How 501c3s can use elections to build political power

Elections and your 501c3 Tax Status

Presented at the River RallyMay 2010

More About Me

• After 12 years running the Oregon League of Conservation Voters and OLCV Education Fund

• Launched consulting practice last fall.• Focus areas are:

– Strategic Planning– Coalition building– Fundraising– Communications

• Special knowledge of 501c3s and election rules/strategy.• I do have a law degree, but I’m not going to give you

detailed legal advice.

Two basic questions

• What can you legally do as a 501c3 around elections?

• Given what’s legal, how can you use elections to build power for your organization?

Covering three topics

• What you definitely can’t do

• What you can do

• Why you might want to do these things

What you can’t do

“may not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”

In plain english . . .

Can’t support or oppose a candidate for public office.

What is public office?

• Any election. – President– Dog catcher– Everything in between

• Ballot measures are NOT covered. They’re treated as lobbying, which is a whole different workshop.

Who’s a candidate

• Declared candidate• Candidate in exploratory stage• “Draft” a candidate effort

What is support or oppose?

• Not just giving money or lending your organizational name (endorsement).

• Any action that under all the facts & circumstances the IRS concludes is meant to help or hurt a specific candidate or set of candidates.

Penalty for breaking the law?

Bad Really Bad Catastrophic

Warning Letter Excise Tax Revocation of Tax Exempt Status

So how do you know what you can do?

• IRS guidelines for what you can do

• No time to do an exhaustive review, which could take all day.– Alliance for Justice has the best, easy to

understand guidebook• www.afj.org

• Will focus on a handful of key examples

http://www.afj.org/

Four areas I’ll cover

• Issue advocacy

• Voter registration

• Voter education

• Activities of individuals

Issue advocacy

• It often involves saying positive or negative things about an elected official running for reelection or higher office.

• You don’t have to stop doing your issue advocacy just because of an election.

• Corrollary: You shouldn’t do your issue advocacy just because there is an election.

Types of issue advocacy

• Lobbying – Vote Yes on Bill X.• Criticizing incumbents’ positions – Governor Jones should

stop cutting funding for river protection . . . • Scorecards

– Public – regular, all members, broad range of issues, no commentary

– For members. Regular, all members, narrow range of issues, commentary.

• Candidate education– Offer it to everyone if anyone– Use only info you already have in hand. Don’t create info at a

candidate’s request even if you share it with others.

IRS uses “facts & circumstances” test

Good facts & circumstances• If part of a pattern of issue

advocacy that existed prior to the election season.

• If only refer to them in their elected official position

• Language doesn’t match the candidate’s campaign materials

Bad facts & circumstances• If only do around the

election time.

• If refer to their candidacy.

• If language matches candidate’s message (unless can show you were using it first)

Voter Registration

• No reference to who they should vote for• No preference by political party• Make available to everyone• Target population/geography for nonpartisan reasons• Can’t use code words to couch preference – IRS has

said “Vote Pro-Choice, Register to Vote” is code for Democratic at this point.– “Environment” is probably not code for party, but may be

in some elections. No direct IRS ruling on it. So would want to know more about the context.

Voter Education

• Candidate questionnaires

• Debates/Forums

• Appearances unrelated to candidacy.

Test: “fact and circumstances”

• Just like with issue advocacy, IRS will look at all facts & circumstances to determine if you were really doing something to help or hurt a specific candidate or party.

• They’ve laid out some guidelines for safe facts & circumstances for different types of voter education.

Candidate questionnaires

• Unbiased• Open-ended questions (but should have word

count or character count limit)• Distributed to all candidates• Broad range of issues• No pledges to vote for or against something• No editing of their responses• Present responses formatted equally• Disclaimer that not supporting/opposing anybody

Candidate debates/forums

• Broad range of issues. Not clear how broad. Environment probably broad enough, but river probably not.

• Invite all viable candidates. Can exclude those polling low as long as rational basis identified before hand.

• Impartial moderator.• Unbiased audience selection.• Equal opportunity to talk.• No contextual favoritism.

Appearances unrelated to election

• Invite sitting officeholder to event in their office capacity.

• Awards as an example, or a policy update• No equal opportunity required• Avoid mentioning candidacy. Must tell that to

the candidate too!• Don’t time to closely coincide with the election• Disclaimer in writing to the candidate to be safe.

What about individuals?

You can participate as individuals

• You don’t lose your rights as an individual just because you are staff or on the board of a 501c3 nonprofit.

• Bottom line rules for organizations:– Can do elections in personal capacity.– Not on organizational time/resources.– Organization can’t ratify activities.– Have a written policy if possible (e.g. it’s okay to do

this, but don’t use work email or resources). AFJ has an example of their policy.

For more information on the law

• Best source = Alliance for Justice. www.afj.org.

• Nonprofit Voter Engagement Network, www.nonprofitvote.org.

http://www.afj.org/

http://www.nonprofitvote.org/

Why do any of this?

• Just because you can do something, doesn’t mean you should do it!

• For me, the first question to answer is: what is your theory of change?

Possible theories of change for a river protection group

• Change requires litigation to enforce existing river protection laws.

• Change requires more data to document river health problems.

• Change requires a better educated citizenry who’ll fight to protect the river.

• Change requires elected officials to recognize the importance of river protection.

• Change requires elected official to have better information about what’s needed for river protection.

Which activities to choose?

• Debates?• Issue education?• Questionnaires?• Other methods?

Depends on your theory of change!

Match up the strategy to your theory of changeTheory of Change Appropriate Strategy

Elected officials make key decisions based on personal relationships

Elected officials make key decisions based on their knowledge of the issues

Elected officials make key decisions based on fear of being held accountable/exposed

Elected officials make key decisions based on their underlying values

Elected officials make key decisions based on their perception of the public’s attention to the issue



Individual involvement in campaigns









Issue Briefings, Issue Advocacy










Scorecards, Issue Advocacy









Scorecards, Issue Advocacy, Nonpartisan voter participation


Probably none – since that means you need a new elected official and a 501c3 can’t try to influence that.








Scorecards, Issue Advocacy, Nonpartisan voter participation


Probably none – since that means you need a new elected official and a 501c3 can’t try to influence that.


Candidate Forums, Voter Registration , Nonpartisan Voter turnout from a useful audience (e.g. young voters)

If more than one makes sense, how decide which?

• No obvious answer.• But I’d ask the following questions:– Which is most synergistic with my other

programs?– Which builds my capacity by involving volunteers,

helping with fundraising, or building the organization’s reputation in the community?

Follow up questions?

How 501c3s can use elections to build political power

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