Charities Participating in Policy and Protest: 2017 and Beyond

by Nilan Johnson Lewis PA
Contact

[co-author: Fred Struve]

Heidi Christianson and Fred Struve

Recent demonstrations highlight a significant passion for expressing dissent and opposition to the Trump administration and its public policy positions. Given the dramatic increase in queries we have received from our clients around permitted political activities, a review of the relevant limitations imposed by federal regulations on charities (organizations described in Internal Revenue Code 501(c)(3)) seems timely.

First, to Clarify, Charities Can Lobby

Charities can and should engage in lobbying so long as the lobbying is an insubstantial part of the charitable organization’s activities, and the charity keeps good records related to lobbying. Lobbying is communicating with legislators and the public in support of or opposing specific legislation.

What are the Political Activity Limitations?

Notwithstanding the President’s recent pledge to “totally destroy” the Johnson Amendment, all charities (religious and otherwise) are strictly prohibited from participating or intervening in a political campaign in support or opposition of a political candidate—and may lose their tax exempt status by doing so. The President cannot change this limitation by executive order.

Who is Considered a “Political Candidate”?

The IRS regulations define a “political candidate” as a person who has proposed him or herself, or has been proposed by others, as a candidate for public office. This definition is very broad, and importantly includes President Trump, who became a political candidate for the 2020 Presidential election after he announced intentions to maintain his campaign headquarters for his reelection campaign.

Common Scenarios and Staying on the Right Side of the Law

Rallies and Protest

A charity should not arrange, sponsor, or participate in an event, rally, or protest that explicitly supports or opposes any political candidate by name. Charities can and should participate in events supporting or opposing a policy issue in alignment with their mission.

Check the Website and Social Media

A charity should not have a pro- or anti-candidate message (including songs or pictures/memes) on its website or on any other public display—including social media—in the charity’s name. Charities can and should describe their policy priorities on their website and social media.

Letters to Officials/Letters to Editors/Position Statements on Policy

Charities can and should loudly voice their opinions about policies in support of their respective missions by writing letters and position statements. But participating in public policy debates in a manner that identifies a candidate and a specific candidate’s positions will become increasingly risky for charities as the next election approaches. Statements about policy that could identify the charity as being in support of or opposed to a candidate are most dangerous when delivered close in time to an election, or when the statement makes any reference to the election or voting. A charity should not suggest, for example, that any candidate/elected official will be rewarded or penalized by the charity, its constituents, or voters at large in the next election as a result of a policy position.

Individual Board Members

Individual board members and charity leaders are allowed to freely express their personal support or opposition to candidates for public office. They need to be careful, however, to ensure that their expressions could not be construed to be the representations of the charity. For example, if a charity board member or leader is speaking publicly at a protest or rally (or is listed as a supporter of such protest or rally), and if the protest or rally identifies that it opposes or supports a candidate for public office, the charity’s name should not appear in the program or other formal communication related to the event.

Steps for Charities to Take Now

  1. Charities should become educated regarding permissible public policy advocacy and prohibited political activity. In Minnesota, for example, the Minnesota Council of Nonprofits website includes excellent educational materials related to encouraged public policy advocacy and prohibited political activity.
  2. Charities that engage in public policy advocacy should consider adopting written policies regarding the types of public policy advocacy authorized by the charity, when Board approval is required related to those activities, and who has the authority of the charity to speak on its behalf regarding public policy issues.
  3. Charities should seek expert guidance prior to participating in activities that could be deemed to support or oppose a political candidate.

In conclusion, while the passion with which charities and people are approaching public policy issues has changed, the law has not. Charities need to be mindful of federal rules involved with political activities as they advocate loudly for policies that support their mission.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Nilan Johnson Lewis PA | Attorney Advertising

Written by:

Nilan Johnson Lewis PA
Contact
more
less

Nilan Johnson Lewis PA on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!