By Katari Buck, member, Asiatico & Associates, PLLC
This post is one in a series written by leaders who are presenting sessions at the 2015 BoardSource Leadership Forum taking place on November 9 & 10 in New Orleans. We invite you to join us.
Advocacy is an essential responsibility of a nonprofit board. So much so that BoardSource has released a new edition of Ten Basic Responsibilities of Nonprofit Boards to include this concept. Advocacy necessarily means educating and informing policy makers of your organization’s mission and what you need to accomplish it. But where does advocacy end and prohibited political activity begin?
We must distinguish between issues advocacy, which 501(c)(3)[i] organizations can and should do within the rules, and political campaign intervention, which is prohibited. It’s clear that a 501(c)(3) nonprofit cannot directly or indirectly support or oppose a candidate for elective public office in a political campaign. And it’s equally clear that lobbying — attempting to persuade a member of a legislative body to support or oppose specific legislation — is allowed as long as it is not a substantial part of your organization’s activities.
But what if a candidate is running for public office and supports your nonprofit’s mission? Is it okay to invite the candidate to speak at a fundraising event to help your organization raise money to further that mission, even if it is not an official campaign activity? The answer is maybe. If the candidate speaks as an expert regarding an issue of importance to an organization with no mention of his or her candidacy before or during the event, and there is no campaign activity in connection with the candidate’s attendance, the appearance is probably allowed by IRS regulations. However, if the same appearance takes place one week before a hotly contested and well-publicized election, and one of the disputed campaign issues is the focus of the candidate’s speech, the IRS will probably determine the candidate’s appearance is prohibited political campaign activity.
501(c)(3) organizations also may want to advocate for issues during election season when the positions of the candidates for election do not all align with their policy position. In this case, it is very tempting to endorse a particular candidate’s position or attempt to persuade others to vote for a candidate whose position is aligned with that of the organization. The IRS has published key factors nonprofits should consider when communicating about such an issue:
- Whether the communication identifies one or more candidates for a given public office
- Whether the communication expresses approval or disapproval for one or more candidates’ positions or actions
- Whether the communication is delivered close in time to the election
- Whether the communication makes reference to voting or an election
- Whether the issue addressed in the communication has been raised as an issue distinguishing candidates for a given office
- Whether the communication is part of an ongoing series of communications by the organization on the same issue that are made independent of the timing of any election
- Whether 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.[1]
It’s not hard for a 501(c)(3) nonprofit to innocently run afoul of IRS rules on political campaign activity. Thoughtful planning is necessary to ensure you can stand for your mission and stay within the rules, but doing so is possible. There are many scenarios not covered by this post, so I encourage you to consult with an attorney with experience in this area before engaging in an activity that may implicate these rules.
[1] IRS Rev. Rul. 2007-41 (June 18, 2007)
[i] This post does not address political activity by 501(c)(4) or other 501(c) organizations.
