Nonprofit Law Matters

The Election Is Over. Now What?

Posted in Tax Treatment of Lobbying & Political Activities

Before the election on November 6, you were well aware that your 501(c)(3) charity could not endorse candidates for public office or otherwise intervene in any election.  You carefully monitored your organization’s activities over the course of the campaign to comply with this requirement of your charity’s tax-exempt status.  The election is over.  Now what?

Must the charity still avoid saying anything that might appear to favor a candidate or political party, even though the 2012 election is finally over?

While the prohibition against “campaign intervention”—taking actions that may help elect or defeat a candidate—cannot be ignored after November 6, a charity need not avoid communications that address the 2012 election or mention previous candidates.

Some safe things that a charity might do:

  • congratulate a candidate or thank him or her for all of her hard work;
  • focus on policy issues you’d like to see a winning candidate address now that he or she has been elected to office; and
  • comment on the results of the past election—what happened and why (short of commenting too generally on the fitness of a candidate—see first bullet point below).

Things a charity should still avoid doing:

  • show support or opposition to a candidate in a way that might carry forward to a future election (rather than focus on what the person might do in office);
  • take credit for an election result, which could be evidence of intended intervention in the past election that could haunt the organization in the future; or
  • imply that the organization intends to hold the candidate accountable following the election, which could imply an intent to remove the individual from office if things don’t go well.

The same federal tax rules apply to the charity the day after the election as the day before.  It is just less likely that candidate intervention will occur.  With the 2012 campaign completed so recently, we are no longer close in time to a pending election.  Similarly, it is far less likely (although not impossible) that an individual already has been identified as a future candidate for public office or that the charity is going to refer to voting in a future election that is still multiple years away.

Another key factor the IRS considers is whether the timing of the charity’s communication is related to an event other than an election (e.g., a legislative vote).  With new terms on the horizon for Congress and state legislatures, there are virtually unlimited policy and legislative matters between now and the next election that a charity might address.

In addition, a charity also can begin to create a solid record now of focusing on its important issues, independent of any pending election.  Building this track record can help the organization years later when it wants to continue to highlight these issues, even when an election is closer in time and concerns about possible intervention are greater.