View all Articles

Xavier Becerra’s Nonprofit Problem

They don’t spend donors’ money on his priorities. As Biden’s health secretary, he could try to coerce them.

No federal agency works as much with nonprofits as the Department of Health and Human Services. That is one reason Xavier Becerra, President-elect Biden’s pick to lead the agency, will face opposition. His record, as California attorney general since 2017 and in Congress for nearly a quarter-century, has been one of hostility to nonprofit institutions and the donors who support them.

In the House Mr. Becerra often accused charitable foundations of failing to donate funds equitably. “At some point, the numbers don’t lie and someone needs to do something, especially when you’re using the taxpayers of America’s money to do your philanthropic work,” Mr. Becerra told the Council on Foundations in 2008. He asserted that there was “disproportionate giving . . . skewed against people of color.”

Not content merely to criticize, Mr. Becerra threatened to use federal power to get his way. “We’re not trying to mandate something,” Mr. Becerra told the council, “but we will if you don’t act.”

He referred to the tax exemption for charitable foundations as a “$32 billion earmark” and cited an “obligation to make sure those $32 billion that would have gone to the federal government are used for a . . . public good.”

There has never been any requirement that charitable funds be allocated according to the “public good,” whoever defines that, or to any particular cause. People and institutions are permitted to claim deductions for gifts to any Internal Revenue Service-verified charitable organization, ranging from schools and soup kitchens to museums and symphony orchestras. The IRS has identified 29 types of organizations that qualify. Their purposes can be educational, religious, scientific, literary or even athletic. The exemption is a recognition that the public good arises from a plurality of different efforts. The claim that charities must serve a particular definition of the public good destroys the rationale for the exemption.

Mr. Becerra is part of a growing chorus on the far left trying to use the tax code to redirect charitable giving toward causes it finds worthwhile. In 2008 he supported the ideas behind California legislation that would have required foundations to report the racial composition of their boards, staff and, most important, grantees. The intent was to shame donors into shifting their contributions. A similar dynamic is at work in the policies of the California attorney general’s office (first under Kamala Harris in 2011-17 and then under Mr. Becerra, who was appointed her successor when she moved to the Senate) of systematically failing to maintain the confidentiality of donors to nonprofit advocacy groups. The Supreme Court agreed last week to hear two cases challenging these actions on First Amendment grounds.

Many foundations fund medical research, schools and religious organizations that benefit people of all races. Often their missions were laid out before Mr. Becerra was born. Mr. Becerra has disdained donor intent as a “convenient excuse” used by philanthropists to give to their favored causes, like saying “the devil made me do it.” But foundation money is private money and foundation leaders have a moral and even legal obligation to disperse it in the way donors have directed.

Mr. Becerra has also set his sights on religious nonprofits. In 2019 Mr. Becerra led a group of states in trying to stop the Trump administration from exempting religious organizations from rules barring discrimination based on sexual orientation or identity. These included religious foster-care agencies that find homes for some of the most vulnerable children but say that certifying a home with a gay couple violates their religious principles.

Mr. Becerra has little regard for the protections the First Amendment affords to religious organizations. Asked at his 2017 confirmation hearing in Sacramento about proposed California regulations that would have restricted state funds for religious colleges that mandated theology classes or a Bible-based code of conduct, Mr. Becerra said: “The protection for religion is for the individual, and so I think it’s important to distinguish between protections that you are affording to the individual to exercise his or her religion freely, versus protections you are giving to some institution or entity who’s essentially bootstrapping the First Amendment protections on behalf of somebody else.”

This is wrong. The First Amendment applies to religious organizations as well as the individuals in them. The idea that the religious liberty guaranteed by the Constitution doesn’t apply to the operation of churches, mosques, synagogues and religious schools, defies legal precedent, to say nothing of common sense.

Religious organizations run many of America’s hospitals, nursing homes, senior centers, foster and adoption agencies, after-school programs and hospices. Mr. Becerra seems to want the power to cast their principles aside in favor of his own ideological mission. He holds many views of this kind, well outside the American mainstream, and would have broad discretion to act on them as health and human services secretary. Private foundations and religious organizations are correct to be wary of his appointment.

This piece originally appeared at The Wall Street Journal (paywall)

______________________

James Piereson is a senior fellow at the Manhattan Institute.

Naomi Schaefer Riley is a resident fellow at the American Enterprise Institute and a senior fellow at the Independent Women’s Forum.

This piece originally appeared in The Wall Street Journal