Taking a Stance on Articles of Impeachment and the Senate Trial
In October, I wrote a piece laying out the reasons why a 501(c)(3) public charity can take a stance on the impeachment of President Donald Trump. In it, I described impeachment as a quasi-legislative process that would probably be classified as lobbying activity by the IRS, but added a caveat that 501(c)(3)s would need to be careful not to conflate the upcoming 2020 elections with impeachment, as it could be interpreted as illegal campaign intervention. As the House of Representatives prepares to vote on two articles of impeachment, and with all indications pointing to a likely Senate trial of the President, it’s worth revisiting the topic.
501(c)(3)s: Keep the Election Out of It
The IRS has not specifically weighed in on whether 501(c)(3) organizations can take a stance on impeachment. Given its Constitutional structure, impeachment is likely to be treated as legislative activity of the House and Senate, and therefore permissible within the lobbying capacity available to 501(c)(3) public charities.
In addition,501(c)(3) organizations may engage in voter education, registration, and GOTV activity so long as the work is strictly nonpartisan and does not support or oppose any candidates (see our publication, The Rules of the Game for details).
The Trump impeachment complicates how 501(c)(3)s approach impeachment advocacy and nonpartisan voter engagement because Trump stands for trial before the Senate while simultaneously seeking a second term as President. This unique set of circumstances creates an unusual bit of legal alchemy—two perfectly legal 501(c)(3) activities could combine to appear like support or opposition to the President’s 2020 candidacy. For instance, a (c)(3) making a reference to the re-election of Senators voting in the President’s impeachment trial—even in nonpartisan terms—combined with a call to support or oppose removal from office could be interpreted by the IRS as illegal campaign intervention. To avoid the possible misinterpretation of permissible impeachment advocacy with impermissible electoral advocacy, 501(c)(3)s should take great care to avoid references to the upcoming elections in communications supporting or opposing impeachment and removal from office.
Regardless of how it resolves, the impact of impeachment will continue through the election. After the impeachment trial, 501(c)(3)s should be cautious how they mention House or Senate members’ votes in the context of the upcoming election, as it may appear to be a tacit endorsement or opposition of the members in the fall. For instance, a (c)(3) should be able to include the votes in a nonpartisan legislative scorecard if it was included with votes on a broad range of issues, included all members of the House or Senate, and was released well before the November election. However, a (c)(3) would face great scrutiny if it took a stance on impeachment and put out a communication showing which members voted the way it agreed with, particularly if it was close to primaries or the general election.
Other Nonprofits: More Room to Maneuver, But Keep Track
501(c)(4) social welfare organizations, 501(c)(5) labor organizations, and 501(c)(6) trade associations are likely to continue to be active in the impeachment debate and Senate trial. Unlike 501(c)(3)s, tax law allows these organizations to engage in partisan electoral activity so long as it is not their primary activity. The consequence in this context is that these 501(c)s can speak to electoral consequences.
As a threshold mater, 501(c)s should make sure the partisan work they do on impeachment, together with all other partisan activity, remains a secondary activity—in other words, at least less than half. Tracking time and expenses is important, or the 501(c) organization may face reclassification to be a 527 political organization by the IRS.
The ability to mix impeachment and Senate trial advocacy with electoral messaging can be an efficient way for these non-501(c)(3)s to operate. For instance, a 501(c)(4) can suggest that the public not vote for Senators up for re-election in 2020 if they fail to vote in a particular way at the President’s trial. Depending on how they are fashioned, many of these partisan communications may constitute “independent expenditures” under federal campaign finance law, and reportable to the Federal Election Commission. Organizations should also be mindful that coordinating these communications with any candidate would be considered a contribution to the campaign, subject to limits and reporting requirements.
527 political organizations, including PACs, political parties and campaigns, are ordinarily taxed on activity that is not partisan electoral work, but they can weigh in on impeachment if they look at it with an electoral focus and with electoral goal outcomes. This will most likely be focused on Senate races but could also be aimed at members of the House and the candidates for President. 527s are generally subject to the same campaign finance reporting requirements noted above.
As we face only the third time a President of the United States has been impeached, nonprofit organizations will be important voices in the debate. Advice of counsel is always a good idea when wading into these waters, regardless of your nonprofit’s type. Bolder Advocacy attorneys cannot offer the formal legal advice recommended, but we are available to answer questions on the laws involved.