The headlines are alarming. “Senator Demands Documents from Nonprofits Over Protests.” The letters are formal, printed on Senate letterhead, and request sweeping information, donor lists, communications, financial records, all under the implied threat of further action. But here’s what’s often missing from the story: these letters are not subpoenas, and your nonprofit has rights.
If your organization has received a letter from Senator Josh Hawley, or any other individual Member of Congress, it’s important to understand the difference between a political broadside and a binding legal obligation.
1. Not All Congressional Letters Are Created Equal
Let’s start with the basics: individual senators do not have subpoena power. Only congressional committees can issue subpoenas, and even then, only after following strict procedures, typically involving a majority vote or delegated authority to the committee chair.
When a senator like Josh Hawley sends a letter to a nonprofit organization demanding documents, it’s a request, not a legal order. It may feel intimidating, but it is not enforceable without further congressional or judicial action.
2. Your Nonprofit’s Rights Under the Constitution
Even if a congressional subpoena were issued by a properly authorized committee, nonprofits are not without recourse. The First Amendment protects the freedom of association and expression. Courts have repeatedly struck down government attempts to force nonprofits to disclose their donor lists or internal strategy documents when such disclosures would chill free speech or political participation (see NAACP v. Alabama).
If your nonprofit is engaged in advocacy, protest, or funding of controversial but lawful causes, a broad congressional request for internal records may well violate your constitutional rights. These protections are particularly strong when the inquiry appears politically motivated or ideologically selective.
3. Practical Tips for Responding
So what should your organization do if it receives one of these letters?
- Don’t panic. Receiving a congressional inquiry can be stressful, but it’s not the same as being sued or audited. Take time to assess.
- Determine the source. Is it from a committee or an individual Member? Only the former may have legal teeth.
- Consult counsel. An experienced attorney can help you assess the risks and draft an appropriate response – or advise when you should not respond at all.
- Protect your mission. If the request implicates donor information or expressive activity, consider asserting your constitutional rights and declining to comply.
4. Weighing the Risks
There’s no one-size-fits-all answer. Some nonprofits may choose to engage with congressional staff to clarify the request or demonstrate good faith. Others may decide that silence or refusal is the best way to protect their donors and mission. Either way, the key is to understand that these letters, however official they appear, do not suspend your organization’s legal rights.
Bottom Line
In today’s polarized environment, nonprofits on all sides of the political spectrum may find themselves targeted for investigation, not based on misconduct, but because of their views or activities. It’s critical to separate legal obligation from political theater.
If you receive one of these so-called “subpoenas,” remember: a senator’s letterhead does not equal a court order. Know your rights, consult your attorney, and protect your organization.
Ellis Carter is a nonprofit lawyer with Caritas Law Group, P.C. licensed to practice in Washington and Arizona. Ellis advises nonprofit and socially responsible businesses on federal tax and fundraising regulations nationwide. Ellis also advises donors concerning major gifts. To schedule a consultation with Ellis, call 602-456-0071 or email us through our contact form.