During an election year, Section 501(c)(3) public charities want to be especially mindful of how they conduct certain activities while continuing to engage in the meaningful advocacy that is always permissible—and often serves as core activities in conducting their charitable missions. This blog post offers a few reminders on what activities are always allowed, what activities are never allowed (regardless of whether it is an election year), and what steps to take to ensure that an organization’s routine activities are not considered interfering in an election when candidates are on the ballot.

What is always allowed?

A general rule of thumb is that activities centered on education and information dissemination are always allowed for Section 501(c)(3) public charities. Public charities can always educate the public on matters of public policy or issues that are related to the organization’s charitable purpose. For example:

• Concerned about the rising lack of access to affordable housing? Host a seminar on the history of affordable housing and recent policy shifts that have impacted its availability.
• Championing effective and efficient public education funding? Create a pamphlet that breaks down current funding frameworks.

What is never allowed?

Section 501(c)(3) public charities are never allowed to intervene in electoral campaigns; doing so can result in the denial or revocation of their tax-exempt status and the imposition of excise taxes. Such intervention can take many shapes, and not all are easily recognizable. On the clearly forbidden end of the spectrum is directly endorsing or donating to a candidate for public office. Who is considered a candidate? Think broadly, including local, state, or federal levels; legislative, executive, or even judicial offices. Donating directly to a campaign and providing in-kind donations are both prohibited, as well. For example, if your organization typically rents out its conference room space, providing that space to a campaign free-of-charge would be considered an in-kind contribution, and thus, is not allowed.

Public charities may also not expressly direct others to vote or abstain from voting for a candidate or call them to action in a way that encourages them to select one candidate over another. Remember: intervention means any intervention, not just support or promotion; detraction or abstention are also not allowed. For example, while a public charity may host a candidate forum with all candidates, they cannot then emphasize which candidates align with their causes or allow the candidates to distribute campaign literature at the event. A charity that restores wildlife habitats cannot encourage all attendees at the end of the forum to vote for the candidate that clearly cares about the environment. Rather, public charities must restrain their candidate-related activities to those that are nonpartisan, informative in nature, and equally accessible and open to all those in the election.

Many public charities may also be concerned about engaging with ballot measures. For more on how to responsibly engage with ballot measure advocacy, stay tuned for Part II of this series, “Lobbying and the Section 501(h) Election for Section 501(c)(3) Public Charities,” which will be published in early April.

What is allowed with some limitations?

During an election year, it can feel like politics are everywhere and can be hard not to change our behaviors in response. For Section 501(c)(3) public charities, consistency, education, and nonpartisan information dissemination are key!

Criticizing elected officials for not moving forward on issues is a generally an allowable advocacy strategy; however, during an election year, some officials may also be candidates. Take care not to change your level of criticism—whether increasing it for those whose positions do not align with your goals or reducing it for those whose positions do—when their names are on the ballot, and do not change your criticism to attacks on their personal characteristics or status as a candidate.

Continue to educate candidates on the issues about which your public charity cares but do so consistently across all candidates. For example, if you are hosting a public forum on the history and importance of affordable housing, invite all candidates to attend and listen; they cannot however, fundraiser or provide statements on their opposition or support of this issue. A public charity may even advocate for the inclusion of their position—e.g., sufficient affordable housing units by 2028—on the platforms of political parties so long as they take that position to all parties.

Continue educating the public about your advocacy issues and about the political process. Although nonpartisan voter registration drives are always allowed, do be cautious about “get out the vote,” or “GOTV,” campaigns. These campaigns are allowed but be careful that your approach does not veer into campaign intervention. Say you work for a public charity that supports affordable housing in your community, and you, in your professional capacity, are registering voters at a county fair. You are speaking with a new registrant about how to find their polling place when they say, “I cannot wait to vote for Senator Smith. She’s so supportive of affordable housing, and we just do not have it enough of it.”

While that might be music to your ears, do not especially encourage this prospective voter to get to the polls or provide them with additional assistance that you are not otherwise providing, simply because they agree with your position. The inverse applies to someone who is eager to vote for Candidate Green, a staunch opponent of affordable housing initiatives; do not deemphasize the importance of voting or withhold guidance from that person.

Section 501(c)(3) public charities often host major fundraising events, such as an annual gala, to raise awareness and capital for their causes. These events may feature a keynote speaker who is a prominent elected official, such as the governor. Even if the governor is running for reelection, it remains acceptable to invite them and for them to speak at such an event in their capacity as governor. That said, remind them before taking the stage that they are not allowed to campaign from the podium, and introduce them solely as a current or former public official—not as a candidate for office.

What can I do as an interested voter and citizen?

Although we encourage caution, engaging in the democratic process and exercising our First Amendment rights are incredibly valuable. If you are donating to a political candidate in your personal capacity, for example, take care to do it (a) not when you are expected to be working, and (b) using your personal funds and other resources, , such as your own computer, envelopes, stamps, and the like, and not those provided by your employer.

Ensure that you also attend any election-related events on your personal time and in your personal capacity; this includes avoiding events for issues or candidates in which you have no personal stake beyond your professional role at a public charity. For example, if you work for a public charity that advocates for arts programs for children living in poverty in City A but you live in City B, volunteering for or donating to the mayoral race in City A would reasonably be interpreted as you operating in your professional capacity because that is your sole nexus to that city and candidate. It is best to abstain from actions that could be misconstrued as actions taken by the public charity, rather than you personally as an individual.

Be mindful of written communications, as well. If, for some reason, you must be identified by your professional role in, for example, a printed material that is related to a current electoral issue, add in a proper disclaimer, such as, “Title and affiliation are for identification purposes only.” Social media is a popular source for political conversations. Add a disclaimer to your bio or a post that says, “Views are my own,” especially if they seemingly intersect at all with the professional role that you play.

When in doubt, pause and consult with counsel.

Remember: this guidance applies to Section 501(c)(3) public charities, specifically. Although much of it remains applicable to private foundations, as well, these foundations are subject to some additional restrictions. Stay tuned for Part III in this series, “Why Lobbying & Electoral Activities are NOT Permissible for Private Foundations (but Advocacy is!),” which will be published at the end of April.

Nonprofits Counsel is offering a three-part, free, thirty-minute webinar series, followed by Q&A, this spring on “Politics & Tax-Exempt Entities.”

• Click here for our first presentation, Part I: Permissible Activities in an Election Year for Section 501(c)(3) Public Charities.
• Click here to register for the remaining webinars in our three-part series:
  • Part II: Lobbying and the Section 501(h) Election for Section 501(c)(3) Public Charities (Friday, April 5, 2:00-2:45 p.m. Eastern)
  • Part III: Why Lobbying & Electoral Activities are NOT Permissible for Private Foundations (but Advocacy is!) (Friday, April 26, 2:00-2:45 p.m. Eastern) 

Disclaimer: We are attorneys licensed in Massachusetts & Connecticut. The information contained in these webinars is general information only. Such information is not, nor is it intended to be, legal advice; you should not consider or rely on it as such. Rather, consult an attorney for individual advice regarding your own situation. The presentation of information and your receipt of it also does not create an attorney-client relationship.