Permissible (and Impermissible) Political Acts by Not-for-Profit Employees

Working for a not-for-profit organization puts mission and meaning front and center for employees every day. However, there can be limiters associated with working at a not-for-profit. A charitable not-for-profit is prohibited from intervening in any political campaign, an act known as electioneering. What does this mean for the not-for-profit’s employees? Can they break free from their identify as an employee of the organization and express political opinions and positions without endangering the organization and subjecting it to penalties?

The straightforward answer is, yes. But nothing is ever simple. In 2007, the IRS published useful examples in Revenue Ruling 2007-41 of proper and improper political actions. The ruling is still authoritative and helpful today. These situations and outcomes are gleaned from the Ruling:

Endorsements:

An organization maintains a website which provides information about activities conducted for the organization by employees, volunteers, members, etc. One of these individuals is running for an elected position. No matter what the elected office the individual is running for, the organization should not post an endorsement for them, or against any opponent, on the organization’s website. This would be campaign intervention. It is a best practice to not make any mention of an affiliated individual seeking office on the organization’s website, as this could be construed as an endorsement.

Website Links:

A not-for-profit links to a major newspaper praising the organization’s program for fulfilling its exempt purpose. The link from the organization’s website goes only to the relevant article on the newspaper’s website and is provided solely for educational and exempt purposes. Elsewhere on the newspaper’s website, there are editorial pages with election information and political endorsements for and against political candidates. Neither the context for the link, nor the relationship between the organization and newspaper, suggests endorsing or opposing a candidate. The link to the article alone would not be campaign intervention and is permissible.

Personal Endorsements:

Leaders of organizations may endorse candidates for public office in their capacity as individuals. They may also identify themselves as the leader of a not-for-profit. However, the not-for-profit organization must not pay for any publication containing any endorsements. It is best practice for an endorsement that includes the not-for-profit and individual’s title to state “Titles and affiliations of individuals are provided for identification purposes only.” The advertisement should also identify who paid for the publication. This avoids any confusion over the role of the not-for-profit.

Separate Identity Not Available:

The not-for-profit leader may not use organizational publications and newsletters to endorse candidates. There is no separating the individual from the office and the organization in this forum. Any political views expressed in this way will be considered campaign intervention. Even if the individual pays the out-of-pocket cost for the expense of producing the column for the month, the column is an official publication of the organization. The column is reserved for the person holding the office within the organization. Therefore, any endorsement or opposition of a candidate for public office is an impermissible campaign intervention. No endorsements are allowed in official organizational publications.

Being Famous Does Not Count Unless You Claim It:

A well-known leader of an organization attended a political debate and, when asked, stated Candidate X should be elected. The leader did not say they were speaking on behalf of their organization. They also did not say they were speaking in their capacity as a private individual. The next day, the endorsement was printed on the front page of the newspaper identifying the individual and their organization. Not because they identified themselves this way but because they are famously identified with the organization. The event was not an official function of the organization, the statement by the individual did not appear in any organization publication, the endorsement did not otherwise use the organization’s assets, and the official did not state they were speaking in their capacity as an official of the organization. The actions (including the publication on the front page by a third-party newspaper) do not constitute campaign intervention.

What Happens in the Board Room May Not Stay There:

Do not get lulled into thinking all board members are friends; they are not. Just because the board members all sit on the same not-for-profit board, and are committed to the mission of one organization, it does not logically follow all board members hold all the same political views on all issues and candidates. During a regular board meeting, a board chair spoke on several issues, including the importance of voting in the upcoming election, and concluded by stating, “It is important that you all do your duty in the election and vote for Candidate X.” Because the chair’s remarks indicate support for a candidate and were made during an official organizational meeting, they constitute political campaign intervention. Do not do this!

The Revenue Ruling cited above has other examples of what the organization itself can and cannot do with its facilities and other assets. We will explore these further as the election season continues. Now is the time to get ready and update policies and procedures. Get educated and be ready. November 2020 is right around the corner.