Election Year Do’s and Don’ts for 501(C)(3) Organizations

Maryland Nonprofits and the vast majority of the nation’s charitable and religious community strongly support the Internal Revenue Code’s non-partisanship rule, often referred to as the “Johnson Amendment,” that precludes us from actions that support or reasonably imply our support for, or opposition to, candidates for elected office.

With Maryland’s June 26 primary election less than nine weeks away, pre-election campaigning and election-related activities are rapidly accelerating.
It’s very important that staff and members of 501(c)(3) organizations are aware of what non-partisanship rules do and do not require, and why they are important for us.

• First, the rules don’t prohibit policy advocacy in an election year, as long as it avoids the appearance of suggesting which candidates an organization would favor or oppose.  Candidate appearances, debates or forums may be allowable, or not, depending on timing or other circumstances.  But publicizing candidate statements or positions, or comparisons of candidates to each other, or to a 501(c)(3) organization’s own policy agenda or positions, are not allowed.  No form of endorsement or financial or in-kind support is permitted.  The Alliance for Justice has very good short summaries of the basic rules for individuals and charities on their Bolder Advocacy web site, as well other resources that address specific situations.  Another useful resource from the IRS itself is Revenue Ruling 2007-41 that summarizes the non-partisanship rules and discusses 21 hypothetical fact situations with the IRS ‘holding’ on each.
• Second, the rules do not apply to activities of individuals connected with charities or other 501(c)(3) organizations – as long as what they do is on their own time, doesn’t imply that they are representing their organization, and makes no use of their organization’s resources (such as email systems or mailing lists) or organization facilities.
• Third, these rules don’t apply to other tax-exempt nonprofits – such as 501(c)(4) advocacy groups or 501(c)(6) ‘trade associations’.  But a (C)(3) organization that promotes, or otherwise supports or participates in another organization’s ‘partisan’ activity (such as by circulating a notice or request to its members or contacts) will have ‘bought in’ to the partisan action.  You should be certain that any election- or candidate- focused activity is or will be consistent with the non-partisanship rules before becoming involved.
• Finally, we urge you to remember that the rule against politically partisan activities is a critical protection for the charitable sector and our status as credible nonpartisan advocates on policy issues.  Without it’s ‘insulation’ 501(c)(3) organizations would be subjected to a deluge of much harder to deny requests for support or endorsements from candidates, that in turn would compromise their public recognition as non-political voices, as well as create potentially toxic partisan divisions on their boards, or among their members or supporters.  Complying in good faith is an important way that we help support it.Contact Henry Bogdan, our Policy Director, for more information or with questions