They Are and How Congress Treats Them

June 17, 2011 (RL30340)

Summary

The chartering by Congress of organizations with a patriotic, charitable, historical, or educational purpose is essentially a 20th century practice. There are currently some 92 nonprofit corporations listed in Title 36, Subtitle II, of the U.S. Code. These so-called "Title 36 corporations," such as the Girl Scouts of America and the National Academy of Public Administration, are typically incorporated first under state law, then request that Congress grant them a congressional or federal charter.

Chartered corporations listed in Title 36 are not agencies of the United States, and their charters only rarely assign the corporate bodies any governmental attributes. For instance, the corporation's debt is not guaranteed, explicitly or implicitly, by the full faith and credit of the United States. The attraction of Title 36 status for national organizations is that it tends to provide an "official" imprimatur to their activities, and to that extent it may provide them prestige and indirect financial benefit.

In recent years, some in Congress have expressed concern that the public may be misled by its chartering process into believing that somehow the U.S. government approves and supervises the corporations, when in fact this is not the case. As a consequence, the House Judiciary Committee's subcommittee of jurisdiction instituted a moratorium on granting new charters in 1989. (The Senate generally defers to the House on chartering matters.) On several recent occasions, however, Congress has established Title 36 corporations despite the moratorium.

This report will be updated in the event of a significant development.


Congressionally Chartered Nonprofit Organizations ("Title 36 Corporations"): What They Are and How Congress Treats Them

Current Context

This report discusses a category of congressionally chartered1 nonprofit organizations that have as their purpose the promotion of patriotic, charitable, educational, and other eleemosynary activities.2 Title 36 of the United States Code,3 where such corporate organizations are listed with their charters, was recodified by law in 1998 (P.L. 105-225; 112 Stat. 1253).4

Title 36 is comprised of three subtitles: Subtitle I: Patriotic and National Observances and Ceremonies; Subtitle II: Patriotic and National Organizations; and Subtitle III: Treaty Obligation Organizations. This report addresses Subtitle II, which includes 92 congressionally chartered corporations.5

These chartered organizations have been collectively referred to under any of three terms: "Congressionally chartered organizations;" "Title 36 corporations;" and "patriotic societies." In this report, the term "Title 36 corporation" will be used, although it should be noted that even within this category of organizations, there are variations.

The United States Constitution, although not providing express power to Congress to charter corporations, is generally cited as the authority, under Article I, Section 8, Clause 18, by which Congress can pass all laws "necessary and proper" to implement the assigned expressed powers.6 Congress has authority to establish organizations within both the governmental and private sectors. In the governmental sector, the authority and responsibility to establish all agencies and all offices to be filled by appointed officers of the United States is clear. The permissible actions of all agencies and officers of the United States are determined by public law.

Congress also has authority to establish new for-profit and nonprofit organizations in the private sector. Congress, for instance, established the fully private, stockholder-owned Communications Satellite Corporation (ComSat) in 1962 (47 U.S.C. 701; 76 Stat. 419). Congressional authority with respect to organizations functioning essentially under state law, however, has not been free of controversy. The basis of the controversy often comes down to fundamental issues of managerial accountability, fiduciary responsibility, and rights that inhere to governmental organizations, but not to private organizations, such as the right to the full faith and credit of the U.S. Treasury.7

Title 36 corporations constitute one of the categories of corporate organizations chartered by Congress.8 It should be noted at the outset, however, that since 1989 the House Judiciary Committee's subcommittee of jurisdiction has placed a moratorium on the chartering of additional nonprofit corporate organizations.9 This moratorium has been reaffirmed at the beginning of each new Congress, most recently by the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law on March 5, 2009.10

The current moratorium reads,

The Subcommittee [has re-adopted] the policy of not granting new federal charters to private, not-for-profit organizations. This policy has been adopted by the Subcommittee of jurisdiction since the 101st Congress [1989-1990], and it reflects the Subcommittee's belief that charters are unnecessary for the operations of any charitable organization and falsely imply to the public that an organization and its activities carry a Congressional seal of approval. This policy also reflects the Subcommittee's belief that the significant resources required to properly investigate prospective chartered organizations and monitor them could and should be spent instead on the Subcommittee's large range of policy matters.11

Historical and Legal Context

There is no general law of incorporation at the federal level as there is in the states and the District of Columbia. If Congress wishes to establish or charter a corporation, it does so by enacting a law, and it is this specific legislation that provides for the mission, authorities, and restrictions that will apply to the chartered corporation.

The general practice has been for each state and the District of Columbia to exercise jurisdictional authority over the incorporation of for profit and nonprofit organizations within their boundaries. This exercise of authority by states devolved from the concept that states had authority at common law to create artificial bodies for the purpose of engaging in various enterprises and carrying on certain activities. Historically, state legislatures chartered each organization seeking corporate status on a situation-specific basis, in much the same way as the federal government does today. As time passed, states moved to provide for the creation of corporations pursuant to statutory procedures.

Today, states have general incorporation laws, and often separate laws for profit and nonprofit entities, which stipulate procedures, information, and standards to be met for the issuance of a charter ("articles of incorporation"). A fee is typically associated with the process.

Corporations operating in the District of Columbia are subject to the constitutional delegation of authority over the District of Columbia as provided in Article I, Section 8 of the United States Constitution. It was the practice of Congress in the early years of the republic to grant franchises to District of Columbia corporations on a case-by-case basis. For example, Congress incorporated the Trustees of the Presbyterian Congregation in Georgetown in 1806 (2 Stat. 356). In 1901, Congress enacted a general statutory procedure allowing incorporation in the District of Columbia by means of filing paperwork rather than by special action of Congress. This procedure, analogous to that now used by the states, is found in Title 29 of the District of Columbia Code.

Given that Congress has never passed a general body of law applicable to the operation and powers of the for-profit and nonprofit corporations it charters, it is necessary for Congress to include such provisions in each act granting a charter. There is considerable similarity between powers granted to federal corporations and those granted by states to their corporations. Among the powers typically provided are

(1) to sue and be sued;

(2) to contract and be contracted with;

(3) to acquire, hold and convey property;

(4) to enact by-laws;

(5) to have a seal;

(6) to appoint officers; and

(7) to borrow money for the purposes of the corporation.

There are also differences between a federal charter and a typical state charter. One feature peculiar to federal charters is that, in most instances, statutes granting federal charters require the submission of periodic financial statements to Congress on certain activities of the corporation. On the other hand, states often permit actions that are not permitted federally chartered corporations. For instance, under the District of Columbia Nonprofit Act, a corporation is permitted "to lend money to and otherwise assist its employees other than its officers and directors." (D.C. Code, 29-301.05(6)).

Title 36 corporations can, and generally do, function simultaneously under both federal and state charters. Indeed, in most instances, organizations were chartered and functioned under state law before, often long before, receiving federal charters.

Patriotic and National Organizations: Subtitle II

The chartering by Congress of organizations with a patriotic, charitable, historical, educational, or other eleemosynary purpose is essentially a 20th century practice. Title 36 of the U.S. Code, where such corporate organizations are listed with their charters, was revised in 1998 (P.L. 105-225;112 Stat. 1253), and in the process three subtitles of nonprofit corporate organizations were listed:

Subtitle I: Patriotic and National Observances and Ceremonies. Part A, Observances and Ceremonies, includes (1) the Benjamin Franklin Tercentenary Commission (P.L. 107-202; 116 Stat. 739), (2) the Brown v. Board of Education 50th Anniversary Commission (P.L. 107-41; 115 Stat. 226), (3) the James Madison Commemoration Commission (P.L. 106-550; 114 Stat. 2745), and (4) the Abraham Lincoln Bicentennial Commission (P.L. 106-173; 114 Stat. 14). Part B, United States Government Organizations Involved with Observances and Ceremonies, has three entries: (1) the American Battlefield Monuments Commission, (2) the U.S. Holocaust Memorial Council, and (3) the President's Commission on Employment of People With Disabilities.

Subtitle II: Patriotic and National Organizations. The 92 corporate entries included under Subtitle II range from the Agricultural Hall of Fame to Big Brothers—Big Sisters of America to the Women's Army Corps Veterans' Association.

Subtitle III: Treaty Obligation Organizations. This is an organizational category with one entry, the American National Red Cross (ANRC), which was first chartered in 1900 and then re-chartered in 1905. The ANRC is an unusual organization because the federal government has charged it with fulfilling U.S. treaty obligations under the Geneva Conventions and aiding in disaster response.12

The attraction of Title 36 status for national organizations is that it tends to provide an "official" imprimatur to their activities and, to that extent, it may provide them prestige and indirect financial benefit.

Congress, in chartering patriotic, charitable, professional, and educational organizations under Subtitle II, such as the Fleet Reserve Association (36 U.S.C. 701), does not make these organizations "agencies of the United States" or confer any powers of a governmental character or assign any benefits.13 These organization generally do not receive direct appropriations, they exercise no federal powers, their debts are not covered by the full faith and credit of the United States, and they do not enjoy original jurisdiction in the federal courts.

In effect, the federal chartering process is honorific in character. This honorific character may be misleading to the public, however, when such organizations feature statements or display logos that they are "chartered by Congress," thus implying a direct relationship to the federal government that does not in fact exist. In addition, there may be an implication that Congress approves of the organizations and is somehow overseeing its activities, which is not the case.

As with nearly all generalizations about congressionally chartered nonprofit organizations, there are exceptions. At least one of these nonprofits, the U.S. Olympic Committee (USOC; 36 U.S.C. 2005), receives much congressional attention due to its high profile responsibilities. For example, in early 2003, the Senate Commerce Committee held hearings on reorganizing the USOC.14

Governmental or Private?

While it is correct to state that the congressionally chartered nonprofit organizations in Title 36 are not agencies of the United States, there are instances when the boundary between the private and governmental sectors is blurred at best. It is possible to argue that at least in a few instances the private character of the Title 36 corporation is reasonably in question.

For many years the Department of Defense administered the Civilian Marksmanship Program. The program came under political pressures for various reasons and the department decided to request Congress to "privatize" the program, which Congress agreed to in creating a federally chartered corporation titled Corporation for the Promotion of Rifle Practice and Firearms Safety (36 U.S.C. 40701). This "privatization" exercise raises questions about the limits, if any, to Congress's authority to assign a "private" label to functions of a governmental character. While the corporation has some admittedly governmental attributes (e.g., upon dissolution of the corporation, its assets are to be sold and revert to the U.S. Treasury), Congress has declared in its enabling statute that "the corporation is a private corporation, not a department, agency, or instrumentality of the U.S. Government." Furthermore, the law provides that "an officer or employee of the corporation is not an officer or employee of the Government." Whether Congress has the constitutional authority to assign an entity "private" status when in fact it has substantial "governmental" attributes has been subject to debate and judicial opinion.15

In the 106th Congress, a new entry was included in Part B of subtitle II of Title 36, the National Recording Preservation Foundation (Foundation). The background for this Foundation requires some explanation. A National Recording Registry (established under P.L. 106-474; 2 U.S.C. 1701) is to be housed in the Library of Congress and managed by the Librarian of Congress through an adjunct organization of the Library titled the National Recording Preservation Board (Board). This Board consists of 17 members, selected by the Librarian from the organizations listed in the statute. Personnel working for the Board are appointed by the Librarian and are employees of the United States.

Additionally, the statute provided for the establishment of a National Recording Preservation Foundation (Foundation) as a Title 36 nonprofit corporation (chapter 1524), not to be considered as an agency or establishment of the United States. The purpose of the Foundation is to accept and administer private gifts to the Board. The board of the Foundation consists of nine members, selected by the Librarian with the latter serving in an ex-officio capacity. The Foundation is governed by its own by-laws. The Librarian appoints a Secretary of the Board who serves as the executive director. Officers of the Foundation are appointed and removed by the board of directors while the Secretary appoints and removes employees. The Foundation has "the usual powers of a corporation acting as a trustee in the District of Columbia." The U.S. government "is not liable for any debts, defaults, acts, or omissions of the corporation," yet the Foundation is authorized to directly receive appropriated funds. The Foundation and its relationship to the Board and to the Librarian of Congress may raise questions as to how "private" the Foundation actually is. At a minimum, the Foundation represents something of a departure from the usual Title 36 nonprofit corporation.

Another departure from the usual Title 36 nonprofit corporation model was forthcoming in the 107th Congress with its approval of the National Help America Vote Foundation. The foundation is "a charitable and nonprofit corporation and is not an agency or establishment of the U.S. Government." (36 U.S.C. 1526; 116 Stat. 1717). The foundation, which carries out its statutory mandate in consultation with the chief election officials of the several states, receives its funding through direct appropriations. Although it must follow provisions of a number of federal laws, it is nonetheless to act as a trustee under District of Columbia law which permits it, among other things, "to borrow money and issue instruments of indebtedness." All of which suggests questions regarding who is ultimately responsible for the indebtedness. Is the National Help America Vote Foundation really private with the right to declare bankruptcy?

Those private, nonprofit organizations seeking federal charters under Title 36 presumably perceive value behind such charters, and indeed, such may be the case. Less recognizable, however, are the risks to private, nonprofit organizations of having a charter. A chartered private organization may lose some of its private rights and be made subject to management laws and regulations generally applicable only to agencies of the United States. Such a situation came about in 1997 when Congress amended the Federal Advisory Committee Act (5 U.S.C. Appendix; 86 Stat. 700) so as to include two Title 36 corporations, the National Academy of Public Administration and the National Academy of Sciences, under specific provisions involving the appointment, permissible activities, and reports of corporation committees doing work for executive agencies (P.L. 105-153; 111 Stat. 2689).

This is the first instance in which Congress has made Title 36, Subtitle II corporations subject to the provisions of a general management law, and while the action may be supportable on public policy grounds, it does, to the extent of the applicable provisions, diminish the private character of the affected organizations. As such, it constitutes a precedent with implications.

Congressional Procedures

Corporate charters are granted in law by act of Congress. The procedure for the grant begins like any other act of Congress, with the introduction of a bill by a Member of either the House of Representatives or the Senate. Bills proposing Title 36 corporate bodies are generally referred to the judiciary committees of each house. If the measure is reported out of committee and approved by that house, it is sent to the other house for approval, and then on to the President for signature, whereupon it becomes law.

Prior to 1965, requests for congressional charters were considered on a case-by-case basis without standards or criteria for incorporation. That year President Lyndon Johnson vetoed H.R. 339 (89th Congress), a bill that would have granted a corporate charter to the Youth Councils on Civil Affairs. In his veto message President Johnson raised several questions about the wisdom of continuing to grant charters on a case-by-case basis "without the benefit of clearly established criteria as to eligibility." In the President's veto message to Congress, he noted:

For some time I have been concerned with the question of whether we are granting Federal charters to private organizations on a case-by-case basis without the benefit of clearly established standards and criteria as to eligibility. Worthy civic, patriotic, and philanthropic organizations can and do incorporate their activities under state law. It seems obvious that Federal charters should be granted, if at all, only on a selective basis and that they should meet some national interest standard.16

The President requested in his veto message that the two judiciary committees conduct a comprehensive study on the entire matter. Various proposals had been made over the years to adopt federal statutory procedures for chartering nonprofit organizations, but Congress has not enacted any of them.

In 1969, in response to the President's request, subcommittees of both the House and Senate Judiciary Committees jointly agreed to a statement of policy, "Standards for Granting of Federal Charters." This statement set forth five "minimum standards" to be met by a private organization seeking a federal charter from Congress:

Any private organization petitioning Congress for the purpose of obtaining the status of a Federal corporation shall be required to demonstrate to the satisfaction of Congress that it is an organization which is—

(1) operating under a charter granted by a State or the District of Columbia and that it has so operated for a sufficient period of time to demonstrate its permanence and that its activities are clearly in the public interest;

(2) of such unique character that chartering by the Congress as a Federal corporation is the only appropriate form of incorporation;

(3) organized and operated solely for charitable, literary, educational, scientific, patriotic, and civil improvement purposes;

(4) organized and operated as a nonpartisan and nonprofit organization; and

(5) organized and operated for the primary purpose of conducting activities which are of national scope and responsive to a national need, which need cannot be met except upon the issuance of a Federal charter.17

The status of a private, nonprofit organization receiving a federal charter does not appear to be substantially different from that of a similar organization incorporated under state law. Under the congressional standards agreed to in 1969, it became a "minimum requirement" that organizations seeking a federal charter demonstrate that they have been functioning properly under a state charter and that their activities are clearly in the public interest. However, there are two elements of a federal charter that appear to create some legal differences between federally chartered corporations and similar corporate bodies functioning solely under state charters.

First, there is a matter of the "citizenship" of the corporation. Generally, corporations chartered by states are deemed to have "citizenship" in the state of establishment. A corporate body created by Congress, however, may be designated as a citizen of the United states for judicial purposes.18 The latter rule has been supported in at least one instance involving a Title 36 corporation. In that case the American Legion was held not to be a citizen of any state for the purposes of invoking diversity of citizenship jurisdiction under 28 U.S.C. 1332(a)(1).19 Further, Congress can itself provide for federal judicial jurisdiction in the charter.20

Second, because federal charters are laws of the United States, they may only be amended by another law of the United States. If an organization seeks to alter its primary purpose or change a provision in its charter, even a minor provision, it must return to Congress and subject its request to the full legislative process. While the process is generally routine, there are occasions when making even minor legislative changes in the charter may open the organizations to challenge from the outside.

Oversight of Chartered Corporations

At present, federal supervision of congressionally chartered nonprofit organizations is very limited. All "private corporations established under federal law," as defined and listed in Subtitle II, are required to have independent audits annually, and to have the reports of the audits submitted to Congress (36 U.S.C. 10101).21 In practice, the Subcommittee on Citizenship, Refugees, Border Security, and International Law22 receives the audit reports of Title 36 corporations and, where corporations have not submitted reports in a timely manner, attempts to communicate with said organizations and remind them of their legal responsibility. The House Judiciary Committee refers all received audits to the Government Accountability Office (GAO) for review.23 The committee's current role is strictly ministerial. A GAO official testified on its review procedures in 1975:

Our reviews of the reports are generally restricted to desk review unless serious questions or problems arise. When this occurs, we contact the independent public accountant or the organization for clarification. The purpose of our review is to determine whether in our professional judgment, the reports meet the standards for reporting set forth in law.

The major problems noted by us to date have been: (1) lack of timely submission of reports; (2) lack of sufficient explanations in the report; (3) financial statements which do not meet the stipulated requirements of law; (4) audits not conducted by independent certified public accountants; and (5) in some few cases failure to follow generally accepted auditing standards.24

In addition, corporate bodies are required to make annual reports of their activities to the Congress.25 Public access to the records and reports of Title 36 corporations varies. For example, the charter of the National Ski Patrol System (36 U.S.C 1527) requires that its annual report be submitted each year to Congress but prohibits the public printing of it. Traditionally, the Senate Judiciary Committee has deferred to the House committee on these matters.

It is not the intention of the Judiciary committees of Congress or the Government Accountability Office to "look over the shoulder" of these organizations, or to conduct audits on their own authority. Congress is understandably ambivalent with respect to these chartered organizations; on the one hand it attempts to protect the public interest against abuse by those corporate bodies while simultaneously seeking to limit its involvement in the internal affairs of these private organizations. Thus far, in no instance has the charter of a Title 36 corporations been revoked although there have been several controversies in recent years involving chartered organizations and the chartering process generally.26

In the 106th Congress, there was a controversy involving the Boy Scouts of America (36 U.S.C. 309) with legislation introduced to revoke its congressional charter. The Supreme Court in Boy Scouts of America v. Dale (120 S.Ct. 2446 (2000)) ruled that the Boy Scouts of America were within their First Amendment rights as a private organization to exclude from a leadership position a person who was in fundamental disagreement with its purposes as an organization. In this case, the facts were that the Boy Scouts of America removed from an assistant scout master position a young man who professed and practiced a homosexual lifestyle. The national organization argued that this individual, whatever his personal merits, had no "right" to hold a leadership position in an organization which disavowed that lifestyle. The individual involved, James Dale, and some supporting organizations, argued that as assistant scout master, Dale had performed his assigned responsibilities well and that his lifestyle, irrespective of being contrary to one of the purposes of the organization, was not a legitimate grounds to deny him a position of leadership. To do so denied Dale his rights under New Jersey's public accommodations law. The issue, Dale's attorneys argued, was not a constitutional, First Amendment question.

Several Members of Congress introduced legislation (H.R. 4892) to repeal the federal charter of the Boy Scouts. Against the wishes of its sponsors, however, a motion was brought to suspend the rules, an action that would pave the way for a vote in the House. The tactic intended to put Members on record as favoring or opposing the bill without having to vote directly. The motion failed; 12 to 362, thereby supporting the Supreme Court decision and, presumably, the chartering of the Boy Scouts of America.27 During this debate the character and utility of the chartering process was discussed.

More recently, in 2005, American Gold Star Mothers (36 U.S.C. 211) reportedly refused to admit to membership a woman whose son was killed while serving in Iraq in 2004 because she is not a citizen of the United States, as the corporation's constitution—not charter—required.28 Congressional concern over exclusionary membership practices grew when Members learned that the congressional charters of three Title 36 corporations explicitly limit membership to U.S. citizens.29

In 2006, another Title 36 organization drew media criticism. The National Education Association of the United States (36 U.S.C. 1511) was chartered by Congress in 1906, and its purposes are "(1) to elevate the character and advance the interests of the profession of teaching; and (2) to promote the cause of education in the United States." (36 U.S.C. 151102) Reportedly the organization has been using the dues of members to make contributions to political organizations (e.g., Rainbow PUSH Coalition) and organizations with agendas that would not appear to be readily connected with teaching and schooling (e.g., the Gay and Lesbian Alliance Against Defamation).30

Ending Charters—Maybe

In some cases, Title 36 corporations have ceased to exist without congressional action. The Grand Army of the Republic (43 Stat. 458) and the United Spanish War Veterans (54 Stat. 152) ceased to exist once their last members died. A similar fate awaits the Veterans of World War I (36 U.S.C. 2303) of the United States, whose membership has dwindled from over 800,000 to less than a dozen.31

Hearings held by subcommittees of the respective judiciary committees of the House and Senate in the early 1970s indicated an increasing level of dissatisfaction by Members of Congress respecting the intent and practice of congressional chartering of private, nonprofit organizations. More organizations, through sympathetic Members of Congress, were requesting charters, and the requesting organizations were often extending the definition of congressionally chartered corporations beyond that typically associated with patriotic and service organizations.32

In 1989, the chairman of the House Subcommittee on Administrative Law and Government Relations, Barney Frank, and the ranking minority Member, Craig James, announced that the subcommittee had approved "a motion for a moratorium on the granting of federal charters."33 In 1992, Chairman Frank called charters "a nuisance," a meaningless act; granting charters implied that Congress was exercising some sort of supervision over the groups and it was not. "When I first raised the issue, 'What is a federal charter?' The answer was, a federal charter is a federal charter is a federal charter.... You could make up an organization for the preservation of Albert DeSalvo, the Boston Strangler. We'd have no way of checking into it."34 Moreover, the subcommittee understood that the committee could be drawn into public disputes touched off by any controversial activities or statements by a Title 36 corporation or employees or members thereof.

Continuing to review applications on the basis of merit with the possibility of rejection, it was asserted, was subjecting the subcommittee to pressures and the potential for embarrassment to both the requester and Congress. By indicating an end altogether of the practice of chartering, it was hoped the subcommittee also would be "leveling the playing field" among worthy organizations. This view was formalized in the 104th Congress when the subcommittee decided that it would no longer consider any legislation to grant new federal charters because such charters were unnecessary for the operations of any charitable, nonprofit organization and falsely implied to the public that a chartered organization and its activities somehow carried a congressional "seal of approval."

This moratorium has been reaffirmed at the beginning of each new Congress, most recently by the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law on March 5, 2009.35 It is unclear whether the moratorium has been or will be renewed in the 112th Congress.36

This subcommittee moratorium did not, however, stop all requests for, or consideration of, charter requests. Notably, it remains possible for another committee, or for the full Congress in its plenary capacity, to "charter" nonprofit organizations and have them listed in Title 36. Indeed, this has been the case in several instances in recent years. In 1996, the Fleet Reserve Association was chartered (36 U.S.C 701) without the legislation being referred to the Judiciary committees of the respective chambers. The charter was included in the National Defense Authorization Act for Fiscal Year 1997 (P.L. 104-201, Title XVIII; 110 Stat. 2760). Also in recent years, corporate bodies (e.g., Corporation for Promotion of Rifle Practice and Firearms Safety, 36 U.S.C. 40701; National Recording Preservation Foundation, 36 U.S.C. 152401) have been created by Congress and listed by the House Office of Law Revision Counsel under Title 36.

In the 105th Congress, the moratorium notwithstanding, two additional nonprofit organizations were chartered. Each case represented a specific and unusual set of circumstances. In the first session, the Senate Committee on Armed Forces approved a defense authorization bill that included a charter for the Air Force Sergeants Association (AFSA). This charter proposal had not been referred to the judiciary committees for their review and approval. When the bill reached conference, the jurisdictional issues were raised and a settlement negotiated. The AFSA received its charter (P.L. 105-85, Title XV; 111 Stat 1963; 36 U.S.C. 20201), but the jurisdictional authority of the judiciary committees, and thus the moratorium, was reaffirmed.37

In the second session of the 105th Congress, a bill to award a charter to the American GI Forum was approved, this time with the approval of the judiciary committees. In this instance, the circumstances involved an act of discouragement by the committee toward a would-be charter applicant under the rules followed prior to 1989. The organization believed that it had been improperly informed and unfairly evaluated during its earlier application and deserved to be reconsidered for chartering. The committee permitted the organization to make its case and concluded that due to exceptional circumstances, an exemption from the moratorium was warranted in this instance and thus a charter was granted (P.L. 105-231; 112 Stat. 1530; 36 U.S.C. 21001).

Despite the moratorium, Congress chartered the Korean War Veterans Association, Incorporated in 2008 (P.L. 110-254; 122 Stat. 2419). H.R. 2852 was introduced by Representative Steny Hoyer on June 25, 2007. The bill was referred to the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, which took no action on it. Senator Benjamin L. Cardin introduced S. 1692 on the same date. S. 1692 was referred to the Senate Committee on the Judiciary, which reported it favorably on September 7, 2007. Five days later, the Senate passed S. 1692 by unanimous consent. S. 1692 was received in the House of Representatives on September 14, 2007, and held at the desk. On June 17, 2008, S. 1692 was passed by a voice vote under a suspension of rules. President George W. Bush signed it on June 30, 2008.

Conclusion

The congressional practice of chartering selected private, nonprofit organizations that engage in patriotic, charitable, historical, and educational activities was a 20th century phenomenon. The chartering process itself tends to send mixed signals to the public. Although the charter does not award any material governmental status to the nonprofit corporation (e.g., right of eminent domain) there is an understandable assumption on the part of the public that somehow the charter signifies U.S. government approval of the corporation's activities and that the corporation is being supervised. Neither assumption is merited.

The House Judiciary Committee's subcommittee of jurisdiction concluded that the chartering process served no useful public purpose and issued a moratorium on bills to issue new charters in 1989. It remains possible, however, for another committee or the full Congress to bypass the judiciary committees and initiate on its own the approval process for chartering a nonprofit organization. This bypass strategy for chartering Title 36 corporations has been successfully pursued (concluding with a presidential public law signature) on several occasions in recent years. Partly in response to these actions, with each new Congress the House subcommittee of jurisdiction has reaffirmed its moratorium on approval of charters. It remains to be seen, however, how effective this moratorium will be against the many attractions of the chartering practice.

Appendix. Title 36, Subtitle II: Patriotic and National Organizations

Part B—Organizations

Chapter

Section

201. Agricultural Hall of Fame

20101

202. Air Force Sergeants Association

20201

203. American Academy of Arts and Letters

20301

205. American Chemical Society

20501

207. American Council of Learned Societies

20701

209. American Ex-Prisoners of War

20901

210. American GI Forum of the United States

21001

211. American Gold Star Mothers, Incorporated

21101

213. American Historical Association

21301

215. American Hospital of Paris

21501

217. The American Legion

21701

219. The American National Theater and Academy

21901

221. The American Society of International Law

22101

223. American Symphony Orchestra League

22301

225. American War Mothers

22501

227. AMVETS (American Veterans of World War II, Korea, and Vietnam)

22701

229. Army and Navy Union of the United States of America

22901

231. Aviation Hall of Fame

23101

301. Big Brothers—Big Sisters of America

30101

303. Blinded Veterans Association

30301

305. Blue Star Mothers of America, Inc.

30501

307. Board for Fundamental Education

30701

309. Boy Scouts of America

30901

311. Boys and Girls Clubs of America

31101

401. Catholic War Veterans of the United States of America

40101

403. Civil Air Patrol

40301

405. Congressional Medal of Honor Society of the United States of America

40501

407. Corporation for the Promotion of Rifle Practice and Firearms Safety

40701

501. Daughters of Union Veterans of the Civil War 1861-65

50101

503. Disabled American Veterans

50301

601. 82nd Airborne Division Association, Inc.

60101

701. Fleet Reserve Association

70101

703. Former Members of Congress

70301

705. The Foundation of the Federal Bar Association

70501

707. Frederick Douglass Memorial and Historical Association

70701

709. Future Farmers of America

70901

801. General Federation of Women's Clubs

80101

803. Girl Scouts of the United States of America

80301

805. Gold Star Wives of America

80501

1001. Italian American War Veterans of the United States

100101

1101. Jewish War Veterans of the United States of America

110101

1103. Jewish War Veterans, USA, National Memorial, Inc.

110301

1201. Korean War Veterans Association, Incorporated (forthcoming)

120101

1301. Ladies of the Grand Army of the Republic

130101

1303. Legion of Valor of the United States, Inc.

130301

1305. Little League Baseball, Inc.

130501

1401. Marine Corps League

140101

1403. The Military Chaplains Association of the United States of America

140301

1405. Military Order of the Purple Heart of the United States of America, Inc.

140501

1407. Military Order of the World Wars

140701

1501. National Academy of Public Administration

150101

1503. National Academy of Sciences

150301

1505. National Conference of State Societies, Washington, District of Columbia

150501

1507. National Conference on Citizenship

150701

1509. National Council on Radiation Protection and Measurements

150901

1511. National Education Association of the United States

151101

1513. National Fallen Firefighters Foundation

151301

1515. National Federation of Music Clubs

151501

1517. National Film Preservation Foundation

151701

1519. National Fund for Medical Education

151901

1521. National Mining Hall of Fame and Museum

152101

1523. National Music Council

152301

1524. National Recording Preservation Foundation

152401

1525. National Safety Council

152501

1526. Help America Vote Foundation

152601

1527. National Ski Patrol System, Inc.

152701

1529. National Society, Daughters of the American Colonists

152901

1531. The National Society of the Daughters of the American Revolution

153101

1533. National Society of the Sons of the American Revolution

153301

1535. National Tropical Botanical Garden

153501

1537. National Woman's Relief Corps, Auxiliary to the Grand Army of the Republic

153701

1539. The National Yeomen F

153901

1541. Naval Sea Cadet Corps

154101

1543. Navy Club of the United States of America

154301

1545. Navy Wives Clubs of America

154501

1547. Non Commissioned Officers Association of the United States of America, Inc.

154701

1701. Paralyzed Veterans of America

170101

1703. Pearl Harbor Survivors Association

170301

1705. Polish Legion of American Veterans, U.S.A.

170501

1901. Reserve Officers Association of the United States

190101

1903. Retired Enlisted Association, Inc.

190301

2001. Society of American Florists and Ornamental Horticulturists

200101

2003. Sons of Union Veterans of the Civil War

200301

2101. Theodore Roosevelt Association

210101

2103. 369th Veterans' Association

210301

2201. United Service Organizations, Inc.

220101

2203. United States Capital Historical Society

220301

2205. United States Olympic Committee

220501

2207. United States Submarine Veterans of World War II

220701

2301. Veterans of Foreign Wars of the United States

230101

2303. Veterans of World War I of the United States of America, Inc.

230301

2305. Vietnam Veterans of America, Inc.

230501

2401. Women's Army Corps Veterans' Association

240101

Acknowledgments

This report was originally authored by [author name scrubbed], who retired from CRS. It has been revised many times by the current author. Readers with questions about Title 36 corporations may contact [author name scrubbed].

Footnotes

1.

The term "congressional charter" is used rather than "federal charter" because this report considers only those entities which received a charter from Congress. It excludes other nonprofit corporations, such as the Universal Service Administrative Company (USAC), that have federal policy responsibilities and have charters, but were chartered without legislation. On USAC, see U.S. Congress, House, Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, Problems with the E-Rate Program: Waste, Fraud, and Abuse Concerns in the Wiring of Our Nation's Schools to the Internet, 108th Cong., 2nd sess., July 17, 22, 2004 (Washington, GPO, 2004).

2.

The term "nonprofit" is employed here instead of the more accurate "not-for-profit" because "nonprofit" is the preferred term of the U.S. Code.

3.

Title 36 of the U.S. Code may be accessed at http://uscode.house.gov/download/title_36.shtml.

4.

H.R. 1085, introduced March 17, 1997, by the chairman of the House Judiciary Committee, Henry Hyde, had as its official title: "A bill to revise, codify, and enact without substantive change certain general and permanent laws, related to patriotic and national observance, ceremonies and organizations as Title 36, United States Code, 'Patriotic and National Observances, Ceremonies and Organizations.'" The House Judiciary Committee reported the bill on October 21, 1997 (H.Rept. 105-326). The House passed H.R. 1085 by a voice vote on February 3, 1998 (Congressional Record, daily edition, vol. 144, February 3, 1998, H114). The Senate followed by a voice vote of approval, and the bill was sent to the President, who signed it on August 18, 1998 as P.L. 105-225 (112 Stat. 1253). The Office of Law Revision Counsel of the House of Representatives is under statutory mandate (2 U.S.C. 285b) to prepare, one title at a time, a restatement and revision of the general and permanent laws of the United States for enactment into positive law. The respective bills make certain changes in language. Some changes result form consolidating related provisions of law. Others are made to achieve uniformity within a title and to conform to contemporary usage. Although P.L. 105-225 made changes in language, it made no substantive changes to the law.

5.

Congress granted a charter to the Korean War Veterans Association, Incorporated, on June 30, 2008 (P.L. 110-254; 122 Stat. 2419). Once this charter is added to the U.S. Code, there will be 93 Title 36 organizations.

6.

U.S. Senate, The Constitution of the United States of America: Analysis and Interpretation, S. Doc 108-17, 108th Cong., 2nd sess. (Washington: GPO, 2002), pp. 359-361.

7.

See discussion of the earlier status of the defunct Federal Asset Disposition Association (FADA) established by the Federal Home Loan Bank Board in 1985 under the incorporation act of the state of Colorado in U.S. General Accounting Office, Failed Thrifts: No Compelling Evidence of a Need for the Federal Asset Disposition Association, FFO/FFD-89-26 (Washington: GAO, 1989); and U.S. Congress, Senate, Committee on Governmental Affairs, Managing the Public's Business: Federal Government Corporations, by [author name scrubbed], Comm. Print 104-18, 104th Cong., 1st sess. (Washington: GPO, 1995), pp. 22-26.

8.

On congressional charters generally, see CRS Report RS22230, Congressional or Federal Charters: Overview and Current Issues, by [author name scrubbed].

9.

Dear colleague letter from Barney Frank, chairman, and Craig James, ranking minority Member, House Subcommittee on Administrative Law and Governmental Relations, February 24, 1989, p.1.

10.

E-mail from Ur Jaddou, Chief Counsel, House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, April 22, 2009.

11.

Ibid.

12.

See CRS Report RL33314, The Congressional Charter of the American National Red Cross: Overview, History, and Analysis, by [author name scrubbed], (out-of-print report, available from author upon request).

13.

There was an exception to the rule that congressional charters do not confer any governmental power upon or assign benefits to title 36 corporations. The Department of Veterans Affairs formerly had a departmental rule that any veterans organization seeking free space and telephones in its facilities had to have a congressional charter. That requirement was removed in 1992.

14.

Amy Shipley, "Senators Scold USOC Leaders: Congressional Oversight Urged as Part of Restructuring," Washington Post, January 29, 2003, p. D-1. A case could be made that the U.S. Olympic Committee is misplaced being in Subtitle II. Its legal status and international responsibilities, arguably, make it similar to the ANRC, which is found in Subtitle III.

15.

The Supreme Court in a 1995 case (Michael Lebron v. National Railway Passenger Corporation; 513 U.S. 374) addressed the question of whether Congress can declare, by statutory language, that a corporation created by Congress and assigned attributes of the state, is a "private corporation." The National Railway Passenger Corporation (AMTRAK), established by Congress (45 U.S.C. 451) and enumerated as a "mixed-ownership corporation" under 31 U.S.C. 9101(2), was sued by Michael Lebron for rejecting on political grounds an advertising sign he had contracted with them to display. Lebron claimed that his First Amendment rights had been abridged by AMTRAK because it is a government corporation, and therefore an agency of the United States. AMTRAK argued, on the other hand, that its legislation provides that it "will not be an agency or establishment of the United States government" and thus is not subject to constitutional provisions governing freedom of speech. The Court decided that while Congress can determine AMTRAK's governmental status for purposes within Congress's control (e.g., whether it is subject to statutes such as the Administrative Procedure Act), Congress cannot make the final determination of AMTRAK's status as a government entity for purposes of determining constitutional rights of citizens affected by its actions.

16.

A copy of the veto message is printed as H.Doc. 292, 89th Cong., 1st sess. (Washington: GPO, 1965), p. 1.

17.

U.S. Congress, House, Committee on the Judiciary, Standards for Granting of Federal Charters to Non-Profit Corporations, committee print, 91st Cong., 1st sess. (Washington: GPO, 1969).

18.

Bankers Trust Company v. Texas and Pacific Railroad Company, 241 U.S. 295; 36 S.Ct. 569; 60 L.Ed. 1010 (1916).

19.

Harris v. American Legion, 163 F.Supp. 700 (S.D. Ind. 1958), aff'd 261 F.2d. 594.

20.

Patterson v. American National Red Cross, 101 F.Supp. 655 (S.D. Fla. 1951), aff'd 261 F.2d 594.

21.

Exceptions to this rule exist. The Corporation for the Promotion of Rifle Practice and Firearms Safety, created in 1996 by Congress, and not incorporated first in a state, is exempted (§40707) from the audit requirements.

22.

In the 104th Congress, the Subcommittee on Immigration and Claims became responsible for congressionally chartered organizations, taking jurisdiction from the former Subcommittee on Administrative Law and Government Relations. In the 108th Congress, the title of this subcommittee was changed to Subcommittee on Immigration, Border Security, and Claims. Currently, it is called the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law.

23.

See, for instance, U.S. General Accounting Office, Federally Chartered Corporation: Review of the Financial Statement Audit Report for the United States Capitol Historical Society for Fiscal Year 1997, B-280210, directed to the Chairman of the House Judiciary Committee, Henry Hyde, June 16, 1998.

24.

U.S. Congress, House, Committee on the Judiciary, Subcommittee on Administrative Law and Government Relations, Oversight of Federal Incorporations, Hearings, 94th Cong., 1st sess. (Washington: GPO, 1975), p. 18.

25.

Again, exceptions to this rule exist. The Daughters of the American Revolution (36 U.S.C. 153107) and the American Historical Association report annually to the Smithsonian Institution (36 U.S.C. 153107).

26.

Conflicts involving Title 36 corporations arise from time to time. In September 1998, for instance, press accounts described a decision by the Pentagon to ban for three years agents of Academy Life Insurance Company from selling insurance on military bases. The Pentagon charged that Academy Life agents routinely presented themselves as impartial financial counselors with the non-profit, congressionally chartered Non Commissioned Officers Association (NCOA), not as salesmen. The company paid more than $1 million a year for the endorsement of NCOA. Bradley Graham, "Pentagon Bars Life Insurance Firm Because of 'Deceptive' Practices," Washington Post, September 18, 1998, p. A8.

27.

U.S. Congressional Record, daily edition, September 12, 2000, H7448-H7455. Sean Scully, "House Rejects Effort to Punish Boy Scouts Over Gay Ban," Washington Times, September 14, 2000, p. A-3.

28.

Jim Fitzgerald, "S.J. Woman Who Will Head Group Responds to Flap Over Noncitizen,"Courier-Post, May 29, 2005; and Peter Applebome, "Some Mothers Are More Equal Than Others," New York Times, June 1, 2005, p. B1. AGSM has revised its constitution to permit non-citizen mothers.

29.

They are (1) American War Mothers, (2) Italian American War Veterans of the United States, and (3) Paralyzed Veterans of America.

30.

Editorial, "Teachers Pets," Opinion Journal, January 3, 2006, available at http://www.opinionjournal.com/editorial/?id=110007761. This is not the first instance where the media has reported that the National Education Association has engaged in political activities. In 1980, the New York Times reported that an NEA spokesperson told one of its reporters, "We endorsed Carter in 1976 on the basis of his campaign pledges. And he delivered on virtually every one of those promises: increased Federal funding for public education, the establishment of the Department of Education, opposition to the tuition tax credit program, support of the E.R.A. and human and civil rights." Leslie Bennetts, "Teachers Show Their Strength at Garden," New York Times, August 14, 1980, p. B3.

31.

Lisa Hoffman, "A Dozen Vets of World War I Still Soldier On," Scripps Howard News Service, November 8, 2006.

32.

U.S. Congress, Senate, Committee on the Judiciary, Subcommittee on Federal Charters, Holidays and Celebrations, Federal Charters for Nonprofit Corporations, Hearings, 92nd Cong., 1st sess. (Washington: GPO, 1971); U.S. Congress, House, Committee on the Judiciary, Subcommittee on Administrative Law and Government Relations, Oversight on Federal Incorporations, Hearings, 94th Cong., 1st sess. (Washington: GPO, 1975).

33.

Dear colleague letter from Barney Frank, chairman, and Craig James, ranking minority Member, House Subcommittee on Administrative Law and Governmental Relations, February 24, 1989, p.1.

34.

Bill McAllister, "Congressional Charters Abolished: Laws Recognizing Organizations Seen as Meaningless Nuisance," Washington Post, April 9, 1992, p. 25.

35.

The moratorium is not to be found in the rules of the subcommittee. Rather, the practice has been for the subcommittee move to adopt a policy of not granting new charters and then to vote to approve this policy.

36.

In the 112th Congress, the House Subcommittee on Immigration Policy and Enforcement has jurisdiction over charters of incorporation.

37.

H.Rept. 105-340, sec. 1085 (b) reads: "(a) FINDINGS—Congress finds that the practice of providing by statute Federal charters to certain nonprofit organizations—(1) may be perceived as implying a Government imprimatur of approval of those organizations; and (2) may mistakenly lead to public perception that the United States ensures the integrity and worthiness of those organizations. (b) SENSE OF CONGRESS—It is the sense of Congress—(1) that because of the perceived implicit Government imprimatur of approval conveyed by enactment of a Federal charter for an organization, such a charter should be granted only in the rarest and most extraordinary cases; and (2) that no statutory Federal charter should be enacted after the enactment of this Act unless the charter is approved by Congress upon favorable report by the committees of jurisdiction of the respective Houses."