Advocacy Question of the Week

Question: Can a 501(c)(3) organization invite a sitting legislator, who also happens to be running for reelection, to a dinner/event during an election year?

Answer: Yes, but the organization should take extra precautions to make it clear that the 501(c)(3) is neither supporting the candidacy of the sitting legislator nor opposing the other candidates. The following actions will help protect the organization:

• Have the dinner/event as far away from the election date as possible. You certainly don’t want to have it in October; probably not even September.
  
  
• The 501(c)(3) organization cannot mention that the incumbent is a candidate for office, and certainly cannot compare/contrast the incumbent to her opponents. Make it clear that the incumbent is coming to speak as a sitting officeholder, not as a candidate. Try to avoid references to the upcoming election.
  
  
• Send a letter to the incumbent explaining that as a 501(c)(3) organization, the organization cannot support or oppose candidates for public office and therefore cannot talk about her candidacy. Request that she not mention her candidacy either.
  
  
• Include a disclaimer—at the event, on the invitation, and in all publicity—that the 501(c)(3) does not support or oppose candidates.

There is no safe harbor from the prohibition against partisan election-related activity by 501(c)(3)s. The IRS uses a “facts and circumstances” test when determining whether election-relation activities are permissible for 501(c)(3) organizations. For more information on the activities your organization may engage in, see The Rules of the Game: An Election Year Legal Guide for Nonprofit Organizations.