On this episode, we discuss best practices for 501(c)(3) public charities conducting advocacy and nonpartisan activities, like get out the vote or voter education activities during an election year. Election year is upon us and the presidential primaries and caucuses, and primaries for other elected offices are starting to take place and will continue through the November General election.
Attorneys for this show
Monika Graham, Susan Finkle-Sourlis, and Leslie Barnes
Show Notes
· May 501c3 public charities advocate in an election year? How can a public charity be involved in an election?
· Types of nonpartisan activities that a 501(c)(3) may conduct include:
o Educating voters and candidates on the issues that are important to the people/community the organization serves.
o Mobilizing voters and supporting democracy
o Hosting candidate debates and forums
o And much more
· What are the IRS regulations surrounding advocacy and democracy work
o IRS has held that supporting democracy is a charitable activity, 501(c)(3)s have a role to play in our elections!
o Activities must further the organization’s charitable mission
o Activities must remain nonpartisan, cannot support or opposition of candidates running for public office
· The Facts and Circumstances test to determine whether or not communications or activities are nonpartisan.
o The IRS applies a “facts and circumstances” analysis to determine whether a charity’s communication is conducted in a nonpartisan manner or is really a veiled attempt to support or oppose candidates.
o When the IRS says “support or opposition” of candidates, that prohibition is broader than the explicit act of giving money to a campaign or saying outright that you should vote or not vote for a candidate. It’s not a bright line rule.
o Analysis is required across the spectrum of risk. It is an assessment of the risk.
· Discussion of the elements of the Facts and Circumstances Test.
o Does the communication refer to a candidate or election?
o Timing, upcoming election or is there another event outside of the organization that happened?
o Organization is discussing its core issues? Or is it comparing the organization’s issues to a candidate’s position?
o Who are you talking to? Who is the audience? Who are you targeting?
o Do you have a track record of discussing the issue?
o Are you discussing a wedge issue? What is a wedge issue?
** The discussion of this topic is from the view of 501(c)(3) public charities. Other types of nonprofits, like 501(c)(4)s do have the ability to undertake partisan activities as a secondary purpose.
Resources
Rules of the Game – Guide to nonpartisan election related activities for 501(c)(3)s
Comparison of 501(c)(3) and 501(c)(4) Permissible Activities – Chart
Praising and Criticizing Incumbents – Factsheet