Commenting on Candidates

When nonprofits speak out on issues in the public square, the line between education and electioneering can get blurry – especially during election season. On this episode of Rules of the Game, we break down what the law allows when organizations comment on statements made by candidates and campaigns, and how those rules shift when addressing the actions of incumbents who may also be on the ballot. From issue advocacy to the risk of impermissible political intervention, we walk through practical scenarios and key guardrails to help your nonprofit stay compliant while engaging in advocacy to advance your mission. Shownotes Basic rule: 501(c)(3) organizations are prohibited from supporting or opposing candidates for public office, which means that their advocacy and actions have to remain nonpartisan. ·      Black and White: 501(c)(3)s can't endorse candidates, and they can't explicitly tell people who not to vote for. On the other hand, nonprofits can emphasize the importance of voting in a nonpartisan way, and they can continue to educate voters about issues core to their missions without suggesting who people should vote for in an upcoming candidate election. ·      Shades of Gray: IRS utilizes a facts and circumstances analysis to determine whether a nonprofit's communication is permissible or a violation of the tax code's electioneering prohibition for 501(c)(3)s. While not an exhaustive list, some facts and circumstances the IRS might consider include… o   Timing of the communication o   Targeted audience o   How the message relates to what candidates and political parties are saying, and more! ·      The IRS has also indicated that messaging that includes distorted facts, disparaging language, or statements not aimed at developing the audience's understanding of a mission-related issue can indicate a violation of the law.   Commenting on Candidates and Campaigns ·      No clear guidance from IRS on how to do this safely, but based on the required facts and circumstances analysis, best practices could include: o   Focusing on what was said (the issue), not who said it (the candidate) o   Avoiding discussions about candidate qualifications or whether someone is a good or bad candidate o   Scripting responses before talking to reporters or the public (since you may very well get a question related to the election and who people should vote for) o   Avoiding comments about a candidate's record or personal characteristics o   Avoiding references to voters and the upcoming election o   Not comparing your position on an issue to where the candidates stand on that issue ·      Remember: It is permissible to monitor what candidates say and do so that you can prepare for the future. o   The risk arises for 501(c)(3)s when they communicate in a way that could be perceived as attempting to influence the outcome of a candidate election. ·      Examples[NRO1] : o   "What if Candidate X states during a candidate debate that "our community's water quality meets all safety standards." Can a local environmental justice 501(c)(3) correct the record if that statement is false? §  <!