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

The Connection

On this edition, we’re thrilled to welcome Emma Olson Sharkey from Elias Law Group, bringing her fresh perspective after successfully guiding clients to victory in the critical 2023 Ohio reproductive rights ballot measure fight. Emma will help shed light on the essential considerations for tax-exempt organizations before taking the plunge into a ballot measure campaign.

Attorneys for this Episode

Quyen Tu

Tim Mooney

Emma Olson Sharkey

 

Shownotes

 

·      Introducing Emma

·      Lessons from Ohio:

o   Progressives can work together to protect fundamental rights – and can be successful, even in states where conservatives otherwise control the state.

o   We are seeing conservatives attack the ballot measure process at every point in the process. We need to think about what we can do to bolster our efforts from the very beginning to defend against attacks.

·       

·      Ballot measure considerations Two major considerations: state campaign finance obligations and federal tax implications:

o   State campaign finance rules:

§  Registration & reporting obligations

§  Is there already a main ballot measure committee?

§  Do you want to be an independent expenditure committee?

·      Will you trigger registration or reporting by your planned activity?

o   If so, will this include donor disclosure?

§  Disclaimer obligations (including those you might not have thought of) – both for entities themselves and top donors.

o   Also, need to be careful about implicating federal campaign finance rules – even referencing federal candidates or parties in communications could create coordination issues and lead to inadvertent in-kind contributions.

§  Advocacy and education outside of registration/reporting requirements

·      Typically, communications to the public on the general subject addressed by the ballot measure, which do not refer directly or indirectly to the ballot measure itself, will not be regulated by state campaign finance.

·      However, state laws vary so you should check state and local law to confirm.

o   Federal tax implications:

§  In general, for public charities, advocating for or against ballot measures will be considered “lobbying” under federal tax law; public charities can only do an “insubstantial” amount of lobbying.

·      If the organization measures its lobbying under the 501(h) expenditure test, it will need to count work on a ballot measure as direct lobbying once a petition is circulated among voters for signatures.

·      If the organization measures its lobbying under the insubstantial part test, the IRS has provided less clarity; generally “influencing legislation.”

·      Communications to the public on the general subject addressed by the ballot measure, which do not refer directly or indirectly to the ballot measure itself, will generally not be considered lobbying.

§  Since 501(c)(3) organizations can only do an “insubstantial” amount of lobbying, many entities that engage in ballot measure work are organized as 501(c)(4) organizations, which can do unlimited lobbying under federal tax law.  Also considered “primary purpose” activity.

 

Resources

 

·      Bolder Advocacy Ballot Measure Toolkit

·      Seize the Initiative

• Foundations and Ballot Measures
• 501(c)(3) Public Charities and Ballot Measures
• Ballot Measure Case Studies
• Ballot Measures and Public Charities: Yes, You Can Influence That Vote
• Initiating Policy Change: Circulating Ballot Initiatives in California
• Ballot Measures and Recalls: Basic Rules for 501(c)(3) Public Charities, 501(c)(4)s, and Unions
• Ballot Measure Legal Documents and Resources
• Ballot Initiative Strategy Center
• National Conference of State Legislators: State Resources

 

On this episode, we’re going to talk about those pesky new year’s resolutions… and no, we’re not talking about signing up for a gym membership or signing up for a marathon. We’re talking about resolutions that nonprofit organizations can apply as we enter into the year 2024. As you all know, 2024 is like Stefon from SNL, it has everything…primaries, general elections, an additional day… So as you are headed for your holiday break, we wanted to leave you with a list of things your nonprofit organization can do as we head into the new year.  

 

AFJ Team Members on this Episode: 

Natalie Ossenfort 

Monika Graham 

Victor Rivera 

On this Episode: 

Top ten things your nonprofit organization can do to maximize its advocacy in 2024: [drumroll] 

Host an elections training for staff ahead of the 2024 primaries and general election.  

Remember that while 501(c)(3)s are not permitted to support or oppose candidates for public office, they CAN engage in nonpartisan election-related activities. 

Bolder Advocacy can help you navigate the do’s and don’ts with an elections workshop. Request a private workshop through our website or check out one of our many 2024 public webinars. 

Consider organizing a GOTV campaign or voter registration drive. 

Check voter registration deadlines that apply to primaries and general election. 

Brush up on your state’s voter engagement and registration laws. Check out our Practical Guidance – Voter Assistance series, created in partnership with The Democracy Capacity Project.  

Remember that all 501(c)(3) voter registration efforts must be nonpartisan. 

Prepare staff and volunteers to NOT answer the question: “Who should I vote for?” 

Offer services to all. 

Avoid partisan targeting. 

Invite members of your coalition to participate in a voter education campaign, which could include a nonpartisan candidate questionnaire and/or voter guide. Guidelines for creating 501(c)(3) safe candidate questionnaires and voter guides include: 

Use unbiased, open-ended questions (distributed to ALL candidates). 

Cover a broad range of issues. You’ll also want to avoid comparing your organization’s position on an issue to where candidates stand. 

Publish all responses impartially and equally (with no editing or variations in font, formatting, etc.), and make the final guide generally available to the public. 

Remember NOT to include candidate pledges. 

Also, do not coordinate with candidates and campaigns.  

Just remember, facts and circumstances matter, so consult with Counsel if you have any questions regarding your specific voter education activities. 

Organize events inviting public officials to speak during election season. Remember to make the distinction between a candidate appearance and an incumbent appearance.  

Candidate appearances: must invite all viable candidates, avoid expressing support or opposition for candidate, do not allow candidate fundraising, and ensure compliance with state and federal election laws. 

Policymaker appearances (in official capacity, unrelated to candidacy): No equal opportunity required, but make sure you’re working with official staff (not campaign staff) and that you reiterate to the incumbent and their staff in writing that you are a 501(c)(3) that is not allowed to support or oppose candidates. Incumbents who are also candidates should not mention their candidacy at your event. And you should also avoid speaking to their upcoming election and focus, instead, on their official acts as policymakers. 

If you are a 501c4, consider making independent expenditures or coming up with a list of endorsements. 

501(c)(4)s can engage in partisan political activity as a secondary activity of the organization, but they are prohibited from making candidate contributions and coordinating activities with federal candidates and campaigns (under federal election law) and are oftentimes subject to similar prohibitions at the state and local level. 

IE’s and other partisan activity may trigger campaign finance reporting. 

If your 501(c)(4) has an affiliated 501(c)(3), remember that 501(c)(3)s can’t support or oppose candidates. This means that any (c)(4) partisan work should be kept entirely separate from any joint projects you may have between your organizations and be carried out with (c)(4) resources ONLY. 

Don’t forget… you can continue to advocate or lobby for issues that are central to your organization’s mission! 

Know your organization’s lobbying limits. 

Be aware of state and local lobbying laws that might apply to your work. Our State Practical Guidance – Lobbying series (created in partnership with the Democracy Capacity Project) now includes state-level guidance for all 50 states and DC. 

Educate supporters, policymakers, allies, and other interested parties about the current policies and problems affecting your community. 

Produce resources that reflect the real story of your community and its needs. 

If you’re a 501(c)(3), avoid comparing your organization’s position on an issue to where the candidates or parties stand on that issue. 

Have a track record of working on the issue. 

Talk about issues as they arise, as opposed to timing your issue-based communications to coincide with upcoming election dates. 

Avoid suggesting how voters should vote or mentioning the election in relation to your issue advocacy. 

Don’t be afraid to comment on candidates or campaigns, but remember the facts and circumstances matter. To avoid impermissible partisan activity, 501(c)(3)s should: 

Focus on what was said (the issue), not who said it (the candidate). 

Avoid discussing a candidate’s record or qualifications. 

Avoid talking about voters and making references to upcoming elections. 

Avoid identifying candidates by name. 

Issue disclaimers / reminders of your (c)(3) status and inability to support or oppose candidates for public office. 

Make sure any staff who speak on behalf of the organization are well-trained and understand the rules. 

Write an Op-ed and share your expertise on an issue that is core to your nonprofit’s mission, and establish your organization as a trusted thought leader. 

Launch or engage in litigation to challenge an unconstitutional law 

Litigation is different from lobbying and not subject to c3 lobbying limits. 

Remember that state and federal courts matter. To learn more about your state courts or the federal judiciary, visit www.afj.org.  

 

Resources: 

What is Advocacy? 2.0  

Practical Guidance – Lobbying Series 

Practical Guidance – Voter Assistance Series 

Commenting on Candidates and Campaigns Factsheet 

Hosting Candidates at Charitable Events Factsheet 

Public Charities Can Lobby Factsheet 

BA’s Trainings and Events