Giving Now: Accelerating Human Rights for All
Patricia Illingworth
216 pages, Oxford University Press, 2022
“Moral self-licensing” is an unconscious tendency, when people follow their good acts with bad acts to balance the good with the bad. People who are generous, caring, and helpful are particularly vulnerable to moral self-licensing. And because these qualities characterize many donors, philanthropy is at risk of perpetuating the bad acts that follow this common mental glitch.
In this excerpt from Giving Now, I argue that by practicing due diligence and vetting donors, nonprofits can prevent future harms associated with moral self-licensing and sidestep their complicity in them. When donors view their giving as a human rights responsibility—rather than as an act of generosity—they are less vulnerable to moral licensing. Understanding philanthropy through the lens of human rights changes the narrative from “I am kind and generous” to “just doing my duty.”
A human rights framework can diminish the risk of moral licensing, and guide donors on where to give, how much to give, and when to give, and to this end, Giving Now applies the UN Guiding Principles for Business and Human Rights to the nonprofit sector. Giving to meet our human rights responsibilities changes the power dynamic between donors and recipients: Recipients are asserting a right and donors meeting a responsibility. When we reimagine philanthropy as a human rights responsibility, many of the concerns that have led to a backlash against philanthropy can be addressed.—Patricia Illingworth
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One problem with accepting donations from bad people is that the donation might be part of a self-licensing loophole in which donors follow their generous acts with bad acts. When moral self-licensing is in play, institutions, such as MIT, would be complicit in the subsequent bad act.
What are the implications of this for nonprofits, cultural organizations, and educational institutions? Given that some people donate money with an eye to licensing future bad actions, albeit unconsciously, accepting donations from them may incentivize future bad actions. If philanthropy triggers unethical conduct, and that conduct can harm others, the decision about whether to accept a donation shouldn’t rest only with the organization receiving funds. They’re not the only ones at risk of harm from the donation. Indeed, they may not shoulder any of the harm, but they may benefit from harm to others.
When moral self-licensing is triggered, nonprofits can enjoy the benefits of a harm shouldered by others and to which others did not consent. Nor is it only the receiving institution that benefits from tainted donors. Those who attend and work at universities, or go to museums, can also benefit from the donations of shady donors and would be, in turn, complicit in subsequent harms. Returning the donation, removing a donor’s name from buildings, and engaging in public shaming can go a long way toward mitigating complicity with harms. Nonprofits should vet donors to determine if they are at high risk for moral licensing.
Recognizing philanthropy as a human rights responsibility can make it is less vulnerable to moral licensing. As a human rights responsibility, philanthropy is nestled somewhere between law and ethics: soft law. When donors give because they have a human rights responsibility, they are not giving because they are kind, generous, or virtuous. Therefore, they do not acquire any moral credits to balance. Rather, they give because human rights are at issue and they are required to help. CSR is already moving in this direction. Today CSR is seen less as a corporate virtue and more as a part of the purpose of the corporation. The decision of the Business Roundtable to focus on stakeholders as part of corporate governance reflects this shift. The tendency of nonprofits to defer to donors or to agree to terms that are not ideal in order to placate donors may also diminish when we recognize giving as a human rights responsibilities.
Had Ito, and MIT, considered the human rights implications of accepting Epstein’s money, they would have had little choice but to refuse it. As an organization, they would be linked to the human rights violations committed by Epstein. Certainly, the Guiding Principles would speak against accepting Epstein’s donations. He violated the rights of countless girls. By giving Epstein an opportunity to build his reservoir of moral credits, MIT would be linked to future human rights violations. As it turned out, Epstein committed suicide in his jail cell. Once on notice that a donor has violated human rights, and given the risk of moral self-licensing, nonprofits would be linked to any future human rights violations of the donor.
Let’s return briefly to the Sacklers. Moral licensing may also be relevant to them. Some of the high-risk factors for moral licensing are present with the Sacklers. As generous donors, the Sacklers may have felt entitled to put the lives and well-being of others at risk. The moral characteristics raised by OxyContin are ambiguous. On the one hand, OxyContin is a medication intended to relieve suffering. Looked at from this perspective, efforts to aggressively market it could be interpreted as an effort to educate physicians and the public, and to help reduce human suffering. It is only in retrospect, when we look at the opioid crisis and the role the Sacklers played in it, that the harm is blatant. In the face of this ambiguity, it would be relatively easy for the Sacklers to rationalize their aggressive marketing of OxyContin as an effort to do good. After digging a little deeper, it is clear that Purdue turned a blind eye to the public health crisis it created—and from which it flourished. To this day the Sacklers deny any wrongdoing. As we saw in the last chapter, Purdue finally pled guilty to criminal charges in the fall of 2020 and faced penalties of over $8 billion. When moral licensing is in play, people feel personally entitled to do bad acts, and they have been known to extend the same “favor” to others. As a privately held company, Sackler philanthropy may build moral credits to be shared with Purdue.
We also saw in the last chapter that Princeton philosopher Peter Singer believes:
[The Sacklers should] pledge to use their billions not to promote the arts, but to reduce suffering, if possible on the same scale as the suffering brought about by the accumulation of their wealth. That would require donating to non-profits that are most effectively reducing suffering, anywhere in the world. The recipients would be justified in accepting the Sacklers’ money for that purpose.
This strategy could address the problem of tainted donations, but perhaps not the risk posed by moral licensing. If we follow Singer’s suggestion and the Sacklers give to reduce suffering on the same scale as the suffering they created, they may, in turn, feel entitled to engage in future bad acts, and quite possibly on the same scale as their donations to reduce suffering. If, on the other hand, we think of the “donation” as a remedy for violating human rights, the potential for using “good” to trigger bad is circumvented because neither the initial donation nor the subsequent one could be characterized as good or virtuous. If anything, the donor is acknowledging a past bad act.
There were over 1,500 lawsuits against the Sacklers and Purdue Pharma seeking justice and compensation for the victims of opioids. Those who have suffered because of the opioid crisis should be compensated for the suffering they have endured. But compensation in and of itself would not solve the problems raised by moral self-licensing. For that, we have to challenge the wisdom of accepting Sackler money altogether. Because good acts can lead to future bad acts, it is possible that the combined bad acts may outweigh any good achieved by the good acts. Although speculative, if moral self-licensing was at play in Sackler philanthropy and it unleashed the opioid crisis, there is little doubt that the bad far outweighed the good. And, unfortunately, accepting more money as a donation, even if it is directed to human suffering, might well give rise to future harms and suffering.
In this chapter, I have tried to show that the moral licensing loophole may play a significant role in philanthropy. It is difficult to prove this in the absence of empirical studies. However, given what we know about moral licensing, philanthropists and nonprofits are vulnerable. In view of the recent spate of “bad” philanthropists, that is, philanthropists who are engaged in morally troubling conduct, whether legally, as Warren Kanders was, or illegally as Jeffrey Epstein was, it would be a mistake to give some donors the benefit of the doubt. I also suggested that viewing donors through a human rights lens would go a long way toward mitigating the impact of moral licensing on philanthropy.
A Place for Ethics Codes
In the final chapter of this book, I suggest that incorporating due diligence into philanthropy could be helpful in addressing the problems posed by tainted donors and tainted donations. In the meantime, I want to look at the Code of Ethics proposed by the Council for Advancement and Support of Education (CASE), an organization in the United Kingdom that consults to educational institutions and nonprofits. It provides ethical guidance on social issues that arise in the context of higher education. CASE recognizes that philanthropy is important for education and has established a set of “core principles” to guide universities. I offer it only as a possible approach to vetting donations. Had MIT turned to this Code of Ethics, or something similar, there might have been a very different outcome for the Media Lab and its stakeholders.
For our purposes, the most relevant principles from the Code are as follows:
- Universities should seek philanthropic support which is aligned with their values, strategic goals and financial needs, as a legitimate, sustained and vital component of their income.
- Ethical guidelines for the acceptance of such gifts in any institution should be available in the public domain.
- Impartial, independent research, scholarship and teaching are the basis for the furtherance of knowledge. Universities should not accept philanthropic gifts if this is not clearly understood and accepted by all parties.
- Universities should take all reasonable steps to ensure that they are aware of the source of funding for each gift, and have processes in place to satisfy themselves that the funds do not derive from activity that was or is illegal, or runs counter to the core values of impartial, independent research, scholarship and teaching.
- The legal and reputational rights of potential donors should also be considered as part of any due diligence undertaken in assessing the acceptability of a proposed donation. In this regard, a clear distinction should be drawn between rumour or speculation and matters of confirmed fact or legal finding, whilst also accepting that institutions may wish to consider the reputational risks that could be incurred through public perception of any particular donor.
A couple of takeaways from these principles are relevant to our discussion. The first principle underscores the need for philanthropy to be consistent with the values and goals of the institution. This principle alone might have ruled out donations from the Sacklers and Jeffrey Epstein. Of course, there is wiggle room, given that financial need and strategic goals also figure into the Code’s calculation. The second principle listed underscores the need for transparency with respect to the ethical guidelines in place. To do this, institutions must first have ethical guidelines. The third principle in the list stipulates that universities must protect their independence. A no-strings-attached principle might rule out gifts from the Koch brothers who prefer “think tanks” that promote a specific, right-wing ideology. In sum, universities should vet donors and should not accept funds that derive from illegal activities, or activity that is inconsistent with the values of the university.
It is beyond the scope of this book to give a thorough analysis of the CASE Code of Ethics. I have highlighted these five principles from the Code as an illustration of what institutions might do to vet donors. Professor Lessig may have been overly pessimistic about the possibility of making ethically informed choices about donors. The principles considered here show that establishing moral guidelines for donors is both possible and if practiced could avoid serious problems.
A human rights approach can be helpful in mitigating the impact of moral self-licensing. Just as donors should focus their giving on human rights, nonprofits are responsible to ensure that donors do not acquire their money by violating rights or are not personally implicated in rights violations. Human rights also provide a bright line for determining what is acceptable and what is not. In this respect, they are easy to use and leave little discretion to institutions that might be swayed by their perceived self-interest or the argument from moral subjectivity. In Chapter 9, drawing on the Guiding Principles, I sketch a due diligence approach that can be applied to donors, nonprofits, and those involved in fundraising. The Sackler family, as well as Purdue Pharma, violated human rights. Their donations should be rejected. Jeffrey Epstein violated the rights of the girls he sexually abused and trafficked. Human rights violations are a bright line. When we recognize that philanthropy is a human rights responsibility, “donors” are merely meeting their human rights responsibilities. They should not be viewed as especially virtuous for doing so. Lastly, if donors violate human rights, they have a duty of remedy and should use their money to remedy the victims of their actions.