In an election year, do nonprofits have to stay on the sidelines?

In an election year, Does your nonprofit have to stay on the sidelines?

In an election year, Does your nonprofit have to stay on the sidelines?

The short answer is a resounding no! Although the tax code prohibits 501(c)3 organizations from supporting or opposing any candidate for public office, there are many things 501(c)3s can legally do to educate voters and candidates on the issues.

Candidate forums, voter guides on candidates and ballot measures, and legislative scorecards are examples of the kinds of activities that will pass muster if handled in a nonpartisan manner. The Alliance for Justice works to ensure that the federal judiciary advances core constitutional values, preserves human rights and unfettered access to the courts, and adheres to the even-handed administration of justice for all Americans. Another good resource on this topic is NonprofitVOTE

Do Your Due Diligence

Due diligence is the key to risk-free election-related work. Unlike the clear-cut and specific rules for lobbying by nonprofits, the IRS applies a “facts and circumstances” test to determine if any particular activity is or is not permissible when it comes to elections. And because IRS audits are confidential, there is very little information available to the public about recent enforcement policies and practices.

Absence of "Bright Line" Test Frustrates Nonprofits

In June of last year, the IRS issued Revenue Ruling 2007-41, which describes 21 scenarios and includes commentary to explain why each situation is or is not permissible non-profit activity. Unfortunately, the examples are mainly of the “no-brainer” variety, so do not provide a great deal of guidance beyond what common sense would dictate.

For example, posting a nonpartisan voter guide on your organization’s website, with links to each candidate’s official campaign website, is okay as long as the links are presented “on a consistent neutral basis.”

According to a panel of leading non-profit attorneys convened by OMB Watch, the vagueness of the rules and the absence of a “bright line” test for election-related activities has had a chilling effect on non-profit advocacy. As one panelist noted, “[M]ost of my clients don’t want to be a test case. So we see them stepping back and not doing things that I think are quite defensible.”

Believing as I do that strong and widespread advocacy by nonprofits from across the political spectrum is both an indicator and guarantor of a healthy democracy, I find it dismaying that the IRS has failed to address this longstanding deficiency. The extent of the problem was underlined in Seen but Not Heard: Strengthening Nonprofit Advocacy, a report released last year by the Aspen Institute’s Nonprofit Sector and Philanthropy Program, which found that 43% of 501(c)3 organizations mistakenly believed they could not host a candidate forum or debate.

Individuals Can Campaign on Their Own, But Be Careful

It’s important to note that the prohibition on partisan political activities by nonprofits does not extend to officers, directors or employees acting in their individual capacity. You can work for a candidate on your own time as long as you don’t use any organizational facilities or other resources.

Here again, though, it’s important to tread carefully. It’s obviously a no-no to hand over your organization’s mailing list to your favorite candidate or to let a candidate use your office as headquarters for a phone bank. However,  something as apparently innocuous as wearing a political button at a public event sponsored by your 501(c)3 could be seen by others as an organizational endorsement of the candidate.

Take Some Simple Steps

To protect your organization, you can take some simple steps such as notifying all staff in writing about these limitations and requiring officers and employees who are doing partisan political work to state that they are doing so in their individual capacity.

This may all seem somewhat daunting, but many nonprofits do engage successfully in election-year activities, so don’t be deterred. Read the fact sheets and other resources referenced here.

In the ED Forum, TSNE’s Executive Director Jonathan Spack reflects on issues facing non-profit organizations in and around the Boston area and across the nation. Follow Jonathan on Twitter @JonathanSpack.

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