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.