The Johnson Amendment prohibits 501(c)(3) organizations from participating or intervening in a political campaign on behalf of (or in opposition to) any candidate for public office. This is a strict ban that does not allow for even minimal campaigning activity.
Common examples of campaign intervention include:
- Making or soliciting contributions to or for candidates or political organizations
- Endorsing candidates
- Rating candidates
- Publishing or distributing partisan campaign literature or written statements
- Permitting the 501(c)(3)’s representatives to speak out about a candidate
- Otherwise using the 501(c)(3)’s resources to influence an election
501(c)(3)s are, however, allowed to conduct nonpartisan activities that educate the public and help build engagement in the electoral process. Such activities include:
- Conducting voter registration and get-out-the-vote drives
- Publishing or distributing voter education guides
- Conducting objective and nondiscriminatory candidate forums
But be careful, even permissible activities can be construed as prohibited campaign intervention depending on the context. Further, activity that may implicitly influence voters to support or oppose any candidate for public office may be ruled as a violation of the Johnson Amendment.
Do: Voter Education
One way a 501(c)(3) can engage in voter education is by helping people register to vote. Another way is by helping people participate in an election. 501(c)(3)s can conduct voter registration and get-out-the-vote drives so long as they are conducted in an unbiased, nonpartisan manner. To avoid even the appearance of partisanship, organizations should refrain from mentioning the candidates or political parties in written or spoken communications. Instead, the organization’s volunteers or employees running the drives should focus their efforts on educating the public on how to register and the requirements to vote in an upcoming election. Common activities include providing voter registration forms to prospective voters, informing voters of the hours and places of registration and voting, and transporting voters to voting centers.
Don’t: Disparate Treatment of Voters
At voter registration and get-out-the-vote drives, the organization and its representatives should not turn people away based on their political views, attempt to steer a voter on how to cast their vote, or attempt to influence which members of the public are educated and how they are educated. All voters should be treated equally no matter their political party affiliation or persuasion.
Do: Voter Guides
Publishing and distributing voter guides is another permissible activity to engage and educate voters. Voter guides inform the public of the policies, values, and actions taken by elected officials and candidates running for office. Voter guides can vary in form. One example is a compilation of the voting records of all political incumbents, including the incumbents running for re-election. Another example is a document stating each candidate’s responses to questions posed by the 501(c)(3). Whatever the form, voter guides must cover a broad range of issues and be presented in an unbiased and objective manner.
Don’t: Attempt or Appear to Influence Voters
While 501(c)(3)s can take a certain view on public policy issues – such as an environmental group favoring green energy policies – organizations must not allow those views to bleed into their voter guides. For example, a voter guide from the same environmental group discussing only how each candidate has voted on green energy legislation would give the appearance of impartiality and an attempt to persuade voters to vote for or against a candidate.
Timing is another important consideration. 501(c)(3)s that regularly publish voter guides regardless of whether an election is being held in any given year are less likely to give the appearance of campaign intervention than a 501(c)(3) publishing a voter guide only during an election year or close to an election.
Do: Public Forums
The presentation of public forums or debates is another permitted activity. Forums must be held for the purpose of educating and informing voters and must provide fair and impartial treatment to every candidate. Forums must be open to all candidates running for a particular office, the same questions should be asked of all candidates, and each candidate should have an equal opportunity to respond. Ideally, 501(c)(3)s should enlist a nonpartisan panel to prepare questions and moderate the forum.
Don’t: Favor or Oppose Certain Candidates
Any conduct that is or can be construed as the 501(c)(3) favoring or opposing any candidate is not allowed. Questions should not focus on a single subject matter but instead should cover a broad range of issues that the candidates would address if elected to office. Further, the 501(c)(3) should not edit or opine on (whether implicitly or explicitly) the candidate’s answers. Finally, political fundraising should not occur at any time on the 501(c)(3)’s property.
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Kyler Mejia is an associate (bar admission pending) with Caritas Law Group, P.C. Kyler counsels nonprofit and socially responsible businesses on corporate, trademark, tax, and fundraising matters nationwide and advises donors concerning major gifts. To schedule a consultation, call 602-456-0071 or email us through our contact form.Â