Advocacy -- Advocacy Without Fear of the IRS




by Pat Fina
October 2000

I. Introduction

In 1954, Congress made it illegal for tax-exempt nonprofit organizations to "…participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office." [Section 501(c)(3) of the Internal Revenue Code]

Other than adding a few amendments in 1976 and 1987, Congress has not elaborated on this provision of the tax code. In the 1980s and 1990s, the Washington, DC nonprofit organization Independent Sector [self-described as "a national forum to encourage giving, volunteering and not-for-profit initiative") formally asked the IRS to rule on four cases so that the nonprofit world could learn what was legal and what was not. The IRS complied, issuing private rulings, which only apply to the organization that asked the question. Although these four rulings are not precedent-setting, they are still the best guide the nonprofit sector has.

Independent Sector's publication, "Permissible Activities of 501(c)(3) Organizations During a Political Campaign," is can be obtained from Independent Sector, 1828 L St. NW, Washington, DC 20036. The present article summarizes topics treated in that publication with examples based on the experience of the advocates of the Public Policy Committee of the Massachusetts Coalition for Adult Education. Anyone reading these words is strongly advised that they represent only our best lay understanding of complex legal issues. Any organization contemplating advocacy activities is warned to consult its lawyer before attempting anything new or controversial. The penalties for noncompliance - revocation of one's tax-exempt status plus possible heavy fines - are such that prudence is dictated.

Perhaps the single most important point to remember is that tens of thousands of nonprofit organizations across the country do advocacy work at some level every year, and the IRS doesn't give them a second look. There are a few absolutes requiring total obedience, but anyone who keeps those in mind can be a successful literacy advocate.


II. Basic Definitions and Distinctions

Lobbying means influencing the outcome of legislation. 501(c)(3) organizations may lobby; in fact, both Congress and the IRS actively encourage them to lobby. The nonprofit sector prefers to call its paid and volunteer lobbyists "advocates" to distinguish them from paid lobbyists for private sector corporations and industries. However, the IRS considers the two terms synonymous.

Political activity or electioneering means trying to influence the outcome of an election, on behalf of or against a candidate. 501(c)(3) groups are forbidden any participation in political activity or electioneering.

Note that it is the group that is forbidden political activity but encouraged to lobby. For example:

The treasurer or financial officer of a 501(c)(3) should never permit a campaign donation for any candidate for federal, state or local office to be made from the group's accounts.

A 501(c)(3) should never allow a candidate's posters or literature to be displayed or distributed on its property.

No employee or volunteer member of a 501(c)(3) should ever use the group's letterhead stationery to express private opinions of partisan politicians, or to endorse or criticize a candidate.

No board of directors or executive director of a 501(c)(3) should endorse or write a letter of support for a candidate or incumbent elected official.

However, it is perfectly fine for a 501(c)(3) to:
  • research issues pertaining to its mission and publicly disseminate its findings in position papers
  • invite public officials to speak to classes, school assemblies, new citizenship celebrations, graduation ceremonies and other festivities or academic activities
  • support the passage of specific bills and budget line items
  • work with members of executive departments to create reasonable rules and regulations
  • encourage citizens to vote their consciences
An important note: Congress does not restrict any individual's right to political activity, even if that individual is a member of a 501(c)(3) organization. Every year, individuals who work for 501(c)(3) groups donate their time and money to political candidates, act as delegates to party conventions, collect signatures, wave placards at street corners and sit on political party ward committees, to name a few typical activities. If you are interested in working for or against a particular candidate, by all means do so, but follow these simple rules:
  • Use the following sentence or its equivalent in all correspondence in which you express personal partisan political views:

(You do not need to use this sentence in letters advocating passage of bills, amendments or budget items.)
  • Do not work for your candidate during scheduled work hours, and do not use organizational equipment, supplies or postage for your candidate.
  • Do not solicit your fellow employees or students for donations.
  • When you are acting in your official capacity, do not speak of your candidate. If asked by another employee about your political activities, suggest a meeting off-site during leisure hours.
  • While you can take accrued vacation or personal time or an unpaid leave of absence to work for your candidate, do not use sick leave for this reason.
  • Do not wear campaign buttons, T-shirts or campaign memorabilia at work, and don't pass out literature for your candidate on-site.
  • If your candidate asks you to publicly endorse him or her in a public speech or ad:
    • Before the event, declare in writing that you are acting solely as a private citizen, not as an organizational representative.
    • Distribute your declaration to your own organization, to other organizations with a similar mission, and, potentially, to the local media.
    • Either identify yourself generically to the media and public (e.g., "I am an adult education teacher"), or include a statement similar to our written disclaimer in your speech or ad. [Note: Independent Sector specifically mentions that if you have identified yourself generically by job title, and the media later mentions your 501(c)(3) by name when they report on your speech, you have done nothing wrong.]
How often and how loudly do you proclaim that your opinions are yours alone and do not represent those of your group? That depends how highly you rank in the organization's hierarchy. If you are on the board of directors, are the executive or assistant director, or would normally be thought of as a spokesperson for your group, you should be exceedingly thorough in separating your actions from the group's.

For example, in the summer of 2000, literacy advocate Sharon Darling was asked to speak at the Republican National Convention in Philadelphia. Since she is president of the National Center for Family Literacy, she is an automatic spokesperson for her group and must avoid any appearance of impropriety. So she consulted the NCFL board. Once she got their approval, she wrote her disclaimer statement and sent it to the National Institute for Literacy, as well as posting it to the NLA List. During her speech, she made it clear that she considers literacy a nonpartisan cause. Despite her taking these precautions, some NLA List subscribers raised their eyebrows at the idea of a highly-placed advocate participating in such a partisan political event. Yet her preventive measures met the letter and spirit of the law, so she protected NCFL's tax-exempt status and took full advantage of her citizenly right to political expression.


III. Permissible Group Activities During Campaigns

The IRS rulings requested by Independent Sector all focus on what a 501(c)(3) organization does under its group name during political campaigns. In the eyes of the IRS, a political campaign begins when:
  • a citizen formally announces that he or she is running for office, OR
  • the citizen files notice with the election commission,
whichever comes first.

This seems clear-cut, but it has become less so in recent years. With incumbents in continuous fund-raising mode, it can be hard to tell when they stop campaigning and get to work on the job the voters hired them to do. Similarly, potential challengers often send out trial balloons that they are "contemplating" a run for office years in advance of the election. The cost of running a campaign has spiraled so high that the incumbents feel pressed to begin work on re-election the moment they are sworn in for their first terms, and the challengers must weigh the odds and costs carefully for months or years before deciding to join in battle.

You might find this situation distressing; if so, seek out advocates for campaign finance and election reform. If, however, you're an advocate for a particular cause like literacy, your safest bet is to be so even-handed in all your dealings with partisan politicians and potential candidates that the issue of whether or not a campaign is in progress never even arises.


IV. Educating Candidates about the Issues

Your 501(c)(3) organization is permitted and encouraged to educate candidates about your cause. You may:
  • provide them with fact sheets and position papers,
  • urge them to support your position, and<

If you ask candidates to make statements of their views relating to your cause, or if candidates offer you their views unsolicited:
  • You should make sure you ask all declared candidates, using identical language in your invitations. If you need to find out who exactly is running for a state or national office, consult the Office of the Secretary of State. They can also refer you to the proper place to go for information on local races.
  • You should understand that no candidate is under obligation to respond. The ones who do respond may do so in any way they choose, and they may distribute their responses to the public as well as to your group.
  • Your group may NOT distribute candidates' positions to the public. This is explicitly forbidden in the language of the tax code.

V. Questionnaires

To quote Independent Sector, "Questionnaires pose a ticklish problem." The problem applies both to traditional multiple-choice or short answer questionnaires and to essay-type questionnaires in which candidates are asked to respond to an organization's position paper.

A few nonprofit groups like the League of Women Voters or United Way may use questionnaires and disseminate the responses, as long as all candidates are given a chance to respond, and as long as the questions are broadly and impartially framed. However, the vast majority of 501(c)(3) organizations should steer clear of questionnaires. The IRS watches wordings of questionnaires carefully, and holds the position that your group implicitly endorses candidates whose views most closely match your own.


VI. Voting Records

In idealist dramas like Mr. Smith Goes to Washington, all votes are roll-call votes, and the tension builds as the audience waits to discover if righteousness will triumph. In the real world, many votes are voice votes, gaveled through without discussion, making it impossible to tell who voted righteously, (i.e., for your cause.) If you find yourself working with a legislative body at the national state, or local level that, in your opinion, relies too heavily on voice votes, seek advice from groups advocating legislative reform.

501(c)(3) organizations may compile voting records and tell their members how each legislator voted on topics of concern to the group. If you are interested in doing this:

  • Be consistent in the way you advise your members of voting records. Do it exactly the same way during campaign season as you do in non-election years.
  • Be objective in the way you phrase the results of key votes. You may clarify what a yes vote means; indeed, considering the convoluted nature of some votes, you may need to clarify whether the repeal of the abolition of the rescission of the revocation of a statute means that it stays or goes. But refrain from using the phrases "for us", "against us" or their equivalents.
  • Do not distribute voting records to the public unless you are one of the few 501(c)(3) organizations who can safely use questionnaires because of the group's broad focus.


VII. Public Meetings

Your 501(c)(3) organization may invite candidates to speak at one of your meetings or at a public meeting sponsored by your group. If you choose to do so:
  • Invite all declared candidates simultaneously and using identically worded invitations. If one or more candidates cannot attend, you do not have to cancel the event. Universal invitations discharge your responsibilities in this area.
  • Conduct the meeting and any question-and-answer period with impartiality. The moderator should not state the group's views on issues, nor should the organization's members ask biased questions. If a member of the public asks a strongly worded question, your organization is not to blame, but the moderator should in that case attempt to balance the presentation by calling on other members of the public who have differing viewpoints.
  • You may not distribute copies of the candidates' remarks to the general public. You may publish them in newsletters to your own membership, provided that you report them as news, give equal coverage to all candidates, and refrain from any editorial comment. Do include wording to the effect that the candidates' views are not those of your organization, and that you made every effort to include all candidates in the event.


VIII. Membership Lists

If your 501(c)(3) organization gives or lends its mailing lists or membership directory to candidates, the IRS considers the act as a de facto campaign contribution and cries foul. If your group sells or rents its mailing list to candidates, the IRS might rule that you have unrelated business income, also a no-no. If your group attempts to give one candidate your mailing list but not another candidate, the IRS will rule that you are engaged in electioneering. In short, don't go there.


Conclusion

If you are a rank-and-file member of a 501(c)(3) organization, this article should suffice to acquaint you with the basic rules and practices of advocacy. If you have knowledge of the field and find any part of this article false, misleading or outdated, please notify the office of the Massachusetts Coalition for Adult Education so that we can correct future editions of this article. Also, we repeat the caveat that you should consult a lawyer if you have particular questions.

If, however, you are contemplating serving as a member of the board of directors or as a financial officer for a 501(c)(3) organization, we urge you to familiarize yourself more fully with the regulations. For example:
  • 501(c)(3) groups are forbidden from spending a "significant" portion of their time and resources on legislative lobbying, but they may work as much as necessary with executive branch agencies to work out reasonable policies related to their organization's mission.
  • 501(c)(3) organizations must report their lobbying expenditures to the IRS, choosing among alternative methods of accounting. This is a hot topic at the moment, because the Internet and telecommunications advances allow for greater efficiency in communicating with one's members, which results in "more bang for the buck" within the IRS' limits.
  • 501(c)(3) organizations should not accept donations earmarked specially for lobbying.
  • If 501(c)(3) organizations find the lobbying restrictions placed on them too onerous, they should explore the idea of founding a 501(c)(4) organization instead. [A 501(c)(4) organization may do unlimited legislative lobbying, but donations to it are not tax-deductible.]

If you wish to do further research, we suggest the following:

1. Publications available from Independent Sector:
  • IRS letter rulings of September 4 and October 8, 1980, to Independent Sector
  • "Advocacy Is Sometimes an Agency's Best Service: Opportunities and Limits Within Federal Law"
  • "Foundation Support for Voter Registration Programs"
  • "Tax-Exempt Organizations' Lobbying and Political Activities Accountability Act of 1987: A Guide for Volunteers and Staff or Nonprofit Organizations"
2. "Appendix G: Rules on Political Activity," in Civic Participation and Community Action Sourcebook: A Resource for Adult Education," Andy Nash, ed., New England Literacy Resource Center, 1999.

3. IRS Publication 557, "Tax-Exempt Status for Your Organization; Chapter 3 - Section 501(c)(3) Organizations, Lobbying Expenditures," found at http://www.irs.gov/publications/p557/index.html

4. "E-Advocacy for Nonprofits: The Law of Lobbying and Election Related Activity on the Net" by Elizabeth Kingsley, Gail Harmon, John Pomeranz, and Kay Guinane, found at http://www.afj.org/eadvocacy/index.htm



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