Who is a Candidate?

With the 2018 midterms coming up, Bolder Advocacy has already been hearing from nonprofits that want to be engaged and involved in the democratic process. With that in mind, here are a couple of reminders going into the season:

First, a 501(c)(3) organization is prohibited from engaging in partisan political activity. This means 501(c)(3) organizations cannot support or oppose candidates for public office and they must remain nonpartisan.

Second, the terms “candidate,” “public office,” and “nonpartisan” are broader than you may realize. Under the Internal Revenue Code (IRC), a “candidate” is an individual who offers themselves or is proposed by others as a contestant for an elected office. So even if someone has not declared themselves a candidate or filed any paperwork, they may still be considered as a “candidate” for IRC purposes. Therefore, the prohibition on 501(c)(3)s engage in partisan political activity includes activities like third-party movements, efforts to draft an individual to run for office, and any exploratory advance work. This prohibition also extends to trying to prevent a public official from being re-nominated or re-elected.

Similarly, the IRC defines “public office” as any position filled by a vote of the people at the federal, state, or local level. This ranges from the presidency to a local city council. The office does not need to be political or partisan in nature to fall within these rules, so even a judicial or school board vacancy that requires a vote by the public will be considered a “public office” for IRC purposes.

Third, being nonpartisan means more than avoiding express advocacy. While the IRS has not provided a clear definition for what “nonpartisan” means, there is enough guidance to know that the definition extends beyond messages like “vote for” or defeat.” A handy working definition of “nonpartisan” is, “any activity that does not tend to help or hurt the chances for election of any particular candidate or group of candidates, regardless of political party affiliation.” Under this definition, a 501(c)(3) organization should not campaign to get a group of millennials elected, even if it does not care whether candidates are Republican, Democrat, Green, or otherwise non-partisan. Because it would have the effect of supporting millennial candidates, it will be considered partisan.

That being said, some activities, such as voter registration drives, that may have the effect of helping (or hurting) a candidate are nonetheless permissible. They must still be conducted in an entirely nonpartisan manner, and the 501(c)(3) organization should be able to demonstrate that the activity has no purpose to influence an ongoing election.

Furthermore, just because someone is a candidate does not mean you cannot continue to engage with them in their official capacity. So if you’re working with a current legislator on a piece of legislation, you can continue to do so. Or, if you want to criticize her vote on a particular bill, you still can. Here are two of our fact sheets that address working with candidates in various 501(c)(3) permissible activities: Hosting Candidates at Charitable Events: Ensuring Candidate Appearances Remain Nonpartisan and Praising and Criticizing Incumbents.

We know some of these rules can get complicated, but we’re always happy to help. You can reach our free technical assistance line at 866-NPLOBBY (6756229) or by emailing us at advocacy@afj.org. For more information, our guide the Rules of the Game: A Guide to Election-Related Activities for 501(c)(3) Organizations can provide you with more information and all the details you need about election-related activities including voter educations drives, candidate debates, and legislative scorecards.