Can Nonprofits Endorse Politicians in California?
501(c)(3) organizations can’t, but there is room for election involvement
on September 21, 2018
Updated on February 8, 2021
Nonprofit organizations are often concerned about matters of public policy, since the nonprofit may be directly involved in the policy issues. Having informed nonprofit entities involved in policy discussions is often a benefit to the public, but before straying into public policy, 501(c)(3) organizations must understand the IRS rules—one of the most basic being that the activities of endorsing politicians and lobbying are distinct. Lobbying is a perfectly acceptable activity, within limits, but endorsing politicians is not.
“A 501(c)(3) organization may not endorse a candidate. That’s ground for revocation of tax-exemption, and that’s very explicit in the tax code,” says Arthur Rieman, an attorney who advises and represents nonprofit organizations in Southern California. Specifically, the Internal Revenue Code defines a tax-exempt, section 501(c)(3) organization as one that does not participate in any political campaign, whether that is support or opposition for a candidate.
What counts as endorsing a candidate?
For 501(c)(3) organizations, the IRS lists activities that will clearly violate the ban on political campaign activity, including:
- Contributions to political campaign funds
- Public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office
Individuals who work for the nonprofit may participate in campaigns as any other citizen would, but will want to ensure their conduct is clearly on behalf of themselves and not the organization.
Just how close can a nonprofit get to endorsing a candidate? Rieman says 501(c)(3)s “shouldn’t get close at all [because the IRS] draws a pretty tight line [in interpreting the rule].” To assist nonprofits in interpreting the endorsement rule, Rieman points clients to an IRS publication—often updated around election time—that provides examples to nonprofits of conduct that violates and doesn’t violate the rule.
Voter registration and education
Certain nonprofit political activities and expenditures may be considered voter registration or voter education activity, which is not prohibited by the endorsement rule. However, it will depend on the facts and circumstances.
“Organizations often want to do an election guide,” Rieman says. “They’ll send out to their mailing list a supposed list of how candidates stand on particular issues. If that’s truly neutral and covering a broad set of issues, that might be considered educating the public.”
But that organization could face scrutiny from the IRS, “if you limit that guide to those issues that you and supporters have a position on,” he adds. “Let’s say the nonprofit is an abortion rights organization or an anti-abortion organization. If you ask candidates what their position is on abortion, or Roe v. Wade, it’s pretty clear to everyone that you are looking for candidates that support your position. Even if you don’t endorse them, the IRS is going to take the position that election card is really a hidden way to endorse a candidate for office—in effect, an illegal campaign activity.”
501(c)(3) organizations must ensure their election activities are not conducted in a partisan manner. Voter registration drives are also outside the campaigning prohibition, if the drive is conducted in an unbiased manner. Rieman provides many suggestions for conducting a nonpartisan registration drive, some of which include:
- Voter registration should be made available to everyone without regard to a voter’s political preference
- Mention no candidates or mention all candidates
- Select the location based on nonpartisan criteria
501(c)(3) organizations that conduct voter education and registration activities must be aware the IRS may review its activities for any evidence of political bias. Nonprofits must ensure their election activities do not favor or oppose one candidate over the other, or have the effect of favoring a candidate or group of candidates. If the activity crosses the line the organization is at risk of engaging in prohibited campaign participation.
If a nonprofit or its employees want to engage in voter education, that nonprofit should first get advice from an experienced southern California nonprofit attorney to ensure there is no risk of losing its tax-exempt status due to the activity. For more information on this area, see our business organizations overview and our overview of closely held business.