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Nonprofit Advocacy on the Impeachment Trial in the Senate

On January 13, 2021, the House of Representatives voted to impeach Donald Trump, making him the first President in U.S. history to have been impeached twice. In the next step of the process, the Senate will begin an impeachment trial the week of February 8. At the conclusion of the trial, the Senate will vote on whether to convict, which requires a two-thirds vote of the Senate. If the Senate convicts, it then determines punishment, which can include removing the impeached individual from office or disqualifying them from holding an elected office. While removing Trump from office is no longer an option, the Senate could vote to block him from running for elected office in the future.

Bolder Advocacy has already written on why it is probably permissible for 501(c)(3)s to take a stance on impeachment. Of course, any advocacy surrounding the impeachment process should not include any support or opposition for the election or defeat of any candidate, including Donald Trump.  All of that holds true for the impeachment trial in the Senate.

Now that the Senate trial is commencing, nonprofits may be wondering what stance they can take on a potential vote to disqualify Donald Trump from running for office in the future. The IRS has not offered guidance on this question, so there would be some risk that encouraging senators to disqualify Trump from holding office in the future could be viewed as partisan activity.

Because this is a penalty that can be imposed after the Senate votes to convict an impeached individual, it is arguably distinguishable from taking a stance on a candidate for elected office, so it could be permissible for a 501(c)(3) to support or call for this penalty. A 501(c)(3) considering this message may want to consult with counsel before proceeding. A lower-risk option for a 501(c)(3) would be calling for the Senate to hold Trump accountable without specifically calling for the prohibition on holding elected office in the future.

Other types of nonprofits, including 501(c)(4) social welfare organizations, 501(c)(5) labor unions, and 501(c)(6) trade associations can engage in partisan activity as long as it is not their primary purpose, and can clearly support a vote to disqualify Donald Trump from holding elected office should the Senate vote to convict. These organizations could also engage in partisan advocacy that supports or opposes the re-election of members of Congress, their opponents, or even take a stance on whether Donald Trump, who is not a candidate at this time, should enter the 2024 presidential race. For more information on how social welfare organizations and other non-501(c)(3) entities can engage in partisan work, see Bolder Advocacy’s guide The Connection.

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