The evolution of HR 9495: the “nonprofit killer”
Co-authored by Sumayyah Waheed from Muslim Advocates and Coby Dolan from Earthjustice.
If enacted, HR 9495 would empower the Treasury to strip tax exempt status from nonprofit groups it designates as providing material support to terrorist organizations. The Treasury Secretary is not required to prove the nonprofit provided material support, and can withhold even a minimal description of the material support alleged simply by citing “national security and law enforcement interests.”
This power could be abused and used as a tool by future administrations to go after organizations that oppose them or that advocate for causes they disagree with.
The inadequate due process protections include issues like:
The bill gives organizations an “opportunity to cure” any violation, placing the burden of proof on the nonprofit to disprove allegations–to the same individual (Treasury Secretary) making them in the first place. This is woefully inadequate to protect against abusive actions by a hostile administration.
After having their tax-exempt status revoked, nonprofits can request review by a federal court. But tying up a c3 organization in expensive court battles over its tax designation for a few years is enough to accomplish the harm intended. The fight could lead to crippling legal fees, loss of funding, and other financial costs for the organization–many small to middle-sized nonprofits could not even afford to take this step.
This bill could have a deep chilling effect on free speech and public protest. Many organizations, fearing the harms described above, may avoid speaking out on certain issues. Reprehensibly, the stated goal of the bill was to punish the free speech of college students protesting the ongoing genocide in Palestine. However, the language of the bill is vague and could be applied broadly to any nonprofit supporting a controversial cause, including protests over pipelines, police actions, and other civil rights issues. Organizations also may be more reluctant to work together on issues, fearing such associations could be used against them. It is a classic authoritarian tactic to pit groups against each other and scare people off of working together.
Many groups in our coalitions first became aware of the legislative language in May of this year, after an earlier version of it passed the House with only 11 members opposing it. The language was about to be attached to a must pass bill in the Senate (Federal Aviation Administration reauthorization bill) but groups successfully lobbied opposition to that amendment.
After the November general election, House Republicans quietly brought up a bill with this language attached on November 12 under the House Suspension calendar (meant for non-controversial issues but requiring a ⅔ vote to pass). With less than 24 hours to mount opposition, our lobbying efforts led to the successful defeat of the bill by 13 votes, forcing House Republicans to bring the bill back to the House Floor under normal order (a closed rule, but also only requiring a simple majority vote to pass). By this time, our advocacy had solidified Democratic opposition: in April 159 Democrats voted yes, whereas on November 21 just 15 Democrats voted yes.
To successfully move members of Congress on this issue, a coalition of free speech, civil rights, and impacted groups conducted extensive education on the scope, chilling effects and potential danger of this legislation. As House Democrats came to realize the threat this bill poses to civil society, free speech, and public protest, they withdrew their support. We rapidly expanded our coalition at two key moments: after the first passage in the House, and post-election.
While the bill eventually passed the House on November 21, the final vote of 219-184 (with most Democrats opposing) means that Senate Democrats are unlikely to take up this measure in the remainder of this Congress. We must remain vigilant that it does not get attached to any “must pass” legislation before the end of this Congress. Next Congress, we will have to continue vigilance, especially with the flip of control of the Senate, but with the filibuster rules still in place, Senate Democrats have a tool to prevent this bill from passing.
The 119th Congress will look a lot like the 115th Congress (2017-2018) in some respects. Conservatives in Congress have pushed legislative efforts for years that would seek to diminish the rights of the public to free speech, lawful protest, and fair and equitable access to justice in the courts. We expect to see many of those efforts revived in 2025 and 2026. In addition, federal agencies will likely be more aggressive in weaponizing their existing authorities to silence lawful dissent.
We have our work cut out for us as we head into next year and a new Congress. We must continue to build opposition, including across the aisle, and with freshman members in toss-up districts.
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