Non-profits and religious institutions can oppose Trump

I’ve received lots of questions about how tax-exempt non-profits  can legally oppose the Trump administration. The bottom line is that the free speech rights are broad under the IRS rules. Note: I’m a law professor, not a practicing lawyer, just to be clear. Here is what I researched for religious institutions, but it generally applies to all non-profits. It is long established that tax-exempt religious institutions can advocate for issues, but cannot officially endorse or oppose candidates for elected office. Clergy under some circumstances can endorse or oppose such candidates, although the lines aren’t clear. Are cabinet or judicial nominees considered “candidates” for public office? In line with a reasonable interpretation of IRS documents, the clear consensus is that they are not, so a non-profit can officially oppose any of Trump’s nominees and Trump’s actions and policies, even if he has filed for re-election.

RULES AND ANALYSIS:

Federal law prohibits political campaign activity by charities and churches by defining a 501(c)(3) organization as one “which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” The IRS clarifies that religious institutions “can engage in a limited amount of lobbying (including ballot measures) and advocate for or against issues that are in the political arena.”
https://www.irs.gov/uac/charities-churches-and-politics

1. That means that a congregation (or non-profit) in its official capacity and its clergy can advocate in many ways.

2. Members of congregations and non-profits are not the same as the institution or its clergy. Members can speak on list-serves and organize their own activities for or against candidates, as long as they don’t claim to speak for the organization officially. If a non-profit leader ever wants to get close to the line in opposing Trump’s re-election campaign, the leader (or member) should be clear that he/she does not represent the organization officially. To be careful on this issue, I think one would want to discuss and organize as individual members against a candidate, but one should not act as an official entity on any specific candidate for elective office.

3. As I read these documents, I had a question: can a non-profit officially oppose NOMINEES for office, e.g., Bannon, Sessions, or a Supreme Court nominee. The IRS is clear that the prohibition applies to “candidates for elective public office.” See the document below, re-issued this past September 2016. This sentence is the heading of the document, and the rest are details, so a fair legal reading is that there is no restriction on speaking for or against nominees.
To be careful, I kept researching, and I found the following establishment political sites that clarified that religious institutions CAN officially oppose political and judicial nominees:

1. The official GOP site (attached below).
https://www.gop.com/what-churches-can-and-cannot-do-in-politics/

2. Center for Arizona Policy
http://www.azpolicypages.com/religious-liberty/what-churches-and-pastors-can-and-cannot-do/

3. Forbes Magazine: clergy can endorse or oppose candidates for elective office outside their institution:
“Can Your Preacher Tell Who To Vote For?”
“Actually she can. It just depends on where, when and how. Here is the example in the ruling.
Minister C is the minister of Church L, a section 501(c)(3) organization and Minister C is well known in the community. Three weeks before the election, he attends a press conference at Candidate V’s campaign headquarters and states that Candidate V should be reelected. Minister C does not say he is speaking on behalf of Church L. His endorsement is reported on the front page of the local newspaper and he is identified in the article as the minister of Church L. Because Minister C did not make the endorsement at an official church function, in an official church publication or otherwise use the church’s assets, and did not state that he was speaking as a representative of Church L, his actions do not constitute campaign intervention by Church L.

http://www.forbes.com/sites/peterjreilly/2015/09/20/tax-rules-forbid-churches-endorsing-candidates/#47cff42a412f

4. Liberty Counsel: clergy under some circumstances can endorse, and religious institutions can endorse or oppose judicial and cabinet nominees:
https://www.lc.org/Uploads/files/pdf/pastors_churches_politics_trifold_2008.pdf

The IRS rule is copied in full below.

IRS Rule: The Restriction of Political Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations
Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.
Certain activities or expenditures may not be prohibited depending on the facts and circumstances. For example, certain voter education activities (including presenting public forums and publishing voter education guides) conducted in a non-partisan manner do not constitute prohibited political campaign activity. In addition, other activities intended to encourage people to participate in the electoral process, such as voter registration and get-out-the-vote drives, would not be prohibited political campaign activity if conducted in a non-partisan manner.
On the other hand, voter education or registration activities with evidence of bias that (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention.
https://www.irs.gov/charities-non-profits/charitable-organizations/the-restriction-of-political-campaign-intervention-by-section-501-c-3-tax-exempt-organizations

2. GOP summary:
A Church Can:

Conduct non-partisan voter registration drives
Conduct non-partisan voter identification drives
Conduct “get-out-the-vote” drives, encouraging members to vote
Conduct petition drives regarding legislation or other issues
Distribute non-partisan voter education information
Educate church members on legislative and political matters
Discuss doctrine as it applies to politics, legislative matters or candidate positions
Introduce political candidates and allow them to address the congregation in their capacity as candidates as long as all candidates seeking the same office are given an equal opportunity to participate, and the church does not express support or opposition for any particular candidate(s).
Host candidate forums where all candidates are invited and allowed to speak
Lobby on behalf of specific legislation
Support or oppose political appointments (such as judges or cabinet officials)
Make expenditures on behalf of referendums
Rent church member contact lists to favored lobbying groups
Pastors may endorse candidates as individuals, but not on behalf of a church, (if title and church name are used, include a “title and affiliation for identification purposes only” disclaimer)
A Church Cannot:

Endorse or campaign for candidates for elected office in the name of the church
Contribute money or make “in kind” contributions, (such as resources or services), to a candidate, political party or political action committee
Distribute materials that endorse a particular candidate or political party
Allow candidates to solicit funds from the congregation (from the pulpit)
Create a church political committee that would do any of the above

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

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