This week, the Senate may pass a bill granting the executive branch extraordinary power to investigate and strip nonprofits of tax-exempt status based on a unilateral accusation of wrongdoing.
The potential for abuse under H.R. 6408 is staggering. If it were to become law, the executive branch would be handed a tool perfectly designed to stifle free speech, target political opponents and punish disfavored groups.
The bill would empower the Treasury secretary with the authority to effectively dismantle any nonprofit organization they deem to have provided “material support” to terrorist groups. Adding this authority to the tax code would also allow the IRS to investigate and harass nonprofits.
This legislation is completely unnecessary. Under current law, nonprofits are already prohibited from providing material support to terrorist organizations. In fact, it’s a federal crime.
But even though it’s not needed, it is extremely dangerous. It allows the Treasury secretary to act as prosecutor, judge and jury of accused nonprofits and shifts the burden of proof from the government to the nonprofit.
While there is a 90-day “cure” period in which an accused nonprofit can mount a defense, it is a mere illusion of due process. The government may deny organizations its reasons and evidence against them, leaving the nonprofit unable to rebut allegations. This means that a nonprofit could be left entirely in the dark about what conduct the government believes qualifies as material support, making it virtually impossible to clear its name.
This new power is perfectly suited to an authoritarian-leaning administration that wants to cow civil society.
In “How Democracies Die,” Daniel Ziblatt and Steven Levitsky persuasively explain that one of the biggest dangers in backsliding democracies is selective investigations and prosecutions. The executive branch can target opponents and the fear of crippling legal fees, the stigma of the designation and donors fleeing the controversy can stifle dissent and break opposition.
In the wrong hands, it could easily be used to silence dissenting voices under the guise of national security. And that’s what some of the sponsors of this bill want.
Several members of Congress have repeatedly, without evidence, conflated students involved in the protests regarding the conflict in Gaza with Hamas and other foreign terrorist organizations. If this law were to pass, it stands to reason that the executive branch could threaten to strip a university of its tax-exempt status on the grounds that allowing student groups exercising protest rights to operate on campus qualifies as providing material support to terrorist organizations.
And make no mistake, a wide range of nonprofits could be targeted with this power.
Indeed, former President Jimmy Carter once criticized the federal material support law saying it “threatens The Carter Center’s work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence.” President Carter noted, “The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.”
It is also not hard to imagine a future administration using this power in far broader circumstances that have nothing to do with the conflict in Gaza. We know this because the U.S. government has a long history of abusive and discriminatory material support investigations and prosecutions in the post-9/11 era — disproportionately against Muslims, charities and civil society organizations.
The broadest applications of this legislation may or may not ultimately hold up in court, but the potential reputational and financial cost of fending off an investigation and litigating wrongful designation could functionally mean the end of a targeted nonprofit before it ever sees its day in court. How many will risk that outcome?
Even if they may never be designated as “terrorist-supporting,” let alone charged with a crime, nonprofits will curtail their activities as a precaution. And that, of course, is the point: to chill speech and advocacy.
Many who sponsored and voted in the House for this legislation undoubtedly have good intentions, but we need to be clear-eyed about not what the bill is meant to do, but what it will actually do.
In our deeply polarized country, where governing norms are under regular assault, the last thing we should do is give any presidential administration another dangerous weapon to stifle dissent and attack opponents.
Mike Zamore is the ACLU’s national director of policy and government affairs. Kia Hamadanchy is senior policy counsel at the ACLU.