Memo: Rules for Nonprofit Activity in Election Year

August 23, 2012

Nonprofit 501(c)(3) organizations can often feel like they are on a tight leash in an election year. Advocating for issues can easily get mixed into involuntary electioneering that constitutes as illegal activity under 501(c)3 status.

Adapted from a detailed memo from CLASP and members of the Children’s Leadership Council, here is a complete guide to activities for a 501(c)(3) during an election year.

During an election year, rules for lobbying are far different than the rules against participation in political campaigns.  We have to be far more careful about political campaigns because the prohibition is absolute and because it is far less clear what constitutes a violation.

The line between what is permissible and what is not can be summarized by:

It is permissible to comment on an issue raised by a candidate as we did in the above example.  It is NOT permissible to comment on the candidate or make reference to other candidates including contrasting the positions of other candidates by naming the other candidates.

Your organization’s policy advocacy may not appear to be an intervention that supports or opposes candidates for office.   Read on to make sure you know all the rules.

Jump to: What's Not Allowed   |   What's Allowed   |   Rules for Personal Staff Time  

Specifics:   Policy Advocacy   |   Candidate Questionnaire & Voting Guides   |   Legislative Voting Records   |   Candidate Debates & Forums   |   Voter Reistration & Get-Out-The-Vote Activity   |    Requests from Candidates for Policy Consulting

 

WHAT'S NOT ALLOWED

A 501(c) (3) organization is forbidden from promoting or opposing the elections of any candidate to public office, either expressly or by implication, nor can your organization support or oppose political parties. The rule applies to all candidates and parties in federal, state and local elections. 

Important to note: the IRS uses a very broad definition of “candidate” (PDF).  People may be considered candidates even if they have not taken action to put themselves into the race but other people have formed a draft committee or otherwise support their candidacy. 

The sanctions for violations of the prohibition on partisan activities are severe, ranging from revocation of exempt status to fines on the organization, individual managers, and board members who knowingly allow the activity to take place. 

WHAT'S ALLOWED

Your organization can, with some restrictions*:

  • Educate the public about our positions on various issues
  • Conduct public education and training sessions about participation in the political process
  • Educate candidates on public issues
  • Publish legislative scorecards*
  • Prepare candidate questionnaires*
  • Canvass the public on issues
  • Sponsor candidates’ debates*
  • Advocate on party platform issues
  • Rent mailing lists and facilities at fair market value to other organizations, legislators, and candidates*
  • Conduct nonpartisan get-out-the-vote voter registration and education drives

If you did any of these activities, you would need to make sure that these activities are conducted in a nonpartisan manner, avoiding any appearance of endorsing or opposing any candidate

There should be no formal or informal coordination of activity between your organization and a candidate, political party, or PAC.  In addition, all educational literature should have disclaimers stating that your organization is nonpartisan and that the publication does not reflect the endorsement of any candidate or party.

The application of these rules is very context specific.  Unlike the clear lobbying guidelines provided by the Section 501(h) expenditure test and previously communicated to all staff by internal memos, the IRS has issued very little specific guidance on electoral activity by 501(c)(3)s.  Instead, the permissibility of electoral activities by 501(c)(3)s depends on the facts and circumstances surrounding those activities. 

For example:  an advertisement promoting our views of child care would ordinarily be appropriate, but it may be considered impermissible electioneering if the ad runs during a contentious gubernatorial race in which funding for child care is a key issue

STAFF PERSONAL TIME

These prohibitions apply to activities carried out by your organization’s staff while at your office and using your resources—including computers and supplies.   However, as an individual, staff members may engage in electoral activity on their own time and resources and not identifying that activity at all with their employer.
 

SPECIFIC ACTIVITIES

Many permissible electoral activities that your organization could chose to do stand with restrictions. Here are particulars and examples of those specifics:

Policy Advocacy

Your organization could educate the public on important issues during an election season.   However, that policy advocacy may not appear to be intervention that supports or opposes candidates for office.  The advocacy should likewise not refer to candidates using “code words’ such as “conservative,”  “liberal,” “pro-choice,” or “green,” which can be seen as labels by which voters can identify favored candidates.

For example: A newspaper advertisement about the need for child care may constitute an impermissible campaign intervention in a state where child care is a key issue of a heated gubernatorial campaign. 

Candidate Questionnaire & Voter Guides

Your organization could produce nonpartisan voter guides to educate the public on the candidates’ positions on the issues based on the candidates’ responses to a questionnaire. (Candidate questionnaires that are based on the candidates’ publicly stated positions or press reports may also be permissible, but the IRS has not specifically approved such voter guides.)  Questionnaires must be distributed to all candidates, address a broad range of topics, and be written to avoid suggesting the organization’s position on the issue.  The format of the guide should not give one candidate prominence or otherwise create an appearance that one or more candidates are acceptable or unacceptable to the organization.

Legislative Voting Records

Your organization could publish legislative voting records or legislative scorecards as an educational or lobbying activity if there is no appearance of endorsement or opposition to candidates based on evaluation of their past voting records.  Release of the voting records or scorecard must not be deliberately timed to coincide with the election.  Instead, we would release a voting record or scorecard soon after the legislative session ends.  Moreover, we would publish the records for all legislators and would not indicate which ones are up for reelection.

The IRS has issued only two rulings that describe permissible voting records.  The IRS has stated that a 501(c) (3) may prepare records that cover votes on a broad range of issues and distribute them to the general public.  Release of this voting record may not be deliberately timed to coincide with an election.

The IRS has also approved a regularly published legislative scorecard that focused on a narrower range of issues and that indicated whether the 501(c) (3) agreed with the position each legislator took.  In the case of this scorecard, the 501(c) (3) distributed it via its newsletter to its regular mailing list, comprised mostly of the organization’s members. 

Assuming we were to develop voting records, your organization could post the first type of voting record - covering a broad range of issues -- on its web site.  However, because most web pages are available to the general public, the IRS could well challenge us if we posted a more narrowly focused legislative scorecard for public distribution on the web.

Candidate Debates & Forums

Your organization could sponsor or conduct candidate debates or forums as long as all candidates are treated in a fair and impartial manner.  All candidate (or perhaps all viable candidates) must be invited, and the location for the forum must be based on non-political considerations.  The event or events must cover a broad range of issues and the format should include elements to insure its impartiality, such as a neutral moderator, and independent panel of questioners, etc.  Results of the forum may be reported without editorial comment and circulated through the group’s normal channels of communication.  This can include posting a report on the organization’s web page.

Voter Registration & Get-Out-the-Vote (GOTV)

Voter registration and GOTV must also be nonpartisan.  Both the content of the message and the choice of audience must reflect a limited agenda:  encouraging the exercise of the right to vote.  Your organization could not ask people it contacts how they intend to vote.  The geographic area selected as the target for the voter registration or GOTV drive should be selected based on neutral, nonpartisan criteria, not reasons related to the results of the election. 

For example: It is permissible to select locations based on the proximity to the organization’s headquarters, for example, DC, Maryland or Virginia, but you could not choose to conduct a GOTV drive in a legislative district because it is represented by a key congressional supporter or opponent of your organization's positions.

Likewise, the choice of people that a 501(c)(3) targets in voter registration and GOTV drives must be made to further the legitimate charitable purpose of encouraging voting, and not based on political criteria.  However, a 501(c) (3) may target disadvantaged or under-represented groups, such African-Americans or women, even if their historical voting pattern favors one party over another.  The 501(c)(3) can also target groups defined by a set of common interests or problems that are broadly shared, such as low-income workers, if the choice is made because of that organizational connection and not with an eye toward influencing the outcome of an election.

The messages that you would use to encourage registration and voting should not discuss issues in a way that conveys an implicit endorsement.

Requests for assistance when a candidate asks for help on their policy positions.

This can come up in a variety of ways. 

We could be asked to provide existing materials to the campaign about an issue.  A campaign might ask us to provide them with original materials or thoughts about what the candidate’s position should be on a particular issue.  The campaign could ask us to review their position or proposed speech on an issue and give them feedback.  Or the campaign could ask our tactical or strategic advice about how to handle a particular issue.

A tax attorney, who happens to be an expert on election law and 501(c) (3) activity, has provided advice which can be summarized as follows:

  1. We can provide a campaign of a candidate for elected public office with existing information that we have already compiled and made available, or would make available, to the public.  Thus we can send any of our publications or existing memos that we make available to the public.
  2. We cannot provide a campaign with new materials developed for the campaign or review candidate positions and provide advice.  We cannot become part of the campaign staff even on a limited basis, such as writing a speech, developing a proposal or position, reviewing and commenting upon a position or speech or providing tactical or strategic advice. 

As one memo from a law firm about his issue stated:  “The 501(c) (3) employees may not, on office time or at the c (3)’s expense, do special or made to order research for a candidate.  Thus, a c (3) may not draft summaries or elaborations of its documents, search its files for documents that would not routinely be sent to the general public, or undertake to review a candidate’s upcoming speech or position paper.”

Of course, staff can, on their own time, at their own expense, and not using our equipment or office, help a candidate in any way they want or are asked to do. 

For more information


The Children's Leadership Council (CLC) is a coalition of child advocates representing 57 leading national policy and advocacy organizations who are working everyday to improve the health, education and well-being of children and youth in order to prepare them for school, work, and life. Collectively, CLC's organizational members have affiliates, partners, and members in every state in the nation. The CLC is a strong, unified group of organizations speaking with one voice to achieve a singular mission - building the public awareness and creating the political will necessary to make greater federal investments in America's children and youth a reality. SparkAction is a proud member of the CLC.