Philanthropy Should Reject a “Citizens United” Defense
Let's Move Money, Not Mimic Bad Law
I’m so glad to welcome Stupski Foundation board member Maida Lynn as our Who Gives?! guest author this week. I found her words insightful and timely as our sector reflects on what worked this year and what we can do better in 2026.
—G.
From within the boardrooms of major foundations, a defense is being mounted against federal overreach, and I stand in strong solidarity with my colleagues who are opposing governmental weaponization against the nonprofit sector and the weaponization of federal agencies against Americans.
However, as a foundation trustee myself (I’m proud to sit on the Stupski Foundation board), I must break ranks on the central logic coalescing to justify this position: the claim that money equals speech, and that donating huge sums of money is a First Amendment right or that increasing the taxes that foundations pay on the interest we earn would necessarily mean there’s less money for charitable causes.
This is not to single out any particular philanthropic leader or foundation, as I hear this logic coming through in multiple places. What concerns me is that it dangerously echoes the reasoning behind Citizens United, the 2010 SCOTUS ruling that effectively granted corporations the individual right to political speech through unlimited spending. Fifteen years later, the result is a political landscape dominated by billionaire war chests, where the voices of the wealthy drown out those of ordinary voters.
So why would we now advocate for the same principle? To argue that our foundations, which are legal constructs sitting on hundreds of millions—often billions—of public tax-advantaged dollars, possess the same First Amendment rights as an individual donor giving to their local food bank ignores this fundamental lesson.
It lands as, “Big spending on stuff I don’t like is bad, but it’s just fine when it’s on stuff I agree with.”
Slippery Slope
This inconsistency reveals a profound hypocrisy. A central problem with Citizens United is its equation of money with speech for entities that are not people. When we make the same equation, we step onto a very slippery slope. Of course, every individual has the right to give their hard-earned dollars to causes they believe in. In fact, individual giving, which totaled nearly $600 billion last year, dwarfs foundation giving.
This generosity, which disproportionately comes from households of moderate means, is a true expression of civic freedom. But that argument is distorted when used to defend the institutional power of “big philanthropy.”
Foundations are not individuals, just as corporations are not people.
Our role should not be to co-opt the language of individual freedom to protect our endowments.
Instead of organizing around this type of deeply flawed logic, the most powerful defense we as progressive philanthropic leaders can mount is to divest ourselves of the stockpiled wealth that could make us a target in the first place.
What If There Were an Excise Tax?
The way the excise tax currently works is that most private foundations pay a small 1.39% on net investment income.
The proposed excise tax, which was included in a draft of the budget reconciliation bill (also known as the “One Big Beautiful Bill Act” or OBBBA), would not have resulted in any changes for foundations with less than $50 million in assets.
Instead, it would have introduced a tiered taxation approach whereby the wealthiest foundations, those with $5 billion or more, would have seen a 10% tax on the money they made from investments.
While the OBBBA did pass, the excise tax provision was removed before it was signed into law this summer, but not before it caused much commotion in the sector.
The predominant critique of the proposed change to the current excise tax was that if foundation investment earnings were taxed at a higher rate, it would mean foundations would give away less money in charitable donations.
This needs to be called out as an erroneous and false argument.
As a person who has granted millions of dollars to charitable causes, I can tell you firsthand that no one needs a tax deduction or a tax subsidy to give.
Millions of people give every day, and they do so without receiving any kind of tax subsidy at all. Just look at GivingTuesday, which just this month raised $4 billion, mostly from small everyday donors, many of whom won’t receive any tax subsidies for their giving.
The Solution Is Redistribution
If you’re a donor or philanthropic leader with access to hundreds of millions or billions of dollars and you’re worried about possible future changes to the excise tax, perhaps this is the time to go big and give away the capital sitting in your Donor-Advised Fund (DAF) or endowment.
Spend it.
Move it all.
That’s the best way to ensure you never have to worry about taxation.
Cutting record-breaking checks directly to the frontlines—to grassroots organizations, community land trusts, and mutual-aid networks, or whatever your foundation has chosen to make an impact on—renders us less of a target and more of a community partner.
We can do better than muster a defense mimicking the logic of Citizens United. We can take decisive action today to redistribute the money.
Maida Lynn has worked in the nonprofit sector for 25 years as a high school teacher, education and arts nonprofit trustee, and champion of documentary film. In addition to the Stupski Foundation, Maida proudly serves on the board of the Roxie Theater in San Francisco, which is wrapping up a $7M capital campaign and building purchase.
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Thank you for your clarity on what nonprofit organizations can do - to provide to others in need, not to be taxed higher for doing so. Doesn't make any sense. I know the Stupski Foundation is a wonderful organization as I knew both Larry and Joyce for decades. I am thrilled to see the Foundation continuing their good work.