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 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.
Continue reading for more information on prohibited intervention and permissible activities.