Guidance on involvement in political activity

Filed Under: About AIGA , governance

Federal tax law strictly prohibits 501(c)(3) organizations from engaging in activities to support or oppose candidates for public office. However, there are still a number of ways that a 501(c)(3) can be involved in the political process without running afoul of the law.

If done correctly, 501(c)(3) organizations can:

  • Help register voters;
  • Conduct get-out-the-vote activities;
  • Publish voter guides;
  • Create candidate questionnaires;
  • Host candidate appearances;
  • Host debates;
  • Conduct issue advocacy;
  • Allow leadership and staff to be politically active; and
  • Create an affiliated organization to engage in political activities that it cannot.

The key is to remember that these activities must be non-partisan, and not favor one candidate over another.

AIGA focuses its efforts on issue advocacy, which is legal

Issue advocacy includes all the arguments AIGA articulates to encourage the use of design and designers.

Organizations may generally continue to engage in public issue advocacy. For example, they may air commercials urging Congress to support legislation. Note that there are limits on the amount of grassroots lobbying in which a 501(c)(3) may engage. Organizations may use social media to discuss an issue, or publish newsletters about issues.

However, the organization must be careful that these efforts do not cross the line into campaign intervention. Any time issue advocacy mentions a candidate, there is a risk that it will be considered to be engaged in campaign intervention. Also remember that the federal campaign finance laws, and many state laws, require disclosures in connection with issue ads that clearly identify a candidate for federal office.

There is no restriction on personal activities by AIGA leaders, members or staff

The ban on 501(c)(3) political campaign intervention does not prohibit the officers, directors, members, or employees of the organization from participating in a political campaign. They must, however, say or do everything for the campaign as private citizens and not as spokespersons for or agents of the organization. They absolutely cannot use the organization’s resources or assets in any manner. 

Leaders and staff are prohibited from making political statements on behalf of the organization in any manner, whether on official letterhead, at official functions, or in official media outlets, including newsletters, or on the organization’s website and social media sites. This restriction also prohibits personal political activities during work time (for staff) and prohibits use of the organization’s facilities or resources for personal political activities at any time.

Prohibited intervention

The Internal Revenue Code prohibits 501(c)(3) organizations from engaging in political campaign intervention. Political campaign intervention includes any direct or indirect activities in support of or opposition to any candidate for elective public office. The ban applies to elections at any level of government, whether federal, state, or local.

This prohibits 501(c)(3) organizations from endorsing candidates or making other public statements of support or opposition to a candidate for office. Distributing – or even in some cases linking to – statements prepared by others that favor or oppose candidates for elective office also constitutes prohibited campaign intervention.

Furthermore, a 501(c)(3) organization may not allow a candidate to use the organization’s facilities, staff, or other resources (whether monetary or in-kind). This means that the organization’s offices, computers, photocopiers, telephones, and other supplies and equipment should not be used for prohibited campaign activities, and that staff should not engage in prohibited campaign intervention during work time.

Stiff consequences await organizations that violate the ban. The Internal Revenue Service (IRS) may deny or revoke the organization’s exempt status, may impose excise taxes on the organization, and, in some cases, impose those excise taxes on responsible individuals within the organization.

Permissible activities

A variety of nonpartisan activities may be conducted by 501(c)(3) organizations during or in connection with an election if properly structured in accordance with IRS guidance. Permissible activities include nonpartisan and unbiased efforts to provide voter education and encourage voter participation in the electoral process. Organizations may also continue to discuss and engage in advocacy on policy issues of interest to the organization, within the following parameters.

Voter registration and GOTV

501(c)(3) organizations may conduct nonpartisan get-out-the-vote and voter registration drives. The efforts must be focused solely on the importance of voting and how to register. There can be no evidence of bias for a particular candidate or political party.

Voter guides and candidate questionnaires

501(c)(3) organizations may prepare and distribute unbiased and nonpartisan materials intended to help voters compare candidates’ positions on a broad range of issues, such as legislative scorecards, candidate surveys, and similar voter education materials. However, the IRS views these materials as a high-risk activity. To minimize risk, the materials should follow these guidelines:

  • Questions and any other descriptions of issues should be unbiased in structure and content;
  • Questions and topics should cover most major issues of interest to the entire electorate;
  • Questions and responses should be presented as they were asked and received, without editing by the organization;
  • Candidates should be provided the opportunity to respond to questions in their own words, and not limited simply to yes/no or support/oppose responses;
  • All candidates seeking election to the same office should be invited to participate in the survey;
  • The questions and accompanying materials should not comment on the candidates’ positions; and
  • Candidates should not be asked to pledge to support a particular position, as this could convey the organization’s endorsement of that candidate.

There are two major areas of concern with questionnaires and voter guides. First, if they are focused on a set of issues that are tied to the organization, then it is very easy for the questionnaire to convey the organization’s endorsement. For example, a hypothetical group called Save the Starfish may ask a series of questions about how a candidate will preserve shallow coastal waters to protect starfish. The IRS would likely view this as attempting to endorse the candidate who answers the questions “correctly.”

Second, if the materials are structured or edited to reflect bias in favor of a particular position of one or more candidates, then the organization also risks violating the ban on political campaign intervention.

That being said, organizations that prepare and distribute legislative scorecards on a single or narrow set of issues of particular interest to the organization on a regular and ongoing basis—i.e., not just during political campaign season—may continue to do so during campaign season, as long as it is done in the same manner as at other times throughout the year. If the organization has not published this kind of voting record regularly throughout the year, however, it may not start during the campaign.

Candidate appearances and debates 

501(c)(3) organizations may sponsor nonpartisan and unbiased candidate debates and appearances. To minimize risk of violating the ban on political campaign intervention in connection with such events, the following guidelines should be followed:

  • Do not indicate support for or opposition to any candidate, explicitly or through biased presentation of topics or questions;
  • Questions and topics should cover most major issues of interest to the entire electorate;
  • Do not allow political fundraising to take place at the event; and
  • Provide an equal opportunity to all candidates seeking election to the same office to speak or be a part of the debate. The organization may establish reasonable, objective criteria to limit the number of participants (such as a polling threshold or qualification to be on a ballot).

Also, even someone who is a candidate may address a 501(c)(3) if the address is unrelated to his or her candidacy. For example, a sitting official may be asked to speak in an official capacity, or an expert on a particular topic may be asked to present to the organization. However, the candidacy and the election may not be mentioned by the speaker or by the organization.