Nonprofits’ Role in January 6th Investigations and Response

The endgame of presidential elections used to be pretty straightforward. Congress plays a more-ceremonial-than-substantive role counting each state’s certified electoral college delegates. The candidate who won more than 270 electoral votes officially wins and the new President gets sworn in on January 20th. But was, of course, very different. The false rhetoric claiming the historically well-run election was “stolen,” led to the failed, but nonetheless deadly, January 6th insurrection. Now, Congress is seeking out why this happened and who was behind the effort. Nonprofits have a role to play in the investigation and the response to the revelations.

What’s Happening

On June 30th, the House of Representatives passed a resolution establishing a select committee to investigate the January 6th attack on the United States Capitol. Starting in July, members of this committee have held hearings, subpoenaed witnesses, and used other methods to investigate the facts, circumstances, and causes relating to the January 6th insurrection. The House resolution requires the select committee to release reports on its findings, but does not authorize it to write legislation in response to any of its findings. However, this does not limit other committees from drafting new legislation based on the final report.

How Nonprofits Can Weigh In

The select committee is engaged in oversight — an important role of Congress rooted in the separation of powers. To be a bit reductive, it’s the legislative branch investigating whether the executive branch failed in its duties, and whether those failures require recommendation of new laws, referrals to the Department of Justice for prosecution of criminal offenders, and recommendations to all levels of government on changes in protocols to avoid a future January 6th.

All nonprofits can directly and publicly urge members of the select committee to pursue or not pursue various avenues in the investigation, including the identities of the people who stormed the Capitol, the groups funding the efforts, and whether Members of Congress played a role in any element of the violence on January 6th. Additionally, they can recommend specific findings and outcomes in the select committee’s final report. Organizations like Citizens for Responsibility and Ethics in Washington are strong advocates for a thorough investigation.  Other watchdog charities like Media Matters are fact-checking false narratives that may be intended to counteract the findings of the select committee.

For 501(c)(4)s, labor unions, and other non-501(c)(3) nonprofits, there are no limits to the amount and type of engagement they can have with committee members, nor on how much they ask members of the public to support their positions and contact their members of Congress. This can include advocating for specific findings in the final report, recommendations for changes in procedures, calls for referrals for prosecution, and recommending changes in the law.

501(c)(3) organizations can do the same without limits, except for making recommendations for new legislation. Public charity 501(c)(3)s may advocate for or against new laws within their lobbying limits, but private foundation 501(c)(3)s face prohibitive excise taxes for lobbying, so they will almost certainly avoid lobbying. For more on lobbying limits for 501(c)(3)s, see Bolder Advocacy’s publication Being a Player.

Potential Legislative Proposals Coming From the Investigation

The committee’s work is still in progress, but we’ve already seen many organizations and individuals begin to propose legislation that can stem from the final report. Taking a stance on any of these matters could be lobbying activity for your nonprofit. Some proposals include:

Amending the Electoral Count Act — There are calls to make the process of certification and counting of electors clearer and less subject to the potential for abuse by state legislators to subvert the will of voters.

D.C. statehood — Although the movement to make the District of Columbia a state predates January 6th, the delay in getting National Guard troops to the Capitol can in part be traced to D.C. being treated differently than the other 50 states’ gubernatorial powers. Making D.C. the 51st state would ensure it doesn’t face that obstacle in the future. The ACLU of DC is one of many organizations leading the way on this effort.

Disqualifying candidates that took part in the insurrection — Perhaps the most interesting proposal leverages the 14th Amendment, a new law, and referrals to the Department of Justice to create the mechanism to disqualify certain elected officeholders that played a role in the insurrection from ever qualifying to run for federal office again. This legislative proposal can be supported by any nonprofit, subject to lobbying rules noted above.

Take a Stance for Democracy

Many of us watched the events of January 6th with concern, not only for the people injured and killed because of a lawless mob’s actions but for the fact that Congress itself has not seen a deliberate attack like this since British troops stormed D.C. in 1814. Nonprofits can and should take a stance for democracy because that is what they are built for, regardless of the specific issues they tackle from day to day.