Editors’ Note: Benjamin Soskis examines the emerging trans-ideological coalition in defense of civil society in the U.S., the commitment to “prudential pluralism” that fuels it, and the conception of history on which it stands. Part I can be read here; the full essay can be read here.

IV.

Besides the 2013 IRS controversy, the other historical precedent most frequently invoked in efforts to make sense of the current administration’s attacks on civil society involves the malfeasance of Richard Nixon. “From utilizing tax data to trace immigrants without legal status to threatening Harvard University’s tax exemption, President Trump has been trying to use the IRS for his own political purposes, in ways that may seem unprecedented,” NPR reported in May 2025. “But they’re not. Former President Richard Nixon laid the groundwork more than four decades ago, when he tried to use the tax collector to punish his enemies and assist his friends.” A Washington Post columnist made a similar point, arguing that “President Donald Trump appears to be taking a lesson out of Nixon’s playbook.”

The parallels are striking. As Nixon legal counsel John Dean wrote in an infamous August 1971 memo, the president’s inner circle was committed to determining “how to use the available federal machinery to screw our political enemies.” This led not only to an “Enemies List” of disfavored individuals, but to Nixon’s pushing the IRS to go after “ideological organizations,” especially those on the left, through the creation of a “Special Service Staff.” By 1972, the IRS’s Exempt Organization Branch was sending all cases that involved “ideological, militant, subversive or radical” elements to the SSS for audit, with a clear focus on black and anti-war organizations.

The parallels are also convenient. This is the case not only because it was in response to the Nixon administration’s abuse of power that Congress began to establish bipartisan safeguards protecting nonprofits (and individuals) against such misconduct, reining in executive branch access to tax returns, culminating two decades later in the IRS Restructuring and Reform Act of 1998. More than this, Nixonian malfeasance and the reaction to it has come to play an important role in the narrative surrounding the development of the norms and legal protections bolstering an independent civil society. In this sense, the figure of Nixon can sometimes seem to resist the presumption of parity; an insistence on the exceptionality of his administration’s abuses of power and the corrective action taken in response can function as a means of affirming the ultimate vigor of the norms he violated.

And yet it’s worth recalling that Nixon was merely embellishing a pre-existing White House practice of using the IRS to target ideological opponents through their nonprofit institutions. In fact, when forced to defend the practice, Nixon’s henchmen argued that what previous Democratic administrations had done was much worse; they framed their weaponization of the IRS as purely corrective. “Democrat Administrations have discreetly used IRS most effectively,” White House counsel John Dean wrote in a memo which came to light during the Watergate hearings. “We have been unable.”[1]

JFK, for instance, was greatly concerned with the rise of the Right, and not long after entering the White House, asked his Treasury Secretary C. Doulgas Dillon to push the IRS to investigate conservative foundations. As Victor and Walter Reuther explained in a December 1961 memo, one way to check the growth of the Right was to choke off the flow of money to right-wing organizations by challenging their tax-exempt status. “Prompt revocation in a few cases might scare off a substantial part of the big money now flowing into these tax exempt organizations,” they wrote. This idea sat at the kernel of the secret Ideological Organizations Project, initiated in late 1961, which involved the IRS auditing 22 “alleged extremist groups,” not for any demonstrated tax violations but for their ideologies and political activities. By late 1963, the campaign had expanded to some 10,000 organizations, with some two dozen targeted for audits. Though the IRS sought to preserve the veneer of non-partisanship by substituting in internal documents “political action organizations” for “right-wing organizations,” it was indisputably the case that, as the program expanded, and extended into the Johnson administration, the vast majority of organizations investigated were conservative, anti-Communist, or aligned with the radical right. Ultimately, in 1964, the project led to the revocation of tax exemption from two of those organizations for impermissible political action, HL Hunt’s Life Line Foundation and Billy James Hargis’s Christian Crusade.

When the news of the IRS actions broke, it caused an uproar. “The trouble with policing tax-exempt organizations,” wrote William F Buckley, “is that it simply cannot be done with justice.” With such a move, it “was never more clear that the ‘power to tax is the power to destroy.’” Hargis announced that “Freedom of speech is on trial. Only under an absolute dictatorship are opposing opinions prohibited…Will the ‘Great Society’ now become the ‘Great Stick’ to crush those who may disagree with the Administration in power?” It didn’t matter “whether you are liberal, conservative, Republican or Democrat,” Hargis insisted. The question was whether ministers would be allowed freedom of speech, regardless of their viewpoint. In remarks to the New York Times, he made what is now a familiar argument: “If the Administration can close down an opposing voice, doesn’t this set a precedent? Couldn’t a conservative administration close down an opposing voice?”[2]

Conceiving the Nixon administration’s compilation of an Enemies List and use of the IRS’s Special Service Staff to go after its ideological opponents as continuous with programs in the Kennedy and Johnson administration does not necessarily mean they all should be regarded as equally nefarious and damaging to norms of viewpoint neutrality. Again, differences in magnitude (and in brazenness) matter. The Nixon administration’s sustained harassment of left-wing organizations went well beyond the tactics adopted by the previous Democratic administrations (though not beyond the tactics of McCarthyite persecution or the Red Scare); we know of no order from Kennedy or Johnson or par with Nixon’s instructions to break into Brookings.

Yet viewing these campaigns as part of a single historical tradition, as each in a sense unexceptional, points to one potential response to the presumption of parity, one that locates a shared vulnerability among all nonprofits and an endemic temptation built into the structures of political authority in the U.S, but that still maintains fidelity to the historical record. For the history of past IRS abuse insists upon an essential point, one that post-Watergate legislation has sought to mitigate but cannot entirely expunge, and that paeans to an “independent sector” obscure but cannot entirely banish: that the flip-side of the immense privileges and state advantages granted to voluntary organizations in the United States, which both distinguishes US civil society and defines and demarcates an intelligible nonprofit sector, also represents a deep-seated vulnerability. If the state giveth, the state can taketh.

This, of course, is a corollary proposition to Chief Justice John Marshall’s famous dictum in McCulloch v. Maryland: “The power to tax involves the power to destroy,” invoked by Buckley in the quote above. (It also supplies the title of the book I’ve relied on for the history of the IRS’s investigations of nonprofits in the Kennedy, Johnson, and Nixon administrations, John Andrew’s Power to Destroy). The potential to withhold taxation endows government with enormous power over the nonprofit sector and incorporates into civil society an inherent precariousness that demands vigilance from those of all parties and persuasions. A history that underscores this common condition can provide a firm foundation for prudential pluralism.

V.

The appreciation of state power as a fact of contemporary political life extending beyond any particular regime can counsel restraint from those who happen to hold power in the moment. But not necessarily. In fact, one of the problems with a reliance on prudential pluralism for the defense of civil society is its inherent volatility. A grasp of the history of state power that fosters the belief that your partisan antagonist will always face the temptation to restrict your side’s associational life can also license pre-emptive action. Alexis de Tocqueville, meet Dr. Strangelove.

There are in fact moments when we can witness the understanding of recent history that informs prudential pluralism collapse in on itself, as the accusation that a partisan antagonist restricted civil society in the past becomes the activating rational to restrict civil society in the present. This was, for instance, the dominant line of thinking on display at the hearing on the Southern Poverty Law Center (SPLC) held by the House Judiciary Subcommittee on the Constitution and Limited Government last December.

The SPLC was founded in 1971 as a civil right organization, and its early work fighting segregation, racism, and white supremacy, including successful campaigns against the KKK,

is widely celebrated. But in recent decades, as it has targeted right-wing extremism more generally, it has itself become a target of conservative ire. This dynamic was on display at the hearing, where Republicans on the subcommittee, and their invited witnesses, raised alarms about the ways the SPLC’s designation of certain nonprofits (and specifically right-wing organizations) as “hate groups” narrowed the boundaries of acceptable speech and quashed political dissent. SPLC’s Hate Map, according to subcommittee chair Rep. Chip Roy, was “a political weapon masquerading as a public interest watchdog.” Conservatives were particularly incensed by the close relationship between the SPLC and the Biden administration. Republican subcommittee members and witnesses pointed out that the Biden White House hosted the SLPC at least 18 times; that the Department of Defense and other government agencies have used SPLC materials in trainings and threat assessments; and that the SPLC shared embargoed reports with the Department of Justice’s Civil Rights Division and briefed prosecutors.

“How did we allow a private organization with no objective standards and no accountability and a long history of internal corruption and bias to become embedded in federal civil rights enforcement?,” asked Roy. “Determining whose speech gets chilled, whose religious exercise is punished, whose organizations are suddenly surveilled, debanked, deplatformed, or targeted because a multi-million dollar activist nonprofit decided they were politically inconvenient….This is a broader ideological campaign designed to narrow the boundaries of acceptable speech…to shift the federal civil rights apparatus from its original purpose of protecting equal treatment under law toward policing political dissent.” This critique is tied to a

broader counter-history advanced by the Right of Democrats wielding state power to target right-wing organizations, and of the Democratic party’s and its nonprofit allies’, in the words of one of the witnesses at the hearing, “manipulat[ion of] federal law enforcement to terrify its critics into silence.”[3]

Democrats on the committee (and their witness), on the other hand, presented SPLC as an exemplary civil rights organization and portrayed the hearing itself as “part of a broader strategy by the Trump administration and its congressional allies to silence and intimidate civil society,” as subcommittee ranking member Rep. Mary Gay Scanlon explained. They portrayed the SPLC Hate Map as a form of protected speech that could be critiqued with other speech but should not be repressed by the power of the state. As Scanlon quipped, “our colleagues’ idea of limited government only applies to the people and parts of our society that they agree with.”

What followed was a congressional version of the meme of the gaggle of Spider Men, all pointing at each other, or perhaps of the playground gripe, “He pushed me first!” A Republican on the subcommittee responded to a Democratic colleague’s pushback—he paraphrased it as “this is an attempt to intimidate and chill SPLC’s speech”—with the rejoinder, “Well, that’s an interesting perspective considering the fact that the SPLC’s stock and trade is to intimidate and chill the speech of anyone they disagree with.” Another Republican announced, in the midst of a hearing targeting one particular organization, “There are few organizations that engage in the chilling of civil society more than the Southern Poverty Law Center.” They complained about how the SPLC facilitated the deplatforming of conservative groups, without any transparency or recourse—even as the imminent indictment of SPLC would lead to its deplatforming from some of the largest DAF sponsors.

It was a pas de deux of partisan grievance, one that threatened to eat away at the integrity of prudential pluralism. Given my sense of how much the defense of civil society relied on such a belief, I found the hearing particularly disturbing. In that moment, it seemed the best antidote to that corrosion was a mutual commitment to take the protests of one’s antagonists seriously. So I made a deliberate effort to consider the counter-history the conservatives on the subcommittee were steeped in. And I remember thinking, if I could push my way past the partisan sniping, I could see some legitimate concerns surrounding the non-transparent, unaccountable power invested in the SPLC to determine what constituted a hate group, especially to the extent that the state partnered with them, using its authority to constrict civil society.

But here too I ran up against false equivalences of the sort that seem to be a particular pitfall of prudential pluralism. Because while the Republicans did cite the points of partnership between the Biden administration and the SPLC, there was much less evidence presented that such a partnership resulted in actual persecution of right-leaning organizations. The harms done to those organizations alluded to in the hearing more often came from private actors, from instantiations of “cancel culture,” from voluntary campaigns to expel certain groups from the bounds of civil civil society, and even, in one case, from violent vigilante action—and not through federal criminal prosecutions or executive orders. Eliding the distinction between private power and state power directed against disfavored groups obscures the massive differentials in power between them. This, in turn, can serve to discount the dangers of state-based targeting. Being shunned by one’s professional colleagues after being the target of a “smear campaign” from the SPLC, as a former academic witness at a subsequent House Judiciary Committee hearing in May framed it, can then be equated with the attempt to strip an organization’s tax-exempt status by an act of Congress, as Rep. Roy has sought to the SPLC. Or, for that matter, to send FBI agents to search the offices of a voting rights organization. That equation seemed particularly problematic given how easy it was to understand the recent federal indictment of the SPLC as the product of a retaliatory campaign in response to right-wing allegations that “they did it first!”

So the question lingered well after the hearing ended: was it possible to incorporate some of the concerns raised during it about the past use of government power to restrict civil society into a theory of prudential pluralism that didn’t ultimately facilitate or authorize that restriction? The future health of civil society might very well depend on the answer to that question.

VI.

On May 14, the Cato Institute hosted an event on “The Freedom to Give: Philanthropy, Civil Society, and the Limits of State Power.” It featured three speakers. Cato Senior Fellow Walter Olson provided some broad legal framing. John Palfrey, the president of the MacArthur Foundation, and one of the three foundation heads leading the Unite in Advance coalition, has been at the forefront of progressive philanthropy’s resistance to the Trump Administration’s attacks on civil society. And then there was Lawson Bader.

The Cato event embodied both the promise of the broad-based coalition coalescing in defense of civil society as well as some of the awkwardness when you have, as Bader described it, “strange bedfellows institutionally trying to come together to defend philanthropic freedom.” Bader rooted his affirmation of the freedom to give in a historically-minded embrace of prudential pluralism: “If we are cheering what fundamentally appears to be a weaponization of government power against philanthropy from the current administration, it’s only going to come back to haunt us in the next administration, the way, frankly, it has come in previous administrations….The precedents cut both ways. It’s just that simple.”

In his remarks and responses to questions, Bader invoked Lois Lerner and the IRS controversy; a case of “weaponized disclosure” in which a co-founder of a software company had information about his charitable donations leaked, and then resigned in the face of protests over a $1000 contribution he had made to a California initiative that banned same-sex marriage; and the “envy” that leads politicians to target those with significant fortunes, based on the assumption that private wealth was the government’s to begin with. There was, in other words, plenty of space between Bader and Palfrey, the stalwart of progressive philanthropy sitting next to him.

But then there were Bader’s first words during the event, responding to Palfrey’s own opening remarks, noting the broadly-shared belief in the importance of “private, voluntary efforts to improve our communities” as well as the broadly-shared agreement, “regardless of our ideological perspectives,” that there was a real danger in striking at the roots of that tradition: “Ditto.” And there were the three panelists (along with the moderator, Cato’s Maria Santos Bier), at the event’s conclusion, standing side-by-side, smiling for the camera. They seemed, at least for a moment, a sturdy bulwark.

-Benjamin Soskis

Benjamin Soskis is co-editor of HistPhil.

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[1] John A. Andrew III, Power to Destroy: The Political Use of the IRS from Kennedy to Nixon (Chicago: Ivan R. Dee, 2002), 206.

[2] Andrew, Power to Destroy, 49, 50, 53; New York Times, November 17, 1964.

[3] Tyler O’Neil, The Woketopus: The Dark Money Cabal Manipulating the Federal Government (New York: Bombardier Books, 2025), 197.