Tuesday, November 27, 2018

The Legal Shape of Resistance

David Pozen

The past two years have witnessed a remarkable burst of NGO activity on the left, as new groups established after the 2016 election have joined forces with longstanding civil liberties and civil rights organizations to resist President Trump. Constitutional scholars have followed (and, in some cases, participated in) many of these initiatives with keen interest. To understand the larger phenomenon, however, the most relevant body of law is not constitutional law but nonprofit tax law. How exactly is the “resistance” being structured, subsidized, and constrained by the Internal Revenue Code?

Curious about this question, I began to look into the legal shape of resistance efforts and found evidence of an intriguing pattern: prominent left-leaning nonprofits, both young and old, seem to be increasingly forsaking the 501(c)(3) “public charity” form in favor of the 501(c)(4) “social welfare” category, which comes with fewer fiscal privileges but greater freedom to engage in openly political work. This trend deserves close attention. It signals the possible emergence and institutionalization of a new model of liberal activism for an age of disenchantment with the Supreme Court—a new legal liberalism, if you will, less focused on litigation and more tightly tied to electoral politics and the legislative process.

For readers interested in these issues, I have just published a short piece in the Atlantic discussing (as the Atlantic editors titled it) “The Tax-Code Shift That’s Changing Liberal Activism.” I hope to have much more to share in the coming years on the historical development of the nonprofit sector and its relationship to constitutional law, politics, and culture.

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