Nonprofits Are at the Core of American Democracy. Now They’re Under Threat
The U.S. House of Representatives recently passed a bill that would allow the President to take away the tax-exempt status of any nonprofit organization that he determines is providing material support for terrorism. Although existing law already prohibits American nongovernmental organizations (NGOs) from supporting terrorism, the new bill would remove existing procedural safeguards, effectively allowing the President to shut down any organization based on his judgment alone.
[time-brightcove not-tgx=”true”]Handing the President such a power threatens Americans’ basic freedoms in civil society. The immediate context for the bill seems to be concerns over pro-Palestinian protests and organizations, but the bill would permit the President to decide that a nonprofit dedicated to any cause, or a nonprofit media company, or a university that houses faculty or centers doing research on controversial topics, is no longer permissible. Such power over the fate of private organizations and Americans’ civil liberties should concern all Americans. A President could use this new law to preemptively silence activists, journalists, and professors simply by threatening to take away the tax-exempt status of their employers’ organizations.
The capacity of civil society to serve as a place where dissident voices can speak out is fundamental to democratic freedom. During the 1990s, after the fall of the Soviet Union, western governments devoted energy and money to develop civil society in the countries of the former Soviet bloc, what were then called “emerging democracies.” The leaders of those countries often resisted these efforts, stating that their new governments were too fragile to tolerate the proliferation of private groups that criticized their government’s policies.
Surprisingly, America’s founders shared the same concerns following the American Revolution. The formation of a vibrant civil society of associations and nongovernmental organizations (NGOs) was neither simple nor uncontroversial in the new United States at its founding. Despite their differences, both George Washington and Thomas Jefferson raised concerns about whether the proliferation of such private groups would threaten the public good.
These fears were at the heart of the debate over the causes of the Whiskey Rebellion in western Pennsylvania in 1794. At the time, the United States was itself an emerging democracy. The Washington Administration was determined to enforce the new government’s laws against Pennsylvania farmers who had refused to pay an excise tax on whiskey production that they thought too harsh. The farmers engaged in collective action to protest the tax, from peacefully assembling to the use of threats and violence to nullify the law. In July 1794, for example, hundreds of people attacked the house of federal tax collector John Neville. In response, President Washington mobilized the militia to put down the rebellion.
Washington blamed the rebellion on the proliferation of “democratic societies,” new organizations that publicly criticized Washington’s policies. These clubs served as the seedbeds for the emerging rival Democratic party, which would support Jefferson against Washington’s Federalists. Although the clubs’ leaders condemned violence, Washington at the time, and later in his famous 1796 Farewell Address, warned Americans to distrust “combinations and associations” that challenged the government’s priorities. To Washington in the 1790s—as to many leaders in emerging democracies in the 1990s—citizens had no business forming independent groups to oppose the administration’s policies.
In response, Jefferson’s supporters defended their right to associate. Nonetheless, once his party was in power, Jefferson in turn expressed concerns about his opponents organizing in civil society. In 1822, when the number of NGOs in America was growing rapidly, Jefferson worried that they “may rivalise & jeopardise the march of regular government.” He thought that the public interest—meaning the interest of the majority—would be threatened by private groups promoting their own interests.
Why, then, did both Washington’s Federalists and Jefferson’s Democrats come to terms with civil society? The answer was quite simple. In a democratic society with party conflict, each side had more to lose by allowing the state to silence NGOs than they had to gain. Both Washington’s Federalists and Jefferson’s Democrats discovered that when they lost an election, they did not want to live in fear that newly-elected leaders might shut down their churches, colleges, parties, newspapers, and other groups. Instead, in a democracy, the state had to tolerate peaceful opposition and recognize that the government cannot silence its opponents in civil society.
One key moment came in a conflict regarding control over Dartmouth College, a fight that reached the U.S. Supreme Court in 1819. Like today, partisans were divided over what colleges should teach. Dartmouth at the time was dominated by Federalists, and the New Hampshire state government by the Democrats. The Democrats worried that Federalist-controlled Dartmouth served as a platform for their political opponents and offered a biased curriculum. At the time, the line between a public and private corporation was unclear, so New Hampshire Democrats decided to take over the university. The college resisted and went to court, reaching the Supreme Court, which ruled that Dartmouth’s charter was a contract that protected the institution from the state. This decision set the precedent that private NGOs could not be overtaken by the state.
Despite losing the case, Democrats accepted the outcome. They recognized that when they lost power they did not want organizations that supported their ideas and values to be attacked by a government controlled by their rivals. Instead, both sides realized that protecting each other’s rights in civil society ensured that their own rights would be protected when they were in the minority. The result was the proliferation of voluntary associations and NGOs by the 1830s.
Foreigners were consistently surprised to witness America’s vibrant civil society. When Alexis de Tocqueville visited the United States from France, he was amazed to see the number of NGOs that dotted the landscape. “Americans of all ages, all conditions, and all minds are constantly joining together in groups,” he wrote in his classic work Democracy in America. Americans joined for all kinds of purposes, from pursuing hobbies like music, to advocating such extremely controversial and divisive causes as temperance, peace, and the abolition of slavery.
This does not mean it was easy to protect freedom in civil society. For example, abolitionist organizations faced violent mobs that disrupted their meetings and threatened their members. In Congress, antislavery petitions were tabled (thanks to the infamous “gag rule”). Moreover, Southerners sought to prevent the spread of abolitionist ideas by censoring the mail and asking northern state governments to silence antislavery organizations. Although these efforts failed to stop antislavery activists, they remind us that leaders are often tempted to use state power to silence their opponents.
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And that is exactly why civil society is threatened around the world today. Authoritarian states like China, Russia, and North Korea of course make little room for the freedom of association and expression. But in places like India, Turkey, and Hungary, too, leaders have sought to shut down existing NGOs that they believe threaten their power, often relying on laws similar to the bill recently passed by the House of Representatives. Rejecting such a law would show that the United States serves as a counter-example, a place where leaders still recognize that democratic freedom depends on protecting the right to associate and to criticize the government in civil society.
Americans after the Revolution learned that it is in the interest of both parties to protect the rights of all citizens in civil society. Should this bill become law, however, Congress would enable the president to silence any NGO that he chooses. Giving a president this authority without appropriate legal safeguards is dangerous to American freedom at any time, but especially when we have a president-elect who has vowed to use the state to persecute his political enemies and has already threatened violence against journalists, lawmakers, and others. To hand Donald Trump a tool to destroy organizations at his will is to give him the very power that autocrats around the world are using to silence and punish their opponents.
Johann Neem, who teaches history Western Washington University, discusses the emergence of civil society in the United States after the American Revolution in his book Creating a Nation of Joiners, published by Harvard University Press.
Made by History takes readers beyond the headlines with articles written and edited by professional historians. Learn more about Made by History at TIME here. Opinions expressed do not necessarily reflect the views of TIME editors.