Can Nonprofits Endorse Politicians in California?
501(c)(3) organizations can’t, but there is room for election involvementBy Doug Mentes, Esq. | Last updated on January 11, 2023
Use these links to jump to different sections: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 and political candidate 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
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 or political party. 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 legal 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.
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