Abstract
With the passage of a nationwide Charity Law in March 2016, Chinese nongovernmental organizations (NGOs) entered a new and unprecedented era of legal regulation, one that dramatically transformed the formal rules governing state–civil society relations. This article highlights problems experienced under earlier regulations and outlines the major features of the new law. Drawing on multiple focus groups and interviews with grassroots NGOs around China, the article highlights gaps between NGO leaders’ understandings of their work and several of the law’s key provisions, revealing civil society’s skepticism and pessimism about prospects for change. It concludes by considering the law’s likely implications for civil society development in China and lessons for other authoritarian states, suggesting that regulation in such regimes should be seen more properly as a tool of political control.
Since the early 1990s, scholars have been busy documenting and debating the social and political significance of an emerging civil society in China. An initial wave of interest in government-organized nongovernmental organizations (GONGOs) was soon followed by studies of grassroots nongovernmental organizations (NGOs) that began emerging around the turn of the century. 1 Yet despite rapid changes in civil society’s organizational forms and practices, Chinese civil society has been largely governed by a loose set of regulations that have long been considered inadequate to the task of facilitating—or checking—the rise of an indigenous civil society. This article focuses on the single largest change in civil society governance in recent decades, the country’s first national Charity Law, drawing from readings of the law offered by grassroots NGOs to contextualize its implications within the politics of authoritarianism and draw contrasts with the regulatory concerns of democratic polities.
Just days after China’s National People’s Congress passed the long-awaited Charity Law in March 2016, Yongguang Xu (2016), a senior leader within Chinese philanthropy, declared that “grassroots organizations will be the Charity Law’s biggest beneficiaries.” Citing the relaxation of registration requirements and the possibility of public fundraising, he summarized the view of a number of other scholars and policymakers in proclaiming that “the future is very bright for the development of grassroots NGOs.” Yet in an era when restrictive and repressive measures toward civil society are being taken up around the world (Bromley, Longhofer, & Schofer, 2018; van der Vet, 2018), could such optimism be warranted? Based on in-depth interviews and a series of focus groups with grassroots NGOs around China, this article cautions against such rosy assessments.
In the pages that follow, I first briefly consider the kinds of questions scholars of nonprofit regulatory regimes in democratic societies have contemplated in recent years. I then draw on the literature about the governance of civil society in authoritarian states to highlight the role of political concerns in such systems. Next, I briefly trace the development of China’s Charity Law over the past decade, highlighting problems experienced under earlier regulations and outlining major features of the new law. Drawing on responses from grassroots NGOs to the law’s initial drafts, I construct an analysis that suggests both continuities with the pre-law regulatory regime and new challenges for Chinese civil society. 2 Moreover, and contrary to many observers’ assumptions that the law will emancipate civil society from political and bureaucratic constraints, the findings presented here show that many activists identify the law as an extension of state efforts to contain and control grassroots civil society. Most broadly, I argue that the study of nonprofit regulatory regimes in authoritarian states is most revealing when focused on underlying political dynamics rather than the technical concerns that predominate in studies of nonprofits in democracies.
Issues of Nonprofit Regulation in Democratic Polities
Over the past few decades, much scholarly attention has been devoted to the rise of nonprofit regulatory regimes in countries with long-established charity and civil society traditions such as those of Western Europe and North America. Many studies have highlighted how democratic countries have struggled with operational and technical issues surrounding nonprofits. Such studies cover efforts to develop a socially and culturally appropriate definition of “charity” (Mills, 2016), practices of self-regulation and promotion of the voluntary and charitable sector (Pratten, 2007), questions of transparency and accountability (Irvin, 2005), distinctions in accounting practices for nonprofits as compared with for-profit organizations (Breen, 2013), and the promotion of particular “good governance” practices within nonprofits (Phillips, 2012).
Aside from the technical issues and microlevel practices of nonprofit regulation, political engagement and lobbying by nonprofits are recurring features of debates in a number of democratic countries (Lee, 2015). In particular, how advocacy and politics interact, especially given government funding, has garnered some scholarly interest. These studies go far in explaining and contextualizing the experiences of nonprofit regulation in liberal democracies, and their concerns are not irrelevant in authoritarian states. Yet a focus on a similarly technical and operational research agenda, when transposed to states such as China, risks obfuscating the way authoritarian regimes use nonprofit regulation as a tool of political control to shore up their continued rule.
To be sure, many of the same legal and regulatory concerns raised in democratic countries are also raised in authoritarian states. Questions of transparency, accountability, definitions of “charity,” the appropriate role and activities of volunteers, public trust, self-regulation versus government regulation, governance, and accounting practices have been discussed in China and elsewhere (Breen, Dunn, & Sidel, 2019). Yet, the deceptively neutral language of technical “regulation” obfuscates and blurs the power dynamics between civil society actors and the state in authoritarian regimes. The closed nature of authoritarian regimes also means that regulatory structures and practices are not simply “topics” of public debate open to any concerned citizen or organized interest groups. Although important and consequential for questions of transparency, accountability, and the like, the construction of nonprofit regulations in authoritarian regimes serves largely as an arena for political battles over maintenance of the regime itself. The case of China’s Charity Law brings this reality into stark view. Before going into detail on China, however, I first consider the intellectual guideposts offered by studies of other authoritarian regimes.
Regulation as Political Control in Authoritarian Regimes
Following the demise of the Soviet Union and the rise of newly independent states in Europe and Central Asia, many observers viewed civil society development as the pathway to democratization for formerly communist regimes. Legal specialists and scholars of nonprofit law were early contributors in what was envisioned as an exciting refashioning of these societies. The ink was barely dry on the paperwork dissolving the Soviet Union when, for example, Hopkins and Moore (1992) turned to these “evolving democracies” and proposed a blueprint for legal reforms based on the United States and England that “could be used as a guide for civil law countries, such as in Eastern Europe or the former Soviet Union, that wish to create a charity regulatory framework” (p. 212).
Subsequent developments, however, have shown that this earlier optimism was misguided, as in recent years Russia and a number of other former communist countries have instead utilized the legal regulation of nonprofits to repress NGOs and other civil society actors that are critical of government policies. In the former Soviet states and elsewhere, a resurgence of authoritarian politics in the early 2000s has led to increasing suspicion of NGOs and any autonomous groups that might challenge incumbent ruling parties. Scholars attempting to make sense of this shift to tighter controls have generated a number of insights, with a particular focus on laws targeting NGOs. Such studies force us to consider how law in such regimes is deployed as a tool of state repression rather than the facilitator of civil society growth and political liberalization that earlier advisors had sought after the end of the Cold War.
Wiktorowicz’s (2000) research on civil society in Jordan, for example, found that a seeming liberalization of charity and NGO registration laws there and across the Middle East did not imply the kind of democratic development many observers had anticipated. Rather, new civil society organizations were embedded in a web of bureaucratic practices and legal codes which allows those in power to monitor and regulate collective activities. This web reduces the possibility of a challenge to the state from civil society by rendering much of collective action visible to the administrative apparatus. Under such circumstances, civil society institutions are more an instrument of state social control than a mechanism of collective empowerment. (Wiktorowicz, 2000, p. 43)
Incorporating NGOs into the state’s surveillance protocols is, in Wiktorowicz’s analysis, one way of limiting the reach of civil society, suppressing its ability to mobilize people and promote discourse or practices deemed critical of the state. Similarly, Wischermann, Bunk, Köllner, and Lorch (2018), looking at Mozambique, Algeria, and Vietnam, find that the state’s infrastructural and discursive power serves to restrict “the individual and collective self-determination and autonomy of members” in most of the associations they studied.
In Russia, over the past decade civil society has seen a wave of ever-intensifying regulation. The government there passed a law requiring deeper auditing of NGOs’ books in 2006, a “foreign agents” law and a law banning unapproved protests in 2012, and also an “undesirable organizations” law targeting international nongovernmental organizations (INGOs) in 2015. All these have been widely interpreted as designed to reveal and stamp out any opposition to the government. In a study of human service nonprofits in Russia, for example, Ljubownikow and Crotty (2015) found that incorporation into state funding structures meant co-optation for the NGOs involved, restricting them to service provision and transforming them into purveyors of the state’s policy agenda. Similarly, in a study of a long-standing and well-known Russian human rights NGO, Daucé (2014) details “forms of compromise between the state and NGOs [that] help to weaken any direct conflict with the authorities but also to maintain the state’s political domination over NGOs,” creating what she terms a kind of “civilized oppression” of civil society by the Russian state (p. 240). Variations in Russia’s laws have been adopted by other authoritarian regimes and former Soviet states seeking to contain civil society (Hooper, 2016; Mudde, 2017). From Uganda to Kazakhstan, authoritarian and “post-” communist states are increasingly wielding civil society laws as tools of repression (Hooper, 2016).
Recent scholarship on state–civil society relations and local policy experimentation in China points to a complex dynamic entailing a mixture of suppression, opportunities for more autonomous development, and, as in Russia and Jordan, the specter of co-optation or molding of NGOs into apolitical implementers of state policy (Dai & Spires, 2018; Froissart, 2014; Fu, 2017a, 2017b; Howell, 2015). As related below, the concerns about repression, contention, co-optation, and participation identified in these works presage the responses of grassroots NGOs to the possibilities presented by China’s new Charity Law.
Methods and Data
In January 2016, during a public consultation period initiated by the government, I launched a series of focus groups with Chinese grassroots NGOs to discuss an official draft of the proposed Charity Law. Beginning in Hong Kong with a group of grassroots NGO leaders visiting from mainland China, we took the law’s second public draft and discussed articles of particular relevance to these groups, soliciting their feedback, concerns, and suggestions for revision. With the help of key local partners in mainland China, I facilitated additional focus groups in Guangzhou, Chengdu, Beijing, and Shanghai. In total, more than 50 leaders of grassroots NGOs joined these discussions. Participating organizations represented a wide spectrum of issue areas, including environmental protection, lesbian, gay, bisexual, and transgender (LGBT) rights, youth development, gender equality, disability issues, education, HIV-AIDS, leprosy, labor rights, and other concerns. Some groups were legally registered as NGOs, some were registered as businesses, and still others worked without any formal legal status. Each of the five focus groups lasted two to three hours, and the data gained were supplemented by individual and small-group interviews with Chinese legal scholars, long-term practitioners working at civil society support organizations, Chinese academics, leaders and staff at individual grassroots NGOs, and a handful of government officials. Some of these latter interviews and more informal conversations were held in Beijing, during early 2016, just as the Charity Law was being debated by the National People’s Congress. Additional discussions with a small number of grassroots NGOs continued into late 2017, after the law’s official promulgation.
Problems With the Pre-Law Status Quo
In the Chinese party-state’s eyes, the political implications of civil society development have long been paramount. Beijing generally pursues a “policy of encouraging nonprofit and philanthropic activity that the government favors (particularly in service provision), while serving to discourage, control, and constrain nonprofit activity that the government does not want to see occur” (Sidel, 2016, p. 94). Since roughly 2005, the fear of “color revolutions” that motivated Putin’s clampdown on NGOs in Russia has also been a driver of state policy on both domestic and INGOs in China (Wilson, 2009). Threats to the Communist Party’s continued rule, whether from homegrown dissent or through the efforts of overseas “hostile forces,” have loomed large in the eyes of officials. Choosing which organizations may register as legal entities and which receive commissions to deliver social services are but two ways the state seeks to control NGOs. As might be expected from any authoritarian state, indiscriminate and often unpredictable crackdowns, arrest, and harassment of NGO actors are another (Stern & O’Brien, 2012; Yuen, 2015).
From the standpoint of civil society actors, systemic political suspicion of NGOs has long been the key obstacle to NGOs’ ability to pursue their missions and to the growth of the sector overall. Before 2016, China had a mixture of regulations allowing for NGO registration, but almost all of them required NGOs to first find a “supervisory agency” from within the government. Due to political suspicions of NGOs and the risk-averse nature of many government actors, in practice most grassroots organizations found it exceedingly difficult to find a willing supervisory agency, opting instead to remain unregistered or to register as businesses (Hildebrandt, 2013; Spires, Tao, & Chan, 2014). Yet, unregistered or improperly registered organizations have run the risk of being shut down by the state. Somewhat paradoxically, however, they have at times also been quietly supported by officials who stand to benefit from their good works (Spires, 2011). But even NGOs that have achieved legal registration have not seen it as a panacea for their woes. Wu and Chan (2012), for example, detail how one rural development NGO followed a not-uncommon trajectory from working well with local government authorities, to registration as a legal NGO, to eventually running afoul of the same authorities and deciding to voluntarily shutter its doors for a period of time.
Experimentation at the margins—Prelude to the Charity Law
In practice, before 2016 many grassroots organizations found the “supervisory agency” hurdle virtually impossible to overcome. Turned away by even their friends at government agencies—who see much risk and little benefit to formally vouching for a group not initiated by the government itself—many grassroots NGOs have eventually either registered as businesses or decided to forgo legal registration altogether. Inhabiting an ambiguous legal zone, these NGOs have been at constant risk of being declared illegal (Spires, 2011). In one survey undertaken between 2009 and 2011, 70% of NGOs were improperly registered, despite many of them reporting at least one close government tie (Spires et al., 2014, p. 80).
Starting around 2010, some larger cities such as Guangzhou, Shanghai, and Beijing eased restrictions on organizations working on “charitable” activities that local governments deemed acceptable. Gradually, some groups engaged in education work, environmental work, or volunteering on particular issues were allowed to register directly under the Ministry of Civil Affairs (MOCA) without needing an additional supervisory agency to vouch for them. In 2012, Guangdong became the first province to allow “direct registration” of NGOs with Civil Affairs offices, without requiring an additional supervisory agency from a related government bureaucracy. By the time the Charity Law was passed in March 2016, numerous other jurisdictions had all announced—if not fully implemented—a similarly loosened registration policy.
Yet, such policies were not applicable to all-comers, and many groups were rebuffed in their efforts to register. Even after these policy “innovations” were announced, some groups, like an NGO serving the blind in Beijing, were rejected despite seemingly fitting the bill as an organization providing for the disabled. As was expected, many labor rights NGOs, LGBT groups, and other advocacy- or rights-oriented NGOs were rejected due to their apparent “sensitivity” in the eyes of government. Of course, some did not even attempt to register even under these new local policies, believing “that policy wasn’t made to include us,” as one labor NGO leader put it in 2013.
Public and open fundraising is also a problem that has long hobbled many grassroots organizations. A general distrust of “do-gooders” within the population (Yan, 2009) and official suspicion of NGOs have combined to make fundraising especially tough for grassroots groups. Prior to the Charity Law, a number of jurisdictions across China relaxed official public fundraising rules alongside experimentation with looser registration requirements. However, and akin to the findings explicated below about the Charity Law, Hu and Guo (2016) found that nonprofits that seemingly should have rejoiced over the changes did not greet the loosening of fundraising restrictions with uniform welcome. They identified several dynamics at play, including inconsistent implementation and NGO resistance to government regulation of their right to fundraise. As legal registration under the new Charity Law is a precondition for its provisions on public fundraising, I focus in this article on the general concerns grassroots groups expressed toward the law and particularly toward registration.
New Law, New (and Old) Problems
Two of the largest operational problems Chinese NGOs have faced—legal registration and fundraising—are addressed head on by the Charity Law. First, the law eliminates the supervisory agency requirement and institutionalizes this as a nationwide policy rather than a locale-specific one. For groups who have been unable to find a supervisory agency or who are skeptical of increased governmental control, this should help pave the way to obtaining legal recognition as a nonprofit. The law also provides a pathway for registered “charitable organizations” to publicly fundraise. Two years after registration, an organization may apply for permission to solicit donations from the public. Even before receiving such permission, however, registered organizations can raise funds through “targeted” fundraisers appealing to specific donors and can also receive unsolicited donations from the public. The law further permits them to fundraise from the public by cooperating with organizations already granted public fundraising status. As a final measure, the law establishes that “tax benefits” will accrue to donors, although the law leaves relevant details to tax authorities to specify later.
In these and other aspects, the new law would seem to go against a global trend of increasing restrictions. Chaudhry (2016) describes the recent wave of anticivil society laws as a kind of “administrative crackdown” that, while not preventing states from relying on violent repression of NGOs, “entails enacting legal restrictions to create barriers to entry, funding, and advocacy for NGOs” (np). By contrast, China’s new law appears quite facilitating, at least in lowering barriers to entry and funding, if not advocacy. Indeed, if fully implemented, the Charity Law could address many of the problems experienced by NGOs under the previous regulatory regime. However, by employing a narrow definition of “charity,” by ignoring key political dynamics of China’s authoritarian system, and by setting new boundaries around NGO work, the law also introduces new challenges and maintains old barriers to civil society’s expansion.
Disagreement over basic terms—Who “does charity” and who defines “social morality”?
For the leaders of grassroots NGOs, some of the law’s fundamental assumptions did not accord with how they saw their own work or the overall state of civil society in China. A common refrain was expressed by one NGO leader as, “There are lots of ideas in here that are extremely unclear. The relationships between various concepts, and their basic meanings—it’s all extremely messy.”
One of the law’s central disruptions to the status quo is the introduction of another new term into the legal lexicon of Chinese civil society: the “charitable organization” (cishan zuzhi). Of the dozens of groups with whom I met prior to the law’s promulgation, none said they used “charitable organization” to describe themselves. Much more common were the English “NGO” and the Chinese “public interest organization” (gongyi zuzhi), the latter a collective identity label that has emerged within Chinese civil society in recent years (Wu, 2017). Many NGO leaders reported hearing of the proposed law previous to our meetings but believed it had little or nothing to do with them, because they did not identify themselves as “doing charity” (zuo cishan).
One NGO leader saw his group as the target of other people’s charity, proclaiming, “Charity isn’t something we do. That’s what rich people do. We don’t have any money to give away. We have to get money from others.” Another NGO leader, originally from a rural area, asked, “What is charity? Isn’t that like rich people going to a temple and giving away rice for free?” Rather than see themselves as producers or examples of “charity,” the vast majority of these NGOs saw themselves as contributors to a broader public interest (gongyi), whether that be understood as social service provision, advocacy on behalf of marginalized groups, or rights-based activism. For many, language throughout the law referencing “charitable activities” (cishan huodong) seemed to imply only the delivery of tangible services to “needy” individuals, despite several provisions referring to environmental protection and other less-obviously service-oriented activities.
Another regular refrain was, “What about advocacy?”—activities aimed at raising awareness, for example, about the rights of hepatitis carriers to attend university or the illegality of gender-based discrimination in hiring. Prior to the recent crackdown on civil society, at least, Chinese NGOs have enjoyed some success in influencing public opinion and official actions on issues such as domestic violence (Bräuer, 2016; Leggett, 2016) and the environment (Wong, 2016). Would these kinds of “activities” be considered charitable? In most people’s narrower understanding of the term—for example, “giving away rice for free”—any sort of rights-based concerns would not be construed as “charity.” But if “public interest” (gongyi) were encompassed by the law, then it would seem to apply to them. Although the law also references the term “public interest” many times, neither “charity” nor “public interest” is defined clearly, and many NGO leaders believed the narrower “charity” would be used to exclude their advocacy, education, and awareness-raising work. To emphasize the sometimes contentious nature of his advocacy work, one NGO leader generated more than a few chuckles when he challenged this seemingly core assumption of the law: “What is this stuff about ‘charitable culture’? I don’t think I’m a very charitable person! Why not call it a Public Interest and Charity Law instead?”
The gap in understandings and terminology reflect larger differences between what these civil society actors see as their mission and the government’s vision for NGOs and “charities.” From an authoritarian state’s perspective, it is not difficult to understand why “charity” should be restricted to service delivery. The recent rapid spread of “purchasing of services” policies—programs in which the state pays registered NGOs for social and welfare services the state determines are important—in its very name specifies “service” as the purpose and goal of NGOs and packages it into distinct chunks of (typically) quantifiable outputs such as “numbers of people served” or “numbers of books donated.” 3 To formally acknowledge NGOs’ potential role as advocates, on the contrary, would be to admit the state’s own inability to guarantee, for example, the basic rights of children to free schooling and a living environment free of deadly pollutants. It would also mean ceding some of its authority to define, interpret, and articulate social needs to nonstate actors, a process that would invite challenges to the party state’s claim to represent all of society’s members. Moreover, to define and codify the concept of “public interest” would risk questions about why nonstate actors are needed at all. Tellingly, during the public comment period for feedback on the draft law, despite many voices calling for key terms to be clarified, the law’s final version evidences little effort to do so.
In addition to fundamental conceptual disagreements and contested visions of what “public interest” implies, NGO leaders consistently raised a question about a morality provision in the law. The law issues multiple warnings that charitable organizations should not “violate social morality,” including inducing others to do so or accepting donations requiring that the NGOs engage in such “violations.” Perhaps as would be expected, a number of people objected to these clauses. “Who will define ‘social morality’?” was a question posed multiple times, eliciting responses including “The state will!”; “It’s so vague”; “Social morality changes every year”; and “That’s included [in the law] to give the government flexibility in implementation.”
Others objected to the law’s referencing social morality at all, proclaiming “as long as you don’t break the law, that should be enough. Why include ‘social morality’ in this law?” In a meeting of mostly young feminist and LGBT activists, some participants were adamant that they would be judged by their very nature as “violators” of social morality. Even when attempting to register under previous regulations, they have faced judgments against their goals, as one explained: “If you want to register, you can’t use LGBT (tongzhi) in your name. The only groups able to get registered are ‘HIV’ groups.”
Debates over terms and naming are not simply issues of semantics, but rather reflect ongoing struggles between civil society and the state about the identity of the sector and its relationship not only to the state but also to the broader society. As Wu (2017) argues, By actively promoting the usage of certain terms related to NGOs and voluntary groups and suppressing others, the state exercises its power in delineating the discursive boundaries and features of these groups. For civil society actors . . . it has become a critical task to search for and reinvent social labels and discursive contours to promote their causes and collective identities. (p. 129)
Core political dynamics remain unchanged
Although “charity” and gongyi are not synonymous, we should expect that, in time, creative NGOs will find ways to influence both popular understandings and the definitions used by state agents with authority over “charitable organizations.” Yet as focus group participants worried in 2016, this may not be so simple. As one NGO leader put it, “Who judges what is or isn’t for the public good, what is or isn’t harmful to the public interest? . . . The government can say anything you do is harmful, and there’s no questioning it.” Her judgment was echoed by another health-sector NGO leader who believed that “We can sit here and proclaim that we’re ‘charities,’ but when you go to register with the government, they’ll say, ‘No, you’re not.’”
The leader of an environmental group registered as a proper NGO for many years explained that personal relationships mattered in the registration process. She averred that it was only because of one particular official in charge that they were able to register and to receive nonprofit status, but that should her group seek to reregister as a charitable organization, they would surely be denied by the local MOCA office. Believing that MOCA understands charity as only helping out for disaster relief and such, she argued that “if you allow MOCA to judge you, they’ll abuse their authority and deny you nonprofit status. We are a public interest group, but we’re not a charitable organization.” Others agreed, suggesting that not only do local MOCA officials not understand NGOs’ work, but that an organization’s fate could turn on the interpretation of the law by a single local official.
Indeed, local actors matter greatly for regulatory implementation. Earlier ad hoc loosening of registration requirements and invitations to help provide government-funded services have not been open to every group nor in every corner of China. As Newland (2018) has found, local officials include both “innovators” keen to be seen as proactive in working to improve society alongside NGOs and “implementers” more concerned about maintaining social stability and thus reluctant to support civil society actors. The type of response an NGO receives can thus depend on their luck and who happens to be in a particular position at a particular time.
To be sure, some groups were unsure about or held a fairly neutral position on the law’s likely impact on their work. But many more were skeptical or even suspicious about lawmakers’ motives. As one NGO leader speculated, I wonder about the purpose of the law . . . It could be to promote the development of public interest organizations, to make it easier for people in society to help others even better. Or it could be to help the government ‘manage’ NGOs better, to give them a means of suppressing NGOs.
Another leader concurred, adding, If you consider the government’s desire to control things, for the vast majority of NGOs the risk of attempting to register under the law is too great . . . So many things in this law are so unclear that, in the end, the government will use it suppress whomever it wants.
The larger concern voiced by these and others was based on their perception that the law was designed for purposes of control and suppression, not the facilitation of a stronger and healthier civil society. In this regard, they are anticipating the likely application of what Fu (2017b) calls “flexible repression,” when the state utilizes regulation to control groups it finds acceptable—in part by molding them into social service providers—while suppressing any groups it views as threatening.
In sum, although the new Charity Law may seemingly simplify registration processes, there is little reason to believe it will meaningfully change the political dynamics that have long limited the development of grassroots civil society in China.
Implications for Civil Society
In 2007, as part of an international forum designed to promote new thinking on China’s future Charity Law, the head of the MOCA’ Legislative Affairs Office wrote that “charity” should be “rooted in communities, in villages, in citizens. It should be adaptive to local circumstances and characterized by autonomous decision-making, self-management, self-supervision, and self-service” (Wang, 2007, p. 13). Despite this rhetoric, which was intended to indicate support for grassroots organizations, the law that would eventually emerge 9 years later was perceived by those same groups as far from adequate to the task. In this section, I consider two of the law’s likely implications for Chinese civil society.
Another Wave of Corporatism and Governable Organizations
The 2016 Charity Law liberalizes China’s NGO regulatory regime in ways that were almost unthinkable 10 years earlier. The law not only allows for public fundraising but also eliminates the supervisory agency requirement. This seeming loosening of control mechanisms, however, runs counter to the state’s ongoing crackdown on civil society, which has seen detentions, arrests, and/or convictions of labor rights groups, human rights lawyers, and feminist activists (Yuen, 2015). As noted earlier, moreover, there is little to indicate the political dynamics that framed NGO-state relations prior to the law have changed. The perspectives of grassroots groups require us to consider the key question of to whom the law might apply.
Rather than opening up the system to grassroots NGOs, the relaxation of registration requirements might more readily facilitate a new wave of corporatism. Without the supervisory agency requirement, agency heads or (former) state workers familiar with the governmental system are free to create “charitable organizations” that the state can embrace and use to promote its version of social development. Categories of activity deemed politically safe by state actors, like elderly care and education, are likely to be the sectors where nonadvocacy-oriented social service delivery groups emerge most quickly. Such groups would know from their beginnings to studiously avoid any whiff of activism, including rights-based language, that could threaten the state.
At the same time, the now virtually nationwide policy promoting the state’s purchasing of services from “social organizations” promises a financial windfall for new “charitable organizations.” In most locales, bidding for government service projects has been restricted to only properly registered “social organizations” but could easily expand to encompass this new category. Recent experience, however, shows that funding tends to go primarily to organizations with close government ties and ultimately furthers the state’s social control agenda (Zhao, Wu, & Tao, 2016).
We should not be surprised if government agencies birth a number of new “charitable organizations” as they did with GONGOs in the 1990s (Economy, 2004). Especially when compared with leaders of grassroots NGOs, entrepreneurial officials willing to leave “the system” are well positioned to take advantage of these new opportunities. They are more likely to have the necessary connections to register successfully and quickly move onto the inside track to winning large service contracts from the state. Any groups with such close government ties would also be seen as politically safe bets for both domestic foundations and foreign corporate donors, adding yet further incentives to register a new “charitable organization.” 4
Further Marginalization of Grassroots NGOs
A second likely implication of the Charity Law is that few grassroots NGOs will become registered as charitable organizations, increasing their marginalization within the officially recognized charitable sector. Two pathways to this result exist, one in which NGOs themselves do not seek registration, and one in which the state rejects applications from grassroots groups.
In focus groups, almost none of the participants said that they thought they would try to register under the new law. As one leader argued, “For LGBT and other rights-oriented organizations, the particularities of the law probably won’t matter, because the government will add lots of restrictions . . . ” to prevent such groups from doing their work. “Whether we’re safe or not won’t depend on whether we’re registered, but on the work we do.” Another agreed, saying, “An NGO’s safety doesn’t depend on whether you’re registered. It depends on what you’re doing. So, I agree that we don’t need to try to register.” A third concurred, adding “Most LGBT groups won’t consider this law . . . The government will have many restrictions, so even if you do get registered, that won’t guarantee that the work you do [will be seen as] safe or legal.” These groups and others believed attempting to register under the law would be pointless, because even if a group were allowed to register as a charity—an unlikely outcome, in their judgment—any rights- or advocacy-oriented work would be curtailed or outright prohibited. Rather than accept such restrictions, they preferred to stick with their status quo, in most cases either as “private, noncommercial enterprises” (PNCEs) or businesses.
Notably, such “sensitive” groups were not the only ones to raise such concerns. Even the leader of a group working to promote social enterprises—what many see as a politically innocuous field—believed that “many groups that are already registered as NGOs won’t take the risk of applying for certification as a charitable organization.” Like others, her concern was that approaching state agencies about registering as a charity would invite unnecessary scrutiny and suspicion. The only leader who expressed an intention to register was the head of a newly established, Beijing-based private foundation. Citing their transparent operations and “orderly” (guifan) operations, she believed her group would easily qualify as a charitable organization and saw no need for concern.
NGOs’ reluctance to seek registration, however, is only one side of the coin. Although local-level state actors in the fields of health, education, or other areas may be willing or even keen to work with NGOs at times, local offices of the MOCA are often staffed by nonspecialists who derive little or no direct political credit (zhengji) from NGOs’ good works (Spires, 2011). As the people responsible for determinations of a group’s charitable nature, local MOCA officials are often seen by NGOs as the first-line obstacle to any favorable change in registration status. Even after the law passed, in mid-2017 an HIV group in Shanghai that had long sought official registration faced a wall of challenges in its attempt to register at the more “lowly” level of a “private, noncommercial enterprise.” 5 Despite over a decade of work with the local Centers for Disease Control (CDC), and despite the supposed relaxation of registration announced in earlier municipal-level policies, the leader of the group was told he needed a “field-specific supervisory agency” (hangye zhuguan) to provide a letter of support. Asking if the earlier “supervisory agency” (zhuguan danwei) requirement had not been removed, he was told “Yes, but now you’ll need a field-specific supervisory agency. We’re not specialists in what you do. How can we supervise you ourselves?” Unfortunately, the local CDC was deemed not qualified to play this role, and he had only weak ties to officials within the higher-level Bureau of Health. With a heavy sigh, he said, “What can you do? They don’t want to take on the risk.” One year after the Charity Law took effect, and several years after direct registration was announced in Shanghai, this NGO remained registered as a business.
Conclusion
Legal arrangements that facilitate a healthy civil society in democracies can take on a very different character in authoritarian states. In hindsight, the initial optimism toward China’s new Charity Law, proffered by NGO advocates like Xu Yongguang, some progressive academics, and more liberal-minded officials within the MOCA like Wang Laizhu, was probably misplaced, given the underlying political constraints on the freedom of association and expression in the country. Although the law that emerged was well in line with what international legal advocates might suggest for a new system of nonprofit governance, the logic of authoritarianism, as civil society practitioners pointed out in their reading of the law, has not disappeared. Time will tell whether civil society actors are able to make the law work for their purposes, but for ground-level practitioners like those whose views are reflected here the road ahead is not too dissimilar to the ground they have long tread.
Indeed, early signs of the Charity Law’s implementation indicate that NGOs’ skepticism and pessimism may have been well-warranted. In the law’s first year of implementation, only 2,109 “charitable organizations” were registered, 6 less than 1% of reported pre-existing properly registered NGOs. Of course, implementation of such a sweeping law takes time, and a number of implementation rules were announced only after the law took effect. 7 Registrations increased in the second year, to 4,749 as of August 29, 2018, although this included 230 branches of the Chinese Red Cross and many other GONGOs. 8 With such a paucity of reported pre-existing groups registered, we have yet to see the law make any significant progress toward expanding China’s charitable sector or civil society more broadly.
The dynamics animating views of China’s Charity Law hold lessons that reach beyond just China. Whether through financing, discursive norm-setting, or surveillance, nonprofit regulations in places as diverse as the Middle East (Wiktorowicz, 2000), Russia (Crotty, Hall, & Ljubownikow, 2014), and Azerbaijan (Mudde, 2017) would appear to share in common with China’s Charity Law their usefulness as tools for repression by authoritarian states. Although terms such as “nonprofit” and “charity” are often interpreted as politically neutral, the analysis presented here suggests that in practice nonprofit regulatory regimes commonly help authoritarian regimes shrink space for advocacy and activism by NGOs. Indeed, the critiques presented here compel us to consider whether regulation in such contexts can serve as a mechanism for promoting growth and expansion of civil society or should be more properly understood as an attempt to give a patina of legal legitimacy to the further marginalization of critical voices.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
