Editors’ Note: Reflecting on the novel challenge the Trump administration now poses to civil society, David Morse reflects on the distance traveled from a White House gathering in 2003, one which defined the embrace of voluntarism by Trump’s last Republican predecessor, George W. Bush.

Donald Trump’s war on the independence of the independent sector, combined with his war on law firms that employ those he considers his enemies or that represent clients that he considers his enemies, has chilling, even existential implications for philanthropy and the organizations of civil society that philanthropy supports. Together, his shuttering of USAID, Americorps and the US Institute of Peace (among other agencies), his rescissions of billions of dollars in congressionally-appropriated funds to research universities and civil society organizations and the enlisting of leading law firms as his personal troops in his war against civil society demonstrate his theory of the government/philanthropy/nonprofit sector relationship, one in which they are all subordinated to his own authority. We haven’t seen anything like this in the recent or even distant past from any occupant of the White House. And it strikes me as an especially far cry from the view of the relationship among philanthropy, charity and government espoused a little more than 20 years ago by Trump’s last Republican predecessor, George W. Bush. 

On a cold Monday morning in January 2003, at the beginning of Bush’s third year as President, a group of philanthropists and foundation executives met at the White House with administration officials to discuss Bush’s policies and plans regarding philanthropy and the nonprofit sector. The meeting was organized by Jim Towey, the director of the White House Office of Faith-Based and Community Initiatives (OFBCI) and Adam Meyerson, the president of the Philanthropy Roundtable. The Roundtable had been established in the late 1980’s as an alternative association of conservative donors unhappy with the Council on Foundations’ more liberal grantmaking approach that included a new emphasis on broad transparency and public accountability.[1] The Philanthropy Roundtable’s principal focus has been to protect donor privacy, donor intent and the principle of philanthropic freedom–donors’ “freedom to give to the causes and communities they care about most.”[2]

Several foundations are members of both the Philanthropy Roundtable and the Council on Foundations but, among the approximately 75 philanthropy representatives in the audience that day, there were probably only two from what one might call progressive philanthropy–Barry Gaberman from the Ford Foundation and me. Jim Towey, who had replaced John DiIulio as director of OFBCI, served as host of the gathering in the auditorium of the Eisenhower Executive Office Building. The White House had pulled out some of its biggest, most impressive guns, including Mitch Daniels, the director of OMB who would soon leave to run for Governor of Indiana; Gordon England, the former president of General Dynamics who had just been named Deputy Secretary of the new Department of Homeland Security; and Attorney General John Ashcroft.

To fully appreciate the themes of these officials’ presentations to the group, it’s important to put them in some historical context. In October 2002, Congress had passed a resolution authorizing President Bush to “use any means necessary” against Iraq’s Saddam Hussein. The Iraq War itself was still two months away, and although Daniels and OMB had not yet sent budget recommendations to Congress, it was clear to all that they would include a large increase in spending for the Department of Defense and the new Homeland Security agency.[3]

Mitch Daniels kicked off the meeting by describing the Administration’s budget plans, including a substantial tax cut for individuals and businesses and a concomitant reduction in spending on domestic discretionary programs, in accordance with the requirements of the Budget Control and Impoundment Act. I don’t recall that he said anything about increased spending for defense or homeland security but mainly focused on taxes. Echoing the themes and values of the Philanthropy Roundtable, Daniels started by saying, as I recall, “We’re about to give you and your businesses a significant tax cut, so that you can spend your money as you, not the government, see fit.”[4]

He continued: “That means there will be less money available to us in Washington that will be going to the great charitable organizations that you have determined to support with your personal giving and your foundations’ philanthropy. It’s up to you—it’s your obligation—to use the resources we will no longer be taking from you to support those organizations as you best see fit.” We got the picture: Daniels was presenting a quid pro quo for noblesse oblige. Daniels didn’t say that philanthropy could or should substitute fully for the anticipated cuts in spending; rather, he was saying, “don’t just pocket those dollars we’re giving back to you. Use them to invest more in America and to do more of the good works in your communities that you are already doing.” It was a convincing performance, seemingly impromptu and without notes.

Gordon England followed by making a pitch for philanthropy as patriotic duty, to support homeland security and first responders in the wake of 9/11. It was indeed a different time: Border security wasn’t mentioned at all. 

John Ashcroft, who had been scheduled to be the first cabinet official on the agenda, arrived late to set up the premise, after the fact, for the Administration’s policies, putting an exclamation point on Daniels’ case about personal responsibility and capacity to support the charitable sector. Out of breath and sweating, he described sitting in his church the previous morning, listening to the minister’s sermon and thinking about what he would say the next day to this distinguished group. He said he had been contemplating a nursery rhyme, “you know, Humpty Dumpty sat on a wall, Humpty Dumpty had a great fall, and the way you recite it when you’re a kid, sort of fast and flat…But if you slowwww it down and change the emPHAsis,”he said, “it really becomes sort of a parable about the incompetence of government to solve problems and fix our social ills: Humpty Dumpty sat on a wall, Humpty Dumpty had a great fall. All the King’s horses and all the King’s men couldn’t put Humpty together again.” Then he added: “You, my friends, have the capacity, and the responsibility, to do what government cannot do and should not do.”

Despite Ashcroft’s telling analogy about the failures of government and my disappointment (but not shock) that big cuts were coming to programs that we were funding in partnership with government, I came away with three impressions: (1) that this had been the Bush II variation of JFK’s inaugural speech;[5] (2) that Bush II’s “compassionate conservatism” was an extension of Bush I’s “a thousand points of light” paean to voluntarism; and (3) that most of those in the auditorium had been inspired to write bigger checks to their favorite charities once the tax cut came through and maybe even before it did. Looking back on it now, it seems to have been a rousing, ecumenical endorsement of the Tocquevillian vision of voluntarism, pluralism and civil society in America.

Today, however, you don’t hear anything about de Tocqueville from the White House. Quite the opposite. While Trump paid lip service to certain aspects of charity during his first term, except for a new excise tax on income from large university endowments, he was mostly hands-off with respect to the organizations of civil society. Trump II and its enablers and executors, including Elon Musk and the Republican majority in Congress, are aggressively hostile to civil society and the nonprofits that comprise it as an entire sector of social and economic activity. To wit: 

• Arbitrary, unprecedented cutoffs and rescissions of billions of dollars in congressionally appropriated funding, in violation of the Budget Control and Impoundment Act;
• Claims that federal agencies are “criminal organizations” and the civil society organizations they support are “the biggest scam ever;”
• Putting private NGO’s and independent agencies into government-managed receivership or its functional equivalent;
• Recommendations to increase taxes on college and, perhaps, foundation endowments to 21% to fund, in part, a $4.5 trillion tax cut to individuals and businesses and to rescind the tax-exempt status of disfavored universities and civil society organizations.[6]

But it’s the Trump administration’s agreement with many of the nation’s leading law firms that explains best its theory of the role of civil society organizations in the U.S. political system, i.e., that they are not independent, but rather should function in service to the sitting government. Quite the opposite from the Bush II theory of the case for pluralistic, voluntary voluntarism.

Beginning in March, Trump issued a series of executive orders blacklisting specific law firms, terminating their federal contracts, revoking their security clearances and barring their employees from entering federal buildings, thus rendering them incapable of effectively representing their clients in federal cases. Trump offered to de-blacklist firms if they agreed to offer pro bono representation in support of specific administration priorities. Most of the blacklisted firms complied, initially and perhaps most notably the venerable Paul, Weiss, Rifkind, Wharton and Garrison LLP (a.k.a Paul, Weiss). Trump’s statement on Truth Social announcing the rescinding of the executive order against Paul, Weiss said that the firm had agreed to “take on a wide range of pro bono matters that represent the full spectrum of political viewpoints of our society, whether ‘conservative’ or ‘liberal.’” And that Paul, Weiss would “dedicate the equivalent of $40 million in pro bono legal services over the course of President Trump’s term to support the Administration’s initiatives, including: assisting our Nation’s veterans, fairness in the Justice System, the President’s Task Force to Combat Antisemitism, and other mutually agreed projects.” 

Subsequent agreements to de-blacklist other leading firms expanded the range of pro bono services to be provided to include “causes that President Trump and the Law Firms both support and agree to work on, including…Assisting Veterans and other Public Servants.” But they also modified the agreements’ ideological ecumenism: “The Law Firms will take on a wide range of pro bono matters that represent the full political spectrum, including Conservative ideals.”[7]

These purported agreements to be de-blacklisted, now totaling nearly $1 billion in pro bono hours from a handful of firms, frame pro bono representation not in service to organizations serving the public good in lieu of government but in servitude to that government, as agent to the power and whims of its executive. It’s a chilling, Kafkaesque definition not just of the responsibilities of attorneys and their firms to their clients and to uphold the Constitution but of the role of civil society in relation to government. A definition of pro bono publico that omits the publico and suggests that pro bono services are penance–a most extreme form of what HistPhil co-editor Benjamin Soskis has called “coercive voluntarism”[8]–for alleged misdeeds on the part of law firms. The agreements between Trump and those firms that require them to provide pro bono services to Trump-favored initiatives are much like being sentenced to do community service simply for having represented their clients, with the object of that service being the judge. That would have been anathema both to the Bush cabinet members who presented their vision of the government-civil society compact and their audience at the White House two decades ago. As Attorney General John Ashcroft might have put it, a great fall indeed.

-David Morse

David Morse has been an epidemiologist for the New York State Health Department, a professional staff member for the U.S. Senate Committee on Labor and Human Resources, staff director of President Reagan’s Task Force on the Arts and Humanities, an administrator and instructor at the University of Pennsylvania and the University of Southern California and chief communications officer for three large foundations: Pew, Robert Wood Johnson and Atlantic Philanthropies.

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[1] The Pew Charitable Trusts, at which I worked as director of public affairs from 1997 to 2001, was a member of both organizations, as was the Robert Wood Johnson Foundation, at which I was vice president for communications at the time of the White House meeting.

[2] The faith-based organizations that Towey had led prior to joining the Bush administration were grantees of both Pew and RWJF.

[3] National Defense budget outlays would increase from FY 2003 to FY 2004 by $48.8 billion, or about 12%. Homeland Security outlays would increase by $5.3 billion, or 17%.

[4] These are not verbatim quotes, but a close approximation from contemporaneous notes.

[5] Rather, an oblique qualification of JFK’s speech: “Ask what your country can do for you so that you can do for your country.

[6] After two months of silence about threats to a pluralistic civil society and philanthropic freedom, the prospect of a tax on foundation endowments has roused the Philanthropy Roundtable to make a powerful statement about how such a tax would constrict such freedom of thought and action.

[7] http://www.linkedin.com/feed/update/urn:li:activity:7316509734075854848/

[8] Soskis borrows the term from Christopher Capozzola’s Uncle Sam Wants You: World War I and the Making of the Modern American Citizen (2008), where it refers largely to the pressure applied by local civic groups of American citizens.