Authoritarianism in US State Policy and its Impact on Nonprofit Civil Liberties

1 Introduction

Across the globe, international organizations such as CIVICUS have tracked the selective closure of civic space and the gradual rise in authoritarianism and right-wing populism (Biekart et al. 2023; CIVICUS 2023; Freedom House 2019). The capacity of governments to impose restrictions on civil society is widely documented in unstable democracies, but repressive efforts have substantially increased in Western Europe and North America as well (Arvanitopoulos 2022; CIVICUS 2023; Eikenberry 2019; Gorokhovskaia et al. 2023). Recent restrictions of civic space have been fostered by right-wing populist governments that have limited dissent, particularly among activist civil society actors. The resulting dynamic has been variously referenced as “civil society capture” (Moder and Pranzl 2019), “democratic backsliding” (Bermeo 2016), “shrinking space for civil society” (Anheier and Toepler 2019; Toepler et al. 2020), and a “third wave of autocratization” (Lührmann and Lindberg 2019).

Civil society work has always involved organizing marginalized voices, most notably US settlement houses serving immigrants in the 19th century and the wave of Progressive reform that subsequently followed. Endemic to civil society are actors who challenge established interests. But the new restrictions on U.S. civil society activity involve a unique confluence: the emergence of states as the nerve center of national policy, and their legal authority to define terms of political participation for both nonprofits and individuals. Repression of civic space is of particular significance because democracy indicators are closely linked to associational activity (Fung 2003).

Moreover, little research to date has addressed the possibility that autocracy has already reached America’s door and that we have transitioned from “liberal democracy” to “defective democracy” in some corners of our political system (Cassani and Tomini 2019). Authoritarianism as defined by Glasius (2018) focuses on government behavior rather than specific political structures, thereby recognizing that liberal democracies can engage in authoritarian practices. The civil society scholarship is even more scarce in terms of its coverage of the more radical forms of organizing, such as left-of-center social movements (Mati et al. 2016).

The exploration of repressed civic space becomes complex in a federalist system where legal directives can be ambiguous and where states can delegitimize associational activity that is concomitantly supported at the national level. This article focuses specifically on the efforts of conservative U.S. states to restrict civic space through statutory and executive authority for several reasons. First, states are the primary source of oversight and regulatory authority over charitable nonprofits and they have an outsized impact on local government-nonprofit interactions through the doctrine of “preemption.” Second, states hold the constitutional authority to establish the meaning of citizenship by setting the terms of the franchise (i.e. voting rights), enforcing the laws, controlling policing, and managing the carceral state. Third, states have grown in policy-making importance over the past few decades. As the federal government lapsed into legislative gridlock over intractable policy differences, political parties and interest groups shifted their activities to the states (Grumbach 2023). Finally, there is a notable lack of systematic inquiry into the role of states in controlling civic space as research into the dynamics of democratic backsliding has focused almost entirely on national governments (Grumbach 2023, p. 151).

This article has the goal of exploring evidence of civic space closure in the United States. It offers a snapshot of the present U.S. situation in three sections: a literature review describes nonprofit civil liberties in the U.S. legal context and introduces a framework to test the U.S. experience. We then apply the framework using a descriptive analysis of U.S. state laws and executive actions used against associational activity. The key finding is that patterns of nonprofit suppression by authoritarian governments that scholars have observed outside the U.S. also conforms with the current U.S. experience.

Third is a case study describing the experience of Texas nonprofits engaged in immigration services, which serves to illustrate ways in which state government can constrain the work of nonprofits whose missions challenge state policy. The article concludes by asking forward-thinking questions about how researchers might study the way these constraints change the nature of nonprofit work, for example, by motivating nonprofits to be less transparent.

2 Literature Review: U.S. State Civil Liberties Restrictions and Their Implications for Nonprofits

The past decade has seen a wave of scholarship on American nonprofit policy advocacy. However, at the risk of oversimplifying this rich field of work, most of the work focuses on advocacy strategy from the nonprofit perspective. Much less focus is placed on how the state policy landscape has changed in reaction to advocacy or its impact on nonprofit civil liberties.

2.3 Authoritarianism as a Framework for Understanding the Restriction of Civic Space

Authoritarianism describes the use of governmental authority to expand and centralize its power (Bermeo 2016), repress dissent, and undermine democratic institutions (Lührmann and Lindberg 2019; Svolik 2012). Bermeo (2016) notes that recent exercises of authoritarianism around the globe have occurred not through coups d’état but mainly through gradual transitions propelled by subtle tactics and legal disguises that maintain the democratic façade. The breakdown in democracy occurs through weakened checks on executive power (Bermeo 2016), “censoring and harassing the media, [and] restricting civil society” (Lührmann and Lindberg 2019, p. 6), and is evidenced in “patterns of action that sabotage [political] accountability to people… by means of secrecy, disinformation, and disabling voice” (Glasius 2018, p. 517).

Although suppression of civil society may occur in authoritarian regimes, there is remarkably little scholarship identifying the ways in which governments such as the United States repress nonprofits, and particularly, adversarial organizations.^[3] Yet it is a significant occurrence. In November 2024, the U.S. House of Representatives passed HR 9495, legislation that would grant the Secretary of the Department of the Treasury broad discretionary powers to revoke the tax-exempt status of nonprofits that are deemed “terrorist-supporting” organizations. More than 150 organizations responded by co-signing a letter expressing their “deep concerns about… granting the executive branch extraordinary power to investigate, harass and dismantle any nonprofit… based on a unilateral accusation of wrongdoing” (Thompson 2024, para 8).^[4]

In this article, we focus on the U.S. state experience, exploring the question of whether patterns of nonprofit suppression by authoritarian governments that scholars have observed outside the U.S. also conforms with the current U.S. experience. Two frameworks of authoritarianism were identified. The first, developed by Van der Borgh and Terwindt (2014), is a typology of actions and policies used by governments to restrict the ‘operational space’ of civil society organizations based on research conducted in four countries with relatively young or transitional democracies where civil society organizations have faced political backlash (Figure 1).

Figure 1:

Actions and policies that restrict political space (Van der Borgh and Terwindt 2014).

Simsa (2019) developed a similar analytic framework for western democracies, identifying four steps used by right wing, populist governments to restrict “the potential scope of action of critical segments of civil society,” amass power, and close down dissent (Simsa 2019, p. 1). Simsa (p. 1) notes in the context of Austria that organizations a government views as too critical are often among the first targets, and that authoritarianism can be “a creeping process of often small steps,” beginning with manipulation of the public narrative to delegitimize nonprofit work the state opposes. In the U.S., both Black Lives Matter and antifa activists, for example, have been called “terrorists” and “extremists” by state politicians (Los Angeles Times 2020; Pratt August 28, 2023), mirroring the same language used by Southern state politicians against organizers in the U.S. Civil Rights movement.

Although the non-U.S. framework includes state actions not relevant to the U.S. context, such as the activities of paramilitary gangs or truth commissions, its logic is readily applicable to the U.S. experience. The following tactics have been identified as means to suppress critical nonprofits: (1) violence in the form of physical threats, intimidation and harassment, including denial of state protection (Van der Borgh and Terwindt 2014), (2) criminalization of particular activities and “investigation for prosecution and punitive purposes” (Van der Borgh and Terwindt 2014), (3) use of bureaucratic power to delay or restrict action, including refusal to allow nonprofit registration or loss of registration, (4) delegitimating, negative labeling and stigmatizing narratives, including polarizing narratives that establish a “we versus they” logic (Simsa 2019; Van der Borgh and Terwindt 2014), and (5) restricting and reshaping political dialogue in civic space by silencing actors through cuts in funding, and/or cooptation by transferring support to nonprofits that convey preferred messages (Moder and Pranzl 2019; Simsa 2019; Van der Borgh and Terwindt 2014).

To what extent does this framework fit the U.S. state context? There is some evidence that it should. A number of scholars have documented the decline in democracy in the U.S. and attributed its decline to an authoritarian movement emerging from the current Republican party (Lieberman and Schlozman 2024; Mickey 2022; Pierson and Schickle 2024; Democracy Funders Network 2024). For example, Grumbach (2023) created a composite measure of democratic health by U.S. states and examined variables contributing to democratic backsliding, including party polarization, political competition and demographic change.^[5] The most reliable predictor of loss of individual rights was whether a state had a Republican legislative majority and a Republican governor. Given mounting evidence that authoritarian behaviors are fed by larger partisan dynamics, we sought to identify whether conservative states were, in fact, restricting civic space of nonprofits in an organized way that mirrored authoritarian strategies.

3 Data and Methods

This article has two empirical approaches. We first compile and discuss two kinds of state laws that address nonprofit “assembly” and “petition” rights: anti-protest laws and laws of preemption. The anti-protest laws were first drawn from the International Center for Nonprofit Law “U.S. Protest Law Tracker” (2024). The list was then verified and brought up to date using media sources, the First Amendment Watch program at New York University, the Center for Media and Democracy (2024), and the commercial site legiscan.com.

Our goal was not an inclusive list of all state efforts at restricting civil society but rather a proof-of-concept test of the authoritarian framework using one complete example. Limits to this approach rest primarily on the possibility that additional state laws not captured here also restrict nonprofit activity. We also note that these laws cover individuals as well as organizations, so have broader powers than those relevant to nonprofits. A further limitation should be noted that while nonprofit and civil society organizations can have positive impacts, they may also facilitate harmful activities. Our analysis focuses only on laws that try to restrict nonprofit civil liberties and does not address government intervention in cases where civil liberties are misused or threaten democratic governance.

Secondly, a case study was developed analyzing the experiences of immigrant serving nonprofit organizations and their relationship with the state government of Texas. The intention of including a case study was to provide context and nuance to the ways in which state government actions could reduce civil liberties of nonprofits. This case study is a ‘most likely’ critical case study, defined as such for the purpose of validating or affirming a phenomenon. The logic of a ‘critical case’ is that if it holds true in this case, it holds true in most circumstances (Flyvbjerg 2006). Additionally, extreme case studies offer the advantage of revealing more contextual and nuanced information such as how the state is taking action. Texas meets the criteria of an extreme case because (1) immigration is a hot button issue that impels state action in the current political climate and, (2) Texas is “the legal vanguard for extreme politics,” regularly challenging legal and constitutional precedents (Villarreal 2024, para 2; see also Collins 2012); legislation passed by the Texas legislature has come to serve as a template for other Republican-controlled legislatures (Villarreal 2024).

Primary data drawn from 16 semi-structured interviews conducted via zoom with executive directors and staff of immigrant-serving nonprofits between January and March, 2024. Organizations selected are engaged in advocacy, humanitarian aid, civil rights, or legal services for immigrants in the state of Texas. Secondary sources were also included in the form of newspaper articles, television news, press releases, and the websites of the Texas Governor and Attorney General.

Research participants were selected using a snowballing technique, beginning with established contacts in San Antonio and progressively reaching out across the state to other participants who were recommended by previous interviewees. Two reporters were interviewed. Attempts were made to interview two city and county personnel, but both declined. All interviewees spoke on the condition of anonymity.

Subjects were asked about their mission and organizational challenges in the current environment. They were asked whether they believed their organization was under institutional pressures from the state that limited their capacity to fulfill their mission and whether it was different than five years ago. They were then asked to provide examples. Interviews continued until the narrative data revealed patterns in responses such as how interviewees understood organizational challenges vis-à-vis the state. Interviews lasted between 45 and 90 min. Interviews were then transcribed and distributed to interviewees to check for accuracy and completeness.

4 Analysis and Discussion: State Laws Restricting Nonprofit Activity

The U.S. state laws restricting nonprofit activity included herein address both the right to “assembly” by restricting organizing strategies, and also other forms of collective action (the right to “petition”). These are displayed in Table 1. Applying the framework of Van der Borgh and Terwindt (2014), these laws begin with physical intimidation not only by police forces and other state actors, but also laws that allow fellow citizens to harass activists with impunity. In the U.S., activists have filed an “unprecedented” number of lawsuits claiming excessive force by police during racial justice demonstrations (Oladipo 2023). Physical intimidation can also occur by weaponizing the arrest process, raiding homes, jailing activists, and denying them bond, as occurred during the extended opposition to a new police training facility in Atlanta from 2021 to the present (Pratt 2023a; 2023b; 2024). Additionally, five states have passed laws (and 21 additional states have attempted laws) that offer qualified immunity to police or to motor vehicle operators who injure protestors, which in effect weaponizes motor vehicles against organizing activity (Fearnow 2021).

The second category, criminalization of associational rights, has been possibly the most active area for U.S. conservative states. State efforts meet two categories: anti-protest laws, and laws of preemption. Table 1 displays examples of state anti-protest laws.

Anti-protest laws: As of 2024, 22 U S. states have passed multiple anti-protest laws, or expanded existing laws with more severe sanctions. As per Van der Borgh and Terwindt, this group of laws has both preventive and punitive dimensions. First, they attempt to prevent public protest by increasing criminal penalties (such as raising misdemeanor charges to felonies) and by categorizing claimed breaches of the peace in the inflammatory language of “domestic terrorism” (Williams and Aaronson 2019).

The punitive dimension increases the financial costs of protest. For example, Alabama SB 152 allows municipalities to charge demonstrators for the cost of policing a demonstration. A cluster of additional laws passed after the Keystone XL Pipeline protests (2015–2017) sometimes assign vicarious liability to the organizing entity. Among 20 U S. states prohibiting protests near gas and oil pipelines, the majority extend penalties beyond individuals to the organizations who support them. In short, an environmental justice organization can plan a public protest, train and advise participants in non-violent peaceful protest strategies, do their best to enforce this expectation, but be charged with liability if one individual goes off-script and breaks the law.

The strategy to intimidate associational activity extends to individual expressive rights. For example, North Dakota’s HB 1304 criminalizes the wearing of masks and hoods “while committing a crime.” A similar Oregon bill (introduced and defeated in 2020) reclassifies as a felony the act of covering one’s face during a public protest. The International Center for Nonprofit Law (2008) observes vagueness of the definition of “riot” and notes the potential “chilling effect” such bills could have “on nonviolent protesters who want to remain anonymous or use a mask to make a political or social statement.”

As of 2010, 33 states have RICO laws that could be used to intimidate nonprofit organizations (Floyd 2011). Georgia may be a harbinger, as the Attorney General has used Georgia’s Racketeer and Influenced Corruption statute in a manner legal observers describe as “unprecedented” (Pratt 2023b). In 2023, the board members of a 501(c)(3) bail fund, and a legal observer acting in an official capacity for another charity, along with 57 additional people, were indicted under the state’s RICO statute.

Georgia is using the law to claim that any coordinated action among individuals opposing government action is tantamount to a “conspiracy” to commit violent acts (Fulton County Superior Court 2023).^[6] In other words, indirect support or peaceful actions become criminal actions when any member of the “enterprise” commits a crime (Fulton County Superior Court 2023). The indictment is also noteworthy in weaponizing the values of collectivism and mutual aid against the indicted community organizers (Fulton County Superior Court 2023). A similar law in Ohio (HB 109, 2021) criminalizes providing “material support” for demonstrations. Observers note that “such a provision could potentially be used against nonprofits that offer ‘Know Your Rights’ trainings for protesters” (Benavidez et al. nd).

Laws of preemption: Table 1 excludes preemption laws as being too numerous to count, however, these laws have extended state capacity to restrict nonprofits in measurable ways. States have the constitutional power to legislatively preempt (i.e. overrule) the ability of local municipalities to protect and serve local citizens as they see fit. Traditionally, preemption was intended to create consistent legal and regulatory codes within a state. However, recent application of these laws of preemption reveals a right-leaning tilt (Jackman 2013). The “New Preemption” (Goodman et al. 2021, p. 148) is characterized by partisan and punitive measures as state legislatures trend more ideologically conservative and municipalities trend more liberal, causing the two sides to “see each other as political adversaries”. In one analysis of the 2001–2017 period, Swindell et al. (2018) concluded that nine in 10 of state preemption laws restricted rather than expanded local government action.

Briffault (2018) offers a thorough description of this landscape, which includes bans in Mississippi and Texas against “sanctuary city” declarations, a nearly national prohibition on local government firearms regulation, and new laws from the majority of formerly Confederate states prohibiting removal of war memorials. Omitted from Briffault’s analysis given their recency are preemption laws to protect local police budgets. In the wake of the Dobbs v. Jackson ruling, red and blue states alike are actively codifying preemption laws about abortion access, with uncertain implications for charitable health care. Additional preemption laws limiting local government policy discretion have been directed against drag performances, bathroom equity, fracking restrictions, puppy mill restrictions, voting rights expansions, consumer credit protection, and anti-discrimination ordinances (see, for example, SoRelle and Fullerton 2024). Nonprofits are involved in all of these policy issues as service providers or advocates.

Briffault (2018) also uses the term “punitive preemption” to describe a state strategy involving fines, penalties, and decertification of charitable status, or defunding and removing oppositional local government managers from office. Not addressed by Briffault (2018) but an important consideration for social movement organizers is the idea that state preemption rights also extend to referendum access and voting rights. Twenty-four U.S. state legislatures have either clawed back or never allowed civil society organizations to organize ballot initiatives (National Conference of State Legislatures n.d.).

Preemption also involves executive action, known as “executive preemption” (Goodman et al. 2021). In Georgia, Governor Kemp declared a “State of Emergency” to extend policing powers during the protests of the Atlanta police training facility. This effort to use preemption as a political weapon appears to be intensifying. Efforts have been made in Florida, Oklahoma, and Texas to pass a “nuclear preemption” statute (Briffault 2018, p. 2007), which prohibits all municipal regulation of “businesses, professions, and occupations.” Legal observers also note the efforts by conservative states to litigate their preemption efforts up the ladder, through challenges to the Supremacy Clause and attempts to nullify federal laws on a raft of issues including immigration, healthcare, marijuana use, voting rights, and firearms sales (Raynor 2015).

The third category, administrative restrictions, describes both formal and ad hoc efforts to restrict the legal space for civil society activity (Van der Borgh and Terwindt 2014, p. 6), by denying charitable status to organizations. Governments may delay responses to nonprofit administrative requests, engage in forms of “de-funding” charitable activity, and exercises of bureaucratic power and red tape. For U.S. examples, Texas Governor Abbott’s withdrawal of state funds from nonprofits can be viewed as an ad hoc effort, while Georgia’s SB 63 is a formal administrative restriction on charitable purposes. This pending bill, if signed by the Governor, would revoke the rights of charitable bail funds to post cash bail more than three times each year. As Georgia State Representative Tanya Miller observed, “What is most scary about this bill is the criminalization of churches and religious institutions that have historically been on the front lines of social justice and civil rights justice for black and brown people in this country” (Pritchett 2024).

The fourth group of state actions involves stigmatization of associational activity. There is a close connection between this category and criminalization of civil society as both involve state efforts to stereotype certain groups and depict them as threats (Van der Borgh and Terwindt 2014, p. 59). The rhetoric of conservative U.S. states around the threats posed by immigration, labor, racial justice, and environmental justice movements clearly follows this pattern (Pratt 2023a).

The fifth category of state action involves putting spaces of dialogue under pressure. These are the “invited spaces” (Van der Borgh and Terwindt 2014, p. 62) which democratize public policy by offering opportunities for voice and participation. Simsa and Van der Borgh and Terwindt focus on “insider/outsider” dynamics related to collaborative policymaking. We note the over-sized role of the Heritage Foundation and the American Legislative Exchange Council (ALEC), 501(c)(3) nonprofits on the favored list of conservative state legislatures where many of these laws originated in model legislation,^[7] as well as the energetic efforts by nonprofit Fraternal Orders of Police, National Sheriffs’ Association, and local “police foundations” to advocate for anti-protest laws (Gibson 2022).

Also included are a group of state laws addressing “venue control,” which constrain the available public space for free expression. They criminalize protests at government buildings (Mississippi SB 2343) and on sidewalks (rather than just in roadways) (Tennessee HB/SB 8005). They expand the definition of “unlawful assembly” (Oklahoma HB 2095) or restrict rights of assembly by imposing curfews (Indiana SB 198). Inazu (2012) observes that public-order-related laws that restrict associational activity may be constitutionally defensible given the government’s constitutional responsibility to enforce public peace. Nevertheless, Inazu (2012) fails to observe that when a conservative state retains the right to define “peaceable”, every protest against state policy can too easily be labeled a “riot.”^[8]

5 Case Study: Government Regulation of Immigrant-Serving Nonprofits in Texas

The following case study examines the ways in which the state government of Texas has constricted the civic space of immigrant-serving nonprofit organizations in accordance with the frameworks of Van der Borgh and Terwindt (2014) and Simsa (2019), and how nonprofits have responded.

6 Conclusions

Alexis de Tocqueville’s admiration for early Americans’ associational vigor is widely taught in our field, but the context in which he wrote is usually overlooked. He was, in fact, reacting as much to the authoritarianism within his own country as he was the great American experiment when he cautioned that associational rights were fragile, a “perilous liberty” vulnerable to majoritarian attack (de Tocqueville and Kershner 1983; see also Bresler et al. 2016).

The U.S. federalist system allows majoritarian pressures at the state level to restrict associational activity even under the larger umbrella of federal constitutional protections. Judicial appeals by civil society organizations and those they serve may reclaim only some of the protected public space that states have denied. Many of these laws are being litigated. For example, in Florida, HB 7 – known as the “Stop WOKE Act (2022)” – was struck down by a federal appeals court in 2024 as an infringement of employers’ free speech rights (including nonprofit employers).^[9]

But even while these laws are being litigated for being overly vague, they may actually have been written to be deliberately ambiguous in wording. Legal observers note that the real political strategy may be to confuse political adversaries, encourage self-censorship, and chill associational activity and free speech regardless of the outcome of legal challenges (ACLU of Indiana 2021; First Amendment Watch 2023; Brown and Lacy 2021). The impact of vague government speech on individual rights was noted by Justice Brennan in Roberts v. Jaycees, 468 US 609 (1984) when he wrote that “the requirement that government articulate its aims with a reasonable degree of clarity … reduces the danger of caprice and discrimination in the administration of the laws, … and permits meaningful judicial review.”

While we focus on state action in this article, recent federal actions within all three branches of government similarly threaten the constitutional rights of nonprofits, moreover within a culture that reveals disregard for habeus corpus and other forms of judicial review. A February 5, 2025 White House memo socially stigmatizes the nonprofit sector by claiming “many … are engaged in actions … that undermine the national interest.” The Center for Effective Philanthropy, in a February 2025 poll, reports 94 percent of nonprofit leaders believe the current political climate is now or will in the future negatively affect their organization. While their concerns focus mainly on funding, the third most-cited concern was about the well-being and safety of staff.

What this trend at both state and federal levels means for nonprofit management remains an open question. Here are a few questions for future researchers to pursue. First, social movement action in open democracies (which characterizes the U.S. at least in part) is more likely to occur in the open itself (Mati et al. 2016). Given the extremely strong normative expectation of transparency in U.S. nonprofit behavior, how will associational activity under threat of state restrictions affect meeting records and public reporting? Will nonprofits take more decision making out of public view, and how might that action impact public trust in charities?

Next, state laws of preemption that prohibit diversity, equity and inclusion principles in publicly funded health or social programs may generate the need for new, privatized services that must be offered in racialized or genderized ways to compensate for civil rights losses. Will these actions send philanthropic resources in new directions and put new demands on donors (SoRelle and Fullerton 2024)? In the policy and law discussions on “New Preemption,” a rather flippant belief sometimes surfaces that local communities could turn to private, philanthropic resources to replace publicly defunded services. But this assumption does not account for limits and variations in community philanthropic capacity. The nonprofit sector has seen the potential for wholesale philanthropic disruption before, such as with the Reagan Administration’s defunding of welfare programs. Its impact should be measured now.

Another implication for nonprofits is the possibility that state legal challenges to their existence cause mission drift because they require nonprofits to focus on self-defense advocacy and distract from central missions of service, expressive activity, and community-building. This possibility certainly is reflected in the historical experience of the LGBTQ + movement, Muslim service organizations, and identity organizations serving other marginalized people.

Finally, and most distressingly, is the possibility that states succeed – with or without legally defensible rationales – in chilling associational activity through legislative and executive actions, or through prosecutorial overreach, and that courts fail to support associational liberties. Researchers should continue to track state actions, beyond our limited “proof-of-concept” effort here. For example, are states willing to revoke nonprofit property tax exemptions in punitive and partisan patterns? The broader impacts should also be tracked. Punitive state actions can have a chilling effect on nonprofit activity far broader than the targeted organizations (Baylor 2023), and this impact on the nonprofit sector has been seen in the U.S. before, such as through the McCarthy era, the Civil Rights era, and the post-9/11 crackdown on charitable Muslim organizations (Sidel 2011). It deserves a more serious look today as well.