Can a 501(c)(3) organization lose its tax status over a careless tweet? What happens when a politician “likes” your organization’s Facebook page? With new online tools popping up all the time, questions like these are becoming more and more frequent. Let us help you navigate the web of rules and regulations to empower your organization to engage in online advocacy!
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Q: May our 501(c)(3) website provide links to candidates’ websites?
A: A 501(c)(3) website may link to candidates’ websites only if the links are presented in a neutral, unbiased manner that includes all candidates for a particular office. If the 501(c)(3) website indicates it is providing a link to signal its support for the candidate, that would constitute prohibited campaign intervention by the organization.
Q: May a 501(c)(3) website include candidate endorsements?
A: No. An organization’s website must follow the same rules that apply to the other communication channels used by the organization. Furthermore, a 501(c)(3) website may not indirectly provide information about favored candidates, such as by providing links where the context makes it clear that it is encouraging users to learn about specific candidates. Presenting links in a neutral manner, however, is permissible, such as on a webpage that provides links to all candidates for a given office, without indicating an organizational preference for any candidate.
Q: May our 501(c)(3) website include candidates’ answers to our issue questionnaire?
A: Yes, but the organization should take care not to indicate that it views one candidate’s answers to be the “right” ones or the “wrong” ones. The IRS has said 501(c)(3) organizations may publish candidate questionnaires if they select issues solely on the basis of their importance and interest to the electorate as a whole; if the questionnaire and any subsequent voter guide do not contain any biases or show preference for any candidate; and as long as the organization publishes all candidates’ responses in their entirety. If an organization publishes answers to its questionnaire online, it may include links to each candidate’s website.
The IRS might find even an unbiased, neutral questionnaire to be problematic if an organization posts the candidates’ responses on its website, and other sections of the organization’s website advocate for a particular position on the issues mentioned in the questionnaire. The IRS might argue that by including the organization’s own viewpoint on the website, the organization is telling readers the “correct” position on each issue, and from that readers could then infer which candidates the organization would support.
Q: May a c3 and a c4 share a website?
A: It depends on which organization owns the website. Under certain circumstances it may be possible to do a joint 501(c)(3)/501(c)(4) website, such as if the 501(c)(4) does not engage in political activity, or if the website is owned by the 501(c)(4) and the 501(c)(3) organization pays to post material on the site. Generally, though, if the 501(c)(4) has any partisan electoral content, it will be safer for the 501(c)(3) organization not to share a website. Maintaining separate websites helps to demonstrate that the two are separate organizations. In no case should partisan electoral material be included on a 501(c)(3) website, unless the material is so clearly distinguished as belonging to another entity that it is impossible to attribute the content to the 501(c)(3).
Q: May the website of a 501(c)(3) organization link to its affiliated 501(c)(4)’s website?
A: A 501(c)(3) organization must be careful about its links.
During the 2008 election, the IRS said it would not pursue enforcement cases involving a link between a 501(c)(3)’s website “and the home page of a website operated by a related section 501(c)(4) organization.” It is not clear how long this policy will remain in effect, and whether it would apply if the 501(c)(4) home page listed the organization’s candidate endorsements.
When linking from a 501(c)(3) website to an affiliated 501(c)(4) website—or vice versa—it may be helpful to have a pop-up window appear, emphasizing to users that they are entering the site of a separate organization.
Q: May a 501(c)(3) organization sponsor an ad that doesn’t support a candidate, but the ad sends people to a website that does?
A: If a 501(c)(3) organization is prohibited from doing something directly, it is prohibited from doing it indirectly. The 501(c)(3) may not avoid the prohibition on political intervention simply by engaging in a two-step process of directing people to another site that contains endorsements. This applies in the context of links from one website to another, and from one type of media to another, such as mailers or ads directing people to a website.
Q: May a 501(c)(4) announce an endorsement on its website?
A: Yes. If the cost is paid for by the 501(c)(4), and not by a PAC, then the associated expenses may be taxable for the organization. (A 501(c)(4) must pay tax on its political expenditures or its investment income, whichever is less, to the extent they exceed $100.) Note that prior to the U.S. Supreme Court’s decision in Citizens United v. FEC, corporations were prohibited from conducting independent expenditures in federal elections and in some states’ elections. Since the Supreme Court’s decision in Citizens United v. FEC, all domestic corporations and various other entities may engage in independent expenditures—that is, activities supporting or opposing candidates that are not undertaken with the candidate’s recommendation, suggestion, direction, control, or cooperation. In federal elections and in approximately half of the states, corporations may not contribute to candidates, so their endorsements must be conducted as independent expenditures.
In contrast to communications on a publicly available website, the rules are different in some elections if the endorsement is on a webpage, access to which is limited only to the organization’s members. In these elections (including federal elections and most states), the material on that page may be coordinated with candidates. This spending must be disclosed for federal races, but many states do not require reporting of spending on activity directed only at members. For more information on state requirements, see the Alliance for Justice state law resources. An election agency may consider a website to be restricted to members if it is protected by a password only given to members, or if the URL or link to the webpage is included only in an email sent to members, but not reachable by links from public portions of the organization’s website.
Under the FEC’s Internet regulations, it is possible a corporation may be allowed to coordinate with a candidate regarding an endorsement posted publicly on its website (i.e., not password protected for members’ eyes only). Posting a statement on a corporation’s own website does not fit within the FEC definition of a “public communication,” so the activity does not need to be conducted as an independent expenditure. However, the costs related to the posting presumably would need to be reported by the endorsed candidate, and such costs would be an in-kind contribution by the corporation, which is prohibited under federal law. The FEC’s Internet regulations do not resolve this internal conflict, and the Commission has not yet addressed the issue in an advisory opinion.
Under federal law, a website endorsement does not need a disclaimer stating who paid for it, unless the organization purchases an online advertisement on another person’s website.
Q: May a 501(c)(3) public charity or 501(c)(4) organization use social media for lobbying?
A: Yes. Social media provide myriad inexpensive opportunities to influence legislation. Organizations may leverage the low cost of emails, web postings, Facebook, and other social media to maximize their lobbying influence.
Section 501(c)(3) public charities may lobby, but lobbying may not be more than an insubstantial part of the organization’s activity. For an objective determination of whether lobbying is a substantial part of an organization’s activity, charities may elect to use the “section 501(h) expenditure test” to measure their lobbying. More information regarding the section 501(h) expenditure test and the lobbying limits imposed on public charities is available in the Alliance for Justice publication, Worry-Free Lobbying for Nonprofits, available here. The low cost of social media tools means a section 501(c)(3) organization may send numerous email alerts, status updates, or other efforts without exceeding the limits on its lobbying activities under the 501(h) expenditure test.
In addition to the limits imposed on “direct lobbying” communications to legislators and others, tax law imposes far stricter limits on “grassroots lobbying” aimed at the public. Communications on Facebook or a publicly accessible website that ask people to contact their legislators to support or oppose a particular bill50 will be considered grassroots lobbying. Under tax law, communications to an organization’s members are treated as direct lobbying, rather than as grassroots lobbying, meaning that organizations may engage their members in more lobbying activities. Posts on Facebook, Twitter, and the like, which are not limited to an organization’s members, will be treated as grassroots lobbying even if the publicly accessible post encourages only the organization’s members to engage in lobbying. Organizations that want to limit a lobbying communication to their own members, so the communication will be treated as direct lobbying, should use email, text messages, or password-protected websites, rather than a publicly accessible website.
It is important to keep in mind that the IRS may view certain communications about legislation or issues as political advocacy rather than lobbying. A tweet, text, or email urging people to contact a particular senator about a certain piece of legislation may be viewed by the IRS as a political communication. Factors the IRS will examine include whether the communication mentions a candidate shortly before an election, whether it is targeted to voters in that election, whether it mentions a candidate’s position on an issue that is a hot topic in the campaign, and whether the communication is tied to a specific upcoming legislative vote on the issue.
Q: May staff or guest bloggers support candidates on our 501(c)(3)’s blog? What about supporters or opponents who add comments to blog posts?
A: Treatment of blog comments is a difficult issue for nonprofit organizations. Blogs are an inexpensive way to broadcast an organization’s message to a large audience, but monitoring a large and active blog can consume an enormous amount of staff resources, making this otherwise cheap resource too expensive to be cost-effective. The IRS has not answered this question, leaving organizations with little to help guide their decisions about how to approach blog comments. In the absence of IRS guidance, organizations may consider the following principles.
Staff postings: Because staff-written postings carry the imprimatur of the organization, they are likely to be attributed to the organization. This is the case even if the staff member writes the posting on his own time, without using organizational resources. Therefore, postings by staff on a 501(c)(3) website may not support or oppose candidates, or in any way violate the prohibition on campaign intervention. Staff postings on a 501(c)(4) website are permissible, so long as they comply with applicable campaign finance laws. Staff of a 501(c)(3) may post political content on a 501(c)(4) website if the two organizations have a written cost-sharing agreement in place, under which the 501(c)(4) pays for the staff member’s time, ensuring that no 501(c)(3) funds are used for political advocacy.
Guest postings: It is unclear how the IRS would treat posts written by guest bloggers (i.e., individuals who are not employees or organization officials) on an organization’s website. If the IRS follows precedents in which it has permitted 501(c)(3) organizations to serve as a public forum for promoting ideas, it will not treat guest bloggers as speaking on behalf of the organization, provided the blog includes a disclaimer stating that the views expressed are those of the guest bloggers and not necessarily those of the organization, that the organization does not endorse any political candidates, and that the commentaries are presented as a public service in the interest of informing the public.
It remains possible, however, that the IRS may treat a guest blogger’s post as being speech by the organization. In a ruling relating to Internet activity, the IRS stated, “If an organization posts something on its web site that favors or opposes a candidate for public office, the organization will be treated the same as if it distributed printed material, oral statements or broadcasts that favored or opposed a candidate.” This ruling did not include caveats saying a web posting would be acceptable if it contained appropriate disclaimers.
User Comments: Comments by the general public posted on an organization’s blog likely will not be attributed to an organization if the organization allows comments to be posted regardless of political viewpoint. To avoid having comments attributed to the organization, the blog should include a prominent disclaimer stating that the views expressed are those of the people making the comments and not necessarily those of the organization, that the organization does not endorse any candidates, and that the commentaries are presented as a public service in the interest of informing the public. An organization may delete comments that contain offensive language. However, if it deletes only some comments based on their political content and not all comments with political content, the organization may open itself to an accusation that it is promoting one political message over another
Q: May a 501(c)(3) let a 501(c)(4) or a candidate use its email list?
A: A 501(c)(3) organization may not provide an email list for free to candidates, political parties, or even a politically active 501(c)(4) organization because to do so would allow 501(c)(3) resources to subsidize the activities of the candidate, party, or 501(c)(4). If the 501(c)(3) makes a list available for rent at fair market value to anyone who wants to rent it, then the charity may make its list available on that basis to 501(c)(4)s, candidates, and political parties. A 501(c)(3) may not allow a candidate or political party to use its lists, even with fair compensation, unless the charity also is willing to make its lists available to all candidates and to all political parties. To ensure the list is equally available to all candidates, the 501(c)(3) organization should inform the other candidates that the list is available. Income from list rentals is generally not subject to unrelated business income tax (UBIT) because it is exempt as royalty income. For more information, see The Connection.
Q: May a 501(c)(4) organization let a candidate or political party use its email list?
A: Because an organization’s email list has value, giving a list to a candidate is a contribution. Where the law allows corporate contributions, a 501(c)(4) may give its email or other membership list to a candidate. In jurisdictions that prohibit corporate contributions (e.g., federal elections and in many states), the candidate or political party must pay the 501(c)(4) organization fair market value for using the list. Payment for the email list must be made to the 501(c)(4) in advance. Otherwise, the organization may be found to have made an in-kind contribution to the candidate or party. Unlike a 501(c)(3) organization that rents its lists to candidates, a 501(c)(4) organization may choose to rent, sell, or give its list only to the candidates it supports; a 501(c)(4) organization does not need to make the list available to everyone who requests it.
Q: What are the rules for moderating an email listserv?
A: No clear rules have been set by the IRS or FEC regarding moderation of email listservs. Depending on how the listserv is operated, the principles regarding their management may follow those applicable to membership communications or to blogs.
For listservs open only to members, postings should be treated as membership communications. This means a 501(c)(4) organization may make unlimited communications to support or oppose candidates, participants in the listserv may send candidate-related messages without restriction, and those messages may be coordinated with the candidate or his campaign. A 501(c)(3) organization should not allow its staff members to send emails to the listserv supporting or opposing candidates, as these may be attributed to the organization and considered by the IRS to be impermissible campaign intervention. Members’ candidate-related emails may be defensible if the organization allows comments to be posted regardless of political viewpoint and if the organization periodically sends list members a disclaimer stating that the views expressed are those of the individuals making the comments and not necessarily those of the organization, that the organization does not endorse any candidates, and that the commentaries are presented as a public service in the interest of informing the membership.
Listservs open to the public or to people who are not members of the organization should be treated somewhat differently. Staff-written emails on a 501(c)(4) listserv may support or oppose candidates only to the extent that they are written as independent expenditures or—where permissible—as in-kind corporate contributions from the organization. Participants on a 501(c)(4)’s public listserv may be permitted to post emails supporting or opposing candidates in three situations: 1) if listserv expenses are allocated as in-kind contributions to the candidate; 2) if the expenses are an independent expenditure for the candidate; or, potentially 3) if the organization includes proper disclaimers stating that the views expressed are those of the individuals making the comments and not necessarily those of the organization. A 501(c)(3) should not allow its staff to post comments supporting or opposing candidates on a public listserv, and list participants should receive a disclaimer informing them that the organization does not support or oppose candidates and that participants should not post material supporting or opposing candidates.
SOCIAL NETWORKING SITES
Q: Do the IRS and FEC rules apply to social networking sites like Facebook, Twitter, YouTube, and MySpace?
A: Social networking is uncharted territory for the IRS and FEC, but the agencies’ broader rules most likely apply to social networking sites just as they do to other communications channels. Organizations should assume that 501(c)(3)s may not use social networking sites to intervene in elections and that 501(c)(4) political activity must follow the relevant state or federal laws regarding corporate campaign contributions and independent expenditures.
Q: What are the rules for “friending,” “liking” or “following” politicians?
A: While no specific “rules” regulate the friending or following of politicians, tax law and IRS regulations provide some principles to guide organizations. Section 501(c)(3) organizations may not intervene in elections, such as by showing bias against or preference for particular candidates. By taking action to friend or like a person on Facebook, the organization is signaling its approval of that person. If a 501(c)(3) organization links to the profile of a political candidate as a Facebook “friend” or someone they “like,” the organization’s action likely shows a preference for that candidate over others. Whether the IRS would view “following” a person on Twitter as indicating approval for that person is unclear; organizations may follow someone simply to monitor what that person is saying, without passing judgment on the speaker.
Depending on the circumstances, the analysis may be different if the organization friends or likes the official government profile created by a public official, rather than that of a candidate. It may be preferable to connect to an official’s public profile rather than to a campaign profile. In that situation, the IRS might view the organization as signaling approval for the politician’s official actions but not passing judgment on the politician’s election campaign, which may carry less risk. The analysis would be based on the specific facts and circumstances of the situation, such as the timing in relation to an election, whether the organization likes all members of a particular committee or delegation, comments by the organization on Facebook related to that official, and other factors. However, because friending or liking a public official may be viewed as akin to an endorsement of that person, it is possible the IRS would view any such action by a 501(c)(3) organization to be an impermissible political endorsement, even when done to a politician’s official government page.
A 501(c)(4) organization, because it may engage in political activity, is not bound by these restrictions. A 501(c)(4) may friend, follow, or like any candidate. The costs involved (which are likely to be de minimis) may be subject to the jurisdiction’s campaign finance laws and may need to be reported as an in-kind contribution or an independent expenditure.
Q: Does a 501(c)(3) have to reject politicians’ requests to “friend” or “follow” the organization? What if they say they “like” the organization?
A: Generally, a 501(c)(3) organization should treat public officials and candidates no differently than it treats other Internet users. If an organization accepts all friend requests and all Twitter followers, it reasonably may accept public officials and candidates, too, without bias for or against any candidates or parties. By simply following the organization’s policy of accepting all Facebook and Twitter requests, these instances differ from situations where the organization itself is making an affirmative step to state an organizational preference for a particular officeholder or candidate by reaching out to friend of follow the candidate. If a candidate likes an organization on Facebook, the organization has no control over that statement, just as it would not have any control over a candidate standing up at a debate and verbally praising the organization and saying he likes it. The IRS analysis would be on the organization as the speaker, and whether the organization is endorsing the candidate, not the other way around.
Note: Twitter etiquette at one time encouraged users to return the favor to their followers by following them back. However, following someone may send a different message than passively accepting that person as a follower. If the IRS views following someone on Twitter to be an endorsement of that person’s views, then a 501(c)(3) organization that follows a candidate is impermissibly intervening in an election, even if the organization is doing it only as a polite gesture after the candidate had first followed the organization. Without clear guidance from the IRS, it is difficult to know whether the IRS would make distinctions between liking a candidate on Facebook and following him or her on Twitter. The safest route for 501(c)(3) organizations is to buck Twitter etiquette and not follow any candidates.
Q: May we talk about candidates in tweets, texts, and status updates?
A: An organization should discuss officeholders and candidates in tweets, texts, and status updates only to the extent they would do so in other communications channels. Section 501(c)(3) organizations may tweet, send texts, or post status updates about public officials, as long as those messages do not intervene in the officials’ elections. For example, a 501(c)(3) organization could use Twitter and Facebook to rally its supporters to take action on grassroots lobbying, providing the names of particular legislators to contact, but only if such activity is truly lobbying in nature and is not political activity in disguise. If the message is focused only on the legislation and does not communicate support for or opposition against the candidate, the IRS may consider the message to be lobbying and not political intervention.
A 501(c)(3) organization should not, however, tweet, text, or post information about candidates that shows a bias or preference concerning the candidates. For example, retweeting a candidate’s announcement for office or about an upcoming rally could be viewed as akin to favoring that candidate. Similarly, tweeting or posting a link to a newspaper’s endorsement of a candidate would be viewed as recommending to the organization’s followers that they should read (and, presumably, agree with) the newspaper’s endorsement.
The facts and circumstances of a particular message from a 501(c)(3) organization will determine whether it communicates permissible issue advocacy or impermissible political intervention.
A 501(c)(4) organization, in contrast, may use Facebook, Twitter, YouTube, and all other communications channels at its disposal to conduct unlimited lobbying, issue advocacy, and political campaign activity, as long as political activity does not become its primary purpose. For political activity, the relevant federal or state campaign finance law may require reporting of the costs, either as an in-kind contribution to the candidate (where corporate contributions are permitted), or as an independent expenditure. Under federal law, the status updates and Facebook pages of corporations do not need disclaimers because the organization does not need to pay Facebook for its service. Paid advertisements placed on Facebook do, however, need a disclaimer identifying the corporation that paid for them. Under certain state laws regulating social media, such as Maryland’s, a Facebook page may require a disclaimer.
Q: What should we do if a candidate or supporter posts something political on our Facebook wall?
A: If a candidate or other person posts a political message on the Facebook wall of a 501(c)(3) organization, or in response to the organization’s status update, the safest approach is either to delete that message or to post a follow-up from an organizational staff member stating that statements expressed by others on the wall do not necessarily reflect the organization’s views and that the organization does not support or oppose candidates. The organization should take a consistent approach—either deleting the post or following it with a disclaimer statement—regardless of the content of a particular message. For example, if you delete messages posted by candidates who generally oppose your organization, do not simply post a disclaimer after messages from candidates who generally support your organization; apply your policy consistently regardless of a comment’s content. As a prophylactic measure, a 501(c)(3) organization may place a general disclaimer on its Facebook wall or info page stating that the organization does not endorse candidates or otherwise intervene in political campaigns, and asking people not to post comments on the organization’s wall that support or oppose candidates. However, the efficacy of such a disclaimer is unknown.
A 501(c)(4) organization, on the other hand, may post political content in its status updates and may allow others to post political comments on its wall or in response to a status update. Further, because it may engage in political activity, the 501(c)(4) may delete comments opposing the organization’s political positions, while featuring those supporting the organization’s endorsed candidates. The time spent on express advocacy related to candidates is reportable as an independent expenditure or as an in-kind contribution, subject to federal or state campaign finance law, and it counts against the organization’s “primary purpose” test. Under federal law, the status updates and Facebook pages of corporations do not need disclaimers because the organization does not need to pay Facebook for its service. Paid advertisements placed on Facebook do, however, need a disclaimer identifying the corporation that paid for it. Under certain state laws regulating social media, such as Maryland’s, a Facebook page may require a disclaimer.
Q: What should we do if a candidate or another person tweets something about our 501(c)(3) organization that’s political, or associates a political hashtag with our name?
A: An organization cannot control what others say about the organization in tweets, so there is no legal obligation to respond. The IRS likely would not say a 501(c)(3) organization has intervened in a political campaign in this situation because the organization is not responsible for the tweets. This situation is akin to a letter to the editor in which a candidate mentions the organization: The organization may respond to clear its name or to correct the record by informing the public that it does not support or oppose candidates, but it will not be penalized if it chooses to ignore the offending statement.
Q: May we treat our Facebook friends or other social network followers as “members?”
A: No. Both the IRS and the FEC treat an organization’s communications to its members more leniently than it does communications to non-members. Both the IRS and the FEC have specific regulations defining who qualifies as a member.
IRS regulations permit an organization to treat certain communications to its members as non-lobbying activity, even though they would be lobbying if made to non-members, or as direct lobbying rather than grassroots lobbying. For lobbying purposes, the IRS defines “member” as a person who pays dues or makes a contribution of more than a nominal amount; makes a contribution of more than a nominal amount of time; or is one of a limited number of “honorary” or “life” members who have more than a nominal connection with the electing public charity and who have been chosen for a valid reason. The IRS has given no indication what constitutes volunteering “more than a nominal amount of time” for an organization.
The FEC allows corporations to make unlimited express advocacy communications to their members and to coordinate those communications with candidates—activity that would be illegal if the corporation were communicating with non-members. The FEC defines “member” as someone who either has a significant financial attachment to the organization; pays annual dues at least annually, of a specific amount set by the organization; or has a significant organizational attachment to the organization, which includes affirmation of membership on at least an annual basis and direct participatory rights in the governance of the organization.
Merely being Facebook friends with an organization, signing up for its email list, or being connected through another social network does not satisfy either the IRS or the FEC membership definition.
Q: Our 501(c)(3) organization’s employees are grassroots organizers, and we encourage them to use their personal Facebook account to publicize work activity. How should they segregate their personal political activity and their non-political work activity?
A: To the extent an organization is paying persons to post work-related information on social networks, the activity likely will be attributed to the organization and must comply with the organization’s tax-exempt status. If the employees are identifying themselves as employees (e.g., “Come to my event Tuesday night”), the online activity should comply with the organization’s tax status. Additionally, if the employees posted the information only because they are employees, the post may be viewed as part of their work and should comply with the organization’s tax status. If the employees use a social networking tool both for personal and work-related activity, but the predominant use is for the organization, then it may be safest for any posts related to the employees’ personal political views to contain a disclaimer that the post is in their personal capacity only. If the employees primarily use their Facebook account for personal purposes and also occasionally use it for work purposes, then their political posts should be written in such a way that the IRS (and other readers) would not mistake the content as being work-related.
Q: The president of our organization has a Facebook page and a Twitter account, but our staff manages them and adds much of the content. May they “friend” and “like” politicians, or tweet about a candidate’s latest speech?
A: In a situation where the organization’s staff is maintaining the president’s Facebook page and Twitter account, those activities should be treated as organizational activities. The Facebook page or the Twitter account in this situation is no different from a speech or op-ed column by the president on behalf of the organization (and likely written by organization staff). If the staff time to maintain the Facebook page or Twitter account is paid for by a 501(c)(3) organization, the president’s statements on the page or account should not take positions in elections—just as the president’s speech or op-ed column would not. The president could use his or her 501(c)(3) Facebook page to “friend” or “like” the official government page of a public official, but the president should not connect to a candidate site if the organization is using 501(c)(3) funds to maintain the president’s Facebook page.
If the account is treated as a 501(c)(4) activity, then the President may engage in political activity such as announcing the organization’s endorsements or touting a position taken by a politician. However, the applicable state or federal laws regarding contributions, coordination, and independence must be followed. For example, if the president is coordinating with a candidate, the staff time involved with the president’s tweets must be allocated as a contribution to the candidate whom they benefit.
Q: May we use photos from candidates’ websites on our web pages?
A: A 501(c)(3) may not use a candidate’s photo to show support for or opposition to his or her candidacy. However, a 501(c)(3) may use candidate photos in presenting a neutral, unbiased list of all candidates.
A potential problem arises, however, in using photographs taken from a candidate’s own website, Flickr feed, Facebook page, or other site. Under federal campaign finance regulations, an organization that distributes or republishes materials produced by a campaign may be making a contribution to that candidate. The FEC has struggled with the question of whether using a photo from a candidate’s website constitutes republication. Four of the current six FEC commissioners, in various situations, have said that copying a photo from a candidate’s website does not constitute an in-kind contribution. The matter is not settled, however, and various state laws may treat this activity as an in-kind contribution.
Furthermore, an organization should be aware that using photographs copied from the Internet, without permission of the photographs’ owner, may violate copyright law. You should check whether the photographs are being published pursuant to a Creative Commons license, which states specifically the conditions under which someone can use a copyrighted work. You should also check the terms and conditions of the website on which the photograph is located. Often, the terms and conditions will dictate how a user can use content from the particular website. It is also possible that you may have a reasonable “fair use” defense if you were to use the photograph without permission. You should consult legal counsel if you think you will need to rely on “fair use.” (Please note, however, that works of the federal government are not protected by copyright and are free for the taking.)
It is also important to consider whether the organization needs permission from any identifiable people in the photographs. Generally, people have a right to control the use of their image for “commercial” purposes. A 501(c)(3) or 501(c)(4) organization’s purposes are likely not to be considered “commercial,” but be aware that an organization will need to obtain permission to use a person’s image if your use is commercial in nature.
Q: What rules do we need to consider when we host videos on our website?
A: When deciding whether to host a video on its website, an organization should consider the content of the video and its copyright protections. From a content perspective, an organization may host a video if the content is consistent with the organization’s tax status. Just as a section 501(c)(3) organization may not distribute pamphlets with express advocacy, its website may not host videos containing express advocacy—whether those videos are produced by the organization or whether they embed a link from another organization or from a news source.
A section 501(c)(4) organization considering whether to host an express-advocacy video must determine whether doing so would constitute an in-kind contribution or an independent expenditure. In a federal election, for example, hosting a video created by a candidate on a 501(c)(4) website might be viewed as “republication” of the candidate’s materials, in which case it would be a coordinated in-kind contribution even if the organization did not communicate with the candidate or campaign regarding the video. Corporations are prohibited from making in-kind contributions to candidates under federal law. However, if the organization posted a link to the video on the candidate’s website, rather than hosting the video on the organization’s own site, this might be considered an independent expenditure by the 501(c)(4) organization if no coordination had occurred.
From a copyright perspective, it is very important to determine whether an organization is permitted to copy a third party’s video and embed it on the organization’s website. Check the website’s terms and conditions, which usually state what one can and cannot do with content from the site. Some sites include a “Share” button, which may reasonably be interpreted as granting permission to a user to share the particular video in the manner that is intended. A use that is greater than what is authorized (either implicitly or explicitly) would constitute copyright infringement.
Absent permission to copy, distribute, and republish a video, the only safe course of action is to include a link from your website to the website that hosts the video. This way you are not violating copyright law and you are making it clear to the users that they are leaving your website and going to a different website. Embedding a video without permission of the copyright owner would constitute copyright infringement and should not be done.
Q: When do we need a line stating “Paid for by ___,” or other disclaimer language?”
A: Federal PACs—A website created by a federal PAC, and available to the general public, must include a disclaimer stating that it was paid for by that PAC. If the website was authorized by a candidate, the disclaimer must state that fact. If the website is independent of a candidate, the disclaimer must state the full name and permanent street address, telephone number, or URL of the PAC and state that the communication was not authorized by any candidate or candidate’s committee.
State PACs—Disclaimer requirements vary by state. To learn more, see the Alliance for Justice State Law Resources Page (http://www.afj.org/for-nonprofits-foundations/stateresources/) or consult a state’s election authority. Paid Web Ads Mentioning a Candidate—As discussed above, communications supporting or opposing federal candidates are regulated by the FEC if they are placed for a fee on another’s website. Advertisements paid as independent expenditures must state the full name of the organization that paid for the ad; give its permanent street address, telephone number, or URL; and state that the communication was not authorized by any candidate or candidate’s committee.
The FEC granted an exception to Google AdWords, saying that AdWords advertisements supporting or opposing federal candidates do not need a disclaimer. AdWords contain a headline, followed by two lines of text and a URL. Some FEC commissioners approved the exception based on the fact that AdWords contain a URL, which, they said, provides users with notice regarding the sponsor of the advertisement akin to the notice provided in a disclaimer. Other FEC commissioners took the view that AdWords are so small that they fit within the exceptions for small items and/or the exception for items on which placing a disclaimer was impracticable.
Web Videos Mentioning a Candidate but Not Placed for a Fee—If an organization other than a federal PAC creates a video mentioning a federal candidate and posts the video on its own website or on YouTube or makes it available through some other online vehicle—but doesn’t pay those other websites to post it as an ad—the video does not need any disclaimer. Depending on the content, though, the costs associated with the ad may be reportable as an independent expenditure, and coordination with candidates may be prohibited.
Solicitations by 501(c)(4)s, PACs, and Certain Other Organizations (but not 501(c)(3)s)—Any fundraising solicitations must include a disclaimer that meets the following four requirements:
- The solicitation includes whichever of the following statements the organization deems appropriate: “Contributions or gifts to [name of organization] are not deductible as charitable contributions for federal income tax purposes,” “Contributions or gifts to [name of organization] are not tax deductible,” or “Contributions or gifts to [name of organization] are not tax deductible as charitable contributions”;
- The statement is in at least the same size type as the primary message stated in the body of the letter, leaflet, or ad;
- The statement is included on the message side of any card or tear-off section that the contributor returns with the contribution; and
Text Messages—In a 2002 advisory opinion, the Federal Election Commission ruled that text messages that were limited to 160 characters per message did not need disclaimers. This opinion was limited to the facts of the situation presented to the FEC. The FEC might not extend this disclaimer exception to text messages with an unlimited character length.
EMPLOYEES’ PERSONAL ACTIVITIES
Q: May our employees use their work email accounts to send their friends messages supporting candidates?
A: A 501(c)(3) may not allow its employees to use the organization’s property to conduct political activity.
For a 501(c)(4) organization, on the other hand, the answer depends on the jurisdiction in which the candidates are running. For federal elections, employees may use their work email accounts to send political emails, as long as this activity is only “occasional, isolated, or incidental” and is conducted in their individual capacity. The emails should make clear that the employees are not speaking in their capacity as a corporate employee. “Occasional, isolated, or incidental” means the activity does not prevent the employee from completing his or her normal amount of work. Furthermore, the corporation must apply the policy evenly, without favoring employees whose messages support or oppose any particular candidate or political party. If the employee’s activity adds to the corporation’s costs, the employee must reimburse the organization, so that corporate funds are not subsidizing political activity.