The Do's and Don't's for Charities in an Election Year

Source: www.pexels.com

Youth program and non-profit leaders sometimes feel sidelined by the tax code, believing that speaking out about elections is not allowed. But let’s dig deeper. Below we offer a guest blog on this topic, which was originally published by Techsoup. NOTE: This article is for general informational purposes only and does not represent legal advice as to any particular set of facts. Please seek legal counsel as you deem necessary.

Eric Gorovitz

By Guest Blogger Eric Gorovitz, Principal Attorney, Adler & Colvin; Techsoup

The rules governing charities leave lots of room for charities not only to advocate vigorously in service of their communities, even in an election year, but also to participate in the election itself.

By "charities," we mean nonprofit organizations exempt under Section 501(c)(3) of the Internal Revenue Code. As a general rule, nonprofit organizations, including those exempt under other sections, like social welfare organizations [501(c)(4)], labor unions [501(c)(5)], and trade associations [501(c)(6)], are permitted to influence elections more directly than charities. The subject of this article, however, is limited to charities.

While charities cannot take sides in candidate elections, there is much they can do to promote issues of interest, educate candidates about those issues, inform the public about candidate views, and both encourage and enable voter participation in the election.

Armed with a better understanding of the rules, and how to implement them, charities can keep making noise and engaging their constituencies before, during, and after the election.

Issue Advocacy
The fact that an election is coming up does not mean that charities have to stay quiet about the issues that matter to them, even if candidates are also talking about those issues. It does mean, however, that charities have to be thoughtful about how they talk about those issues.

The IRS uses a relatively, but not completely, vague "facts and circumstances" test to determine whether a given communication constitutes issue advocacy or candidate campaign intervention. The former is permissible for a charity; the latter is not. The IRS looks at both the content and the context of a charity's communication and considers the presence or absence of a number of factors to decide whether the communication is appropriate for a charity.

Although there is no exhaustive list of factors, the IRS has identified in Revenue Ruling 2007-41 (PDF) the following factors as important to its analysis:

• Whether the communication identifies one or more candidates for public office (if yes, the risk goes up)
• Whether the communication expresses approval or disapproval for one or more candidates' positions or actions (if yes, the risk goes up)
• Whether the communication is delivered close in time to the election (if yes, the risk goes up)
• Whether the issue addressed in the communication has been raised as an issue distinguishing candidates for a given office (if yes, the risk goes up)
• Whether the communication targets voters in a particular election (if yes, the risk goes up)
• Whether the communication is part of an ongoing series of communications by the organization on the same issue that are made independent of the timing of any election (if yes, the risk goes down)
• Whether the timing of the communication and identification of the candidate are related to a nonelectoral event such as a scheduled vote on specific legislation by an officeholder who also happens to be a candidate for public office (if yes, the risk goes down).

The analysis is not just a counting of factors, though, and they don't all have equal weight. Much depends on the substance, appearance, and manner of distribution of the communication. A charity that knows the rules can design communications during election season specifically to ensure that it does not break the rules.

Source: www.pexels.com

Educating and Engaging Candidates and Voters
Charities can also educate candidates and voters and promote voter participation in the election, so long as they conduct those activities in a way that does not reflect support for or opposition to any particular candidate or party for election. These "nonpartisan" activities, also explained more fully in Rev. Rul. 2007-41 (see link above), can include (among others) the following, if properly designed and conducted:

• Voter guides and candidate questionnaires
• Candidate forums and debates
• Voter registration activities that do not target voters based on voting preferences. (Caution: Private foundations generally cannot fund or conduct voter registration drives.)
• Get-out-the-vote activities that do not target voters based on voting preferences
• Sharing previously prepared educational materials with all candidates in a given race, but not producing new material at a candidate’s request

A Few No-Nos
Of course, some activities that charities occasionally consider are clearly not permissible. These include (among others) the following:

• Asking candidates to pledge to support or oppose a particular position, if elected
• Endorsing any candidate or party for election at any charity event or in any charity publication, newsletter, e-mail, or social media communication
• Making contributions to candidates or parties
• Providing tailored information to candidates upon request
• Allowing a candidate or party to use any charity resources for campaign purposes

Stay Involved, but Manage Your Risk
The outcome of elections is often important to a charity's ability to accomplish its mission and to the well-being of its constituents. Fortunately, the onset of election season does not prevent charities from loudly and vigorously pursuing their charitable purposes. While there are risks to manage, charities that know the rules can stay actively involved in the public discussion, even during election season.

Additional Resources to Learn More

From TechSoup:

• Read about what grantees need to know about due diligence.
• Learn What's the Difference Between a Nonprofit and a Charity?
• Get background on Lobbying by U.S. Public Charities and Their Foreign Equivalents.
• Go deeper on Political Campaign Activity.

From Alliance for Justice:

• Rules of the Game: Nonpartisan Election Year Advocacy (Podcast episode)
• Comparison of 501(c)(3) and 501(c)(4) Permissible Activities
• Praising and Criticizing Incumbents

From the IRS:

• Election Year Activities and the Prohibition on Political Campaign Intervention for Section 501(c)(3) Organizations (PDF)
• Election Year Issues (PDF)

MORE ABOUT…

Eric Gorovitz's practice spans the full range of nonprofit and tax-exempt legal issues, with emphasis on political advocacy and nonprofit corporate governance. Mr. Gorovitz is the former President of Youth Enrichment Strategies and served on the board of an independent school. He is also a member of the California Political Attorneys Association, the tax law section of the American Bar Association, the California State Bar Association, and the Bar Association of San Francisco. He has lectured at (among others) U.C. Berkeley, Johns Hopkins University, U.C. Hastings School of Law, and Golden Gate University School of Law, and conducted trainings for nonprofit organizations across the country. Mr. Gorovitz has served as Director of the West Coast office of Alliance for Justice; Policy Director at the Coalition to Stop Gun Violence, the Million Mom March, and the Trauma Foundation.

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Lights on Afterschool Planning Tool

To learn more about this event, sponsored by the Ever Forward Club, click here.

Beyond Voting: What Else Youth Can Do in the 2024 Elections

By Sam Piha

The 2024 election offers a number of opportunities to engage older youth. These opportunities go beyond voting. (This blog is an excerpt from our recently released briefing paper entitled, How Can Afterschool Programs Promote Civic Engagement and the Youth Vote in 2024.)

Serve as a Voting Captain
“This is someone who volunteers to get-out-the-vote by talking to their friends and family about making a voting plan. This is a quick, easy and covid-safe volunteer opportunity to get out the vote. Studies have shown that talking to friends and family is the most effective way to increase voter turnout.” [i]

Serve as a Political Campaign Volunteer
Supporting a campaign may involve an important issue or a candidate. Youth can:

• Volunteer on a local, state, or national political campaign
• Attend a campaign event with a family member
• Talk to those who are eligible to vote about your preferred candidates, what they stand for, and why it matters to you.

Serve as a Poll Worker
“Poll workers are critical to the success of an election. Having an adequate number of poll workers to staff polling places on and before Election Day can ensure voters receive the assistance they need at the polls and can help provide a positive and smooth voting experience for all. By signing up to be a poll worker, you can Help America Vote. 

Source: Grow the Vote

While specific duties and compensation vary depending on location, poll workers are the face of the election office during voting. Most jurisdictions task election workers with setting up and preparing the polling location, welcoming voters, verifying voter registrations, and issuing ballots. Poll workers also help ensure voters understand the voting process by demonstrating how to use voting equipment and explaining voting procedures.” [ii]

Click here to learn a few important steps poll workers can take to ensure they are ready for Election Day. Click here to learn more about becoming a poll worker in the future, for more information on being a poll worker in your community and how to sign up.

END NOTES
[i] Turnout Nation, Become a Voting Captain
[ii] U.S. Election Assistance Commission, Poll Worker Resources for Voters 

To learn more about this event, sponsored by the Ever Forward Club, click here.

Engaging Youth in the 2024 Elections

Source: Center for Tech and Civic Life

By Sam Piha

The 2024 election offers a number of opportunities to engage older youth. But these opportunities require input from youth and staff, organizing and planning- so start program planning NOW! 

 

There is no better time for youth to be involved in making a change through the ballot box. We can frame these efforts as “meaningful participation”, “civic engagement”, “youth leadership” or “community service”. There are a number of organizations and initiatives that have designed curriculums, program tools and other materials to assist afterschool providers in their efforts to engage youth in the 2024 elections. This blog is an excerpt from our recently released briefing paper entitled, How Can Afterschool Programs Promote Civic Engagement and the Youth Vote in 2024.

 

MYTHS ABOUT YOUTH AND VOTING

Dispelling Myths about Youth Voting

“When many members of the public talk about young people's civic and political participation, they often rely on and perpetuate myths about youth voting and youth attitudes toward civic life. These myths can reflect a lack of understanding of the complex dynamics that shape young people's engagement in democracy. At best, they paint an incomplete picture of these dynamics; at worst, they misrepresent them entirely. These inaccuracies can hinder efforts to increase youth voting and other forms of civic participation.

 

“Young people today are constantly depicted as disengaged and irresponsible. In fact, we are anything but. We are more progressive than our parents, more educated, and far more connected. We are powerful, engaged, and ready to lead.” [i]

 

CIRCLE's two decades of research on these topics, and our work on the ground with a diverse set of partners and practitioners, have given us the data and understanding to dispel some of these myths:

·       Young People Are Apathetic

·       Youth Voting Has Been Declining for Decades

Source: CIRCLE

(The estimates above are from CIRCLE analysis of voter file data in recent elections. Estimates based on the Census data produce slightly different results but allow us to examine historical trends over the past 50 years.)

 

·       Young People Just Choose Not to Vote

·       Young People Are All Liberal College Students

·       Young Voters Don't Impact Elections.” 

Dispelling these myths is crucial for understanding and addressing the barriers that may prevent young people from fully participating in the democratic process. Encouraging youth engagement and empowering young voters are essential for ensuring a vibrant and inclusive democracy.” [ii] 

VOICES OF FIELD LEADERS

We interviewed several afterschool leaders on the importance of youth involvement in the elections. 

Q: Do you think it is important to encourage youth to be involved in the 2024 election? (this could involve making a plan to vote, registering students who will be eligible to vote, volunteering for a campaign or candidate that they agree with, etc.) If yes, why?

RF- YES! We think it is very important to encourage youth to be involved in 2024 election at both the local and national level. One of our greatest rights, and responsibility as an American, is the right to Vote – which was not afforded to everyone throughout our history. I happen think everyone should be given a voter registration card when they are issued their birth certificate, it’s that important.

JF- Yes, I think it's very important and so do the youth we work with. Our youth feel that their voice matters even if they can not "vote". At a few of our high schools in Oakland, we have lots of civic leadership/action groups including a group of students in our program who go to Sacramento every year to meet with Legislators and share their stories about the importance of expanded learning programs. We'll be there again with over 60 young people on March 12th. 

SV- I do think it's absolutely imperative to encourage and support youth to be involved in the 2024 election. Although youth can be quite vocal (and influential) on social media about issues important to them, statistically speaking however, they are one of the least engaged groups when it comes to voter turnout. 

Q: Could you describe what you are planning to do with engaging youth in the 2024 election?

RF - We plan to host registration events, and possibly even parties; on election day, we plan to go with teens who are voting for the first time and to make a big deal of it (e.g., “It’s my first time voting” hats or sashes).

Q: When should programs begin planning for this? 

RF- NOW! States will have different deadlines for voter registration so be sure you know what they are.

SV- I think it's never too early for programs to plan for this. 

Q: How should youth be involved? 

RF- They can be involved in planning, they can be trained to help register others to vote, they can create messages about the importance of voting, they can schedule meetings with various candidates or attend Town Hall events and submit questions for prospective candidates- they can host their own forums with the candidates.

JF- There are many ways youth can be involved and one of the ways that we support, especially during expanded learning programs, is to provide a space for youth to discuss the topics, issues and challenges they feel are important to them and their communities, then, discuss the possible solutions and who can support the possible solutions and resolutions. This includes local, state and national elected officials. It's important that students continue to explore local officials and the causes that are on top for them.  

Bay Area Community Resources (BACR) is part of a statewide youth civic action group called TACA (Teens Advocating for Civic Action) and students meet monthly on zoom to discuss the issues they're facing and the action steps they're taking including the upcoming election and its impact on those issues.

SV- I think youth should be involved in the planning and implementation as much as possible, from informing the creation of lesson plans/contents (via advisory committees, polls, surveys, etc.) to co-facilitation for their peers and helping these programs be student-driven/led as much as possible. At the end of the day, students listen to their peers more than adults. Involving youth is crucial to ensure their voices are heard, and we are not addressing these topics through our adult lens.

END NOTES

[i] Chat GPT, How is youth engagement in elections and voting good for the community?

[ii] CIRCLE, Dispelling Myths about Youth Voting