Time to Rock the Vote? How Institutions of Higher Education Should Prepare for Supercharged Midterm Elections

8 min

It is no stretch to suggest that the upcoming midterm elections will be a hotbed of political activity across all spectrums. Each election cycle presents exciting opportunities for institutions of higher education (IHEs) and their students to become more civically engaged at the local, state, and federal levels. Whether by providing access to candidates and encouraging students to learn about their policy positions, or allowing students to organize voter registration drives, the college campus often provides a stage for election activity. Similarly, employees often seize upon the politically charged climate to make political statements, support candidates, or publish formal or informal writings. It can be difficult to detangle the web of laws and regulations that apply to political activity on campus. The following are some general rules that IHEs should keep in mind when addressing political activity on campus.

Special Considerations for Political Events

It is important for educational institutions to be aware of and comply with the various tax and campaign finance laws that regulate the electoral space. For example, nonprofit IHEs exempt from taxation under Section 501(c)(3) must be careful to ensure their activities are done in a way that is consistent with the requirements of their tax-exempt status. In particular, 501(c)(3) organizations are prohibited from supporting or opposing candidates for elective office and may not engage in so-called campaign intervention; they also cannot make contributions to political campaigns, run ads that support or oppose candidates, or participate in any biased activity.

Candidate Debates and Forums

Candidate debates and forums, which are routinely held on IHE campuses, are often some of the most high-profile events of each election cycle. However, these events must be carefully organized to ensure compliance with the 501(c)(3) restrictions on campaign intervention.

The IRS has provided guidance clarifying that candidate forums and debates hosted by 501(c)(3) organizations, such as IHEs, are permitted as long as they are fair and impartial and do not favor one candidate over another. In the context of candidate debates and forums, the IRS will consider a number of factors in determining whether a hosting institution has engaged in impermissible campaign intervention, including whether candidate questions are presented in a fair and nonbiased way, whether forum or debate topics cover a broad range of public issues, and whether candidates are given equal time or opportunity to present their views.

Indeed, it is imperative that IHEs treat all candidates and issues fairly and impartially during forums and debates, and that the goal of hosting these events is to educate and inform voters.

Other Candidate Appearances

The IRS has also provided some additional guardrails for hosting candidates on IHE campuses beyond the context of debates and forums. When a candidate is invited to speak, the IHE should ensure that such appearances are organized in a way to avoid even the appearance of campaign intervention. For example, once an IHE invites one candidate to speak, all candidates in a particular race should be given an equal opportunity to speak. The IHE should also take care not to make any comments that imply endorsement of a candidate or group of candidates and should be especially careful to avoid hosting fundraising events for candidates.

Voter Registration Drives

College students play a significant role in voter registration efforts nationwide, and these efforts often center around the campuses the students call home. Organizers, including student organizations or the IHE itself, should make sure they understand a few key considerations of state laws that regulate voter registration to make sure they are prepared to put on a successful voter registration drive, such as:

  1. Whether there are restrictions on who can circulate voter registration forms, including any age or residency requirements for circulators;
  2. Whether circulators may handle and/or submit completed forms or help potential new registrants complete forms;
  3. What the deadlines are for submitting voter registration documents;
  4. What the voter registration eligibility rules are, including any residency requirements; and
  5. Whether there are any restrictions on retaining or using voter registration information for get-out-the-vote or other activities.

And, as in other on-campus candidate events, it is important that student voter registration drives are done in a nonpartisan and nonbiased way that would not impact or jeopardize an IHE's tax-exempt status.

Special Considerations for Employees

Public Employees

Employees at public IHEs who engage in political speech during this midterm season may be protected by the First Amendment. Specifically, in a benchmark ruling, Pickering v. Bd of Ed. of Tp. High Sch. Dist. 205, Will County, Illinois, 391 U.S. 563 (1968), the United States Supreme Court stated that a public employee's speech is protected where (i) the employee speaks as a member of the general public, outside of the employment context; (ii) the employee speaks on a matter of public concern; (iii) the employee's speech does not constitute defamation; and (iv) the employee's speech does not interfere with their job performance.

While this test provides broad protections for public employees, public IHEs can implement some guidelines to ensure that employees do not, in fact, appear to be speaking within the scope of their employment. For example, public IHEs can limit employees' ability to use official letterhead, don the IHE's insignia, use their school email, or reference their official university titles when engaging in political speech. Similarly, in some states, public IHEs can prohibit the donning by employees of political buttons or clothing during their work-related activities.

Private Employees

While the First Amendment does not provide the same coverage for private employees, other federal laws may apply. Employees—unionized or not—may be covered by the National Labor Relations Act (NLRA) if they engage in certain protected "concerted activities" executed for the purpose of "mutual aid or protection." Put simply, as long as the speech or activity relates to the terms and conditions of employment of the employee and is made or acted upon to evoke the involvement of others, it may be protected by the NLRA. Speech that is purely political in nature and without a nexus to working conditions, however, is not protected under the NLRA. Additionally, "concerted activity" will not be protected under the NLRA where such activity is egregiously offensive, knowingly and maliciously false, discriminatory, or otherwise illegal.

The NLRA not only covers the content of employees' speech and activity, but also how and when employees may engage in same. Should an employee's concerted activity involve solicitation in support of a candidate or cause, the employer can prohibit that activity during working hours only. Likewise, should an employee's protected activity involve distribution of campaign materials, the employer may prohibit that activity during working hours and in working areas, regardless of whether this is done during working hours or not. "Working areas" are considered all areas where work is actually performed, and does not include cafeterias, restrooms, etc.

On the state and local levels, many states and localities have adopted similar protections that may impact a private IHE's ability to regulate the political speech of its employees. For example, Connecticut General Statutes § 31-51q adopts the free speech protections of the First Amendment and applies them to private employees who speak on issues of public concern, where the political speech does not substantially or materially interfere with the employee's job performance or relationship with their employer. This statute has been interpreted to generally apply to speech regarding any matter of political, social, or other concern to the community. New York Labor Law §201-D prohibits employers from discriminating against employees for any "political activities" performed outside of working hours, off of the employer's premises, and without use of the employer's equipment or other property, provided such activities are otherwise legal. However, the statute narrowly defines "political activities" to mean (i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party, or political advocacy group. Notably, it does not cover all political speech.

Employer Policies

In addition to the aforementioned legal considerations, IHEs must also consider how their employee policies apply to employees' political speech and activity. Some IHEs may want to encourage employees' active political engagement, but they should be mindful that there are likely many employee conduct policies that may be implicated by such activities, including, but not limited to, policies on anti-harassment and anti-discrimination, use of electronic media, attendance/leaves of absence, conflicts of interest, and use of IHE property.

What can IHEs take away from this?

As midterm elections near, campaign and political activity will undoubtedly increase on campus. In anticipation of this heightened activity, IHEs should prepare by refamiliarizing themselves with applicable federal, state, and local laws, and reexamine any applicable collective bargaining agreements to ensure that they are aware of how to comply with any bargained-for obligations. Additionally, IHEs should review any employee handbooks or official policies and retrain their employees on their rights and the IHE's rights as the employer. IHEs may want to consider establishing policies that govern political activity on campus, to clearly lay out the ground rules for students and employees alike. These policies should clearly define (i) the individuals to whom they apply; (ii) the type of political activity and political speech covered; and (iii) what conduct is or is not acceptable. IHEs are encouraged to contact the authors of this article or any member of Venable's Labor and Employment Practice Group or Political Law Practice Group with any questions.

* The authors of this article thank Alex Clementi, law clerk, for his assistance in its preparation.