If your organization is dipping its toes in the water of political advocacy — or even if you have decades of political experience — you should consider the following considerations:
- Inviting political candidates to speak at events is appropriate, but certain steps should be taken. The invitation should identify the organization as a 501(c)(3) nonprofit and should make the reason for the invitation clear. For example, inviting an officeholder running for reelection to speak about a certain issue or inviting a public figure running for office to offer a prayer is appropriate so long as the individual is not speaking as a candidate and no mention is made of the election or the individual’s candidacy. However, the Internal Revenue Service (IRS) has stated that an invitation may violate the prohibition on political campaign activity if an officeholder is invited for the primary purpose of showcasing an individuals’ candidacy — even if no political speech occurs. It would therefore be preferable to treat the event as a public forum and make sure that a similar invitation is extended to other candidates for the same office.
- If a nonprofit leader makes a statement in support of a candidate, they should do so as an individual and not as a representative of the nonprofit. Omitting any reference to the nonprofit will usually suffice. If an individual ties their speech to their position with a nonprofit, they should explicitly state that any statements are made in their personal capacity only.
- Yard signs in support of legislation or a ballot measure are fine (so long as the speech is not a substantial part of your activities), but signs in support of specific candidates are the easiest way to elicit a complaint for electioneering in violation of section 501(c)(3).
- Sometimes it is difficult to determine whether speech is on behalf of an organization. Consider a university. A yard sign with a candidate’s name hanging in the window of a student residence hall should not raise any concerns. No reasonable person would see that image and assume it is speech on behalf of the university. The same yard sign in the window of the provost’s office, however, would trigger additional scrutiny.
- Political statements are often made without the proper approval. Nonprofits should delete and — if necessary — disavow such statements when they occur. Any expenditure of funds related to electioneering should be corrected immediately.
- Nonprofits should not host fundraisers or make donations to a specific candidate, political party, or political action committee.
- Although nonprofit employees can volunteer on behalf of candidates or political parties, their volunteer work should not take place while they are “on the clock” and should not use the nonprofit’s resources (including postage, office supplies, or a work phone number or email address).
- Electioneering can occur in unexpected places. If your nonprofit owns vehicles, consider bumper stickers. Bumper stickers in support of a political candidate or party should be avoided (or, if needed, removed). Similarly, nonprofit leaders and board members should avoid wearing clothing or accessories with the name or logo of a candidate or political party at official nonprofit functions.
- Nonprofits can engage in voter registration or collect signatures in support of a ballot measure (subject to state laws) but should avoid collecting signatures to enable a candidate to appear on a ballot.
- Social media presents a host of problems. Electioneering in a nonprofit’s social media posts is to be avoided, of course, but sometimes political statements are made in comments. It is extremely unlikely that comments to social media posts would be problematic, so long as those comments are not made by the nonprofit’s leaders, employees, or board members.
- A nonprofit leader running for public office creates a complicated situation. The candidate should do everything possible to separate work on behalf of the nonprofit and work on behalf of the campaign, including a conversation with other nonprofit leaders about expectations. If there is any uncertainty about whether actions or communications are appropriate, seek legal counsel.
Jordan Ault is a partner with Husch Blackwell LLP and is a co-leader of the firm’s Nonprofit Organizations & Religious Institutions practice group.