Resisting Administration Threats and the Focus on Philanthropic Freedom

Eight months into the new administration, it feels like an appropriate moment to make some observations on the threats we have discussed previously, to give another plug for the Defending Equity Initiative, and comment on some developments.

First, a personal note:  there have been a number of times over the past several months where I’ve been tempted to write, but ran into the question of “Why?”  There are very few opinions I have that are not shared by anyone who might realistically read our firm’s blog.  The fascism, the abject cruelty and racism on display in the city I live in and many others, the despair for democracy and the rule of law-- as a lawyer for progressive charities and foundations living in Los Angeles, I’ve ‘bubbled’ myself thoroughly enough that I’ve got nothing to say on those topics that everyone reading doesn’t already feel acutely.

It's a lot easier for me to write when I can find some things to disagree with people I respect about.   And maybe I’ve reached that point.

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Imagined Conspiracies and Threatened Fallout. 

While the threats and posturing have been present since the beginning of the administration, they were intentionally escalated following the murder of a well-known podcaster who pushed some of the most reprehensible aspects of the administration’s agenda (white supremacy, demonization of the most vulnerable, etc.).   This act of violence, that essentially no one on the left actually endorsed or celebrated (empathy is good, violence against civilians is bad), was now the founding principle of an alternate reality where the administration’s enemies were the violent, malevolent force. Trans people, immigrants, reporters, professors, progressive philanthropy, anyone with the temerity to accurately quote the views of the deceased… all rapidly treated as part of a conspiracy of political violence by the left that now warrants a crackdown.   

I expect no better from the administration, but I was and remain concerned about the policing liberal politicians and philanthropy did and still do to “take down the temperature” or “find common ground”. In trying to smooth over the fear of blowback, they indulged the right’s opportunistic fantasies.  About the deceased, about imagined threats of political violence on the left, and the idea that if we could just get back to talking about healthcare (and abandon our support of trans people, look the other way on genocide in Gaza and ICE’s inhumanity to immigrants and US citizens that ‘look like immigrants’, and be nicer to the fascists), everything would be OK.

Using the term fascists to describe fascists is not a call for violence.  It’s a fascist administration, and, setting aside the principal criminal, the J.D. Vance’s, Stephen Miller’s, Kristi Noem’s, Pam Bondi’s, Kash Patel’s, and others will be remembered by history, assuming it can be reclaimed, as the spineless and treasonous fascists that they are, willing to sacrifice any trace of humanity that they might have once had for a bit of power.  The billionaires who endorse military occupation of progressive cities, compromise our newspapers and media institutions, and otherwise act as sycophants to a dictator will not be far behind them in this shameful legacy.

It's all so disgusting, but again, you all probably agree with me about this.

Leveraging Those False Premises to Sow Fear, Uncertainty, and Doubt

So what does it mean for nonprofits and what more is there to say?

The latest rhetoric from the administration as it responds to the fantasy it has concocted, is that it’s going to ‘go after’ the foundations that it sees as funding ‘the left’ and the terror networks that they imagine ‘the left’ supports.   There were some executive orders on this point, letters from House committee, letters from right-wing groups.

I’ve read them but am not linking them here.  In part, because they are authoritarian garbage.  But also because they change nothing legally and add nothing to the discussion.  We already know who the administration despises, and that they would love to target their political opponents without regards to facts or what the law allows. A Department of Justice action against philanthropy based on a completely imagined set of facts would be an act of unlawful force (just like the occupations of Los Angeles, Chicago, and Portland).  If and when those DOJ actions against the nonprofit sector occur, we should fight them. 

But, until those threats became a reality, the more time we spend as a nonprofit sector talking about the unlawful threats the administration is making, the more power we give those threats. It is a delicate balance to both raise awareness to prepare people and avoid legitimizing or amplifying the administration’s intimidation tactics.  But we need to keep trying, instead of leading people to compromise their mission or take actions against their own best interests.

After all, the worst thing that can happen to your organization is not an audit.  It’s not losing tax-exemption.  And it’s not even having your assets frozen via an abuse of the anti-terrorism rules. 

The worst thing that can happen to your organization is that it abandons its mission.

The mission is the whole point, the thing directors effectively owe their fiduciary duties to – the preservation of the organization or its assets is secondary.  While the prospect of being criminalized for supporting immigrants is certainly terrifying, the only thing worse would be to stop supporting immigrants.

This is the line of thinking behind the establishment of the Defending Equity Initiative, as a backstop for those organizations that are going to keep carrying out their mission, to provide a bit of courage knowing that there are people out there ready to jump in to help if those fears are realized.  If you’re a person with skills to offer, please volunteer here so we have you on your list of people to reach out to — there’s no commitment, we just want to know who can help.  If you’re a charity who believes they are under attack and wants to talk to someone, please reach out here so we can try to match you with pro bono support.  We’ve provided help to everyone who has reached out and would love to hear from organizations and pair them with great attorneys and other experts who want to lend a hand.

Through building this network, I’ve had a lot of great conversations with progressive organizations trying to do the same work.  It has confirmed my belief that there actually is a lot of support out there.  That’s been really encouraging.

Passing on Philanthropic Freedom as the Cause of the Moment

Which brings me to the thing that I find a bit discouraging and that I disagree with.  That, in the wake of all these threats, letters, and potential investigations or prosecutions, a lot of our sector is focused on “philanthropic freedom”.  The idea that the problem with the current administration’s attacks is that they are inhibiting the ability of philanthropy to give freely, which is a 1st amendment right of some kind now, thanks to the current Supreme Court.  And that all organizations, the left and the right, have an equal stake in what is happening and need to resist on that basis, instead of the substance of our causes.

Personally, when I hear calls to band together with philanthropy from the right and present a unified front around “philanthropic feedom”, my response is ‘No, thank you.’

Now, I’m not a constitutional lawyer, and maybe people who are are correct that this is the best legal tactic for countering the administration’s attacks.  If so, and we all come out of this unscathed as a result, great – send my apologies to the philanthropy industry.

But I’m resistant to any strategy that centers philanthropy and protecting philanthropy, instead of protecting the movements they support.  By definition (or at least my definition), philanthropy refers to individuals and organizations with an oligarchic level of spending power attempting to influence society.   I appreciate the work that my favored oligarchs do to fund the causes I care about, and I hope they use their billions of dollars to defend themselves, instead of roll over at the expense of the movements they support.  But in the course of that defense, I would prefer not to see them cite Citizens United favorably as I’ve seen some amici briefs do, even though the same organizations predicted (accurately) fifteen years ago that the ruling’s limits on the regulation of political spending were an existential threat to our democracy.  Or to emphasize the argument that ‘both sides should be free to do good however they see fit’ as though we shouldn’t be able to set limits on philanthropy.

We SHOULD set limits on philanthropy and philanthropic spending to the extent it conflicts with the fundamental values of our country or charitable purposes.  Personally, I would love to see a version of 501(c)(3) that was more strictly focused on supporting those in need and advocating for social justice than the one that we have, where many tax-exempt organizations focused on the needs and interests of capital and the most powerful enjoy the same tax benefits as true charities.

It is disastrous that Citizens United and subsequent cases have stripped our power to regulate political influence or to make that spending transparent.  Bob Jones Univ. v. United States, 461 U.S. 574 (1983) is a seminal case because the IRS revoked the university’s tax-exempt status, because its ban on interracial dating on campus was opposed to “fundamental and settled public policy.”   Great decision.  

In trying to avoid that doctrine’s application to progressive organizations, I fully expect to start seeing arguments from liberal philanthropy that Bob Jones was wrongly decided.  I hope that doesn’t happen, but nothing surprises me anymore in terms of liberal willingness to compromise or value their own preservation over their mission.  I hope we maintain focus on the reality that it’s the current administration – not the progressive sector of this country – that is opposed to fundamental and settled public policy. 

To put it another way, the attacks on the foundations funding DEI work as ‘unlawful discrimination’ are not bad because the government should not be able to punish philanthropy for racism.  It’s that DEI is NOT racism.  In fact, if you think about it more for than second and consider our nation’s history and the structural racism that persists – the principles we call DEI are the exact opposite of racism.   The world where colorblindness is the antidote to racism is not the world that we live in.

And that is why Open Society Foundation, Ford Foundation, and everyone else being name-checked by the fascists should be free to fund DEI.  And why charities should be able to fund protests against genocide in Gaza and our country’s own racist occupations and persecution of immigrants.  Because it is just.  Not because philanthropy is untouchable. 

Bona fide progressive movements do not live inside philanthropic institutions.  At best, they are funded by them with relative freedom.  But they are also often slowed by them, constrained by them, and sometimes even opposed by them.  Project 2025 is as much brought to you by philanthropy via the Heritage Foundation, a 501(c)(3) public charity subsidized by you, as anything else.  A reminder that our sector is not an inherently good place --  501(c)(3) is a tax code section, not a sign of virtue.

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I’ll conclude my rant there, and hopefully follow up soon with more constructive thoughts on what progressive organizations can do to survive the administration. We’ve been seeing a lot of violence and inhumanity lately that daily erodes the hope of many of us in the nonprofit sector that the arc of history bends in the direction some once thought.  I have no response that makes it any of it better.  But if we can support the movements being persecuted, instead of the money that is fickle and can defend itself, we can at least proceed into the future with some integrity.