Many issues important to public charities are addressed in the platforms adopted by the political parties. As Republican, Democratic, and Libertarian parties wrap up their conventions and the Green Party meets this week, charities are asking how they can talk about the issues raised in the platforms. Charities can advance their position on the issues that they had been advocating before the platforms were adopted; however, they should consider carefully whether to opine specifically on the positions of candidates and the political parties.
Section 501(c)(3) of the federal tax code strictly prohibits all charities from engaging in activities to support or oppose candidates for public office. However, public charities, in particular, can advance public policy goals—many involving specific legislative solutions that are in the platforms.
The Internal Revenue Service (IRS) and, ultimately, the courts evaluate whether a charity improperly engages in candidate campaigns by considering the context. Could the charity's statements about policy and candidates or political parties reasonably lead an audience to believe the organization has an opinion on the candidate or party? Facts and circumstances are considered in the context of the statement and the issue.
In considering the statement:
- Does it identify one or more candidates or parties or express approval or disapproval for positions of a political party platform or candidate?
- Is it delivered close in time to the election or make reference to voting or the election?
- Is the timing of the statement instead linked to a specific legislative action by an officeholder who happens to be a candidate?
In considering the issue addressed in the statement:
- Has the position on the issue been raised to distinguish between parties or candidates?
- Is the issue part of an ongoing series of communications by the charity on the same issue without regard to the election?
There is a safe zone of for a charity that has previously advocated for a policy position that later becomes a political party platform issue or the subject of a candidate's position.
A charity can:
- Use earned and paid media to advocate for the charity's position on an issue;
- Call for all candidates and parties to support the charity's position without calling out particular parties or candidates or mentioning the positions they've already taken;
- Send materials to all candidates and party leaders to educate them about the charity's issues;
- Invite all candidates in a race to meet with charity leaders to discuss the issue and visit the charity's facilities or work projects; and
- Ask its members or the public to educate all candidates on the charity's issues.
Charities should take care when:
- Inviting a current officeholder who is also a candidate to a public event of the charity;
- Naming an officeholder in paid advertising who is up for election, because of federal and state election laws that regulate campaign speech and may be triggered, requiring disclosure and other requirements close in time to the election;
- Holding panel discussions or debates with candidates; or
- Providing an "open forum" on social media about issues without careful monitoring or control of comments posted.
Charities should avoid:
- Publicizing the positions of political parties and candidates on issues on which the charity has taken a position; and
- Holding debates or developing voter guides limited to a small set of issues, such as environmental topics, on which the charity has taken a position.
Planning and Executing Activities Involving the Candidates, Parties, and Their Positions
Many activities—such as debates, voter guides, and voter registration—can also be considered by a charity on a broad range of issues of interest to the public. The key is to remember that these activities must be nonpartisan, and not favor one candidate over another. In addition, charities should consider their underlying mission and determine whether activities like general voter education are reasonably part of the chartered purpose of the charity.
Unfortunately, the line between prohibited and permissible activities for a 501(c)(3) organization is murky and can easily be crossed if not properly managed. Careful planning, clear communication about the limitations of all involved, and control in executing the activity are critical. Now might be a good time to review the rules that will help your charity stay on the right side of the line while involved in the process.
If done correctly, 501(c)(3) organizations can:
- Help register voters;
- Conduct get-out-the-vote activities;
- Publish voter guides on a broad range of issues of interest to the public;
- Create candidate questionnaires on a broad range of issues of interest to the public;
- Host candidate appearances that are not debates;
- Host debates on a broad range of issues of interest to the public;
- Conduct issue advocacy;
- Allow leadership and staff (on their own time) to be politically active; and
- Create an affiliated organization to engage in political activities that they cannot.
Prohibited Intervention
The Internal Revenue Code prohibits 501(c)(3) organizations from engaging in political campaign intervention. This intervention includes any direct or indirect activities in support of or opposition to any candidate for elective public office. The ban applies to elections at any level of government, whether federal, state, or local.
This prohibits 501(c)(3) organizations from endorsing candidates or making other public statements of support for or opposition to a candidate for office. Distributing—or even in some cases linking to—statements prepared by others that favor or oppose candidates for elective office also constitutes prohibited campaign intervention.
Furthermore, a 501(c)(3) organization may not allow a candidate to use the organization's facilities, staff, or other resources (whether monetary or in-kind) without receiving fair value in return. This means that the organization's offices, computers, photocopiers, telephones, and other supplies and equipment should not be used for prohibited campaign activities, and that staff should not engage in prohibited campaign intervention during work time.
Stiff consequences await organizations that violate the ban. The IRS may deny or revoke the organization's exempt status, impose excise taxes on the organization, and, in some cases, impose those excise taxes on responsible individuals within the organization.
The potential for adverse consequences does not end with the IRS, however. Federal and many state campaign finance laws prohibit corporations from making campaign contributions. Because many, if not most, 501(c)(3) organizations are corporations, they are subject to corporate contribution bans under the campaign finance laws. Contributing use of the organization's facilities, staff, or other resources to support or oppose a candidate could result not only in adverse tax consequences, but also in fines or other penalties imposed by the Federal Election Commission (FEC) or applicable state election authorities.
Much has been made of the U.S. Supreme Court's January 2010 Citizens United v. Federal Election Commission decision overturning many restrictions on corporations. Specifically, it allowed corporations to make independent expenditures in support of or in opposition to candidates. Remember, however, that Citizens United did not change the tax code: 501(c)(3)s may not fund and provide materials (whether TV, radio, mail, or websites) that support or oppose a candidate. A social welfare organization or a trade association may be able to spend millions on ads attacking a candidate, but a 501(c)(3) still cannot do so.
Permissible Activities
A variety of nonpartisan activities may be conducted by 501(c)(3) organizations during or in connection with an election if properly structured in accordance with IRS guidance. Permissible activities include nonpartisan and unbiased efforts to provide voter education and encourage voter participation in the electoral process. Organizations may also continue to discuss and engage in advocacy on policy issues of interest to the organization. The parameters of these and other permissible activities are discussed below.
Voter Registration and GOTV—501(c)(3) organizations may conduct nonpartisan get-out-the-vote and voter registration drives. The efforts must be focused solely on the importance of voting and how to register. There can be no evidence of bias for a particular candidate or political party.
Voter Guides and Candidate Questionnaires—501(c)(3) organizations may prepare and distribute unbiased and nonpartisan materials intended to help voters compare candidates' positions on a broad range of issues, such as legislative scorecards, candidate surveys, and similar voter education materials. However, the IRS views these materials as a high-risk activity. To minimize risk, the materials should follow these guidelines:
- Questions and any other descriptions of issues should be unbiased in structure and content;
- Questions and topics should cover most major issues of interest to the entire electorate (and not a slate of issues of importance only to the charity);
- Questions and responses should be presented as they were asked and received, without editing by the organization;
- Candidates should be provided the opportunity to respond to questions in their own words, and not be limited simply to yes/no or support/oppose responses;
- All candidates seeking election to the same office should be invited to participate in the survey;
- The questions and accompanying materials should not comment on the candidates' positions; and
- Candidates should not be asked to pledge to support a particular position, as this could convey the organization's endorsement of that candidate.
There are two major areas of concern with questionnaires and voter guides. First, if they are focused on a set of issues that are tied to the organization, then it is very easy for the questionnaire to be construed as conveying the organization's endorsement. For example, a hypothetical group called Save the Starfish may ask a series of questions about how a candidate will preserve shallow coastal waters to protect starfish. The IRS would likely view this as attempting to endorse the candidate who answers the questions "correctly."
Second, if the materials are structured or edited to reflect bias in favor of a particular position of one or more candidates, then the organization also risks violating the ban on political campaign intervention.
That being said, organizations that prepare and distribute legislative scorecards on a single or narrow set of issues of particular interest to the organization on a regular and ongoing basis—i.e., not just during political campaign season—may continue to do so during campaign season, as long as it is done in the same manner as at other times throughout the year. If the organization has not published this kind of voting record regularly throughout the year, however, it should not start during the campaign.
Candidate Appearances and Debates—501(c)(3) organizations may sponsor nonpartisan and unbiased candidate debates and appearances. To minimize the risk of violating the ban on political campaign intervention in connection with such events, the following guidelines should be followed:
- Do not indicate support for or opposition to any candidate, explicitly or through biased presentation of topics or questions;
- Questions and topics should cover most major issues of interest to the entire electorate;
- Do not allow political fundraising to take place at the event; and
- Provide an equal opportunity to all candidates seeking election to the same office to speak or be a part of the debate. The organization may establish reasonable, objective criteria to limit the number of participants (such as a polling threshold or qualification to be on a ballot).
Also, even someone who is a candidate may address a 501(c)(3) if the address is unrelated to his or her candidacy. For example, a sitting official may be asked to speak in an official capacity, or an expert on a particular topic may be asked to present to the organization. However, the candidacy and the election may not be mentioned by the speaker or by the organization.
Issue Advocacy—Organizations may generally continue to engage in public issue advocacy. For example, they may air commercials urging Congress to support legislation. Note that there are limits on the amount of grassroots lobbying in which a 501(c)(3) may engage. Organizations may use social media to discuss an issue, or publish newsletters about issues.
However, the organization must be careful that these efforts do not cross the line into campaign intervention. Any time issue advocacy mentions a candidate, there is a risk that the organization will be considered to be engaged in campaign intervention. Also remember that the federal campaign finance laws, and many state laws, require disclosures in connection with issue ads that clearly identify a candidate for federal office.
At the federal level these disclosures for "electioneering communications" are required when an organization broadcasts radio or TV ads that refer to a clearly identified candidate for federal office, either 30 days before a primary election or 60 days before the general election. An ad saying "Call Congressman Jones and tell him to vote yes on H.R. 1" can trigger such a report.
Personal Activities by Organization Leaders or Staff—The ban on 501(c)(3) political campaign intervention does not prohibit the officers, directors, members, or employees of the organization from participating in a political campaign. However, everything they say or do for the campaign must be done as private citizens and not as spokespersons for or agents of the organization. They absolutely cannot use the organization's resources or assets in any manner.
Establishing a clear policy governing political activities for leaders and staff is a good practice to facilitate compliance with tax and campaign finance law restrictions. The policy should prohibit leaders and staff from making political statements on behalf of the organization in any manner, whether on official letterhead, at official functions, or in official media outlets, including newsletters, or on the organization's website and social media sites. The policy should also prohibit personal political activities during work time, and prohibit use of the organization's facilities or resources for personal political activities at any time.
Activities of Affiliate Entities—Although 501(c)(3) organizations are prohibited from directly engaging in political campaign intervention activities, the U.S. Supreme Court has ruled that 501(c)(3)s can establish affiliated 501(c)(4)s, 501(c)(6)s, or other tax-exempt affiliates to carry on lobbying activities and political campaign activities. They may not set up Section 527 organizations, which include political action committees (PACs). In fact, an affiliated 501(c)(4) or (c)(6) entity could itself establish a connected PAC. The affiliated entity generally must have independent funding sources for which no charitable tax deduction will be available. Moreover, any political activities must be carried out in accordance with applicable federal or state campaign finance laws.
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At the end of the day, 501(c)(3) organizations must be very careful in how they conduct activities that involve political candidates and elections, but they still have many opportunities to be engaged in the political process.