Editors’ Note: Maggie Lemos and Guy-Uriel Charles revisit their 2018 California Law Review article on ‘patriotic philanthropy’ in the light of Trump 2.0.

In 2018 we published an article in the California Law Review about a phenomenon that we called ‘patriotic philanthropy,’ a practice in which very rich individuals donate large sums of money to fund public programs or public institutions. Most of our examples were drawn from the state and local levels, where budget constraints and permissive rules around giving fuel patriotic philanthropy on both the demand and supply sides of the equation. We explained that gifts to the federal government were (and, we thought, were likely to remain) less common, in part because federal law prohibits donors from earmarking donations for particular purposes and prohibits agencies from spending in excess of congressional appropriations or accepting voluntary services,[1] and in part because the federal government has less need for private funding given its capacity for deficit spending.

High-profile gifts under the second Trump Administration suggest a need to reconsider that assessment—and they also illuminate new ways private financiers might interact with government. President Trump set the stage himself, first by rejecting federal funds to support his second presidential transition and instead funding the 2024 transition entirely with private dollars, and then by announcing that he was donating his first paycheck to the White House Historical Association for improvements to the White House. (During his first term in office, President Trump similarly promised that he “would not take a dime of salary” and would donate it all.) Since then private donations, along with sponsorships that blur the line between philanthropy and product placement, have flowed into the capitol. For instance, much attention has been paid to the donors funding the Trump ballroom: a who’s who list of corporations and frequent GOP donors. In one sense, the ballroom donations are conventional examples of patriotic philanthropy. Public facilities, along with outdoor spaces like parks, are among the most frequent and longstanding subjects of private giving—think Andrew Carnegie and public libraries. In another sense, though, the gifts are distinctive. President Trump is reported to have personally solicited donations for the ballroom project, while promising the public that the project would be funded by private donors rather than taxpayers.

Such gifts raise what’s probably the most intuitive objection to patriotic philanthropy: that the donations are a form of pay-to-play, a currency wealthy contributors can use to buy influence and access. Although gifts to government officials are strictly regulated under federal and state law, gifts to fund an official’s pet project (or jet plane) fall outside those restrictions—but may have similar effects. When observers cried foul about, say, Betsy DeVos being appointed to a cabinet position after contributing to Trump’s first presidential transition, this concern was driving the critique. Ditto complaints about record-breaking donations to Trump’s second inauguration, which swamped previous inauguration-related giving in part because Trump lifted caps that prior administrations (including his own, back in 2016) had voluntarily imposed. As one critic put it, Trump’s contributors “are not just getting these sort of plum ambassadorships on the side. Major donors are getting positions that affect policy.”

Viewed from a different perspective, however, solicited donations might be less concerning than other gifts, and our earlier work aimed to highlight some less obvious problems with patriotic philanthropy. A well-known critique of private philanthropy is that it enables wealthy individuals and foundations to decide for themselves what is good for others, without the sort of democratic checks that apply to government actors. That argument would seem to dissolve when gifts are directed at the government. Rather than going outside of government, patriotic philanthropy brings new resources into the public sector, with all its checks and balances. The difficulty, we argued, is that government officials may be all too eager to accept the deal. In many cases, the proffer of a gift is not an isolated event but one moment in an ongoing and potentially beneficial relationship. Today’s gift, if handled well, may produce additional donations (or other forms of support) down the road. Much like looking a gift horse in the mouth, second-guessing generous endowments, or quibbling about their terms, will often seem like bad manners at best and “political malpractice” at worst. Gifts, therefore, are likely to exert a gravitational force on public policy, pulling government officials into projects they would not otherwise pursue.

To the extent a ready source of money can skew policy in directions favored by donors, patriotic philanthropy might trigger two new concerns, which we dubbed the “benevolent dictator” and “equality” objections. Traditional avenues of political influence—including voting, campaign contributions and expenditures, and lobbying—have considerable shortcomings from the perspective of the would-be influencer. Voters, campaign supporters, and lobbyists cannot directly control government officials. If they do, they will enter the forbidden territory of bribery, extortion, and what the Supreme Court has called “quid pro quo corruption.”[2] Campaign expenditures and lobbying are widely permitted precisely because they operate as nudges rather than commands. Gifts are different. A gift does not simply generate gratitude and indebtedness on the part of the recipient. When targeted at a particular policy initiative, a gift is explicitly a quid pro quo: I will donate this money if you do this thing. Such influence is powerful indeed, and it runs counter to our democratic commitment to collective, deliberative decision-making.

To be sure, gifts will often be used to underwrite valuable policies—hence the “benevolent” in the benevolent-dictator objection. The point is not about substance but procedure. In a world marked by widespread disagreement about the public good, process matters. American democracy is built around the idea that decisions that affect the collective ought to be determined by the collective, typically via representatives who are authorized to act on behalf of citizens and are accountable to those citizens in some meaningful way. Those features of our democracy—the need for collective action and for citizens to govern through their representatives—make it difficult for any one individual (even an exceptionally wealthy one) to prescribe public policy outcomes on her own. The consequence, as noted above, is that conventional forms of political influence are inefficient from the individual perspective. From the systemic perspective, that inefficiency is a feature rather than a bug: It is inherent in the notion of collective self-government. The benevolent-dictator objection to patriotic philanthropy, then, is that it allows individual donors to steer government policy without running through the many checks associated with collective decision-making and funding.

But the potential problems with patriotic philanthropy are not entirely process-based—substance matters too. One might object to a benevolent dictator chosen at random. One might object more to a benevolent dictator chosen according to wealth. In the latter case, one might worry not only about inequality of inputs—because most citizens will not be eligible to play this role—but also about inequality of outputs. Wealthy benefactors might use gifts to support policies that benefit everyone equally or that focus on the needs of the less fortunate, but then again, they might not. Instead, private donations might focus on initiatives that serve the interests and tastes of the donors themselves—at the local level, for example, more amenities and better schools for tony neighborhoods. For the federal government, a gilded ballroom or “flying palace” rather than SNAP payments.

With the latter examples, one might suspect the initiatives supported by the donations have more to do with the preferences of the recipient (here, President Trump) than of the donor. This brings us back to the appeal of solicited donations. When donations are made in response to government demand, the important decisions about where to direct the energies of the public sector still are being made by democratically responsive representatives rather than unaccountable private funders. Understood that way, solicited gifts might seem more benign than gifts that empower the donor to decide what initiatives the government should undertake. (Gifts like the $130 million one donor pledged to help pay for troops’ salaries and benefits during the government shutdown might fall near the middle of the spectrum of donor empowerment: On the one hand, such gifts respond to a perceived need for support for programs the government already is pursuing; on the other hand, the funds are earmarked for the program(s) of the donor’s choosing.) 

The patterns emerging from the second Trump administration suggest a critical caveat, however. Legal scholars have detailed the many ways the Trump presidency is challenging one of Congress’s core powers: the power to control federal spending. Some government programs (Medicare benefits, for example) are funded via permanent appropriations, but a large chunk of federal spending, covering matters ranging from salaries for military personnel to agency budgets, is “discretionary”—meaning that it is funded by appropriations that must be re-upped each year. Regular appropriations are critical to the separation of powers between Congress and the president. As Zachary Price has written, “[a]lthough the modern ‘imperial’ presidency holds broad statutory and constitutional authorities with respect to both domestic and foreign affairs, time-limited appropriations give Congress an ongoing say in how those powers are executed.” By forcing the president to come back to it “every year seeking money just to keep the government’s lights on,” Congress can check unilateral executive initiatives by refusing to fund them, or withholding funding for other programs the president supports. President Trump is testing congressional control over spending in multiple ways, including canceling spending Congress has appropriated, adding conditions to existing grants, and offering buyouts to civil servants without appropriations to back up the promised payments. Private donations—while, as of yet, only a footnote to the story—are consistent with the overall push toward expansive, unrestrained executive power. Whereas Congress’s power of the purse means the president typically has to subject new initiatives to a legislative check, private donations to executive branch initiatives lets the president select—and fund—his own projects. The $130 million gift for military salaries is a small but significant example. Not only does it seem to violate the Anti-Deficiency Act’s prohibition on expenditures outside of congressional appropriations, but it also stands in considerable tension with the raise-armies clause of the Constitution, which vests in Congress the power to raise and support armies and—responding to fears about a permanent army in peacetime—explicitly requires time-limited appropriations.

Our earlier work was perhaps too sanguine about solicited donations, failing to attend to the separation-of-powers questions that might be triggered by executive solicitations. And, while worries about an increasingly imperial executive are appropriately focused on the federal government, it’s worth noting that the potential for private money to empower executive actors—freeing them from the limitations of legislative appropriations—is not confined to Washington. To take just one example, California governor Gavin Newsom, one of Trump’s most high-profile antagonists and a likely presidential candidate for 2028, has raised eyebrows with the volume of donations he has solicited. California law permits unlimited private gifts, known as “behested payments,” when a government official requests donations to a nonprofit or government agency. When the COVID pandemic tested government resources, Newsom turned to private donations to fill the gap: citing concerns about access and influence, the LA Times reported that “millions of dollars flowed in to prop up public services during the pandemic and fund Newsom’s favored projects.” Sound familiar?

A final problem with solicited donations warrants emphasis here, as it helps suggest an answer to an otherwise puzzling aspect of the Trump administration’s embrace of patriotic philanthropy. To the extent gifts and other forms of private financing appear to expand state capacity, they seem hard to square with the administration’s slash-and-burn approach to government. But while gifts can extend the reach of the state in the short term, in the longer term they may have a hollowing effect. The concern here is related to critiques of privatization. Because they allow government to accomplish goals it cannot actually afford, gifts paper over the government’s weaknesses. As a result, citizens are unable to make informed choices based upon the actual, as opposed to perceived, capacities of their government. Combine private financing with more conventional forms of privatization—whereby government enlists private actors to perform tasks previously performed by government employees—and we create the potential for a balloon state: a public sector seemingly vast in reach, but remarkably thin in fact.

A related worry is that, over the long term, private donations to government might reduce government capacity by reducing public support for taxes. American representative democracy not only envisions a government, elected by the people, that sets public priorities in the public interest. It also has a vision of equal citizenship, which entails rights as well as obligations—voting as well as taxation. Public financing is consistent with that vision, as it collectivizes the costs of public goods and eliminates the opportunity to opt out. Citizens can’t avoid paying general taxes on the ground that they find certain government policies unnecessary or even offensive. In contrast to private financing, which enables those with means to use their personal funds to support the public initiatives that they prefer, general taxes force everyone to have skin in the game. From taxpayers’ perspective, an obligation to chip in for services they don’t plan to use, or that they actively oppose, is often cause for regret. Taxpayers might be happy to shift the cost of such programs to private financiers, and if the money eventually runs out or shortfalls in government capacity cause the programs to crater, all the better. Importantly, taxpayers also might welcome private funding to support programs they do use and do support. All else equal, the rational, self-interested taxpayer would prefer a world in which she has access to public goods but does not have to shell out for them. The more private money that is available to finance public goods, the more the fully informed taxpayer ought to favor a reduction in her tax liability in favor of private support. To put the point in terms familiar to commentary on philanthropy, just as government funding can “crowd out” voluntary, private support for services (including charity), private financing for public programs might crowd out public funding.

Putting this together, we can see the appeal of patriotic philanthropy for Trump 2.0. It’s anti-tax, transactional, and personalistic; and while private donations may be propping up certain aspects of the state—keeping national parks open during the shutdown, for example—the supports are ephemeral and largely ceremonial. Of course, hostility to taxes and a desire to shrink the federal government are hardly unique to the Trump Administration; these have long been key planks in the Republican party platform. Past GOP administrations have celebrated lower taxes as a means of facilitating private initiative—fewer dollars siphoned into Washington means more money available for private organizations to support the causes they deem most important, creating George H.W. Bush’s “thousand points of light.” What seems distinctive about the current moment is the administration’s simultaneous disdain for the non-profit sector and its embrace of private money to fund what appear to be presidential priorities.

Patriotic philanthropy appears virtuous and civic minded. But by masking fiscal limitations and substituting private largesse for public commitment, private financing risks hollowing out the very capacities that democratic government depends upon. Perhaps more concerningly, if and as patriotic philanthropy becomes a ubiquitous practice, it opens the possibility that government officials will routinely solicit donations from the private sector. What will emerge is a smaller and more fragile state—superficially robust but substantively weak, and ever more responsive to those with the resources to underwrite it. Solicited donations are worrisome not only because of the distinctive separation-of-powers concerns they raise when the executive is the solicitor, but also because they create a tension with a constitutional order built on collective governance, mutual accountability, and equal citizenship.

-Maggie Lemos and Guy-Uriel Charles

Maggie Lemos is the Robert G. Seaks LL.B. ’34 Professor of Law and faculty co-advisor for the Bolch Judicial Institute at Duke Law School. She is a scholar of constitutional law, legal institutions, and procedure. Guy-Uriel E. Charles is the Charles J. Ogletree Jr. Professor of Law at Harvard Law School where he also directs the Charles Hamilton Institute for Race and Justice.  He writes about how law mediates political power and how law addresses racial subordination. 

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[1] The Miscellaneous Receipts Act requires federal agencies to turn over any funds to the general treasury, see 31 U.S.C. § 3302(b) (2016), and the Anti-Deficiency Act prohibits agencies from expending funds in excess of their legislative appropriations, see 31 U.S.C. § 1341(a)(1)(A) (2016). Those prohibitions are defaults and can be superseded by more targeted statutes allowing particular agencies or actors to receive private gifts.

[2] McCutcheon v. FEC, 134 S. Ct. 1434, 1437 (2014).