501(c)(3) organizations and political campaigns

By Raben Principal Joe Onek

In these extraordinary times, the urge to participate in the electoral process is understandably immense. Federal law, however, flatly prohibits 501(c)(3) organizations from engaging in partisan politics and political campaigns. Compliance with the law is particularly important in this campaign cycle because if the President is re-elected he or members of his administration may attempt to pressure the IRS to investigate organizations that have opposed his policies.

I have addressed the issues raised by the prohibition on campaign activities both as a former executive director and board chair of a 501(c)(3) organization and as a practicing lawyer. The basics are clear. Your organization should ensure that employees and board members understand and comply with the restrictions on partisan political activities. No resources of the organization can be used for partisan political purposes. No campaign-related emails can be sent with the organization’s email address. Employees and board members should not list their affiliation in any campaign-related communications or else make clear that their affiliation is listed for identification purposes only.

Of course, your employees can engage in campaign activities on their own time and using their own resources. They can be given paid leave during the campaign season if they are entitled to it under the organization’s general leave policies. Consistent with those policies, your employees can also be given unpaid leave and retain their health insurance and similar benefits.

Your organization must exercise care with respect to the publication of policy positions during the campaign season. Clearly, an organization cannot publish its positions on, say, environment or immigration policies and urge readers to vote only for candidates, named or unnamed, who also support those positions. The more difficult question is whether an organization can publish its positions without any reference to the upcoming election when it is obvious from those positions which candidate or candidates it supports or opposes. Your organization will be better placed to argue that your policy statements were not campaign-related if those statements are focused on pending legislative or administrative proposals or if the organization has been publishing similar statements over a long period of time. And if your organization provides a policy statement directly to a campaign it should provide the same statement to the campaigns of opposing candidates.

If your organization is a public charity you are permitted to engage in non-partisan get-out-the-vote and voter registration drives. (There are special rules for private foundations.) You can assist in training poll workers. You can also host candidate forums or debates, provided that all candidates are invited.

If you need additional guidance, I recommend that you consult the Bolder Advocacy publications of the Alliance for Justice. If you still have questions about how to proceed, you should consider consulting counsel.