Lobbying The Candidates:

Issues for 501 (c)(3) Organizations

In an election year, policy issues get increased attention from the public and those running for office, creating an important opportunity for nonprofit advocacy.  Organizations that are tax-exempt under Section 501(c)(3) are prohibited from engaging in any form of "partisan political activity," but this does not prohibit lobbying as long as you avoid the implication of partisanship in your work.   This Alert looks specifically at how these concerns relate to candidate-lobbying activities.

I. Use the opportunity to meet with the candidates, both incumbents and non-incumbents.

You can explain what your organization does, and the issues and policy positions you support. Particularly in Maryland, there will be very little time to introduce your organization to newly elected officials, or to lobby, between the November election and the start of the General Assembly in January. Meetings during the campaign may be your only chance to build relationships and discuss issues before the legislative session.

These meetings are also a critical opportunity to influence positions candidates may take during the campaign itself. You can try to persuade them to agree with your positions on the issues, both during the campaign and if elected. You can ask them to take a public stand on questions they will face if elected. If the candidates themselves choose to speak out on your issue, it can draw public and possibly media attention that will help your future advocacy and lobbying efforts. (Caution! You may not distribute their statements!  See below.)

If meetings are not practical, you can also communicate by other means: talking with their staffs, sending them background materials and your position papers, or asking them to respond to questions on your issues.

II. Avoid practices that the IRS may consider "partisan."

If you are going to meet with candidates or their staffs, send your position papers or other materials to them, or provide information supporting your views in any other way, treat all candidates (for the same office) even-handedly. Provide the same materials and briefing opportunities to each.

Candidates may publicly endorse your positions, but Section 501(c)(3) exempt organizations are generally prohibited from distributing candidate statements. Therefore, you are not allowed to announce results or distribute accounts of your 'candidate lobbying' efforts before the election. (Whether they agreed or disagreed with your position, committed to support issues if elected or re-elected, etc.) This prohibition applies even to communications with your members -- there is no exception!

If a candidate (or their staff or a supporter) requests reports or other information, you may honor the request as long as: (1) the materials are already in existence; and (2) you would have provided the same document or materials on request to any other candidate or to a member of the general public. If you would normally charge a fee, you must charge the same fee. If you do provide materials to a candidate in response to a request, you should probably offer the same materials to other viable candidates for the same office.

In responding to a candidate's request for information, you may not do "special order" research, prepare summaries or elaborations of existing materials, or search files for documents in a way you would not respond to a request from the general public. All staff should be aware of these rules, and contacts with candidates should be carefully controlled by a nonprofit's managers.

III. Communications with the candidates to seek their support or opposition to particular legislation or proposals will normally be lobbying activity reportable to the IRS on your Form 990.

Such contacts with incumbents, by your organization, or by members at your suggestion, would be considered 'direct' lobbying. Similar contacts with non-incumbents are probably "grassroots" lobbying if you are asking them to take action as a result of the communication.

** Remember: lobbying is permitted within the limits allowed for 501(c)(3) nonprofits.

IV. Candidate briefings, or other communications to inform and influence their views on issues within the Maryland Legislature's jurisdiction will most probably constitute 'lobbying activity' for state ethics purposes when dealing with incumbent state officials.

As always, there are expenditure and compensation thresholds that govern whether registration and reporting is required for this activity.

V. There are other voter involvement and voter education activities that 501(c)(3) organizations can undertake during an election campaign.

But the only allowable purpose for 501(c)(3) public functions or publicly distributed materials that relate or refer to the election (voter guides, candidate debates, Get Out The Vote drives, etc.) is voter education and participation. These will appear partisan in the view of the IRS (1) if the slogans used in connection with these activities are not objective and neutral; or (2) if the issues covered by questions in a published questionnaire, public debate or forum, or used in materials promoting a registration or GOTV drive, are limited to the narrow focus of your organization, or tend to reflect your known policy issues or agenda. While these activities can be important 501(c)(3) contributions to the electoral process, they risk the charge of partisanship if used to promote or advance a policy agenda.

There are numerous sources of additional information on these subjects available in Maryland Nonprofits' reference libraries, and on the Internet, including:

Charity Lobbying in the Public Interest has a new website with special election-related information, including an "Ask Bob" feature to get technical help from their staff.

Alliance for Justice has prepared several very helpful booklets which can be ordered through their web-site. They also offer technical assistance with advocacy questions via email.

You can also contact Henry Bogdan, Public Policy Director at Maryland Nonprofits, for further information or assistance.

Note: The foregoing information is intended for general guidance and is not intended as legal advice or to replace legal counsel.

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