Some Do’s and Don’ts for c3s Weighing in on the Supreme Court Vacancy
Weighing in on Supreme Court Nominees
501(c)(3) public charities are legally allowed to influence the Senate confirmation of a Supreme Court justice. The Internal Revenue Service (“IRS”) has recognized that influencing the confirmation of federal judges is exactly like influencing any other legislative vote through lobbying. “Because the Senate’s action of advice and consent on a judicial nomination is an action with respect to a resolution or similar item, the Senate’s confirmation vote constitutes a vote on legislation.” (Notice 88-76, 1988-2 C.B. 392.)
Public charities can lobby within the generous limits allowed by law. Organizations must determine whether their communications constitute direct or grassroots lobbying, and if influencing judicial confirmations are clearly lobbying activities, efforts to influence these nominations should be counted against a public charity’s lobbying limit. Not all of your advocacy on filling Ruth Bader Ginsburg’s seat will be considered lobbying. If you are engaging in advocacy on the process, such as calling on senators to wait until after inauguration day to vote on a new justice, that would not be lobbying because you would not be taking a position on a specific nominee. For more information on whether a communication should be treated as lobbying, see our Lobbying Flow Chart.
Weighing in on the Supreme Court Nomination Process Weeks Before an Election
It is clear that public charities can weigh in on Supreme Court nominations. But what about now, when the vacancy created by Justice Ruth Bader Ginsburg’s death is less than six weeks before the election? While it is entirely permissible for (c)(3) public charities to speak out on the confirmation process and lobby in support or opposition to any nominee for the open seat, a bit of caution is warranted given the timing. While (c)(3) organizations may engage in advocacy over the coming confirmation process, they must ensure their advocacy is nonpartisan and does not constitute campaign intervention that a public charity is prohibited from engaging in.
To remain nonpartisan, a (c)(3) should not tie its advocacy (including lobbying) to any candidate’s election or defeat in this or any future election. Communications may focus on the vacancy and the confirmation process, but may not tie the nomination or confirmation process to any elected official’s or candidate’s fitness or qualifications for elected office. Provided a (c)(3) keeps its communications nonpartisan, it is reasonably safe and permissible to encourage senators to wait until after inauguration day to vote on a new Supreme Court justice.
The following are some Do’s and Don’ts for (c)(3)s as they shape their advocacy on the future of Ruth Bader Ginsburg’s seat:
- Talk about the importance of the Supreme Court and the lower courts in protecting people’s rights. Do talk about RBG’s legacy and her decisions. Do talk about the 5–4 rulings and how the balance on the Court could be tipped.
- Talk about any nominee’s record on the issues, with a particular focus on the potential impact on issues consistent with the organization’s mission and advocacy.
- Talk about the nominee’s experience (or lack thereof).
- Tie a senator’s past statement of support for issues to the nominee’s known record or discuss Trump’s statements on qualities he wants in nominees.
- Engage in grassroots mobilization. If your efforts include a public call to action such as, “Tell your senator to Vote No,” track activities as grassroots lobbying. If advocacy addresses the process, that will generally not be counted as lobbying. For example, “No vote until after inauguration day,” or, “A lame duck Senate should not be voting on a lifetime SCOTUS seat,” will likely not count as lobbying.
- Talk about a broad range of issues, not just the election’s impact on the Court, in any get-out-the-vote messaging. Talking about just the Court and the confirmation process could be seen as partisan.
- Respond to issues raised by candidates and campaigns, but be sure to focus on what was said (the issue), not who said it (the candidate). See our factsheet Commenting on Candidates and Campaigns for more guidance.
- Do consider granting funds to your affiliated 501(c)(4) for some of the lobbying.
- Don’t say a senator should be defeated or re-elected because of their actions on this vacancy and the timing of a confirmation vote.
- Don’t praise or criticize Senate or presidential challengers for their statements on the confirmation process or any nominee.
- Don’t tell voters to vote for or against any candidates or political party.
- Don’t share social media posts from candidate accounts — check before you tweet. Sitting senators will have a campaign account and an account for their Senate role — check to ensure you are sharing from a non-campaign account. Be careful with (c)(4) and political action committee (PAC) accounts — many will be posting content a (c)(3) should not share.
Federal Campaign Finance Law Requirements
Because of the timing of this confirmation battle, (c)(3)s need to be aware of the federal electioneering communications law that could be triggered by some nonpartisan issue advocacy communications. A communication that mentions a clearly identified federal candidate in an ad that is aired by TV, radio, or satellite within 60 days of a general election must include a disclaimer and may require disclosure to the FEC. It is permissible for a (c)(3) to make an electioneering communication provided the message is nonpartisan and concerns a pending legislative issue, such as a vote on a Supreme Court nominee. For more information on electioneering communications, including reporting information, see the FEC website.
In addition, electioneering communications and certain communications that reference (1) a presidential or vice presidential candidate that occur within 120 days before a general election; (2) a U.S. House or Senate candidate that occur within 90 days before a general election; or (3) certain communications that reference a political party, may not be coordinated with any candidate, campaign, political party or their agents. For more information, see the FEC guidance on the coordination rules.