News headlines in the recent past have been filled with stories of candidates for political office using nonprofit organizations as backdrops for their campaigning efforts without asking for permission and in some cases, while harming people in the process. To many, these graphics are disturbing. To others, the graphics are sickening, grotesque, or worse.
What happens if a political candidate approaches your organization with a request to hold a campaign event, such as announcing their candidacy on the front lawn of your organization’s headquarters? What should you do if a group of candidates reach out to you because they would like to do a campaign commercial and wish to engage some of the individuals who you serve while they are receiving services from your organization? Does it matter if the candidate for office is connected with your organization? What if the candidate is a current or former board member or volunteer? Does it make a difference if the candidate is one of your major donors?
We know that in some instances, candidates shoot their pictures first and ask permission later. We know in other instances, candidates capture their images featuring nonprofits in a way that creates the perception of implied endorsement without even talking with the nonprofit about their intentions. Interestingly, it should not matter if the candidate is connected with your organization or not when you are determining if you should align your organization with a partisan campaign. Nonprofits exempt under Section 501(c)(3) must avoid situations where they are or appear to be endorsing political parties or candidates for elected office.
Your nonprofit’s facility, signage, mission, and work are important assets of the organization. We need to do all that we can to foster the public’s trust in our organizations and when political candidates or parties want to advance their campaigns by using your “good name or brand”, we can all suffer. Certainly, there is a potential problem associated with loss of reputation, but there is an even greater risk associated with loss of our very tax-exempt status.
As nonprofit leaders, we need to do ALL that we can to avoid any and all situations that create the appearance of partisanship in our organizations. We need to ensure that our organizations are not giving permission (explicit or implicit) to candidates or political parties for any of our assets to be used as instruments in the partisan political process. We need to avoid situations where we are supporting or fighting against political candidates, political parties or partisan activity. Since its release in 1998, the Standards for Excellence code has stressed the importance of avoiding partisanship in all manners and states, “In promoting public participation in community affairs, charitable nonprofits must be diligent in assuring they do not participate or intervene in any political campaign on behalf of or in opposition to any candidate for public office.”
The IRS (instructions for Schedule A of the Form 990) states that “All charities.. are absolutely prohibited from intervening in a political campaign for or against any candidate for an elective public office. If a charity does intervene in political campaigning, it will lose both its tax-exempt status and its ability to receive tax-deductible contributions.”
When candidates ask permission of nonprofits before they act, nonprofits can be in the best position to determine what is partisan and what is not and to act accordingly. In some cases, candidates reach out to nonprofits to rent or lease their space for campaign or election related needs and there are a series of factors that the nonprofits must consider as they are determining to move forward or turn down the request in order to avoid partisan activity[1}
When candidates act first and use a nonprofit’s likeness, building, logo, or services as a prop for campaigns, in a way that implies the organization’s support, the nonprofit should act to disavow or disassociate itself from the campaign or candidacy. According to guidance from the IRS, to be effective, disavowal just be made “in a timely manner equal to the original actions…[including] steps to ensure that such unauthorized actions do not recur.” [2]
For more information on avoiding situations where your nonprofit appears to be engaging in partisan politics, we encourage you to check out the Standards for Excellence educational resource packet Advancing the Mission through Public Policy. We also encourage you to check out the resources published through the Bolder Advocacy effort at the Alliance for Justice on related issues.
The Standards for Excellence educational resource packet and the full series of all packets - including sample policies, tools and model procedures to help nonprofits achieve best practices in their governance and management - can be accessed by contacting a licensed Standards for Excellence replication partner, one of the over 150 Standards for Excellence Licensed Consultants, or by becoming a member of the Standards for Excellence Institute.
We share our sincere wishes for your continued good health and patience as we all navigate these challenging and uncertain times.
[1] IRS Revenue Ruling 2007-41, in Situations 17 and 18, provides a full discussion about whether activities such as renting space, selling or renting mailing list or selling paid advertising counts as partisan political activity. There are a variety of factors considered including: whether the good, service or facility is available to candidates in the same election on an equal basis; whether the good, service, or facility is available only to candidates and not to the general public; whether the fees charged to candidates are at the organization’s customary and usual rates, and whether the activity is an ongoing activity of the organization or whether it is conducted only for a particular candidate. For more information, review the Internal Revenue Bulletin linked above.
[2] Internal Revenue Service 2002 CPE Text Election Year Issues-Attribution and Disavowal. This discussion was focused on organization leaders, but it appears to provide assistance for this topic as well.