Answers to Common Questions about Nonprofits and the 2020 Election

Last updated: October 1, 2020

David Heinen, Vice President for Public Policy and Advocacy

Wondering what types of election-related activities your nonprofit can and can’t do between now and the November 3 election? You’re not alone; the North Carolina Center for Nonprofits has been fielding many questions about what’s legal and what’s advisable. Here’s a quick take on some of the most common questions we’re hearing.

What are the basic rules about nonprofits and elections?

Under federal tax law, 501(c)(3) nonprofits can’t endorse or oppose candidates or political parties and can’t make campaign contributions, including in-kind donations such as use of office equipment or space. Charitable nonprofits may, however, engage in nonpartisan election-related activities. For example, without favoring one party or candidate over another, nonprofits can engage in voter registration, get-out-the-vote, and voter education efforts. The IRS’s clearest (and most recent) guidance on what nonprofits can and can’t do in an election year comes in the form of a 2007 Revenue Ruling that analyzed 21 typical scenarios of election-related activities by 501(c)(3) organizations. While 501(c)(3) nonprofits can lose their tax-exempt status if they violate these rules, the reality is that the IRS rarely enforces them. Nonetheless, you should strictly obey them – and not just for legal reasons (though those matter)!

Consider this: Even though the threat of legal penalties is remote, nonprofits risk losing the trust of their donors, volunteers, clients, and the public if their activities even create the appearance that they are taking sides in partisan politics. Many people in your community rightly perceive that nonprofits have a legal obligation to abstain from backing or opposing any candidates. If they see your organization isn’t following this rule, they’ll start wondering where else you are cutting corners or ignoring important laws and best practices.

Should nonprofits encourage people to vote?

Absolutely. Nonprofits are among the most trusted institutions in every community of North Carolina. When nonprofits provide nonpartisan information about elections, people listen to them. Furthermore, nonprofits can empower the people they serve by encouraging them to vote. Research from Nonprofit VOTE has shown that voter turnout is measurably higher among people who received nonpartisan information about an election from a nonprofit service provider or who registered to vote at the encouragement of a nonprofit.

Nonprofit VOTE has excellent resources on nonpartisan voter registration and get-out-the-vote activities for nonprofits, including tips on doing voter registration and get-out-the-vote work during the COVID-19 pandemic. If your nonprofit has never done voter registration, get-out-the-vote, or voter education work, 2020 is a great time to start!

What type of voter education can nonprofits do?

Nonprofits can help citizens become active and informed voters in two important ways:

  1. They can provide basic, nonpartisan information about the election process. This includes details about: the eligibility requirements for registering to vote; the dates and times that polls will be open during Early Voting and on Election Day; where to find Early Voting sites; how voters can find their polling place and see what is on their ballot; and what type of identification is (or is not) required to vote (note: voters will NOT be required to show photo ID in the 2020 election). This type of voter education is particularly important in North Carolina where election laws are constantly changing. In North Carolina, You Can Vote and Democracy North Carolina both have user-friendly, nonpartisan resources with the latest information on the election process.
  2. They can inform the public about candidates for office by publishing – or sharing – voter guides that include unedited responses to questionnaires about policy issues from all candidates for an office. Nonprofits also can host – or participate in candidate forums if all the major candidates for an office are invited to participate and most or all of them show up for the event.

Can a nonprofit tell people who is on their ballot?

Certainly. In fact, I’ll show you how to do it right now! Go to the NC State Board of Election Voter Search page and enter your name (if you have a relatively common name, you can narrow your search by including your middle initial, year of birth, and/or county). Click on the link for your name that shows up after the search. From there, you can click on your sample ballot and find the address of your polling place on Election Day.

Nonprofits can provide a great service by encouraging their staff, board members, volunteers, and the people they serve to check out their ballots before voting. While the Presidential election gets the most media attention, voters will be choosing dozens of elected officials this fall. North Carolina’s ballot includes choices for Governor, Council of State (the nine statewide officials who direct various state agencies), a U.S. Senator, our 13 members of the U.S. House of Representatives, our 50 state senators and 120 state representatives, three NC Supreme Court justices, several state judges, county board members, school board members, and soil and water conservation district supervisors.

Can a nonprofit encourage people to register to vote?

Definitely, as long as the organization isn’t encouraging them to affiliate with a particular political party. In fact, nonprofits are among the most effective messengers encouraging voter registration, since they have the trust of their donors, volunteers, staff, and communities.

Can a nonprofit encourage people to request absentee ballots? Or to vote early?

Absolutely. With the COVID-19 pandemic, a record number of North Carolinians are expected to vote by absentee ballot in 2020. The NC State Board of Elections opened its online portal for requesting absentee ballots online. The online application process only takes about three minutes to complete, but it can take a few weeks to receive your ballot. Nonprofits should encourage people planning to vote by mail to request their absentee ballot now so they receive it in time to return it before Election Day.

Early Voting – especially at an off-peak hour – is also a great option for North Carolinians wishing to maintain social distance and avoid large crowds on Election Day (although the last Saturday of Early Voting is usually very popular). Early Voting is available in all 100 counties (find your Early Voting sites here). During the Early Voting period (Thursday, October 15 through Saturday, October 31), eligible citizens can register to vote (or update their address) onsite at any Early Voting location in their county. Because voters don’t have to worry about going to the right polling place and can vote even if they’ve moved since the last election, Early Voting is the safest way to guarantee that your ballot will actually be counted. In the 2016 election, 99.8% of voters who used Early Voting had their votes counted, as opposed to 98% who voted on Election Day. 

Can a nonprofit give its staff time off to vote or volunteer on Election Day?

Certainly. Nonprofits can help make sure that their staff have the opportunity to vote is to offer paid time off to vote during Early Voting or on Election Day and paid time off for staff to volunteer as nonpartisan poll workers. To make it easy for your nonprofit to adopt this type of policy, the Center is sharing the language that our board recently adopted:

“Voting and Election Day.  The Center encourages all employees who are eligible to vote to participate fully in the electoral process. Any Center employee may take paid time off work on Election Day or during the Early Voting period to vote in any primary, general, or run-off election. Employees should notify their supervisors of the time they plan to take off for voting.

“Center employees also may take up to one day per year of paid time off to volunteer in a nonpartisan role as a poll worker on Election Day or during the Early Voting period. Employees must get prior written approval of their supervisors (which shall not unreasonably be denied) before taking this paid time off. Employees volunteering for political parties or campaigns on Election Day or during the Early Voting period may not be paid for their time engaging in partisan political activities, but they may take annual leave for any time spent volunteering for candidates or political parties.”

Feel free to use the Center’s policy as a model for your own organization.

Can a nonprofit leader personally endorse a candidate?

Certainly. Nonprofit staff, board members, and volunteers don’t give up their free speech rights simply because they’re associated with a 501(c)(3) organization. As individuals, they can support candidates for office, make campaign contributions (with some limitations if they are registered as lobbyists with the NC Secretary of State), and even run for office.

However, they need to be certain they don’t imply that their personal political positions are made on behalf of their organizations. Nonprofits can protect themselves by reminding staff and volunteers not to use the organization’s name, email address, office space, or phones when they help with political campaigns. It’s also a good practice for nonprofits to avoid mentioning political candidacies of their staff, board members, volunteers, and donors during organizational events and on their websites.

Does it become a problem if a candidate who has been endorsed by a nonprofit leader runs a campaign ad touting the endorsement and mentioning the organization by name?

Legally, it’s still not a problem for the nonprofit unless the nonprofit paid for the ad or gave permission for the implied endorsement by the organization. It may, however, create the appearance that the nonprofit has engaged in impermissible partisan political intervention. If this becomes a problem for the nonprofit’s reputation, the organization can ask the candidate to pull the ad or remove the reference to the nonprofit. If the ad is attracting significant negative attention for the nonprofit and the candidate is unwilling to fix their misleading ad – or it is too late to do so – the nonprofit can issue a statement clarifying that it does not endorse or oppose candidates for any public office.

Can a nonprofit acknowledge an incumbent who is running for re-election who comes to a Zoom fundraising event?

Yes, but be careful. It is common for community leaders, including elected officials, to show up at nonprofit programs and fundraising events. Typically, nonprofits acknowledge officials who participate in these events. If a nonprofit is holding an event in the period leading up to an election, organizational leaders should be careful not to mention officials’ candidacies for re-election during this type of acknowledgment. It is also a good practice to keep the acknowledgment short and simple to avoid the appearance of endorsing the official’s re-election campaign.

Can a nonprofit identify candidates who are generally supportive of its mission without explicitly endorsing them?

No. Identifying candidates for office as being in favor of, or opposed to a policy position (particularly a broad and subjective one like being “supportive of public schools,” “anti-environment,” “for kids,” “a friend of the arts”, or “pro-charter school”) is an implied endorsement of the candidates – or an implied criticism of candidates who take a position that is perceived as contrary to the “correct” position that is consistent with the organization’s mission.

Can a 501(c)(3) nonprofit takes positions on legislative issues during an election year?

Yes, but nonprofits should proceed with caution in the period immediately before an election. Lobbying or influencing legislation (at the federal, state, or local level) is generally legal for 501(c)(3) nonprofits, although there are limits on how much lobbying charitable organizations can do. If a nonprofit is taking a clear stance on a polarizing policy issue right before an election, it should steer clear of mentioning individual politicians by name.

It’s even okay for a 501(c)(3) nonprofit to offer a legislative scorecard comparing how members of Congress, the NC General Assembly, a city council, or county board voted on specific legislation during a previous session. However, nonprofits shouldn’t publish or promote these legislative scorecards shortly before an election and should be certain to keep tallies of legislators’ specific votes on specific pieces of legislation (this can be relevant amendments to bills) rather than subjectively identifying their position as in favor of – or opposed to – a broad policy position.

Can nonprofits take positions on ballot measures?

Yes. On ballot measures – which may include local bond referenda, sales tax initiatives, and state constitutional amendments – voters are directly making laws or policy decisions. Since 501(c)(3) nonprofits are allowed to take positions on legislative issues (see the answer to the last question), they can encourage voters to support or oppose ballot measures.

Can a nonprofit let a political campaign rent its facilities (or use them for free) for a campaign event?

Maybe. The IRS has explained that a 501(c)(3) nonprofit can rent its facilities to candidates for office or political groups as long as it charges its usual fees and would offer the same rental arrangement to others seeking to use the same space – regardless of their political affiliation. However, the IRS guidance warns that nonprofits may be violating the law if they rent their facilities – or their mailing lists – to political candidates when they wouldn’t normally make these resources available for rent, or if they spend time customizing their resources to be used by politicians. And nonprofits can’t offer their meeting spaces or mailing lists to candidates or political parties for free.

Furthermore, nonprofits should think carefully about whether to allow political groups to rent their space. A news story about a partisan event held at a church or another 501(c)(3) organization often creates the perception that the nonprofit is doing something illegal. To be safe and to protect their reputations, many charitable nonprofits have policies in place that don’t allow political groups to rent their facilities or mailing lists.

And of course, if a nonprofit is renting its facilities to any group – political or otherwise – during the COVID-19 pandemic, it is essential to ensure that the group is taking appropriate measures to protect the public health. If a group holds an event on a nonprofit’s property without social distancing, appropriate face coverings, or other safety measures, it could hurt the nonprofit’s reputation and expose the organization to legal liability.  

Can a 501(c)(3) nonprofit contribute to a PAC?

No. Because political action committees exist for partisan political purposes, charitable nonprofits can’t make direct contributions to them. However, nonprofit leaders can personally contribute to PACs, and trade associations and other types of non-501(c)(3) tax-exempt entities are allowed to establish PACs and coordinate activities with certain political organizations.

Can a 501(c)(3) nonprofit have an affiliated 501(c)(4) organization?

Yes. Unlike 501(c)(3) nonprofits, 501(c)(4) social welfare organizations may make political contributions and support or oppose candidates for office, as long as this political work is not their primary activity (note that there is no clear definition of what “primary activity” means). There is also no limit on how much lobbying a 501(c)(4) organization can do.

Sometimes, a 501(c)(3) organization will create an affiliated 501(c)(4) to support its mission through significant lobbying or political programs. Typically, these affiliated (but separate) organizations share offices, staff, and resources, but have separate boards and finances. If your organization is considering creating this type of affiliate, it’s worth checking out The Connection, a publication of Bolder Advocacy (a program of the Alliance for Justice), before getting started.

Can a nonprofit participate in an event that is closely tied to one political party?

It depends. In today’s polarized political environment, there is not always a clear distinction between certain policy issues and partisan politics. Some events, like Black Lives Matters protests or the March for Life, are tied to policy agendas that closely align with the platforms of one of the major political parties. It’s generally permissible for staff, board members, and volunteers of 501(c)(3) nonprofits to participate in these events, even in their official capacities as representatives of their organizations.

Often, charitable nonprofits are asked to be co-sponsors or publicly identified supporters of these types of events. If the event isn’t explicitly tied to a political party and doesn’t expressly endorse specific candidates for office, it is probably legal for a 501(c)(3) nonprofit to do this. A nonpartisan Black Lives Matters event may well fall within this category. However, nonprofits should understand that being publicly affiliated with these events, particularly in an election year, is likely to create the appearance that they are taking sides in the election. It is often helpful for nonprofits to consider how donors, volunteers, staff, and clients who support candidates or political parties other than those who are (directly or indirectly) tied to the event may perceive their affiliation with the event. This is a challenging consideration for many organizations, and there is no clear right or wrong answer.

OK, I get all that, but I’m still not sure about our situation; can you help?

Of course! In the abstract, these rules may seem simple, but many nonprofits find that their real-life quandaries about elections don’t have obvious solutions. If we haven’t answered your question(s) here, or you need simply need help talking through a scenario, we’re here to help. If you’re a member of the Center, you can get answers through our member assistance service.

 

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