To what extent may Section 501(c)(3) nonprofits engage in political advocacy? The answer to this question has become particularly acute, as our country’s next national election quickly approaches, and vigorous political discourse escalates with each passing week. This election cycle, issues like the economy, immigration, climate change, abortion, and foreign policy are top concerns for voters. Many Section 501(c)(3) organizations squarely address these policy issues too, often as leading voices through a myriad of single-issue and multi-focus nonprofit efforts.
Should they refrain from certain communications, such as for their social media accounts and special event speakers? The legal price tag could be high, with the specter of lost tax-exempt status and tax penalties for violating the legal prohibition against political campaign activity.
Nonprofits may promote their missions—in and out of election seasons —with a broad range of nonpartisan politics-related activities. But they should be careful too. The following list of do’s and don’ts is intended to help equip Section 501(c)(3) organizations (“nonprofits,” for purposes of this article) navigate through politically-related restrictions with optimal compliance, integrity, and creativity.
Do Remember the Legal Prohibition’s Scope
The legal prohibition applies to advocacy, whether express or implicit, for or against a “candidate for public office.” The IRS defines this term as anyone who offers himself or herself, or is proposed by others, as a contestant for an elective public office, whether such office is national, state, or local. Communications about politically tinged issues can easily fall outside this legal prohibition, such as by focusing on issues instead of candidates and addressing such issues consistent with an organization’s mission.
Do Engage in Educational Issue Advocacy
Section 501(c)(3) organizations may advocate for and educate the public on issues related to their tax-exempt purposes. A nonprofit thus may publish articles, hold events, and take public positions on important policy issues, so long as their communications don’t expressly or impliedly advocate for or against a candidate. Note too that advocating for or against a political party, legally speaking, does not fit within permissible Section 501(c)(3) parameters. And consider too while communications about issues in non-election times may not amount to impermissible political campaign activity, such engagement may cross the line as the election date gets closer – especially if it is relatively obvious that a specific communication favors one candidate or the other.
Do Not Endorse Candidates, Engage in Campaign Intervention, or Make Campaign Contributions
Section 501(c)(3) organizations may not endorse candidates, engage in political campaign intervention, or contribute to political campaigns. The Internal Revenue Code strictly prohibits Section 501(c)(3) organizations from “participat[ing] in, or interven[ing] in (including the publishing or distributing of any statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” Violating this prohibition may result in the denial or revocation of tax-exempt status or imposition of substantial excise taxes. This prohibition extends to nonprofit leaders and other workers who speak on behalf of their organizations as representatives. On the other hand, they may engage personally in political campaign activity, provided that they clarify such activity appropriately as not on their nonprofits’ behalf.
Do Stay on Mission
Before beginning any new tax-exempt program or activity, a nonprofit’s board should ensure mission alignment – consistent with each leader’s fiduciary duty of obedience to the mission. For example, a food pantry shouldn’t necessarily pivot to advocating for immigration policies, unless, perhaps, the food pantry (1) is located in an area affected by immigration issues, (2) primarily serves immigrants, and (3) the purpose statement contained in its corporate articles is broad enough to accommodate this activity. If so, such organization may engage in educational issue advocacy about public policies affecting immigration, but neither the organization nor its representatives should carry out any activities indicating political favor or disfavor for any candidate.
Do Not Make Statements That May be Interpreted as an Endorsement
The line between educational issue advocacy and political campaign intervention isn’t always clear. When examining whether a statement or action constitutes political campaign intervention, the IRS applies a wide-ranging facts and circumstances test. So, when a statement falls into a gray area, charities should use caution and consider the IRS’s prescribed factors as follows:
- Does the statement identify a candidate?
- Does the statement express approval or disapproval of the candidate’s positions or actions?
- Is the statement delivered close in time to an election?
- Does the statement reference voting or an election?
- Is the issue addressed one that has distinguished a particular candidate?
- Is the communication part of an ongoing series, addressing the same issue?
- Is the statement’s timing related to a non-electoral event (i.e. an environmental organization making a statement on Earth Day)?
Note too that some consider the IRS’s fact and circumstances test to be unconstitutional, particular under the U.S. Supreme Court’s Wisconsin Right to Life landmark free speech ruling. Other nonprofits have sought to challenge this IRS test, including houses of worship, but for now it still stands as governing law.
Do Encourage Voter Turnout
Charities can engage in voter education and “get out the vote” activities, so long as their efforts don’t unduly benefit a single party or candidate. Charities may publish non-partisan voter education guides, teach the public about the electoral process, conduct voter registration drives, and canvas on their issues. Beware of voter guides or other voter-related initiatives that are focused on single issues, which may be challenging for nonprofits with a relatively narrow mission.
Do Not Allow Resources to Benefit a Single Party
Just as charities are prohibited from making direct contributions to parties or candidates, they also may not indirectly use their resources on behalf of a party or candidate. Doing so fails to comport with applicable Section 501(c)(3) requirements that organizations promote the public benefit, not private interests. For example, a nonprofit should not distribute brochures (or, more realistically, republish social media posts) that advance a single party’s agenda. Doing so could unwittingly amount to political campaign advocacy (i.e., advancing a specific candidate, as within the agenda), as well as promoting the private interests of one political party instead of the public interest more broadly. Doing so thus falls outside of a Section 501(c)(3)’s legally permitted mission. A nonprofit also cannot allow one party to rent its mailing list or facilities, if it does not make its resources available to all parties and candidates on a similar basis.
Do Host Political Candidates as Speakers with Great Caution
Even in an election year, nonprofits may invite candidates to speak at their events, so long as they create adequate safeguards against political campaign intervention. First, a nonprofit could host a public forum or debate. All candidates for a particular office must have an equal opportunity to participate and the event must have a non-partisan moderator. The nonprofit should also make clear that the speakers represent their own views, not those of the organization.
Alternatively, a nonprofit may invite a candidate to speak at an event in a non-candidate capacity, and such practice is not uncommon. After all, candidates are often community leaders with inspiring personal stories and other qualities making them desirable public speakers. For example, a candidate with experience as a college professor could speak about leadership or current challenges facing students and educators. But nonprofits must take great care: any political campaign activity on the part of the candidate may be attributed to them. The nonprofit thus should provide clear written and other instructions to a speaker, directing the speaker to refrain from wearing or distributing campaign swag, to keep remarks non-partisan, and to agree to leave their stump speech at the door. The nonprofit should ask the speaker to agree to these restrictions before booking the event and, as always, make sure the event is mission aligned. As the election draws closer, the risk of inadvertent campaign intervention grows higher.
Do Carefully Track All Lobbying Activity
Section 501(c)(3) organizations may engage in some lobbying, on a limited basis. Lobbying includes any attempts to influence legislation, whether by appealing directly to legislators or by mobilizing grassroots support. The total amount of a nonprofit’s lobbying activity must be insubstantial in comparison to its other tax-exempt, educational or charitable programs. The IRS hasn’t set a specific threshold at which lobbying rises to “substantial.” Charities should conscientiously track all lobbying expenditures as well as staff or volunteer hours spent on lobbying. If regular lobbying is planned, nonprofits may consider opting into the IRS’s safe harbor expenditure test under Section 501(h).
Do Work with Affiliated Section 501(c)(4) Organizations
Many Section 501(c)(3) organizations use affiliated Section 501(c)(4) social welfare organizations that work in tandem to advance their missions. Indeed, because Section 501(c)(3)s are restricted from substantial lobbying or political activity, the U.S. Supreme Court has indicated that they must be allowed to work with Section 501(c)(4)s in order to protect their First Amendment rights. But care should still be taken to ensure that a Section 501(c)(3) does not subsidize or promote political campaign intervention or blur operational lines. Diligent attention is thus warranted for ongoing legal compliance, with accompanying documentation too.
Election years generate an endless number of nuanced, fact-specific questions for public charities. Unfortunately, the IRS has provided scant guidance in recent years. Consider that its latest authoritative Revenue Ruling was issued in 2007 – before Twitter, much less X, Truth Social, Substack, or Tik Tok! Given this lack of clarity, Section 501(c)(3) organizations that seek to communicate about issues with political overtones or otherwise desire to affect our society through activities that could bump up against the political campaign prohibition should proceed with caution. Especially amid these polarized times, Section 501(c)(3) organizations should take heed to aim toward changing hearts and minds rather than people’s votes.
This article is provided by Wagenmaker & Oberley, a law firm specializing in nonprofit law, with offices in Chicago, Charleston, and Grand Haven. For more information or to seek legal counsel, please visit www.wagenmakerlaw.com. Simon Osamoh serves as the editor of Security Connections. For submissions or topic ideas, reach out to him at sosamoh@worshipfacility.com
