For over a century, philosophers, politicians, and sociologists have bemoaned philanthropy’s inherent antidemocratic, paternalistic, and amateuristic aspects. The antidemocratic nature of philanthropy is self-evident: When a wealthy person determines the best way to address a societal problem without the input of either society at large or the intended beneficiaries of the philanthropy, the result is a deficit of democracy. Philanthropy’s amateurism stems from the illogical belief that wealthy individuals ought to address some of the world’s most complex and intransigent problems simply because they successfully amassed a fortune in the private sector. The paternalism critique focuses on the assumption that many of society’s problems are born out of the personality faults of charity beneficiaries.
Because most philanthropists formed private foundations to conduct their charitable work, the regime that regulates private foundations evolved to mitigate the three aforementioned negatives: antidemocracy, paternalism, and amateurism. More specifically, the law requires private foundations to avoid political activity, spend a certain percentage of funds in a charitable manner, and submit extensive annual reports. In this manner, the legal regime struck a palatable balance between philanthropy’s inherent negative aspects and philanthropy’s obvious positives.
However, the recent trend of philanthropists conducting charity through for-profit vehicles, such as limited liability companies (“LLCs”), effectively bypasses the restrictions placed upon private foundations. This Article will discuss each of the traditional critiques of philanthropy and explore how they are exacerbated when philanthropic efforts are shifted to LLCs. Ultimately, this Article will argue that philanthropy conducted through LLCs will undoubtedly be less democratic, more amateuristic, and more paternalistic than philanthropy conducted through private foundations. This Article will conclude with some thoughts concerning several potential solutions to the problem, including the adjustment of incentives for private foundations and LLCs, imposing a regulatory regime over philanthropic activity, extending existing licensing regimes to apply to certain philanthropic activity, and the potential of a social license to conduct philanthropy.
78 Md. L. Rev. (2018)