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Elections and 501(c)3 Organizations

All section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of, or in opposition to, any candidate for elective public office. During an election, nonprofits can lobby, provide voter education, encourage voter registration and participation, and participate in issue advocacy if these are done in a nonpartisan way that does not interfere, or appear to interfere, with the election

Introduction

Under the Internal Revenue Code, section 501(c)(3) organizations cannot “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office." This includes direct or indirect participation. The prohibition applies to all campaigns at the federal, state and local level. Violation of this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes. A candidate for public office refers to an individual who offers himself, or is proposed by others, as a contestant for an elective public office at the national, state or local level.

Nonprofits can work to increase voter turnout, educate the public on candidate platforms, and can take advantage of heightened public awareness to increase awareness around issues.

This guide provides information on how nonprofits can participate in nonpartisan election-related activities. This guide provides information specifically for 501(c)(3) organizations, not 501(c)(4) organizations. 501(c)(4) organizations may engage in both nonpartisan and partisan activities, as long as its partisan political activity is a secondary activity of the organization. Additionally, the 501(c)(4) must comply with all federal and state election laws that place restrictions or disclosure requirements on political activity. For more information on 501(c)(4) organizations and election activities, refer to the IRS publication “Political Campaign and Lobbying Activities of IRC 501(c)(4), (c)(5), and (c)(6) Organizations”.

Allowed and Prohibited Election-Related Activities

501(c)(3) organizations may not engage in political campaign intervention. This is described as any and all activities that favor or oppose one or more candidates for public office. 501(c)(3) organizations may not:

  • Endorse a candidate or political party, explicitly or implicitly. They may not support or oppose a candidate, or tell members or non-members which candidate they prefer. This applies to specified candidate or political party, and for unnamed candidates or parties that generally subscribe to particular issue positions or have particular characteristics.
  • Make direct or indirect contributions to political campaign funds, including to a candidate, political party, federal PAC or a 527 contribution
  • Make public statements of position (verbal or written) in favor of or in opposition to any candidate for public office.
  • Distribute statements prepared by others that favor or oppose any candidate for public office.
  • Allow a candidate to use the organization’s assets or facilities if other candidates are not given an equivalent opportunity. It cannot use any of its resources to pay for or participate in a partisan event.
  • Conduct research on an issue in order to provide it to a particular candidate or party (either by the organization’s initiative or at the request of a candidate or party).
  • Target voter-education efforts to a precinct based on the political party or candidate the precinct is likely to support.
  • Conduct partisan “Get Out The Vote” efforts. Activities with the goal of increasing voter registration and turnout may not be targeted towards groups or geographic areas with the intention of influencing the outcome of an election or targeted based on where a close race is.
  • Conduct any candidate or partisan fundraising.

Organizations should note that these prohibited activities can occur without directly mentioning the name of a candidate or political party. Examples of this are showing a picture of a candidate or referring to distinctive features of a candidate’s platform or biography.

501(c)(3) organizations may:

  • Provide publicly available information to all candidates or parties—either upon request or at the organization’s initiative.
  • Issue press releases or post information on their websites describing their nonpartisan voter outreach plans and strategies. They may share the plan with candidates if they provide it equally to all candidates in a particular race or all political parties in the jurisdiction
  • Share research on issues of general concern, as long as it is made generally available to the public (e.g., posted on the organization’s website) or is offered to all candidates in a race or all viable political parties in a jurisdiction.
  • Solicit support from all political parties or candidates for a particular office for the 501(c)(3)’s advocacy efforts on a particular issue.
  • Support litigation brought by a party or candidate that, in the independent judgment of the 501(c)(3), furthers an issue of interest. In doing so, though, the 501(c)(3) must avoid showing support for the party or candidate and should affirmatively state its neutrality.
  • Encourage voter turnout and registration in a way that does not favor a particular candidate or party and does not have the intention of influencing the outcome of the election.
  • Make a contribution to a ballot measure committee (committees supporting or opposing ballot initiatives or referenda). (Such contributions must be included in its calculations of lobbying costs.)

Even if these standards are satisfied, other groups or the media may raise questions about any 501(c)(3) engagement with a political candidate, party, or partisan group. Therefore, the risk of adverse publicity for your efforts should be considered in deciding whether to engage in them in any manner.

Get Out The Vote

Nonprofits may participate in activities that encourage citizens to register for, and to vote in elections (commonly referred to as “Get Out The Vote”). Nonprofits must however ensure that these activities remain non-partisan. Nonprofits:

  • May target their efforts towards a group that is historically disadvantaged or towards geographic areas with historically low voter turnout.
    • They may not target any ideological group such as conservatives, liberals, Republicans, or Democrats.
    • They may not target their efforts based on where a close race is.
    • They may not target their efforts towards an area or group with the intention of influencing the outcome of an election.
  • May refer to issues that do not make obvious the organization’s preferred position.
  • May not coordinate voter outreach efforts with candidates, parties, federal PACs or other 527 groups, even if the 501(c)(3) itself otherwise follows nonpartisan guidelines.
  • May not tailor their efforts to mesh with those of partisan entities or share voter outreach strategies with one candidate or party only.

The IRS provides two examples of organizations encouraging the public to vote, one that falls within the allowed activities, and one that illegally engages in political campaign intervention:

Example 1: B, a section 501(c)(3) organization that promotes community involvement, sets up a booth at the state fair where citizens can register to vote. The signs and banners in and around the booth give only the name of the organization, the date of the next upcoming statewide election, and notice of the opportunity to register. No reference to any candidate or political party is made by the volunteers staffing the booth or in the materials available at the booth, other than the official voter registration forms which allow registrants to select a party affiliation. B is not engaged in political campaign intervention when it operates this voter registration booth.

Example 2: C is a section 501(c)(3) organization that educates the public on environmental issues. Candidate G is running for the state legislature and an important element of her platform is challenging the environmental policies of the incumbent. Shortly before the election, C sets up a telephone bank to call registered voters in the district in which Candidate G is seeking election. In the phone conversations, C’s representative tells the voter about the importance of environmental issues and asks questions about the voter’s views on these issues. If the voter appears to agree with the incumbent’s position, C’s representative thanks the voter and ends the call. If the voter appears to agree with Candidate G’s position, C’s representative reminds the voter about the upcoming election, stresses the importance of voting in the election and offers to provide transportation to the polls. C is engaged in political campaign intervention when it conducts this get-out-the-vote drive.

Issue Advocacy and Voter Education

Under federal tax law, section 501(c)(3) organizations may conduct issue advocacy but must avoid any advocacy that functions as political campaign intervention. Issue advocacy here refers to an organization communicating its views on policy issues that are related to the organization’s charitable purposes.

Organizations can engage in issue advocacy, including lobbying (link to lobbying tool) during an election campaign and on issues that divide candidates in an election for public office. Organizations cannot however engage in political campaign interference in their issue advocacy work. Organizations may equally inform all candidates of their position, but may not distribute a statement from a candidate on that issue.

Issue advocacy crosses the line into prohibited partisan activities if it:

  • Not only communicates views on the issues, but tells the audience how to vote based on those issues.
  • Compares the organization’s views with those of the candidates.
  • States or compares the candidates’ views on the issue.
  • Includes any message favoring or opposing a candidate, even if the statement does not expressly tell an audience to vote for or against a specific candidate

All the facts and circumstances need to be considered to determine if the advocacy is political campaign intervention. Key factors in determining whether a communication results in political campaign intervention include the following:

  • Identification of one or more candidates for a given public office.
    • A statement can identify a candidate not only by stating the candidate’s name but also by other means such as showing a picture of the candidate, referring to political party affiliation, or other distinctive features of a candidate’s platform or biography.
  • If it expresses approval or disapproval for one or more candidates’ positions and/or actions.
  • If it is delivered close in time to the election.
  • If it makes reference to voting or an election.
  • If the issue addressed in the communication has been raised as an issue distinguishing candidates for a given office.
  • If it is part of an ongoing series of communications by the organization on the same issue that is made independent of the timing of any election.
  • If the timing of the communication and identification of the candidate are related to a non-electoral event, such as a scheduled vote on specific legislation by an officeholder who also happens to be a candidate for public office.

Voting History

Many organizations publicize the way a legislator voted on an issue of concern to the organization and state whether this vote supported or opposed the organization’s views. Although a valid advocacy technique, care must be taken in doing this during an election season. It would only be allowed if the organization can show that publicizing and either praising or critiquing a voting record is part of the organization’s regular activities and there is a track record of those activities during a non-election year. The organization must be careful to not increase these activities close to an election, or to devote particular attention to a the voting record of a legislator that is also a candidate.

Lobbying During an Election

All organizations, regardless of whether or not they choose the 501(c)h election (link to lobbying tool), must take extreme care that none of their lobbying activities are related to elections. Organizations may lobby during an election, but must take care to not engage in, or appear to engage in, partisan activities. Organizations may continue to lobby incumbent legislators that are running for reelection, but must avoid any reference to the reelection campaign.

Issue Advocacy Examples

The IRS provides three examples to illustrate allowed and prohibited issue advocacy during an election:

Example 1: University O, a section 501(c)(3) organization, prepares and finances a full page newspaper advertisement that is published in several large circulation newspapers in State V shortly before an election in which Senator C is a candidate for nomination in a party primary. Senator C represents State V in the United States Senate. The advertisement states that S. 24, a pending bill in the United States Senate, would provide additional opportunities for State V residents to attend college, but Senator C has opposed similar measures in the past. The advertisement ends with the statement “Call or write Senator C to tell him to vote for S. 24.” Educational issues have not been raised as an issue distinguishing Senator C from any opponent. S. 24 is scheduled for a vote in the United States Senate before the election, soon after the date that the advertisement is published in the newspapers. Even though the advertisement appears shortly before the election and identifies Senator C’s position on the issue as contrary to O’s position, University O has not violated the political campaign intervention prohibition because the advertisement does not mention the election or the candidacy of Senator C, education issues have not been raised as distinguishing Senator C from any opponent, and the timing of the advertisement and the identification of Senator C are directly related to the specifically identified legislation University O is supporting and appears immediately before the United States Senate is scheduled to vote on that particular legislation. The candidate identified, Senator C, is an officeholder who is in a position to vote on the legislation.

Example 2: Organization R, a section 501(c)(3) organization that educates the public about the need for improved public education, prepares and finances a radio advertisement urging an increase in state funding for public education in State X, which requires a legislative appropriation. Governor E is the governor of State X. The radio advertisement is first broadcast on several radio stations in State X beginning shortly before an election in which Governor E is a candidate for re election. The advertisement is not part of an ongoing series of substantially similar advocacy communications by Organization R on the same issue. The advertisement cites numerous statistics indicating that public education in State X is under funded. While the advertisement does not say anything about Governor E’s position on funding for public education, it ends with “Tell Governor E what you think about our under-funded schools.” In public appearances and campaign literature, Governor E’s opponent has made funding of public education an issue in the campaign by focusing on Governor E’s veto of an income tax increase the previous year to increase funding of public education. At the time the advertisement is broadcast, no legislative vote or other major legislative activity is scheduled in the State X legislature on state funding of public education. Organization R has violated the political campaign prohibition because the advertisement identifies Governor E, appears shortly before an election in which Governor E is a candidate, is not part of an ongoing series of substantially similar advocacy communications by Organization R on the same issue, is not timed to coincide with a non election event such as a legislative vote or other major legislative action on that issue, and takes a position on an issue that the opponent has used to distinguish himself from Governor E.

Example 3: Candidate A and Candidate B are candidates for the state senate in District W of State X. The issue of State X funding for a new mass transit project in District W is a prominent issue in the campaign. Both candidates have spoken out on the issue. Candidate A supports for the new mass transit project. Candidate B opposes the project and supports State X funding for highway improvements instead. P is the executive director of C, a section 501(c)(3) organization that promotes community development in District W. At C’s annual fundraising dinner in District W, which takes place in the month before the election in State X, P gives a lengthy speech about community development issues including the transportation issues. P does not mention the name of any candidate or any political party. However, at the conclusion of the speech, P makes the following statement, “For those of you who care about quality of life in District W and the growing traffic congestion, there is a very important choice coming up next month. We need new mass transit. More highway funding will not make a difference. You have the power to relieve the congestion and improve your quality of life in District W. Use that power when you go to the polls and cast your vote in the election for your state senator.” C has violated the political campaign intervention as a result of P's remarks at C's official function shortly before the election, in which P referred to the upcoming election after stating a position on an issue that is a prominent issue in a campaign that distinguishes the candidates.

Voter Guides

Voter guides are documents, often in chart form and usually pamphlets or other short documents, intended to help voters compare candidates’ positions on a set of issues. Although generally a voter education activity, preparing or distributing a voter guide may violate the prohibition against political campaign intervention if the guide focuses on a single issue or narrow range of issues, or if the questions are structured to reflect bias. The IRS law looks for bias in both the format and content of the voter guide. Although any document that identifies candidates and their positions close in time to an election has the potential to result in political campaign intervention, preparation or distribution of voter guides, because of their nature, present a particular risk for non compliance.

If the organization’s position on one or more issues is given in the guide so that it can be compared to the candidates’ positions, the guide will constitute political campaign intervention. For a voter guide to be distributed to educate voters without violating the restriction on political campaign interference, the voter guide must:

  • Present the structure and content of the questions in a clear, unbiased manner.
  • Present the questions in the guide in an identical manner to which they were posed to the candidates.
  • Give all candidates a reasonable amount of time to respond to the questions.
  • If the candidate is given limited choices for an answer to a question (e.g. yes/no, support/oppose), candidates must also be given a reasonable opportunity to explain their position in their own words and that explanation should be included in the voter guide.
  • Give the candidate’s answers exactly as given by the candidates. They cannot be edited and they must appear in close proximity to the question to which they respond.
  • Give equal coverage to all candidates for a particular office.
  • Use enough questions and subjects to sufficiently encompass most major issues of interest to the entire electorate.

In assessing whether a voter guide is unbiased and nonpartisan, every aspect of the voter guide’s format, content and distribution must be taken into consideration. Each organization that distributes a voter guides is responsible for its own actions. If the voter guide is biased, distribution of the voter guide is an act of political campaign intervention. Therefore, an organization should reach its own independent conclusion about whether a voter guide violates prohibitions on election activities.

Public Events

Candidates may be invited to an organization’s event in their current capacity or as a candidate, though particular care must be made in each situation to ensure that the organizations do not engage in partisan activities.

Speaking and Participating as Non-Candidate

Candidates may be invited to speak or participate in an organization’s event based on their current capacity. For example, they may be invited as a current public official, an expert on a given topic or a celebrity. Care must be taken to show that the invitation was made to the person in their current capacity, not as a candidate, and organizations should clearly indicate the capacity for which the individual was invited. Organizations must ensure that:

  • The individual is chosen to speak solely for reasons other than candidacy for public office.
  • The individual speaks only in a non-candidate capacity.
  • Neither the individual nor any representative of the organization makes any mention of either his/her candidacy or the election at the event or in communications announcing the event.
  • No campaign activity occurs in connection with the candidate’s attendance.
  • The organization maintains a nonpartisan atmosphere on the premises and at the event.

The reason for inviting the candidate should be documented. Organizations should refrain from working with the candidate’s campaign staff while organizing the event, (the job of the campaign staff is to turn events into campaigning opportunities). It is also recommended that they send a letter to the guest explaining the nonpartisan limitations of the event and asking him or her to not mention the election.

Political candidates may, of course, choose to attend public events sponsored by an organization, such as lectures or concerts. This would not, by itself, cause the organization to be engaged in political campaign intervention. However, if the candidate is publicly recognized by the organization, all cautions taken to ensure nonpartisanship that would be taken if the candidate were invited must be followed.

Speaking and Participating as a Candidate

A public forum involving several candidates for public office may qualify as an exempt educational activity. However, the 501(c)(3) must take steps to ensure that it indicates no support or opposition of the candidates. All candidates in the particular race should be given an equal opportunity to participate at either the same event or a comparable one.

When an organization invites several candidates for the same office to speak at a forum, it should ensure that:

  • Questions for the candidate are prepared and presented by an independent, nonpartisan panel.
  • Topics discussed by the candidates cover a broad range of issues that the candidates would address if elected to the office sought and are of interest to the public.
    • In an open meeting where questions from the public are allowed, you are not required to be responsible for the nature of the public’s questions, but your moderator should try to assure balance.
  • Each candidate is given an equal opportunity to present his or her view on the issues discussed.
  • Candidates are not asked to agree or disagree with positions, agendas, platforms or statements of the organization.
  • A moderator’s comments on the questions do not imply approval or disapproval of the candidates.
  • Introduction of each candidate include no comments on their qualifications or any indication of a preference for any candidate.

The IRS does not require that the opportunity be accepted by all of the candidates, but the group should issue them a specific invitation to the same or comparable event. In public announcements of the event(s), it should be noted that all candidates were invited and one (or more) declined. The IRS will evaluate whether an event was comparable based on all the facts and circumstances, including its time and place, expected audience and attractiveness of the venue.

Information from such events may be published if it is done so in a regularly published newsletter that is distributed only to members, and candidates are given equal opportunity to reply.

Collaboration with non-501(c)(3) Organizations

A 501(c)(3) organization may work with non-501(c)(3) organizations, including 501(c)(4) organizations, on election related activities, as long as the work is non-partisan. The 501(c)(3) organization may not do anything, directly or indirectly, through another organization that it may not do on its own. Any joint written or oral communications must be nonpartisan and the locations for joint activities must be determined using nonpartisan criteria. The other organizations may continue their own allowed partisan activities, but these must be completely separate from the activities conducted with the 501(c)(3) organization.

The 501(c)(3) organization may not share any voter registration list or other data collected during these joint activities with partisan organizations. They may however accept lists collected from these activities from the partisan organizations, as long as that information will not be used for partisan activities.

Business Activity

The question of whether an activity constitutes participation or intervention in a political campaign may also arise in the context of a business activity of the organization, such as selling or renting of mailing lists, the leasing of office space, or the acceptance of paid political advertising. In this context, some of the factors to be considered in determining whether the organization has engaged in political campaign intervention include the following:

  • Whether the good, service or facility is available to all candidates in the same election on an equal basis;
  • Whether the good, service, or facility is available only to candidates and not to the general public;
  • Whether the fees charged to candidates are at the organization’s customary and usual rates; and
  • Whether the activity is an ongoing activity of the organization or whether it is conducted only for a particular candidate.

The IRS provides 2 examples to help organizations understand conducting business activities in the context of election activities:

Example 1: Museum K is a section 501(c)(3) organization. It owns an historic building that has a large hall suitable for hosting dinners and receptions. For several years, Museum K has made the hall available for rent to members of the public. Standard fees are set for renting the hall based on the number of people in attendance, and a number of different organizations have rented the hall. Museum K rents the hall on a first come, first served basis. Candidate P rents Museum K’s social hall for a fundraising dinner. Candidate P’s campaign pays the standard fee for the dinner. Museum K is not involved in political campaign intervention as a result of renting the hall to Candidate P for use as the site of a campaign fundraising dinner.

Example 2: Theater L is a section 501(c)(3) organization. It maintains a mailing list of all of its subscribers and contributors. Theater L has never rented its mailing list to a third party. Theater L is approached by the campaign committee of Candidate Q, who supports increased funding for the arts. Candidate Q's campaign committee offers to rent Theater L's mailing list for a fee that is comparable to fees charged by other similar organizations. Theater L rents its mailing list to Candidate Q's campaign committee. Theater L declines similar requests from campaign committees of other candidates. Theater L has intervened in a political campaign.

Individual Activity by Organization Leaders

The political campaign intervention prohibition is not intended to restrict free expression on political matters by leaders of organizations speaking for themselves. Nor are an organization’s leaders prohibited from speaking about important issues of public policy. However, for their organizations to remain tax exempt under section 501(c)(3), leaders cannot make partisan comments in official organization publications or at official functions of the organization. To avoid potential attribution of their comments outside of organization functions and publications, organization leaders who speak or write in their individual capacity are encouraged to clearly indicate that their comments are personal and not intended to represent the views of the organization.

Web Sites

An organization’s web page is treated the same as any distributed printed material, oral statement or broadcasts and is subject to all rules regarding election activities. One area of particular concern to web pages are links that it contains to other web pages. Because an organization establishes a link to another web site, the organization is responsible for the consequences of establishing and maintaining that link, even if the organization does not have control over the content of the linked site. Because the linked content may change over time, an organization may reduce the risk of political campaign intervention by monitoring the linked content and adjusting the links accordingly.

Links to candidate-related material, by themselves, do not necessarily constitute political campaign intervention. The IRS will take all the facts and circumstances into account when assessing whether a link produces that result. The facts and circumstances to be considered include, but are not limited to:

  • The context for the link on the organization’s web site.
  • Whether all candidates are represented.
  • Any exempt purpose served by offering the link.
  • The directness of the links between the organization’s web site and the web page that contains material favoring or opposing a candidate for public office.

The IRS provides 3 examples to help explain web pages and election activities:

Example 1: M, a section 501(c)(3) organization, maintains a web site and posts an unbiased, nonpartisan voter guide that is prepared consistent with the principles discussed in the voter guide section above. For each candidate covered in the voter guide, M includes a link to that candidate’s official campaign web site. The links to the candidate web sites are presented on a consistent neutral basis for each candidate, with text saying “For more information on Candidate X, you may consult [URL].” M has not intervened in a political campaign because the links are provided for the exempt purpose of educating voters and are presented in a neutral, unbiased manner that includes all candidates for a particular office.

Example 2: Hospital N, a section 501(c)(3) organization, maintains a web site that includes such information as medical staff listings, directions to Hospital N, and descriptions of its specialty health programs, major research projects, and other community outreach programs. On one page of the web site, Hospital N describes its treatment program for a particular disease. At the end of the page, it includes a section of links to other web sites titled “More Information.” These links include links to other hospitals that have treatment programs for this disease, research organizations seeking cures for that disease, and articles about treatment programs. This section includes a link to an article on the web site of O, a major national newspaper, praising Hospital N’s treatment program for the disease. The page containing the article on O’s web site contains no reference to any candidate or election and has no direct links to candidate or election information. Elsewhere on O’s web site, there is a page displaying editorials that O has published. Several of the editorials endorse candidates in an election that has not yet occurred. Hospital N has not intervened in a political campaign by maintaining the link to the article on O’s web site because the link is provided for the exempt purpose of educating the public about Hospital N’s programs and neither the context for the link, nor the relationship between Hospital N and O nor the arrangement of the links going from Hospital N’s web site to the endorsement on O’s web site indicate that Hospital N was favoring or opposing any candidate.

Example 3: Church P, a section 501(c)(3) organization, maintains a web site that includes such information as biographies of its ministers, times of services, details of community outreach programs, and activities of members of its congregation. B, a member of the congregation of Church P, is running for a seat on the town council. Shortly before the election, Church P posts the following message on its web site, “Lend your support to B, your fellow parishioner, in Tuesday’s election for town council.” Church P has intervened in a political campaign on behalf of B.

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Experts

Alliance for Justice
(202) 822-6070
Alliance for Justice is a national association of over 100 organizations dedicated to advancing justice and democracy. The Alliance for Justice has written and compiled multiple resources on the laws governing 501(c)(3) organizations and election year activities.

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An IRS fact sheet that describes allowed and prohibited election year activities. It includes 21 examples of election year activities to help the reader understand the regulations.
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Acknowledgements

This guide was prepared by Elana Richman.  This guide paraphrases and quotes information the IRS provides in “Election Year Activities and the Prohibition on Political Campaign Intervention for Section 501(c)(3) Organizations”, including all the examples.  Information for this guide also came from Alliance for Justice’s and Center for Lobbying in the Public Interest’s web pages. 

 

Disclaimer

Nothing contained in this or any other document available at ConservationTools.org is intended to be relied upon as legal advice. The authors disclaim any attorney-client relationship with anyone to whom this document is furnished. Nothing contained in this document is intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any person any transaction or matter addressed in this document.
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