As midterm elections draw ever nearer, it's time to refresh on what is—and isn't—allowed for your organization during the election season. Let's take a look at the key do's and don'ts as we come up to the 2018 midterm elections.
The first platinum rule for you as a nonprofit and as representatives of the nonprofit is that you may not endorse, support or oppose any specific candidate or political party. Your activities must be nonpartisan. The second platinum rule is that you as an individual—regardless of what your job is—may personally endorse, support or oppose any candidate or political party. To state it again:
- A 501(c)(3) is not permitted to endorse, support or oppose any candidate for public office or any political party. Period. That is the law.
- Second, as individual citizens who happen to be employed by nonprofits, you are certainly able to exercise your rights as citizens as guaranteed under the Constitution.
Let’s talk about what a nonprofit CAN do:
- A nonprofit can conduct a voter education forum in a nonpartisan manner…in other words it is not truly nonpartisan if a nonprofit only invites one candidate. The forum must be held for the purpose of educating and informing voters, which provides fair and impartial treatment of candidates, and which does not promote or advance one candidate over another.
- A nonprofit can operate a voter registration booth with its name displayed on the booth.
- A nonprofit can provide transportation to the polls as long as it does not drive only those who will vote for a favorite candidate.
- A nonprofit can target turnout efforts to the people or areas they serve, or population groups, students, elderly, minority groups.
- A nonprofit can continue to do normal lobbying on issues.
- A nonprofit can work on behalf of a ballot measure.
- A 501 (c)(3) can rent or sell mailing lists to candidates at fair market value, as long as it is made available to all candidates.
Further, if a representative of a nonprofit is asked to speak publicly during an election cycle or specifically asked for opinions about candidates, representatives of a 501(c)(3) should:
- Decide who will speak publicly on behalf of the 501(c)(3) organization, so that non-designated staff will not inadvertently say something inappropriate.
- Script responses before talking to reporters.
- Focus on what was said (the issue), not who said it (the candidate). Avoid talking about a candidate’s qualifications or whether someone is a good or bad candidate.
- Avoid discussing a candidate’s record; commenting on a candidate’s record is very close to commenting on a candidate’s qualifications or whether he or she should be elected.
- Avoid talking about voters and making references to the election. For example, instead of saying “Voters will not accept…” say, “Americans won’t accept...”
- Avoid identifying the candidate by name. It is better to say: “During the recent Republican debate, statements were made about [topic]. We disagree…”
- Be very cautious if a reporter asks about which candidate is better on the 501(c)(3)’s issues, or whether the 501(c)(3) agrees with a statement a candidate made. Issue the disclaimer: “Well, as you know, we are a nonprofit and are not permitted to endorse, support or oppose any candidate.” Then go back to scripted statements and rules above.
- A 501(c)(3) organization may urge all candidates to take a stand or act on an issue, without commenting on specific candidate statements. For example, a 501(c)(3) organization may want to urge both major party candidates in a local, state, or federal race to take more forceful action on the issue of illegal guns and violence. A 501(c)(3) making this kind of communication should be careful to avoid criticizing any candidate, and should focus on the need for all candidates to take action.
What can a nonprofit NOT do:
- A nonprofit cannot post anything on its website or in its office that favors or opposes a candidate for public office.
- A nonprofit cannot distribute printed material that favors or opposes a particular candidate.
- A nonprofit should monitor any content linked to its website.
- A nonprofit cannot do political fundraising for any candidate.
- Do not use the “magic words” vote for or vote against a particular candidate.
- A nonprofit cannot contribute time, facilities or money to a candidate.
- Do not coordinate activities with a candidate.
- Do not publish anything in official newsletters, brochures or publications of any kind that favors or opposes a candidate.
- Do not increase the organization’s level of criticism or praise of an official or devote a special issue of its publications to an incumbent’s favorable or unfavorable record.
- Do not distribute more copies than usual of a regular publication during the campaign year.
- Do not focus on the personal character or qualifications of an incumbent, or campaign contributions of the incumbent.
- Do not connect the organization’s criticism of a voting record of an official to an election. For example, publicly remarking that an official is anti-immigrant and mentioning that people should register to vote.
- Do not point out that a particular candidate’s actions (as opposed to official actions) or views are incorrect. For example, a 501(c)(3) should not urge the public to withhold campaign contributions for a Senator’s re-election if she votes for the repeal of “Don’t Ask Don’t Tell,” or remark that one candidate would be better than another candidate at creating green jobs if elected than another candidate.