We’re just a few weeks away from Election Day, and political campaigns are in full swing from the Presidential race all the way down to local school boards. Is your nonprofit organization taking precautions to avoid partisan political activity? Don’t put your tax-exempt status at risk!
Our friends at Pro Bono Partnership of Atlanta recently shared some practical ways for nonprofits to steer clear of partisan political activity. What follows is a summary of the general guidelines they shared and should not be construed as legal advice. Always consult an attorney to address your particular situation.
What You Can’t Do
All section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating or intervening in any political campaign (federal, state, or local) on behalf of or in opposition to any candidate for elected public office. This includes any and all activities by or on behalf of an organization favoring or opposing one or more candidates including: candidate endorsements, contributions to political campaign funds, and public statements of position (verbal or written). You also can’t distribute statements prepared by someone else favoring or opposing a candidate. Nor can you allow a candidate to use the organization’s assets or facilities.
Violating this prohibition may result in the denial of tax-exempt status (if you’re in the process of applying), revocation of tax-exempt status, and the imposition of certain excise taxes.
What You Can Do
As long as no part of your activities can be construed as favoring or opposing a candidate, your organization can be involved in promoting voter registration, encouraging voter participation, and providing voter education. Be sure to evaluate all the facts and circumstances surrounding your activities to determine whether they might result in political campaign intervention.
Here are some activities you might consider and ways to keep them from becoming partisan:
- Individual Activity by Organization Leaders – Leaders should clearly indicate that any partisan comments are made in their personal capacity as a citizen and are not intended to represent the views of the organization. Leaders should not make partisan comments in official organization publications or at official functions of the organization.
- Candidate Appearances – Your organization may invite political candidates to speak at events as long as equal opportunity is provided to all candidates seeking the same office. Equal opportunity also means making sure the events are equal in nature; best practice is to invite all candidates to the same event. There should be no explicit statement of support or opposition made during the event. No political fundraising should be done during the event.
- Public Forums – If your organization would like to hold a public forum with all the candidates for the same office, you may. Again, all candidates must be invited. The topics covered and questions asked should come from a nonpartisan group and cover a broad range of relevant issues. The moderator should not comment on responses in a way that implies approval or disapproval. Each candidate should have equal opportunity to present their views. Candidates should not be asked to agree or disagree with the views of the organization.
- Issue Advocacy – Organizations may participate in issue advocacy by taking positions on public policy issues; however, they must do so without creating the appearance of supporting or opposing a particular candidate. Best practices in this area include making issue advocacy an ongoing practice rather than an election cycle activity, avoiding identifying any candidates in relation to the policy, and refraining from referencing voting or the election. Context always matters, but activity in this area can be risky during an election cycle.
- Voter Guides – When creating a voting guide, your organization should be sure to cover all major issues and to format the content in a way that can't be construed as favoring or opposing any candidate. Voting guides should not have any statements comparing candidates’ positions to the organization’s position. Remember, distributing biased voting guides created by a third party is also prohibited.
- Websites – Your organization’s websites should be treated as though they were distributed printed material, oral statements, or broadcasts. Be sure to monitor for anything that could be construed as partisan activity including links to candidate-related material.
In addition to carefully evaluating and monitoring all of those activities, you should also communicate very clearly with your organization’s leaders, staff, and volunteers. Nonprofit employees may work on political campaigns outside of work hours or while using their available leave time. No one may use the facilities, equipment, personnel, or other 501(c)(3) resources to provide support to or to oppose a candidate or campaign. Everyone should be sure to clarify that statements and activities on behalf of a candidate are made or done in their personal capacity and not on behalf of the organization.
Hopefully this gives you some clarity around what you can and can’t do during this election season to keep your tax-exempt status safe!