Election Law Basics for Nonprofits
This is part of our blog series focused on the theme How 501c3 Nonprofits Can Engage in Elections. In this blog, we turn to Election Law Basics for Nonprofits
Election Law Basics for Nonprofits
Federal tax law prohibits 501(c)3 nonprofit organizations from engaging in electoral activity. This includes:
- No support or opposition for candidates running for office;
- No coordination or alignment with parties or candidates; and
- No campaign contributions.
These prohibitions are for all electoral candidates, including nonpartisan elections such as municipal, school, and judicial jurisdictions in which parties are not involved.
No Electoral Activity on the Job – Keep it Outside
- 501(c)3 staff may participate in electoral activities personally but not at work.
- It’s essential that there are clear distinctions between personal and professional activities.
- Staff must conduct any electoral activity during off work hours. However, they may take vacation or personal time to do this work.
- No employer resources may be used including telephones, copiers, computer, supplies, etc.
- Board members and volunteers must also refrain from electoral activity during their nonprofit time.
- We recommend having an organizational policy that is distributed at the start of campaign season. Here’s some sample language. Not only is this helpful information but it also provides a record that the organization has made an effort to educate its employees and maintain compliance with the law.
- Political campaigns may or may not understand these 501(c)3 requirements. It’s up to the organization and staff, board, and volunteers to be clear what they may and may not do.
- 501(c)3 organizations may not endorse candidates. Individual staff members may endorse (see note below about leadership). However, it’s important that the individual staff member’s endorsement is understood to be an individual personal endorsement and not an endorsement from the organization.
- Generally, an organization’s name should not be listed with the individual’s name. Campaigns often want to list an organization next to the name of the person making the endorsement to imply that the organization has endorsed the candidate. It’s up to the individual to tell them no.
- If the organization’s name is to be used, it must be for identification purposes only and indicate “for identification purposes only.”
- What do you do if the campaign made an oops and listed the organization’s name? The individual should, via email in order to create a record, tell the campaign that it made a mistake and should refrain from using the organization’s name in the future. It should make all reasonable efforts to correct it as well.
- Organizational leaders who are publicly associated with their organization need to be even more careful. They don’t necessarily need to have their organization’s name listed next to their own for the connection to be made. Their public endorsement can very well be interpreted as the organization’s. When deciding how to engage, nonprofit leaders should consider the visibility of the action. Are you driving a candidate or attending an event which is lower visibility or are you being asked to speak at a rally or be in an advertisement?
Nonprofit audiences are not just the Internal Revenue Service. Nonprofits have staff, board, volunteers, donors, members, constituents and community who have varied opinions and perspectives. Election season is a highly charged time when many people are very sensitive and alert to campaigning. The IRS may not be reading all of your newsletters but your community hopefully is. Consider how they may interpret your actions or language.
- Do not rate candidates on who is most favorable to your issue. This would be clearly aligning with a specific candidate which is prohibited.
- Do not let candidates use your organization’s facilities or resources unless they are made equally available to all candidates at fair market value.
Nonprofit Staff Running for Office
Staff may also run for electoral office and the rules above also apply. When the staffer is the candidate, it can be even harder to keep electoral activity out of the work place, but it’s critical. Electoral work must be done on personal not professional time and may not use work resources. The nonprofit cannot be viewed to be financing the campaign. Professional contacts may not be asked for campaign contributions unless the staffer has personally developed a relationship outside of the organization’s using the staffer’s personal contact information. Depending on the office being sought, it may be appropriate for the staffer to take a leave of absence when campaign goes beyond the exploratory stage or as the season heats up. If elected, the staffer should consult with the Maine Ethics Commission for additional guidance.
Nonprofit Board Members and Volunteers Running for Office
The same rules apply. The electoral activity cannot involve the 501(c)3. Any campaigning must be done separately. If the candidate wins the election, further guidance should be sought from the Maine Ethics Commission.
Criticizing Candidate Statements
- Criticizing a candidate’s statement is very risky. In general, it is really best to not get involved in the middle of an election. Criticism of a candidate will look like the organization is aligning with another candidate or at least in opposition to that candidate. In many cases, someone else will likely correct the record.
- One of the key things to consider is timing. Is the criticism close to the election? Is the criticism related to the election? What is the context? Is the criticism in regard to an issue the nonprofit has been working on for a long time? In general, it’s best to err on the side of not getting involved.
Annual Legislative Scorecard
501(c)3 nonprofits may publish a scorecard that shows how incumbents (not just candidates) voted. Scorecards use public votes to educate the voters. However, the scorecard should be done every year, not only on election years, should be released at the same time every year, and should not be timed to influence the election. In Maine, a scorecard should be released as soon as possible after the legislative session is over, not in October.
There are a lot of excellent resources available that help 501c3 nonprofits learn how to legally engage in Get Out the Vote (GOTV) efforts. Particular thanks to Nonprofit VOTE, whose materials we’ve referenced in developing this content.