What Nonprofits Can Legally Do in the 2024 Election: Dispelling Common Myths

Considering my last post, I can hear the screams now:

“Wait! Even if Donald Trump is going to be an unmitigated disaster for most nonprofits, public charities cannot get involved in politics!”

This is a common misunderstanding. Here, I provide a rebuttal.

The Misunderstanding

It’s understandable why some nonprofits believe that they cannot get involved in politics in any way. Some may agree with Baroness Stowell, who opined in 2020, “If you want to improve lives through charity, leave political fights out of it.” Others believe that “allowing charitable organizations to engage in partisan election activities would damage the public trust we hold dear.” Perhaps influenced by this cautionary message, one commentator asserts that 501(c)(3) organizations “are typically not allowed to get involved in political issues[, . . . ] are permitted very limited lobbying,” and “may not take political sides.” Another wrote that the “political activity” of 501(c)(3) groups “is meant to be kept to a bare minimum.”

The Reality

The rules on political activities by public charities, however, are more permissive. The basis for restriction of public charities is found in 501(c)(3) itself, which states that “no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation … and which does not participate in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” This means that a public charity cannot:

• Endorse Kamala Harris for President
• Fund independent expenditures for Harris or against Trump
• Make campaign contributions (monetary or in-kind) for Harris or against Trump
• Establish or pay for the administrative and fundraising costs of an affiliated 501(c)(4) organization
• Ask Harris or Trump to sign a pledge on any issue
• Post partisan messages in favor of Harris or against Trump on social media

What Nonprofit Leaders and Nonprofits Can Do This Election Cycle

Set aside the fact that the IRS almost never audits nonprofits. Ignore the fact that despite years of churches endorsing Republican candidates, only one church has ever lost its charitable status because of such activities, and that was for “taking out a full-page newspaper ad urging Christians not to vote for Bill Clinton in 1992.” Assuming that the IRS intends to enforce the language of 501(c)(3) and will treat nonprofits other than churches more strictly (for whatever reason), what can nonprofits still do in the political realm?

Lots. As Bill Shore wrote in the Stanford Social Innovation Review, “Nonprofits need to do much more of exactly what most of them don’t think they can or should do: influence public policy and its execution.” To that end, nonprofits can:

• Support Harris using your own social media “when not ‘on the clock’ working for nonprofit” using your personal (not your nonprofit) accounts. As noted by the North Carolina Center for Nonprofits, “Nonprofit staff, board members, and volunteers don’t give up their free speech rights simply because they’re associated with a 501(c)(3) organization. As individuals, they can support candidates for office, make campaign contributions, and even run for office.”
• Provide “information about the voting process like dates and deadlines, early voting hours, getting a mail ballot, or help registering to vote.”
• Answer simple questions about “what party” Harris or Trump is “in, if they’re an incumbent or challenger or where they live,” so long as staff do not state their own preferences.
• Encourage voting and help voters register on a nonpartisan basis, which is needed because social services beneficiaries are often excluded from the political process.
• Encourage those who ask about politics to search about where the candidates stand on the issues that impact them.
• Create an affiliated 501(c)(4) organization that supports Harris, “so long as,” the IRS notes, “that intervention does not constitute the organization’s primary activity.”
• Lobby in favor of or against legislation (subject to limitations stated in the tax code).
• Educate the general public, beneficiaries, and lawmakers and, in Shore’s words, engage in “persuasion and marshaling public will to advance ideas that serve the common good.”
• Expand their mission statements to include (a) involving their beneficiaries in the political process, (b) advocating on behalf of the nonprofit’s mission, and (c) advocating on behalf of economic changes that impact their beneficiaries.

Talk to Your Lawyer

I know that this post runs against the grain of traditional recommendations for nonprofits. While I happen to be a lawyer, I’m not giving anyone legal advice in this blog, so talk to your lawyer. When doing so, ask for specific details about whether and to what extent nonprofits have been found to violate 501(c)(3) regulations by engaging in activities that could be perceived as partisan political actions. You might be surprised.

Risk Alternatives provides training and support for organizations that want to improve their resilience, sustainability, and growth. For more information, email info@riskalts.com or call 608-709-0793.