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University Involvement in Political Activities

Policy Overview

IRS rules prohibit 501(c)(3) organizations like the University of the Pacific from participating in political campaign activities.  This memorandum has been prepared at the request of the Board of Regents to provide guidance on how to comply with the rules.

Prohibition on Political Campaign Intervention

As a 501(c)(3) tax-exempt organization, the University must “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.” [1]  The prohibition on political campaign activity is applicable to campaigns at the federal, state, and local levels, and is an absolute prohibition, such that violating it may result in revocation of tax-exempt status and/or the imposition of certain excise taxes.

Political Campaign Activity vs. Lobbying

As a preliminary matter, it is important to distinguish political campaign activity from legislative activity (commonly known as lobbying).  Lobbying means attempting to influence legislation.[2]  An organization will be regarded as attempting to influence legislation if it contacts, or urges the public to contact, members or employees of a legislative body for the purpose of proposing, supporting, or opposing legislation, or if the organization advocates the adoption or rejection of legislation.  A 501(c)(3) organization may engage in some lobbying, but if a substantial part of its activities constitute lobbying, the organization risks loss of 501(c)(3) status.

Lobbying vs. Educational Activity and Issue Advocacy

Further, it is important to distinguish lobbying from nonpartisan educational activities concerning public policy issues.  501(c)(3) organizations may involve themselves in issues of public policy, including taking positions on issues of importance to the organization, without the activity being considered lobbying.  For example, organizations may conduct educational meetings, prepare and distribute educational materials, or otherwise consider public policy issues in an educational manner, and as long as such activities do not advocate the adoption of legislation or legislative action, they will not constitute “lobbying activities.”  In performing activities such as these, however, the organization must present a sufficiently full and fair exposition of the pertinent facts to permit the public to form its own opinion or conclusion independent of that presented by the organization.[3]  And, as discussed in Part IV.D below, 501(c)(3) organizations must tread carefully when taking positions on public policy issues, because in certain contexts issue advocacy can constitute political campaign intervention. 

Meaning of “Participation” and “Intervention” in a Political Campaign

An organization “participates” or “intervenes” in a political campaign by engaging in an activity that favors or opposes one or more candidates for public office.[4]
Two examples of obvious violations of the prohibition on political campaign activity are contributions to political campaign funds by a 501(c)(3) organization, 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.  These activities would be considered “express advocacy,” and by engaging in them, the organization would clearly put its tax-exempt status in jeopardy.
Depending on the facts and circumstances, however, an organization can also be found to have participated or intervened in a political campaign through such actions as provision of facilities, use of other assets, lending of employees, voter registration efforts, or hosting of debates or candidate forums.  IRS guidance (primarily Revenue Ruling 2007-41, the principles of which are summarized in Sections A through F below) illustrates some of the nuances of the fact-and-circumstances approach.
Guidelines pertaining to candidate appearances at University events, and individual participation in campaign activities by University Regents and other leaders, are discussed first below in Sections A and B, respectively.  Sections C through E address considerations to lower the risk of political campaign intervention occurring when conducting web site activity, issue advocacy, and general business activities (such as rental of mailing lists or facilities).  Finally, Section F covers guidelines for engaging in voter education/registration activities, which may or may not be activities the University undertakes.  The main takeaway is that the University should be vigilant in its efforts to ensure that both the University, and its Regents and other representatives (when acting in their capacities as University officials), remain nonpartisan with respect to any candidate, and do not present evidence of bias that would favor one candidate over another, oppose a candidate in some manner, or have the effect of favoring or opposing a candidate or group of candidates. 

Candidate Appearances

Subject to the guidelines summarized in this Section, political candidates (1) may be invited to attend and speak at University events, either in their capacity as candidates or in their individual capacity, and (2) may appear without an invitation at University events that are open to the public.

Inviting Candidates to Speak at University Events in Their Capacity as Candidates

To avoid jeopardizing its 501(c)(3) status, the University should:

  1. Provide an equal opportunity to participate to political candidates seeking the same office
  2. NOT indicate any support for, or opposition to, any candidate (including ensuring that candidate introductions at the event, and communications concerning the candidate’s attendance, do not include comments on candidate qualifications or any indication of preference for any candidate)
  3. Ensure that no political fundraising occurs at the event
In determining whether candidates are given an “equal opportunity to participate,” the nature of the event to which each candidate is invited, in addition to the manner of presentation, will be considered.  For example, an organization that invites one candidate to speak at its well-attended annual banquet, but invites the opposing candidate to speak at a sparsely-attended general meeting, will likely have violated the prohibition on political campaign intervention, even if the manner of presentation for both speakers is otherwise neutral.
As long as an equal opportunity to participate has been provided, if a particular candidate declines the invitation, it is fine to communicate in publicity announcements about the event, and at the event itself, that that particular candidate declined the invitation to speak. 
Special considerations apply if several candidates for the same office are invited to speak at an organization-sponsored “public forum” type event; these considerations are summarized in Exhibit A attached to this memorandum.

Candidate Appearances Where Speaking or Participating in Their Individual Capacity

A candidate’s presence at a University-sponsored event does not, by itself, cause the University to be engaged in prohibited political campaign intervention.  However, the University should adhere to the following guidelines when publicly recognizing candidates at events or inviting candidates to speak in a non-candidate capacity:
  • The individual should be chosen to speak solely for reasons other than candidacy for public office[5];
  • The individual should speak only in a non-candidate capacity;
  • Neither the individual nor any representative of the University should make any mention of the person’s candidacy or the election, either at the event itself or in communications announcing the individual’s attendance at the event;
  • No campaign activity should occur in connection with the candidate’s attendance; and
  • The University should maintain a nonpartisan atmosphere on the premises or at the event where the candidate is present.
In cases where the candidate is a celebrity or other recognized public figure, including a current elected official, it is permissible to acknowledge their presence at the event – the key is that no reference should be made to the individual’s candidacy or the election.  For example, it is fine to say, “We are happy to have Mayor X joining us this evening,” even if at the time Mayor X is running for reelection, but it would not be appropriate to say, “We are happy to have Mayor X joining us this evening, please support Mayor X in November as he has supported us.”

Individual Activity by University Leaders

University leaders (such as officers, Regents, and key employees) may express their political views when it is clear that they are acting in a purely personal capacity.  However, University leaders cannot make partisan comments in official University publications or at official University functions.  This is because comments made in the context of official publications or functions will be attributed to the University.  For illustrative purposes, below are examples of permissible and impermissible personal endorsements of a candidate by a leader of a 501(c)(3) organization:

Permissible personal endorsements

  • With the officer’s permission, the candidate publishes an ad in the local newspaper listing the officer’s name and identifying the officer as the President/CEO of the organization.  The ad states, “Titles and affiliations of each individual are provided for identification purposes only.”  The ad is paid for by the candidate’s campaign committee, not by the organization.
  • Three weeks before the election, a leader of a church attends a press conference at the candidate’s campaign headquarters and states that the candidate should be reelected.  The leader does not say that he is speaking on behalf of the church.  His endorsement is reported on the front page of the local newspaper and he is identified in the article as the church’s leader.  This is not considered prohibited political campaign intervention because the endorsement was not made at an official church function, in an official church publication, or otherwise made use of the church’s assets, and the leader did not state that he was speaking as a representative of the church. 

Impermissible personal endorsements

    • The month before the election, the President of a University states in her regular column of the monthly alumni newsletter, “It is my personal opinion that [name of candidate] should be reelected.”  For that issue, the President pays from her personal funds the portion of the cost of the newsletter attributable to the column.  This is considered prohibited political campaign intervention because notwithstanding the fact that the President paid part of the cost of the newsletter, the newsletter is an official publication of the University, and the President’s endorsement appeared in it.
    • During a regular board meeting of the organization shortly before the election, the chairman of the board states, “It is important that you all do your duty in the election and vote for [name of candidate].”  This is considered prohibited political campaign intervention because the chairman’s remarks indicating support for the candidate were made during an official organization meeting.

Activity on Web Sites

As the IRS has stated, the “use of the Internet to accomplish a particular task does not change the way the tax laws apply to that task.”[6]  Accordingly, just as 501(c)(3) organizations are prohibited from participating or intervening in political campaign activity by means of other mediums of communication, they are prohibited from participating or intervening in political campaign activity via the Internet.
The obvious example of prohibited conduct is where a 501(c)(3) organization posts a message on its web site that favors or opposes a candidate for public office.  Political campaign intervention issues can also arise when a 501(c)(3) organization links its web site to web sites maintained by other organizations, however.
All the facts and circumstances are taken into account when assessing whether a web site link constitutes political campaign intervention.  The facts and circumstances to be considered include, but are not limited to, the context for the link; whether all candidates are represented; any exempt purpose (e.g., educational) served by offering the link; and the directness of the links between the organization’s web site and the web page that contains material favoring or opposing a candidate for public office.  With regard to the “directness” factor, the IRS considers “electronic proximity” – including the number of “clicks” that separate the objectionable material from the 501(c)(3) organization’s web site – to be a significant consideration.[7]  Because an organization has control over whether it establishes a link to another site, but does not always have control over the content of the linked site, the IRS also advises organizations to monitor linked content and adjust links accordingly in order to reduce the risk of political campaign intervention.
The University should certainly avoid posting any statements on its web site that reference any campaign or indicate support or opposition to any candidate.  The University should also steer clear of establishing any direct links between its web site and a candidate’s campaign web site.[8] 

Issue Advocacy

As noted in Part III above, 501(c)(3) organizations may engage in issue advocacy, but must take care to ensure that any positions taken on public policy issues do not convey or imply a message favoring or opposing a candidate for public office.  An issue advocacy statement can identify a candidate not only by stating the candidate’s name, but also by other means, such as showing a picture of the candidate or referring to political party affiliations or other distinctive features of a candidate’s platform or biography.

The determination of whether an issue advocacy statement or communication by a 501(c)(3) organization results in political campaign intervention is a highly facts-and-circumstances intensive inquiry.  While the below general guidelines apply, we would recommend that if the University intends to engage in issue advocacy at the same time that Regent Hernandez is campaigning for office, the University consult Downey Brand on a fact-specific basis.

  • The statement should avoid identifying any candidates, and should not make reference to voting, the election, or the candidate’s candidacy.
  • The statement should avoid expressing approval or disapproval for any candidates’ positions and/or actions.
  • Consideration should be given to how close in time to the election the statement is delivered – the closer in time to the election that delivery occurs, the higher the risk that an association will be drawn between the statement and the election.
  • Consideration should be given to whether the issue addressed in the statement has been raised as an issue distinguishing candidates for a given office – if this is the case, the risk of a finding of political campaign intervention can be higher.
  • If 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, the risk is lower that the statement will be found to constitute political campaign intervention.
  • If the timing of the communication and any identification of the candidate are related to a non-electoral event (such as a scheduled vote on specific legislation by an officeholder who also happens to be a candidate for public office), the risk is lower that the statement will be found to constitute political campaign intervention.

Business Activity

Business activities of 501(c)(3) organizations (such as selling or renting of mailing lists, renting or leasing of office space or other facilities, or acceptance of paid political advertisements) can also give rise to questions about political campaign intervention.  In this context, the following are relevant factors in the determination of whether the organization has engaged in political campaign intervention:
  • Whether the good, service, or facility is available to candidates in the same election on an equal basis – if so, the risk of a finding of political campaign intervention is lower.
  • Whether the good, service, or facility is available only to candidates and not to the general public – if so, the risk of a finding of political campaign intervention is higher.
  • Whether the fees charged to candidates are the organization’s customary and usual rates – if so, the risk of a finding of political campaign intervention is lower.
  • Whether the activity is an ongoing activity of the organization or whether it is conducted only for a particular candidate – if the latter, the risk of a finding of political campaign intervention is higher.

Voter Education, Voter Registration, and Get Out the Vote Drives

A 501(c)(3) organization is permitted to conduct certain voter education activities (including the presentation of public forums and the publication of voter education guides) if they are carried out in a nonpartisan manner.  In addition, a 501(c)(3) organization may encourage people to participate in the electoral process through voter registration and get-out-the-vote drives, as long as such efforts are conducted in a nonpartisan manner.  In contrast, voter education or registration activities that are conducted in a biased manner that favors (or opposes) one or more candidates are prohibited.  The following illustrate examples of permissible and impermissible voter education/registration activities conducted by a 501(c)(3) organization:
The organization sponsors a voter registration booth at the state fair.  The signs and banners in and around the booth give only the name of the organization, the date of the upcoming election, and notice of the opportunity to register.  No reference to any candidate or political party is made by the volunteers staffing the booth or in the materials available at the booth, other than the official voter registration forms which allow registrants to select a party affiliation.
The organization sets up a telephone bank to call registered voters in the district in which a particular candidate is challenging the environmental policies of the incumbent.  In the phone conversations, the organization’s representative tells the voter about the importance of environmental issues and asks questions about the voter’s views on those issues.  If the voter appears to agree with the incumbent’s position, the representative thanks the voter and ends the call.  If the voter appears to agree with the challenger’s position, the representative reminds the voter about the upcoming election, stresses the importance of voting in the election, and offers to provide transportation to the polls.

Exhibit A

Guidelines for Conducting Public Forum Events

  • Questions for the candidates should be prepared and presented by an independent, nonpartisan panel
  • Topics discussed should cover a broad range of issues that the candidates would address if elected to the office sought and are of interest to the public
  • Each candidate is given an equal opportunity to present his/her view on each of the issues discussed
  • Candidates should not be asked if they agree or disagree with positions, agendas, platforms, or statements of the organization
  • Event moderator should not imply approval or disapproval of the candidates (such as through commenting on the questions or candidate responses)

[1] IRC Section 501(c)(3).

[2] Legislation includes action by Congress, any state legislature, any local council, or similar governing body, with respect to acts, bills, resolutions, or similar items (such as legislative confirmation of appointive office), or by the public in referendum, ballot initiative, constitutional amendment, or similar procedure, but does not include actions by executive, judicial, or administrative bodies.

[3] See Treas. Reg. § 1.501(c)(3)-1(d)(3).

[4] A “candidate for public office” is defined as “an individual who offers himself, or is proposed by others, as a contestant for an elective public office, whether such office be national, State, or local.”  (Treas. Reg. § 1.501(c)(3)-1(c)(3)(iii).)  Once an individual has declared his candidacy for a particular office, as Regent Hernandez has, his status as a candidate is clear. 
[5] For example, the candidate could be chosen to speak because he/she is a expert in a particular field, or has otherwise led a distinguished military, legal, or public service career.
[6] IRS Exempt Organization CPE Text for FY 2000, Technical Topic I.
[7] See Memorandum For All EO Revenue Agents dated July 28, 2008, from Marsha A. Ramirez, Director, Exempt Organizations Examinations, regarding Political Campaign Activity on the Internet.
[8] This is something that could be permissible in the context of an online and unbiased, nonpartisan voter guide that presented links to all the candidates’ web sites on a consistent, neutral basis.  However, unless the presentation of voter guides is something that the University has done in the past, it would perhaps be inadvisable to initiate such an activity for the first time when a University Regent happens to be one of the featured candidates.


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