Melissa Mikesell

How 501(c)(3)s Can Legally Praise and Criticize Legislators

As part of the campaign to pass comprehensive immigration reform (CIR), a 501(c)(3) public charity may want to publicize its views by criticizing or praising—also known as “thanking or spanking”–legislators for their positions on reform. This public communication might take place in advance of or following a vote on an immigration bill. To share their views on a lawmaker’s actions, a 501(c)(3)s may buy ads in newspapers, on the radio, or online (posts on Facebook, Twitter, etc.). They may put up billboards, send out mailers, and produce other materials.

These are some guidelines for a charity interested in publicly addressing incumbent legislators in a nonpartisan manner:

  1. Focus on official actions only: Comment on official actions, do not mention an incumbent’s candidacy or re-election.
  2. Time communications to coincide with policy actions: A communication that is timed to coincide with, and discusses a specific upcoming legislative vote or administrative hearing, is less likely to be viewed as partisan political activity. Similarly, if the communication occurs directly after or in close proximity to a vote or other official decision, with a view toward influencing future actions, it is more likely to be viewed as nonpartisan advocacy. It would likely be viewed as nonpartisan, for example, for a group that has a history of working on immigration reform to urge the public to contact a Member of Congress who happens to be running for re-election, and ask her to show leadership on passing CIR in the weeks before a possible vote on CIR.
  3. Show a track-record of working on the issue: Include the communication as part of an ongoing series of communications by the organization on the same issue. The public charity should be able to demonstrate to the IRS a history of engagement on the issue during periods of time between elections.  If an organization sponsors a blog that comments on the actions and votes of elected officials on a regular basis, for example, it is less likely to raise concern when the organization continues making similar comments about legislators in an election year. Or, if a public charity has been pressuring legislators to adopt its position on legislation, and a legislator votes against those recommendations, the group is permitted to continue calling public attention to how the incumbent voted, even during the election campaign.
  4. Use nonpartisan criteria only: Ensure the criteria used to choose the legislator featured in the communication are nonpartisan and not related to his or her candidacy. For example, the advertisement or mailer might focus on the positions of legislators who are on a key committee and therefore in important decisionmaking roles related to the issue at hand, or represent a part of the state or country where the nonprofit has a lot of members or has historically been active. Focusing communications on legislators who are in marginal districts or in districts where the issue featured in the communication is a divisive campaign issue would not likely be viewed by the IRS as appropriate nonpartisan criteria.
  5. Include legislators not up for re-election: If ads are being run or communications distributed in multiple places, it is safer for a public charity to focus the communications on a combination of legislators–both those running for re-election as well as those not up for election. This demonstrates the organization’s nonpartisan goals in its communications.
  6. Pay attention to timing: Ensure communications are not appearing in print, on the radio, or on TV too close to an election. The closer to an election, primary or general election, the more likely the communication will be treated by the IRS as campaign activity.
  7. Use caution when the issue distinguishes candidates: Do not raise the issue in your communication in order to distinguish candidates for a given office.
  8. Avoid overlap with affiliated 501(c)(4): A public charity should not sponsor communications about an elected official running for re-election when it also has an affiliated organization, such as a 501(c)(4) that is conducting partisan political activity regarding the same candidate.

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