Charities and Issue Advocacy: Doing it Right – Part One

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Advocacy is a broad term that covers a range of activities that seek to bring about change. One form of advocacy is lobbying, defined as activities that attempt to influence specific legislation. Charities are permitted to engage in lobbying activities, so long as those activities represent an “insubstantial” part of their overall activities.

Another form of advocacy is known as issue advocacy, which includes public support for or opposition to a particular cause or policy without a call to action on specific legislation (lobbying) or a candidate for elected office (political campaign intervention). Charities can engage in unlimited issue advocacy that does not fall within the definition of lobbying or political campaign intervention.

Charities are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of, or in opposition to, any candidate for elective public office. Charities cannot contribute to or fundraise for political campaigns; cannot endorse or oppose a candidate; and cannot use charity resources without giving equal opportunity to other candidates. This applies to all political campaigns for elective office at the federal, state and local level. Charities that violate these rules can lose their tax-exempt status.

Although charities can engage in unlimited issue advocacy, they must avoid issue advocacy that functions as political campaign intervention. The IRS takes a case-by-case approach, looking at the facts and circumstance of each case, and focusing on whether an ad or statement includes anything that indicates a candidacy should be supported or opposed based on the issue. If an activity exhibits a preference for or against a candidate, then the IRS is likely to find that an organization has engaged in prohibited political campaign intervention. A preference can be subtle, such as a reference to party affiliation or “distinctive features of a candidate’s platform or biography” that can identify a candidate.

Although there is no bright line test, the IRS has identified several factors to consider when evaluating whether a charity’s issue advocacy communication falls within the definition of prohibited political campaign intervention including the following:

  1. whether it identifies one or more candidates for a public office;
  2. whether it expresses approval or disapproval for one or more candidates’ positions and/or actions;
  3. whether it is delivered close in time to an election;
  4. whether it refers to voting or an election;
  5. whether the issue it addresses has been raised as an issue distinguishing candidates for a given office;
  6. whether it is part of an ongoing series of communications by the organization on the same issue that are made independent of the timing of any election; and
  7. whether its timing and the identification of the candidate are related to a non-electoral event, such as a scheduled vote on specific legislation by an officeholder who also happens to be a candidate for public office.

The IRS has also identified factors that tend to show that advocacy communication on a public policy issue does not constitute campaign intervention including the following:

  1. the absence of factors (1) through (7) above;
  2. the communication identifies specific legislation, or a specific non-electoral event outside the organization’s control that the organization hopes to influence;
  3. the communication’s timing coincides with a specific non-electoral event outside the control of the organization that the it hopes to influence;
  4. the candidate is identified solely as a government official who is in a position to act on the issue in connection with a specific event (such as a legislator who is eligible to vote on the legislation); and
  5. the candidate is identified solely in a list of legislation’s key sponsors.

 

See also Charities and Issue Advocacy:  Doing it Right – Part Two 

 

Michelle Baker is is a San Francisco-based attorney interested in social impact.

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