The presidential election is less than 45 days away. Federal tax
law strictly prohibits 501(c)(3) organizations from engaging in
activities to support or oppose candidates for public office.
However, there are still a number of ways that 501(c)(3)s can be
involved in the political process without running afoul of the
law.
Unfortunately, the line between prohibited and permissible
activities is murky and can be easily crossed if proper managers of
the 501(c)(3) are not careful in how they plan and execute the
activities. Now might be a good time to review the rules that will
help 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;
- Create candidate questionnaires;
- Host candidate appearances;
- Host debates;
- Conduct issue advocacy;
- Allow leadership and staff to be politically active; and
- Create an affiliated organization to engage in political activities that it cannot.
The key is to remember that these activities must be non-partisan, and not favor one candidate over another.
Prohibited Intervention
The Internal Revenue Code prohibits 501(c)(3) organizations from
engaging in political campaign intervention. Political campaign
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 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). 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
Internal Revenue Service (IRS) may deny or revoke the
organization's exempt status, may 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 could result 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;
- 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 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 convey 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 may not start
during the campaign.
Candidate Appearances and Debates –
501(c)(3) organizations may sponsor nonpartisan and unbiased
candidate debates and appearances. To minimize 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 it 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 conducts
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. They must, however, say or do everything for the campaign
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. Also, any political
activities must be carried out in accordance with applicable
federal or state campaign finance laws.
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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
