Commenting on Candidates

When nonprofits speak out on issues in the public square, the line between education and electioneering can get blurry – especially during election season. On this episode of Rules of the Game, we break down what the law allows when organizations comment on statements made by candidates and campaigns, and how those rules shift when addressing the actions of incumbents who may also be on the ballot. From issue advocacy to the risk of impermissible political intervention, we walk through practical scenarios and key guardrails to help your nonprofit stay compliant while engaging in advocacy to advance your mission.

Shownotes

Basic rule: 501(c)(3) organizations are prohibited from supporting or opposing candidates for public office, which means that their advocacy and actions have to remain nonpartisan.

·      Black and White: 501(c)(3)s can’t endorse candidates, and they can’t explicitly tell people who not to vote for. On the other hand, nonprofits can emphasize the importance of voting in a nonpartisan way, and they can continue to educate voters about issues core to their missions without suggesting who people should vote for in an upcoming candidate election.

·      Shades of Gray: IRS utilizes a facts and circumstances analysis to determine whether a nonprofit’s communication is permissible or a violation of the tax code’s electioneering prohibition for 501(c)(3)s. While not an exhaustive list, some facts and circumstances the IRS might consider include…

o   Timing of the communication

o   Targeted audience

o   How the message relates to what candidates and political parties are saying, and more!

·      The IRS has also indicated that messaging that includes distorted facts, disparaging language, or statements not aimed at developing the audience’s understanding of a mission-related issue can indicate a violation of the law.

 

Commenting on Candidates and Campaigns

·      No clear guidance from IRS on how to do this safely, but based on the required facts and circumstances analysis, best practices could include:

o   Focusing on what was said (the issue), not who said it (the candidate)

o   Avoiding discussions about candidate qualifications or whether someone is a good or bad candidate

o   Scripting responses before talking to reporters or the public (since you may very well get a question related to the election and who people should vote for)

o   Avoiding comments about a candidate’s record or personal characteristics

o   Avoiding references to voters and the upcoming election

o   Not comparing your position on an issue to where the candidates stand on that issue

·      Remember: It is permissible to monitor what candidates say and do so that you can prepare for the future.

o   The risk arises for 501(c)(3)s when they communicate in a way that could be perceived as attempting to influence the outcome of a candidate election.

·      Examples[NRO1] :

o   “What if Candidate X states during a candidate debate that “our community’s water quality meets all safety standards.” Can a local environmental justice 501(c)(3) correct the record if that statement is false?

§  Yes. The organization could clarify that the claim is inconsistent with recent state water quality reports. It could then point to publicly available testing data.

§  The key is to avoid discussing the particular candidate who made the statement and instead to focus on the issue itself. Use this as an opportunity to educate the public on issues core to your mission.

§  To minimize risk, avoid mentioning the candidate by name, issue disclaimers (reminders that you are a 501(c)(3) and that you do not support / oppose candidates for public office), and focus on issues in alignment with the organization’s mission.

 

Commenting on the Actions & Statements of Incumbents

·      501(c)(3) public charities can criticize or praise the votes and official statements of current government officials. Best practices include:

o   Focus on official actions only (without mentioning if an incumbent is up for reelection)

o   Time communications to coincide with policy actions (as opposed to increasing praise or criticism in the days leading up to the election).

o   Have a track-record of working on the issue, and make sure it’s central to your mission.

o   Include commentary on legislators and other government officials who are NOT up for reelection. If you focus solely on the actions of incumbents running for office, that can raise a red flag.

o   Use nonpartisan criteria when deciding on which official actions and statements to call out and respond to.

o   Exercise particular caution when commenting on an issue position that clearly distinguishes candidates in an upcoming election.

·      Example:

o   What if a mayor in a 501(c)(3)’s jurisdiction decides to support funding cuts to programs that provide housing to the unhoused and services for housing-insecure community members? Can the 501(c)(3) public charity chime in?

§  Yes. A 501(c)(3) could issue a press release criticizing the mayor’s statement in support of funding cuts and urge the city to restore services where needed.

§  The charity would want to have a history of working on related issues to ensure the statement is in alignment with its mission and history of advocacy.

§  It would also want to avoid mentioning any upcoming elections or noting that the mayor is up for re-election.

§  In addition, it’s important for the organization to comment on the official statement and action immediately, as opposed to waiting until just before candidate elections occur.

Resources

·      Rules of the Game: Guide to Election-Related Activities for 501(c)(3)s

·      Sample 501(c)(3) Organizational Policy for Election Season

·      Praising and Criticizing Incumbents (Factsheet)

·      Commenting on Candidates and Campaigns (Factsheet)