Whether it be local elections or picking a new president, election season seems to always be lurking around the corner, so on today's episode we're unpacking what it means for 501(c)(3)s to remain nonpartisan and how these nonprofits can safely engage in several different types of advocacy during election season.

Attorneys for this episode

Monika Graham

Melissa Marichal Zayas

Sarah Efthymiou

Remaining Nonpartisan:

The rule is clear: 501(c)(3) organizations cannot engage in any activity or make statements that suggest support or opposition to political parties, candidates, or groups of candidates running for public office, including those not affiliated with a specific political party.

However, the definition of what counts as "nonpartisan" remains somewhat unclear. The IRS uses a "facts and circumstances" test to determine whether a charity's communication and/or activity is truly nonpartisan or a disguised attempt to influence an election. The IRS considers whether the communication and/or activity:

• identifies candidates

• compares a candidate's position on issues important to the organization with the organization's positions on those same issues

• expresses approval or disapproval of a candidate's position or actions

• is delivered close to an election, references voting, focuses on issues that distinguish candidates

• is part of an ongoing series of communications independent of election timing

• or coincides with non-electoral events like legislative hearings on pending bills

DO:

• Keep your focus on issues, not elections. Continue mission-related issue advocacy but avoid suggesting how people should vote.

• Educate voters. Provide nonpartisan facts, resources, and information about voting without mentioning or implying support for candidates or parties

• Host candidate forums or publish questionnaires:

• Invite all viable candidates and give each candidate an equal opportunity to participate

• Ensure questions are neutral, related to your charitable purpose, and cover a broad range of issues

• Share responses verbatim and without commentary

• Register voters and encourage turnout (GOTV) in a nonpartisan manner — serve everyone equally, regardless of political affiliation. Remember, there are special rules for private foundations

• Document everything. Keep records showing how you designed and implemented your activities to avoid partisanship. Develop a track record of similar advocacy in non-election years

• Train staff and volunteers they understand what's allowed and what's off-limits during election season

• Separate personal and organizational activities. Staff and board members may support candidates on their own time, but not using organizational resources (e.g., name, email, office space, social media)

• Engage in ballot measure advocacy but remember to track and report this activity as lobbying if expressing a view on the measure and trying to influence the vote

• Meet with the candidates, educate them about your organization's work, and try to influence their platforms, while ensuring that you provide the same or equivalent information to every candidate

DON'T:

• Endorse, oppose, or rate candidates — directly or indirectly

• Use "code words" (e.g., "vote pro-life," "support progressive values," "throw out the incumbents") that imply candidate support or opposition

• Time issue advocacy communications to coincide with elections if the message could be seen as favoring one candidate's position.

• Publish or share candidate statements selectively or with commentary that signals approval or disapproval

• Use organization funds, staff time, or materials for any partisan campaign activity

• Let candidates use your events, publications, or platforms for campaign purposes.

• Coordinate messaging with a candidate or you could also trigger campaign contribution restrictions under federal election law

Resources:

Rules of the Game: A Guide to Election-Related Activities for 501(c)(3) Organizations

Seize the Initiative: A Legal Guide on Ballot Measures for Nonprofits and Foundations

Being a Player: A Guide to the IRS Regulations for Advocacy Charities

Keeping Track: A Guide to Recordkeeping for Advocacy Charities

Running the Advocacy Race: Bolder Advocacy's Top Resources for an Impactful 2024 Election Season