Commenting on Elected Officials

By David A. Levitt, Adler & Colvin

Before the election, 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? Should the charity still avoid saying anything that might appear to favor a candidate or political party, even though the 2018 election is over?

The same federal tax rules apply the day after the election as the day before. But there’s still plenty a charity can say. While the prohibition against “campaign intervention” – taking actions that help elect or defeat a candidate – cannot be ignored after November 6, there are many permissible ways for an organization to address the 2018 election or mention previous candidates. In addition, now is a good time for you to begin to create a solid record of focusing on your core issues, independent of any pending election.  Building this track record can help your organization years later when it wants to continue to highlight these issues, even when an election is closer and concerns about possible intervention are greater. Some safe things that a public 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 public charity should still avoid:

• 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 be perceived as intent to remove the individual from office if the candidate doesn’t do what the charity wishes.

A charity should focus on the results of this past election, or what an individual should do now that he or she is elected, rather than address, for instance, what made the person such a strong (or poor) candidate in general.  It is wise to avoid saying anything that might be used or interpreted as an endorsement in a future campaign. Because voting for the 2018 election has ended, we are no longer close in time to a pending election. Yet it is wise to avoid saying anything that might be used or interpreted as an endorsement in a future campaign. Another key factor for the IRS 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. It is also worth remembering, however, that as soon as one election is over, preparation for the next one already has begun.  Candidates in 2018 may run again in 2020 or 2022.  A charity therefore should ask whether any commentary today could be applied to a future election.

David A. Levitt is a principal with the San Francisco law firm of Adler & Colvin, a firm that specializes in the representation of nonprofit organizations and their donors. His focus includes the representation of nonprofit and tax-exempt organizations, with an emphasis on nonprofit corporate governance, program related investments, and political advocacy. He is a contributing editor to The Rules of the Game: A Guide to Election-Related Activities for 501(c)(3) Organizations, 2010, and a co-author of Rules of the Road; A Guide to the Law of Charities in the United States, Second Edition, Council on Foundations, 2008. He currently serves as the Chair of the Current Developments Subcommittee of the ABA Business Law Section Nonprofit Organizations Committee.