Published: January 2025

There is growing concern about state attorneys general engaging in politically motivated investigations of nonprofit organizations. State and federal courts have recently found that a number of these investigations are based on retaliation or harassment of nonprofits. The investigations are costly and time-consuming for the nonprofits that are targeted and can have a broader chilling effect on the sector, particularly in the context of growing legal threats to U.S. civil society.

The Texas Attorney General has drawn particular attention for launching what critics say are politically biased investigations of nonprofits. Since 2023, Attorney General Ken Paxton’s office has issued information requests or demanded depositions from over a dozen organizations, including organizations that provide services to migrants, a nonprofit that supports LGBTQ families, and an organization that works to increase Latino voting participation. Some of the Texas Attorney General’s investigations have extended to trying to dissolve organizations or strip them of their nonprofit status. In July 2024, he sued to revoke the corporate charter of FIEL Houston, an immigrant rights organization, claiming it had violated rules for 501(c)(3) nonprofits that prohibit lobbying and electioneering. His actions have led to criticism that his office is “stretching the boundaries” of the law to “pursue political targets.”

Some Texas organizations have successfully stopped or narrowed the Attorney General’s investigations through litigation—at least temporarily. In February 2024, the Attorney General’s office sought documents from Annunciation House, a Catholic nonprofit that operates a network of migrant shelters, alleging that it was operating a stash house. When Annunciation House requested time for a judge to review the request, Attorney General Paxton moved to strip the organization’s tax-exempt status. In July 2024, a Texas state judge held that the Attorney General’s efforts were “unenforceable,” finding that “the Texas Attorney General’s use of the request to examine documents from Annunciation House was a pretext to justify its harassment of Annunciation House employees and the persons seeking refuge.” The Attorney General appealed the decision and the case was heard by Texas’s Supreme Court in January 2025.

State attorneys general targeting nonprofits is not limited to Texas or to Republican attorneys general. In 2023, the Attorney General of Washington, DC, Brian Schwalb, began an investigation into a number of nonprofits connected with the conservative activist Leonard Leo, claiming that they may have violated a tax law that bars charitable groups from being used for personal enrichment. In response to the investigation, the Republican-controlled House Judiciary Committee sent a letter to Attorney General Schwalb, alleging that “political motivations” had led him to “weaponize [his] law-enforcement authority against disfavored people and groups,” and threatening to subpoena him.  A dozen Republican state attorneys general also suggested that they would investigate progressive nonprofits if the DC Attorney General did not back down.

Courts have also sided with nonprofits in pushing back on investigations by attorneys general in states outside of Texas. Attorney General of Missouri Andrew Bailey launched an investigation into progressive watchdog Media Matters in March 2024, shortly after the nonprofit published a report showing that the social media platform X had placed advertisements next to antisemitic content. The Media Matters report prompted numerous top advertisers to leave X, and Stephen Miller, a close advisor to President Trump, had publicly hinted that conservative state attorneys general should take legal action against the organization. Attorney General Bailey opened his investigation soon after, serving Media Matters with a civil investigative demand seeking numerous documents and alleging that the organization had generated “false statements that were used to solicit contributions under false pretenses.” A federal district court enjoined the demand in August 2024, finding that “Missouri’s interest in enforcing its consumer protection laws must give way when a state actor uses them to retaliate against a media organization for protected speech.” The same U.S. District Court enjoined a similar demand from the Texas Attorney General, also aimed at Media Matters.

Immigration organizations have been a frequent target of recent investigations. For example, Indiana Attorney General Todd Rokita filed civil investigative demands in November 2024 with six nonprofits, companies, and local government entities involved in refugee resettlement. Attorney General Rokita claimed that the groups had facilitated an influx of illegal aliens and “legal migrants” to Indiana that was causing “unneeded stress” on law enforcement, housing, and the healthcare sector. Immigration experts warned that the investigation had a “chilling effect” on immigrant communities’ willingness to work with the targeted organizations.

Many of these investigations have been based on relatively mundane compliance issues. For instance, in July 2024, Virginia Attorney General Jason Miyares announced that his office had launched an investigation into American Muslims for Palestine (AMP). The Attorney General’s office claimed it had “reason to believe” that AMP had violated the state’s charitable registration and solicitation laws. It said that it would investigate “allegations” that AMP had used funds for impermissible purposes and demanded an array of AMP’s financial records. The nonprofit petitioned to narrow the Attorney General’s demand, claiming that his office “improperly” sought irrelevant donor information and other data that had “no bearing” on the Attorney General’s investigation, but a court rejected their petition. In January 2025, the Attorney General took the further step of suing to enforce the demand.

Constitutional Protections Against Politicized Investigations

Nonprofits that feel they have been unjustly targeted for investigation have a range of potential legal arguments they can make in the courts. Since the stated bases for investigations vary considerably, so can potential responses. However, nonprofits facing investigations have repeatedly made both First Amendment claims that they were targeted for protected speech, and Fourth Amendment claims that the government engaged in an unreasonable search and seizure.

There is strong First Amendment precedent protecting nonprofits and others from being targeted because of their viewpoint. In 2024, the U.S. Supreme Court in NY v. Vullo unanimously held that New York’s Department of Financial Services had unconstitutionally used its regulatory authority to have third parties punish the National Rifle Association, a nonprofit, for its gun promotion advocacy. The Court found that “[a]t the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society.” In the decision, the Court relied heavily on Bantam Books v. Sullivan, a 1963 case where the Court found that a government commission had unconstitutionally used its investigatory power to intimidate publications into self-censoring. The Court in Bantam Books explained that the First Amendment prohibits government officials from relying on the “threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression” of disfavored speech.

Putting these principles into action, the U.S. district court that heard the case over the Missouri Attorney General’s investigation of Media Matters held that an investigation is unconstitutional if the plaintiff can show that, “but for” a defendant’s constitutionally protected speech or conduct, a prosecutor would not have undertaken the investigation – i.e., that the investigation is retaliatory in nature.

Nonprofits have also successfully invoked the Fourth Amendment, which protects against unreasonable government searches and seizure. In 2015, the U.S. Supreme Court held in City of Los Angeles v. Patel that a law violates the Fourth Amendment if it allows the government to investigate records, but does not allow the investigated party to obtain judicial review of the investigation before they comply (also known as “pre-compliance review”). That ruling informed a Texas state judge’s decision in July 2024 to invalidate the law used by the Texas Attorney General to investigate nonprofits—a broad provision of the Texas business code that granted him sweeping authority to examine an entity’s books and records. Since the Texas business code did not allow for pre-compliance review, the state judge reasoned that it violated the Fourth Amendment. In September 2024, a federal magistrate in a separate case found that the same provision violated the Fourth Amendment. The Texas Attorney General has appealed both cases.  

Conclusion

State attorneys general have an important role in ensuring that everyone, including nonprofits, follow the law. That said, investigations that are based on harassment or retaliation can chill constitutionally protected speech and activity. After all, an investigation of a nonprofit can impose significant legal costs, diversion of staff time from the organization’s activities, and damage to their reputation, among other harms. This chilling effect not only impacts the nonprofit that is targeted, but the broader nonprofit community, as organizations may avoid certain lawful speech or actions they think are disfavored by the government out of fear that they will lead to investigatory scrutiny. The normalization of aggressive investigations against nonprofits can also spread across states, impacting organizations across the political spectrum. Attorneys general should enforce the law impartially and not target organizations because they are engaged in lawful speech or conduct with which authorities simply disagree.

For more information contact Nick Robinson (nrobinson@icnl.org) or Elly Page (epage@icnl.org).

For more information contact Nick Robinson or Elly Page