As you are likely well-aware, it’s a presidential election year! In non-profit organizations, this typically pushes leadership and members of the organization to ask–should we take action for the upcoming election? Followed by, are we legally allowed to do that?
Navigating electoral advocacy as a 501(c)(3) is not always easy but we have some great tips for those that are interested. All the information below is for general educational purposes and does not constitute legal advice. This is not an exhaustive list and is merely intended to address questions that our Fair Shake team is frequently asked. If you have questions or concerns, we encourage you to reach out to our Fair Shake team! We provide legal services on a sliding-scale and have experience serving as general counsel to non-profit organizations.
Tip #1: All activities must be conducted in a neutral and non-partisan manner.
The IRS expressly prohibits 501(c)(3) organizations from partisan political advocacy; also, known as the “prohibition on political campaign intervention.” If the IRS finds an organization violates this rule, it can result in the organization losing their status as a non-profit and the imposition of excise taxes. Therefore, 501(c)(3) organizations should take extreme care to ensure all electoral advocacy is neutral and non-partisan. Organizations may not:
Support or oppose a candidate
Distribute statements by other entities that support or oppose a candidate
Rate candidates
Endorse candidates
Contribute to candidates
Allow select candidate(s) the exclusive opportunity to use organizations facility or assets
Utilize organizational resources (tables, clipboards, volunteers, etc.) for partisan events
Tip #2: No activities should support or oppose a candidate running for office.
As stated above, the IRS expressly prohibits 501(c)(3) organizations from partisan political advocacy. However, nonprofit organizations are allowed to engage political candidates. Examples of permissible activities include:
Hosting a candidate forum (not a debate)
Hosting a candidate survey and publishing candidate responses
Inviting candidates to attend events
If a non-profit chooses to engage campaigns, they should take care to ensure that all parties are afforded an equal opportunity to participate, and prohibit candidates from fundraising at their events.
Tip #3: Your organization may provide limited resources to support or oppose ballot measures.
The IRS has stated that a 501(c)(3) organization’s support or opposition of a ballot measure does not violate the prohibition on campaign intervention. However, the IRS does consider this activity ‘lobbying’ and therefore you are limited in how much resources you allocate to campaigns supporting or opposing a ballot measure. There are two ways to measure how much resources you are allowed to allocate:
For organizations that have a budget of less than $500,000, we would recommend utilizing the 501(h) expenditure test because it provides a clear guideline that you may only use 20% of your budget for lobbying activities. Some states may require reporting on how you calculate your expenditure. Even if your state does not require such reports, we would recommend keeping them in your records.
If your organization chooses to provide general voter education on ballot initiatives, you can dedicate unlimited resources to such activities!
Tip #4: Your organization may engage in non-partisan get-out-the-vote drives or voter registration drives.
It is fairly common for non-profit organizations to help raise awareness about the upcoming elections and assist with voter education. Common get-out-the-vote activities include:
sharing sample ballots,
hosting community discussions about civic engagement,
promoting opportunities to work at the polls,
announcing voter registration deadlines and election day reminders,
assisting in driving voters to the polls, and
helping voters cure ballots casted with defects.
When assisting with voter registration drives, nonprofit organizations are not allowed to suggest that folks register with a specific party or who to vote for. However, you may explain the differences between the parties and share which candidates will be on their ballot in the upcoming election. Typically, nonprofits focus on helping with voter registration in communities that they already serve, but leadership should not target communities for the purpose of attempting to support or oppose particular candidates or parties. Finally, take care to ensure you are complying with your state’s rules for voter registration activities.
Tip #5: Be clear about whether you are acting in capacity as a member of your organization or as an individual.
The IRS has made clear that the prohibition on political campaign intervention is not intended to restrict the freedom of expression of non-profit leaders in their individual capacity. The overall goal of the policy is to ensure that nonprofit money and resources are utilized for the non-partisan missions they serve, and not co-opted for a political agenda. However, as an individual, you may engage in political campaigns. So how do you make the delineation, as to whether you are acting in your capacity as a leader of a non-profit or an individual? We like to make the analogy that you should consider each leadership role you have in organization(s) a hat–take steps to ensure you are clear to audiences about when your hat is on or off.
If you are in a leadership position within a 501(c)(3) and you would like to engage in partisan political advocacy, the IRS recommends that when speaking or writing statements in your individual capacity that you clearly indicate your comments are personal and do not intend to represent the views of the organization. We also recommend that you take additional precautions, such as:
create a separate email for your leadership role in the organization, rather than using personal emails;
introduce yourself as an individual and not with any titles from your nonprofit organization when attending events in a personal capacity;
try to make a routine for allocating your time, as this can help your network know when is best to reach you for non-profit decision-making or partisan electoral advocacy; and
separate organizational materials from your personal materials, since organization materials may not be used at all for any partisan advocacy conducted in your personal time.
