Next on the authoritarian check-list: civil society
The people who politicized the nonprofit sector now want to use government power to target civil society they dislike
Authoritarian regimes seek to delegitimate and control aspects of society that hold some measure of independence: that includes universities, the government bureaucracy, a free press, and, civil society.
I’ve written a lot about threats to government, especially via Schedule F, and to free speech on campus. We are currently witnessing the manufacturing of campuses as sites of disorder (see this piece by Paul Musgrave). This is a handy political hammer in an election year, and invites greater supervision of campuses by political actors, who can install their people and rules.
Here, I want to talk about civil society. Civil society is a broad category, which basically incorporates everything from churches, neighborhood associations, nonprofits and large philanthropies. From de Tocqueville on, there is a broad sense that civil society serves an essential role in American democracy. The stronger the civil society, the less like an authoritarian leader can re-orient society around his goals.
So, we should be concerned about partisan government actors targeting specific nonprofits and civil society more broadly. A consistent pattern in the lurch toward authoritarianism is the squeezing of civil society groups, in countries like Russia, China, Turkey, Venezuela, and Hungary. It is a well-worn playbook. Accuse the organizations of working against the interests of the state, or supporting radicals or terrorists, shut them down, and then start to squeeze other civil society actors not loyal to the state. Rachel Kleinfeld, who wrote a report for the Carnegie Endowment for International Peace on the attacks on civil society in the US and elsewhere, explains the logic:
The first groups that were targeted tended to be more political organizations, leading others to think that they could save themselves by distancing themselves from controversy. But over time, the restrictions spread to humanitarian and service organizations. However, leaders did not shutter all civil society equally, as occurred under Cold War totalitarian regimes—instead, they left supportive media and organizations alone while applying the new laws and regulations to organizations that opposed the agenda of the ruling party. Civic space became contested—open to some ideas and closed to others.
Kleinfeld identifies the formal tools governments are or will use, which are accompanied by political vilification, informal harassment, and in some cases threats of violence.
Congressional committee hearings and oversight activities used to impugn organizations as foreign, reduce their legitimacy, and take up their time and resources
Laws restricting speech or forcing ideological conformity at state-controlled universities and schools
Broad and vaguely written foreign agent registration regulations being applied to activities previously not considered problematic
Government lawsuits and investigations executed in bad faith, which take time and money to address while undermining legitimacy and often blocking discussion of the case while they are underway
New anti-protest laws that carry massive fines or felony convictions or that allow vigilante action against protesters
Retaliatory actions that punish businesses for taking a stand on public issues or offering products for which there is business demand—such as environmental, social, and governance (ESG) screening on investment funds—including by revoking government contracts, suspending supportive business conditions, or enacting new laws designed to punish
Internal Revenue Service (IRS) investigations, tax code changes, audits, or asset seizure.
In the New York Times, Michelle Goldberg draws on Kleinfeld’s work to observe that some of these tools are already being put to use. Republicans in Congress are demanding investigations of organizations that are supporting pro-Palestinian protests, characterizing such support as underwriting anti-semitism and terrorism.
But it’s precisely because the protests regularly transgress mainstream sensitivities that the right finds it useful to target them as part of a broader political project. That’s particularly true at a time when so many left-leaning organizations have aligned themselves with the pro-Palestinian movement. As one consultant who works with progressive nonprofits put it to me, careless activists have given Republicans “a Hamas-sized terrorist wedge to go after our entire infrastructure.”
Republicans seem to be laying the foundation to do just that. Last week, James Comer, chair of the House Oversight Committee, announced an investigation into the “money trail” behind the campus protests. “It appears global elites are funding these hateful protests and pop-up tent cities,” he said. “These are the same groups that fund other radical agendas, including diminishing America’s energy production and pushing soft-on-crime policies that harm the American people.”
Meanwhile, the House recently passed, 382-11, a bill that would allow the Treasury secretary to revoke the tax-exempt status of “terrorist-supporting organizations.” Providing material support to terrorism is, of course, already illegal, and nonprofits that violate those laws should be shut down. But the House bill gives the executive branch the power to make these determinations unilaterally, and the measure is clearly aimed at funding for campus protests.
The government already has enormous post-9/11 powers to target organizations providing support to terrorism. This is something else. It is also an approach which will be deployed selectively. The most violent events associated with campus protests occurred when a mob attacked a pro-Palestinian encampment at UCLA (and where police did not respond for hours). There is credible evidence that these efforts were driven by right-wing groups. Will there be Congressional calls to investigate their organization and funding? Probably not. When the DOJ announced investigations into violent threats against educators, Republicans aggressively pushed back against what they portrayed as a weaponization of government against civil society.
Putting “woke” foundations in the crosshairs
What is striking about this year’s election is the degree to which Republicans are targeting institutions as irredeemably corrupt, and the degree they have fairly radical plans to deal with them. Schedule F will remove bureaucratic autonomy. Threatening the tax status or federal grants for universities will bring higher education to heel.
Add the nonprofit sector to that list of institutions to be controlled. This could come via new laws, or just via executive power. A key demand of Republicans is that the Department of Justice do more to investigate George Soros and the organizations he funds. A Trump Attorney General would be more likely to comply, unbothered by the fact that they would be following in the footsteps of Putin and Orban in pursuing Soros. The IRS could also pursue organizations selectively by questioning their tax status. Trump could order the IRS to investigate individual organizations that displease him. He already tried this as President. The difference is now he would be surrounded by loyalists who would enable these actions.
If you are running a visible philanthropic organization, you have reason to be worried. Though they have gotten less attention than government or universities, foundations are also accused as having gone “woke”, which in concrete terms often means committing resources to DEI, social justice or environmental issues. The fact that such criticisms are often coming from right-wing tax-exempt nonprofit organizations like the Heritage Foundation, AEI or the Manhattan Institute, who in turn draw funding from right-wing foundations, does not seem to give the critics pause, evoke a sense of irony, or at least an acknowledgment that the current state of civil society reflects a wide diversity of perspectives.
Under the shadow of such government threats, how might non-profits operate? We were offered a sneak peek recently when the Gerald Ford Presidential Foundation rescinded a plan to give Trump-critic Liz Cheney an award, reportedly because they worried that this would encourage Trump to revoke their nonprofit status. As a trustee of the Foundation pointed out in a resignation letter: “The historical irony was completely lost on you. Gerald Ford became president, in part, because Richard Nixon had ordered the development of an enemies list and demanded his underlings use the IRS against those listed.”
It is easy for nonprofit leaders to slowly accommodate themselves to the perceived expectations of a world where they have less freedom than they thought. Why take the risk of offending a vindictive man who could destroy your organization? Keep your head down, and try to protect your organizational goals. Well, maybe some of those goals will have to go. Lets rename that DEI program, or maybe suspend funding for it for a while. Lets start a program that you don’t necessarily believe in, but offers a sign of goodwill to the regime. Lets open up more leadership posts to people who can speak to both worlds, in the name of intellectual diversity. Bit by bit, the institutions fall under the sway of government.
Real abuses of nonprofit status have gone unchecked
The grand irony is that there are real abuses of nonprofit status, which have been enabled by a Republican Supreme Court and politicians. At a time of rising inequality, decisions like Citizen’s United have allowed the very wealthy to use their money to not just fund their causes through their own foundations, but also to reshape politics, by creating non-profits with nominally social welfare purposes but whose primary goals are political.
When the IRS did investigate the abuses of such non-profits for violating their tax status, Republicans portrayed it as the Obama administration targeting conservative organizations. This was untrue, but became the conventional wisdom. The IRS was kneecapped budgetarily for a decade, and the general message was that the government would not investigate even the most flagrant abuses. The IRS abdicated its role, despite thousands of complaints and the growth of dark money in politics.
It is easy to blame the IRS, but they were told by Republicans in power that any regulation was unwelcome. In 2015, Paul Ryan reportedly inserted language into an appropriations bill that formally banned the IRS from trying to determine if “an organization is operated exclusively for the promotion of social welfare.” That rider largely tied the hands of the IRS. In 2018, the Trump administration scrapped donor disclosure requirements to most nonprofits, hiding the flow of dark money.
Organizations kept pushing the envelope. Churches engaged in more overt political activity. Overtly political organizations, such as a right-wing Washington DC think-tank, pretended to be churches. In some cases, political nonprofits fueled corruption. There are different types of nonprofit categories, some of which allow overt political activity like lobbying and political donations, so its not like these organizations don’t have other options.
There is now some discussion of Republicans joining Democrats in fixing the massive regulatory hole here, but the motivations are discouraging. For example, key Republicans point to donations made by Mark Zuckerberg and his wife to provide grants to maintain election administration during the pandemic. Such grants were intended to benefit Democrats, they say, despite the fact that any government could apply for them. Far more partisan uses of money don’t bother them as long as they benefit Republicans, it seems.
It should be possible for a mature democracy with a strong civil society to distinguish between obvious violations of tax laws and avoid a government targeting its perceived political opponents. Our current status quo is that it we have normalized a legal fiction that political organizations are engaged in social welfare that deserves nonprofit status, and are on our way to normalizing the use of government power to selectively attack real nonprofits that fall foul of the regime in charge.
How to make sense of this? The common thread over the last decade has been for Republicans to move the goal-posts to protect their political interests. More tax-exempt dark money and less regulation and transparency for organizations assumed to support Republican causes, and now, more regulation of organizations viewed as the enemy.
What I’m reading
Louis Menand’s superb essay in the New Yorker explaining the origins and purpose of academic freedom was especially timely given the arrest, assault, suspension and even firing of professors on campus in recent weeks. If administrators, in conjunction with politicians and police, can forcibly silence and remove faculty from campus without any meaningful due process, what is left is neither academic, nor freedom.